the ice man cometh: what if immigration shows up at your business?

The “Ice” Man ComethWhat if Immigration Shows up at your Business?

Kirk A. Carter, Esq.

Isabel I. Rybalnik, Esq.Fletcher, Tilton & Whipple, P.C.

www.ftwlaw.com

Fletcher, Tilton & Whipple, P.C.

Who are we?

Kirk A. Carter, Esquire – Director, 21 years legal experience,18 years concentrating in Immigration Law, Head of the firm’s Immigration Practice Group, member of the American Immigration Lawyers Association (AILA).

Isabel I. Rybalnik, Esquire – Associate, 4 years legal experience, concentrating in Immigration law, AILA member.

Fletcher, Tilton & Whipple, P.C. – a full service law firm with 41 attorneys covering 14 practice areas, including immigration law.


What do we do?

We help Businesses and Individuals navigate the maze which is US immigration law.

We work with HR professionals to help facilitate the entry and employment of foreign executives and managers, specialized employees and workers with degrees in specialty occupations. We assist them in obtaining temporary work visas for these individuals and in some cases help them sponsor these employees for permanent residence. We also assist these employers in meeting their obligations under the Immigration Reform and Control Act (IRCA).

We also work with Individuals and Families who are seeking to obtain legal status here in the U.S. for themselves or a loved one.


Who is ICE?

Immigrations & Customs Enforcement (“ICE”)

Part of the Department of Homeland Security (“DHS”)

The Immigration Police – charged with enforcing the Immigration laws, particularly those relating to IRCA


What is IRCA?

Immigration Reform and Control Act of 1986

- Provided Green Cards to 8 to 10 Million Illegal Aliens

- Trade-Off – Employers had to verify future employees

eligibility to work

- Goal: To legalize those who were here and prevent future

illegal immigration.


What are an Employer’s primary responsibilities under IRCA?

Not to employ an alien knowing he or she is unauthorized to work;

Not to employ an alien knowing he or she has become unauthorized;

Not to employ an alien without following the record keeping requirements of the Act;

The record keeping requirements of the Act require each employer to verify the identity and employment eligibility of each new employee within 3 days of hire by completing an I-9 form.


Who is exempt from the Employment Verification Requirements?

Grandfathered employees – those hired on or before 11/06/1986 are exempt from the I-9 requirements of IRCA

True Independent Contractors


Who qualifies as anIndependent Contractor?

Definition of Independent Contractor:- one who carries on independent business, contracts to do piece work according to their own means and methods, and who are subject to control only as to results.

USCIS interprets the term differently from the IRS.

Key factors: the amount of control over the employee/independent contractor.


Who qualifies as anIndependent Contractor?

Indicia of independence include: a) who supplies tools/materials; b) whether services are available to the public; c) whether work is done for other clients; d) whether there is an opportunity for profit or loss

as a result of their labor; and e) who determines the order, sequence, and when

work is done.


Will an Independent Contractual relationship shield me from liability?

Employers who set up contractual relationship to insulate themselves from liability but know that their contractors employ illegal aliens will be held accountable – prime example: WALMART.

Walmart’s janitorial subcontractor pled guilty to criminal charges, paid $4 million fine and Walmart negotiated a $11 million settlement to avoid directly being charged. Spent tens of millions more to rehabilitate public image resulting from bad publicity.


How do I complete an I-9 Form?

Section One- completed by the prospective employee- includes name, date of birth, address, and

social security number

Section Two- Employer is required to review and verify documentation which establishes both the identity of the employee and their entitlement to work in the U.S.

Section Three- Used for updating and re-verification


What Documents are acceptable to verify identity/employment eligibility?

List A: U.S. Passport (unexpired or expired); Permanent Resident Card or Alien Registration Receipt Card

(Form I-551); An unexpired foreign passport with a temporary I-551 stamp; An unexpired Employment Authorization document that

contains a photograph (Form I-766, I-688, I-688A, I-688B); An unexpired foreign passport with an unexpired Arrival-

Departure Record, Form I-94, bearing the same name as the passport and containing an endorsement of the alien’s nonimmigrant status, if that status authorizes the alien to work for the employer.


What documents are acceptable to verify identity?

List B – need one document from list B AND one document from list C Driver's license or ID card issued by a state – must contain a photograph and

name, date of birth, sex, height, eye color, and address, ID card issued by federal, state or local government - must contains a

photograph or information such as name, date of birth, sex, height, eye color, and address,

School ID card with a photograph, Voter's registration card U.S., military card or draft record, Military dependent's ID card, U.S. Coast Guard Merchant Mariner Card, Native American tribal document, or Driver's license issued by a Canadian government authority. If under 18 and unable to present a document listed above: school record or

report card, clinic, doctor, or hospital record, daycare or nursery school record;


What documents are acceptable to verify employment eligibility?

List C – must be submitted in tandem with document from List B U.S. social security card issued by the Social Security Administration

(other than a card stating it is not valid for employment), Certification of Birth Abroad issued by the Department of State (Form

FS-545 or Form DS-1350), Original or certified copy of a birth certificate issued by a state, county,

municipal authority, or outlying possession of the United States bearing an official seal,

Native American tribal document, U.S. Citizen ID Card (Form I-197), ID Card for use of Resident Citizen in the United States (Form I-179); Unexpired employment authorization document issued by the DHS

(other than those listed under List A)


What are the Anti-Discrimination provisions of IRCA?

It is an unfair immigration-related employment practice to discriminate against any individual other than an unauthorized alien in the hiring or firing process because of their national origin, or citizenship status.

“National Origin” Discrimination– Unequal treatment because of place of birth, appearance, accent,

language– Knowledge that an employee is unauthorized may not be inferred

from an employee’s foreign appearance or accent– Protects all persons except unauthorized aliens– Does not apply to employers with 3 or fewer employees– Any claims against employer with 15 or more employees must be

filed with the EEOC.



“Citizenship” Discrimination– Unequal treatment because of citizenship or immigration

status– Only “protected individuals” can file claim for citizenship

discrimination – US citizen or national, green card holders, Refugees, Asylees.

– Does not protect nonimmigrant aliens, with or without employment authorization

– Does not apply to employers with 3 or fewer employees– Required to comply with federal, state or local law or

government contract.



“Document Abuse” Discrimination– An employer’s request for more or different

documents than are required for I-9 verification; or– Refusing to honor document tendered that on

their face reasonably appear to be genuine;– Treated as an unfair immigration-related

employment practice– If made for the purpose or with the intent of

discriminating against an individual.


How do I avoid possible claims of Discrimination?

- Do not base hiring/firing decision on preference for one lawful status over another;

- Use the same job application form for all applicants;- Wait until you hire an individual before asking him or her for papers to verify their identity and work authorization;- Complete the I-9 form for all employees – US citizens and non-citizens;- Do not ask for specific documentation;- Give your employee the list of documents;- Let your employee choose which document to present


How do I avoid possible claims of Discrimination?

- As long as they documents they present appear on the list

and appear to be reasonably genuine you should be Okay;- Do not ask for more documents than are required;- Avoid a policy of hiring “citizens only” or insisting that your employees have a particular immigration status, i.e. a

“green card”- this is dangerous as there are other statuses that permit employment- When re-verifying employment, do not insist on seeing the same documents that you saw before, again, it is up to the employee to decide which documents to present.


What are the penalties for Discriminatory Practices?

- Employee may file a complaint with the Special Counsel for Immigration-Related Unfair Employment Practices ( a division within the U.S. Department of Justice- Employee may also file a charge with the Equal employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964 (if the employer has 15 or more employees)- Special Counsel investigates and can file a complaint with an administrative law judge- If judge finds a violation of law can order back pay, and civil penalties from $250 to $2000 for each individual discriminated against (for first time violators) - $2,000 to $5,000 (for repeat violators)


What constitutes “Good Faith Compliance” under IRCA?

Variety of documents may be presented as proof of identity and authority to work

You can’t rely on clear fakes or forgeries You aren’t required to guarantee the

authenticity of each document As long as you think the documents are legit,

you have an affirmative defense


What do I do if I get a “No-Match” Letter from SSA?

Historically SSA has sent “no-match” letters to employers who have filed W-2s containing employee data that do not match SSA data;

Employers have been asked to respond within 60 days; SSA sends copy of letter to employee; If SSA can’t match W-2 data, it can’t post SS earnings to the worker’s

account; Letter asks employer to provide corrected information if available but

disclaims implication that employee intentionally provided false information

States that employer should not terminate employee based on letter alone

IRC provides $50 fine for employer’s failure to submit accurate data on wage report ($100 for continuing violation)

SSA has no enforcement authority or power to fine



No-match letter could constitute evidence of and contribute to constructive knowledge of unauthorized employment;

Last Summer SSA issued regulations that would require employers to resolve no-match situations within 90 days or be deemed to be in “constructive knowledge” that they were employing an illegal alien;

A class action law suit brought by the AFL-CIO secured an injunction preventing SSA from implementing these regulations;

SSA has temporarily suspended sending No-Match Letters to Employers

SSA does not provide no-match letters to ICE to identify violators but does provide letter in joint SSA/ICE investigations.

NB – Michael Bianco – no match rate 2005- 44%, 2006 58%, 2007 66%



Re-verification or termination based on mismatch could violate anti-discrimination provisions;

Termination creates immediate potential plaintiff; Do not terminate or re-verify based on mismatch letter alone; Give employee opportunity to resolve discrepancy within set

time per company policy; If employee admits illegal, terminate immediately; If employee produces corrected data, re-verify through SSA; If new, proper documentation provided complete new I-9.


What do I do if I get a “No Match” Letter from the SSA?

Sample Letter Employers Can Give to Employees

We verified the following information with Social Security on this date: ___________.

Name _____________________________

Social Security Number ________________

According to Social Security, the information above does not match Social Security’s records. You should:

Check to see if the information above matches the name and Social Security Number on your social security card. If it does not match, please provide me with the exact information as it is shown on your Social Security card.

If the information above matches your card, please check with any local Social Security office to resolve

the issue. Once resolved, please inform me of any changes. Go to www.socialsecurity.gov or call 1-800-772-1213 to find the office nearest you.

NOTE: This notice does not imply that you intentionally provided incorrect information about your name or Social Security Number, nor does this adversely affect your employment.


Are there ways for me to verify whether my Employees are legit?

4 Ways to verify employment eligibility

- SSNVS – Social Security Number Verification System

- E-Verify- SAVE (for government use only)

- IMAGE (for ICE use only)


SSNVS

http://www.socialsecurity.gov/employer/ssnv.htm

There are two Internet verification options you can use to verify that your employee names and Social Security numbers match Social Security's records. You can:

Verify up to 10 names and SSNs (per screen) online and receive immediate results. This option is ideal to verify new hires OR Upload overnight files of up to 250,000 names and SSNs and usually receive results the next government business day. This option is ideal if you want to verify an entire payroll database or if you hire a large number of workers at a time.

While the service is available to all employers and third-party submitters, it can only be used to verify current or former employees and only for wage reporting (Form W-2) purposes.

Must register with the website, receive a PIN number; instructions available on-line


E-VERIFY

https://www.vis-dhs.com/EmployerRegistration The Employment Eligibility Verification (EEV)/E-Verify Program is

available via the Internet to verify the employment eligibility of new hires (Employer use is mandatory in Arizona/but prohibited in Illinois).

Employer may initiate a query no earlier than after an individual accepts the job and complete the Form I-9 and no later than three business days after the new hire’s actual start date.

Although an employer may initiate the query before a new hire’s actual start date, it may not pre-screen applicants and may not delay training or an actual start date based upon a tentative non-confirmation or a delay in the receipt of a confirmation of employment authorization.


E-VERIFY

Online registration required and must sign a Memorandum of Understanding (MOU) with USCIS and the SSA.

As of December 2006, over 12,000 employers representing over 45,000 sites are participating in the EEV program.

An employer who verifies work authorization under the EEV Program has established a rebuttable presumption that it has not knowingly hired an unauthorized alien. Participation in the program does not provide a “safe harbor” from worksite enforcement, however


E-VERIFY

A query includes information from sections 1 and 2 of the Form I-9, including the employee's name, date of birth, Social Security account number (SSN), the citizenship status he or she attests to, an A# or I-94# (if applicable), the type of document provided on the Form I-9 to establish work authorization status and proof of identity, and its expiration date (if applicable).

Response to the initial query is sent within seconds of

submitting the query. Documents presented for Form I-9 identification only purposes (documents from "List B") to EEV employers must have a photograph.


SAVE (for government use only)

Systematic Alien Verification for Entitlements (SAVE) Program

responsible for administering programs involving customer access to information contained in the Verification Information System (VIS) database. This database is a nationally accessible database of selected immigration status information on over 60 million records.

The SAVE Program enables Federal, state, and local government agencies and licensing bureaus to obtain immigration status information they need in order to determine a non-citizen applicant's eligibility for many public benefits. The Program also administers employment verification pilot programs that enable employers to quickly and easily verify the work authorization of their newly hired employees.


What are the penalties for Noncompliance?

Enforcement procedures.

Upon ICE Initiative Employer must be given 3 days notice Warrant not required, but can be obtained by ICE

Upon Complaint from Third Party Any person or entity having knowledge of a violation or

potential violation can file a complaint with an ICE office having jurisdiction over the business or residence of the potential violator.



An investigation is conducted, If it is determined after investigation that the person or entity has violated section, ICE may issue and serve employer with a:

Notice of Intent to Fine – (from 1999 to 2004, these dropped from 413 to 3)

or a Warning Notice ICE officers must be given reasonable access to

examine any relevant evidence of any person or entity being investigated.

Refusal or delay in presenting I-9 forms is a violation



Criminal Penalties If the judge or ICE finds that the employer engaged in a “pattern” or “practice of

violations” of IRCA, the employer shall be fined not more than $3,000 for each unauthorized alien, and/or

imprisoned for not more than 6 months for the entire pattern or practice These penalties not applicable to purely paperwork violations ICE can also charge employer with racketeering charges, money laundering,

identity theft, harboring of illegal aliens charges, forfeitures charges, etc.

New Bedford raid: ICE charged owner, payroll manager, plant manager, office manager with conspiring to induce illegal aliens to reside in the US, conspiring to hire illegal aliens, and a third party with knowing transfer of fraudulent identification documents (allegedly provided false social security cards and green cards to employees for $120 with knowledge of owner)



Civil Penalties can consist of the following: To cease and desist from behavior violating IRCA; Fines for unlawful hiring:

– First offense— from $275 to $2,200, for each unauthorized alien – Second offense—$2,200 - $5,500 per alien– More than two offenses—$3,300 - $11,000 per alien– (figures lower if violations occurred on or after September 29, 1999)

Fines for Violating Verification and Recordkeeping Requirements:– From $110 to $1,100 per I-9

In determining the amount of the penalty, consideration is given to:– The size of the business of the employer being charged; – The good faith of the employer; – The seriousness of the violation; – Whether or not the individual was an unauthorized alien; and – The history of previous violations of the employer.


How has ICE been targeting employers for enforcement?

Operation Tarmac Operation Glowworm Operation Landmark Operation Critical Infrastructure


Why is ICE coming down hard on regular businesses all of a sudden?

Employer compliance system isn’t working and hasn’t been effective in preventing illegal immigration

10 to 12 million illegal immigrants living in our midst Porous borders continue to be a political issue in

border states Major immigration bill advanced by the

President/Senate, blocked by the Republican House last year


How do I protect myself and my business?

Make sure that you complete an I-9 Employment Eligibility Verification form for each new hire within 3 days and keep them on file;

Know which documents you can ask for to verify employment eligibility and identify and avoid asking questions that could be considered discriminatory;

Accept documents that appear to be genuine – remember you aren‘t responsible for guaranteeing their authenticity, but you must have a good faith belief that they are legitimate, so you can’t rely upon obvious fakes and forgeries;


How do I protect myself and my business?

Beware of “No-Match” letters from the Social Security Administration. While they are not definite evidence that your employee is illegal, they do require you to act and could ultimately put you on constructive notice if your employee acknowledges being illegal; and

Establish and internal self-audit system and be certain to re-verify your I-9’s as required – keeping in mind that certain workers have work authorization which is limited in duration and needs to be updated and re-verified periodically.


Are there ways for me to legally hire foreign workers?

Nonimmigrant Visas - Temporary Visa- E1/E2 Investor Visas- F1 Student Visa, Pre and Post Completion Practical Training, a/k/a Curricular PT, Off-Campus Employment Options- H-1B, Specialty Workers with a min. of a Bachelor’s Degree- H-2A, Agricultural Workers- H-2B, Temporary Workers, Seasonal, Peakload, etc.- J-1, Exchange Visitors- L-1, Intra-Company Transferees- O-1 Extraordinary Ability Aliens


Are there ways for me to legally hire foreign workers?

Immigrant Visas – Permanent Visa, a/k/a Green Card

U.S. employer can sponsor someone for a specific position where there is a demonstrated shortage of U.S. workers

Most employment based-aliens must obtain a Labor Certification (electronic process now known as PERM)

Dept. of Labor verifies that no American worker is qualified and available to do the job


What is the outlook for Immigration Reform?

10 to 12 million “undocumented” workers Major issues/components to reform

- border security- employment verification- earned legalization for the undocumented- guest worker program- additional H-1B visa numbers;- backlog reduction for both family and employment based immigration


How might Immigration Reform benefit my Business?

Undocumented become Documented Ready reliable source to verify Employment

Eligibility Increased levels of Immigration mean

increased labor supply authorized to work Less worry about ICE beating on your door!

the ice man cometh: what if immigration shows up at your business?

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