what employers must know about immigration control and enforcement (ice), i-9s and e-verify
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What Employers Must Know about Immigration Control and Enforcement (ICE), I-9s and E-VerifyTRANSCRIPT
What Employers Must Know about Immigration Control and Enforcement (ICE), I-9s and E-Verify
Speakers
Becky RossMarketing Manager - KPA
303.228.8753
PresenterModerator
Tamara Lischer, PHR-CAClient Advocate, HR Products
303.228.8765
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Copyright © 2011 TK Carsites. All rights reserved. www.tkcarsites.com.
Learning Objectives
1. Immigration Reform and Control Legislation• IRCA
2. Enforcement Agencies• DHS
ICE USCIS
3. Form I-9
4. E-Verify
Immigration Reform and Control Act of 1986 (IRCA)
Employers with 4 employees are prohibited from:•Discriminating against job applicants and employees (in hiring, firing, recruiting, or referring) on basis of national origin or citizenship status•Retaliating against employee who has filed discrimination charge•Knowingly hiring, recruiting, or referring any alien who is unauthorized to work•Employers are required to:•Verify both identity and employment eligibility of all regular employees, temporary employees, student employees•Complete and retain Form I-9, within 3 business days of start date
Stricter Enforcement, Big Fines
Under federal law, it is illegal for any employer to hire, recruit or refer for a fee any alien not authorized to work in the United States.
There are criminal and civil penalties associated with this conduct.•For first offenders, there is an average $250-$2,000 fine per illegal employee.•For a second offense, the average fine is $2,000-$5,000 per illegal employee.
How Are Fines Calculated
In determining penalty amounts, ICE considers five factors:
1. the size of the business
2.good faith effort to comply,
3. seriousness of violation
4.whether the violation involved unauthorized workers
5.history of previous violations
Department of Homeland Security (DHS)
Department of Homeland Security was created due to the 2003 merger of U.S. Customs Service and Immigration and Naturalization Service (INS)
Three agencies were created within the DHS:1. ICE (Immigration and Customs Enforcement)
2. USCIS (U.S. Citizenship and Immigration Services)
3. CBP (Customs and Border Protection)
Immigration and Custom Enforcement Agency (ICE)
Principal investigative arm of the U.S. DHS and 2nd largest investigative agency in federal government.
• > 20,000 employees in 50 states and 47 foreign countries
In 2009, worksite enforcement strategy focused on employers
• Increase in I-9 audits, employer recordkeeping audits, unannounced site visits, and big push for E-Verify use
In 2011, ICE issued 1,000 Notices of Inspection (NOI) of I-9 forms and administrative subpoenas
• Unlike 2009, ICE did not publicize enforcement effort
NOI Documentation Requested
ICE requested additional documentation via subpoena. The most commonly requested documents were:
• Social Security Administration “No-Match” letters• Employee list with SS#, DOB, and hire dates• Quarterly tax statements and business information (i.e. tax
identification numbers)• Indication of whether or not the company was enrolled in
E-Verify or the Social Security Number Verification System (SSNVS)
Social Security Administration “No-Match” Letters
What are they?• Notice sent by SSA when employee name or SS# on W-2
does not match SSA records Employers are not required to respond, however…
• The matter may be referred to IRS or Justice Department• ICE will request copies of these “No-Match” letters during an
audit What should you do if you receive a “No-Match” letter?
• Review employee records and documents that contain SSN to ensure there are no typos or errors and require the employee to provide alternative documentation
• Provide reasonable time for employee to respond (60-120 days)
• Do not ignore!
U.S. Citizenship and Immigration Services (USCIS)
Mission Statement:• “The “USCIS will secure America’s promise as a nation of immigrants by
providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.”
Oversees lawful immigration to the United StatesFormed to enhance security and improve
efficiency of national immigration services by focusing on benefit applications
Responsible for Form I-9 and E-Verify program
Expect More H-1B Site Visits
Fraud Detection and National Security (FDNS) plans to increase unannounced site visits for H-1B petitioned employers
Preparing for potential site visit:• Contact immigration counsel immediately• Do not permit unauthorized personnel into private
areas of the business• Request name, title, and contact information• Request business card prior to providing any
information
Expect More H-1B Site Visits (continued)
• Speak with witness present• Retain copies of H-1B petitions and supporting
documentation in confidential file• Be present during facility review and interviews• Prepare notes of what transpired at interview and
label as “Privileged and Confidential/Prepared at the Direction of Counsel”
Form I-9
Under IRCA:Employers must verify that individuals are eligible to work by obtaining and retaining Form I-9 and inspect supporting documentation at time of hireEmployees must provide employers with documents that show (1) identity and (2) employment eligibilityEmployees must attest that they are authorized to work in the United States.
Form I-9
Form I-9: Inspection of Documents
Employers must review the documents, but may not specify which documents the new hire must provide
List A = Verifies identify and employment eligibility
List B = Verifies identity List C = Verifies employment eligibility I-9s must be retained 3 years after hire
date or 1 year after termination, whichever is longer
Only accept original genuine documents
Retention of documents presented – not required, but good practice
Form I-9: The Receipt Rule
Individual may present a “receipt” in lieu of listed document to complete Section 2
• Valid for a temporary period
3 documents that qualify:• Receipt for application for replacement document when
document has been lost, stolen, or damaged (valid for 90 days from hire date)
• Arrival portion of Form I-94 containing both an unexpired temporary I-551 stamp and photograph of individual
• Form I-94 with refugee admission stamp with unrestricted Social Security card together with document from List B, or Employment Authorization Document (acceptable for 90 days)
Form I-9: Rehires/Re-Verification
Rehired Employees•Employees are not required to re-verify status of individuals rehired within 3 years of initial execution of I-9
Re-Verification•Many authorization documents must be renewed on or before their expiration date and I-9 must be updated•Employers must accept any valid documents employee chooses to present•Identity documents need not be inspected when I-9 is updated
Employment Eligibility VerificationHow to Comply with Regulations
Do not request more or different documents for discriminatory purposes
Do not knowingly use, attempt to use, possess, obtain, accept, or receive forged, counterfeit, altered, or falsely made documents
Do not backdate Form I-9 Have new employee complete Section 1 and ensure
proper completion Examine original documents and then fully complete
Section 2
1. Keep Form I-9 for 3 years after the date employment begins or 1 year after the person's employment is terminated, whichever is later
2. Verify that employees present original documents to establish their identity and employment eligibility within 3 business days of the date employment begins if employment will last more than 3 days.
3. Verify that employees indicate if they are already eligible to be employed in the United States and capable of presenting acceptable documents within 3 business days of employment by checking the appropriate box in Section 1 of Form I-9.
Rule of Three
E-Verify
Employment Verification ProgramE-Verify is an Internet-based system operated by the DHS in partnership with the SSA that allows participating employers to electronically verify the employment eligibility of newly hired employeesParticipation is voluntary to participating employers
• Several states have passed legislation addressing use of E-Verify for private and public employers based on varying conditions
• Vary between states
E-Verify: States Requiring Usage
All or Most Employers • Alabama, Arizona, Georgia, Louisiana, Mississippi, North Carolina, South
Carolina, Tennessee, Utah
Public Employers and/or Contractors • Florida, Indiana, Missouri, Nebraska
Public Employers Only• Idaho, Virginia
Contractors Only• Colorado, Minnesota
Employers through local or municipal requirement only• Michigan, New York, Oregon, Pennsylvania, Washington
Pending Legal Decision• Oklahoma
Requirement Rescinded or Expired• California, Illinois, Rhode Island
E-Verify Self Check
E-Verify Self Check was launched in 2011, English and Spanish
Voluntary service allowing individuals to input their personal information into database to confirm employment status
• If mismatch occurs, system will provide information for how to correct
Consider using the E-Verify System for all hiring• It’s easy, quick, and more importantly, FREE!
Establish internal training program, with annual updates, on how to manage completion of I-9, how to detect fraudulent use of documents in I-9 process, and how to use the E-Verify System
Arrange for annual I-9 audits Establish self-reporting procedure for reporting to ICE
any violations or discovered deficiencies Establish protocol for responding to SSA “No-Match”
letters
Best PracticesBest Practices
Best Practices (continued)
Establish a Tip Line for employees to report activity relating to employment of unauthorized aliens, and protocol for responding to tips
• HotlinkHR Hotline feature available
Establish a protocol for assessing adherence to the “best practices” guidelines by the company’s contractors/subcontractors
Submit annual report to ICE to trace results and assess affect of participation in IMAGE program
• Voluntary partnership initiative between federal government and private sector employers designed to foster cooperative relationships and to strengthen overall hiring practices (www.ice.gov)
Questions and Answers
Contact Information
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