immigration enforcement

The Orangeburg County Chamber of Commerce Presents …

IMMIGRATION ENFORCEMENT: NEW DEVELOPMENTS

October 23, 2008

David DubberlyCertified Specialist in Employment and Labor Law

Melissa AzallionImmigration Attorney

Agenda

• Overview of Worksite Enforcement• Employment Eligibility Verification

– I-9 Compliance– Enforcement and Penalties

• ICE Audits and Raids• SSA No Match Letters• E-Verify System• SC Illegal Immigration Reform Act

Overview of Worksite Enforcement

Immigration Reform and Control Act of 1986

• Unlawful for employers to knowingly hire or continue to employ unauthorized workers

• ALL employers must complete and retain I-9 form for new employees and comply with retention rules

• Non-compliance punishable by civil and criminal penalties

• Also prohibits national origin or citizenship status discrimination

Since IRCA

• Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) authorized electronic employment verification systems– “E-Verify” (formerly Basic Pilot)

• Increased employer sanctions• DHS Proposed Rule on SSA No Match Letters• Employer audits by ICE• Increased worksite enforcement actions

New Form I-9

• Revised form as of December 26, 2007

• SSN voluntary, but not required – Unless employer participating

in E-Verify• More prominent anti-

discrimination statement• Revised M-274 Handbook for

Employers

I-9 General Rules

• New employee must provide documents reflecting:– Employee is eligible to work– Identity must match work eligibility documents

• Complete I-9 form for every new employee within 3 days of hire

• Retain for 3 years after hire or 1 year after termination, whichever is later

Anatomy of Form I-9

• Establishes (1) employment eligibility; and (2) identity• List A: Documents that establish both

– Examples: U.S. passport, Permanent Resident Card, Unexpired foreign passport with temporary I-551 stamp, Unexpired foreign passport with unexpired Form I-94 containing nonimmigrant status authorizing work

OR • List B: Document that establishes identity; AND

– Examples: Driver’s license, government agency issued ID card– Must include photograph if employer enrolled in E-Verify

• List C: Document that establishes employment eligibility– Examples: Unrestricted Social security card, unexpired employment

authorization documents

Non-discrimination Requirement

• Employers CANNOT:– Request more or different documents– Specify which documents they will accept– Refuse to honor documents that reasonably appear genuine

on their face– Refuse to accept a document or hire an individual because

a document has a future expiration date• Employers MUST treat all employees the same when

completing I-9s

IRCA: “Knowledge”

• Actual knowledge• Constructive knowledge

– May be inferred through notice of certain facts and circumstances which would lead a person, through exercise of reasonable care, to know about a certain condition

• Reasonable steps taken by employer• Totality of the circumstances approach

“Constructive Knowledge”

• Accepting incomplete or improperly competed I-9’s • Failing to investigate suspicious circumstances

– Fake documents– Hiring employee who previously used different name– Hiring workers who can’t speak English but check U.S. citizen

or Lawful Permanent Resident on I-9• New regulations:

– Failure to investigate employee’s request for employer’s sponsorship for labor certification or visa petition

– Failure to address written notice from DHS or SSA

Interior Immigration Enforcement: ICE at Your Business

• ICE has authority to conduct I-9 audits• Must have warrant or employer’s permission to enter

private workplace• Notice of Inspection

– Must give employers 3 days notice unless ICE has search warrant

– ICE doesn’t need warrant to inspect or conduct I-9 audit if notice given

– Receptionist – key contact

Investigative Techniques

• ICE coordinates with IRS, DOL, and other agencies

• Audit v. raid• Has authority to use wiretaps• Has authority to establish and

operate undercover investigations• Uses confidential informants• ICE investigations take place in

form of:– “Lead-driven” investigations– Random audits

Investigations and Audits

• “Lead-driven” worksite investigations– Anonymous tip along with review of

I-9 Forms often triggers “lead-driven” worksite investigation

– To initiate investigation, ICE needs a lead and articulable facts that would give ICE reasonable suspicion that employer is not compliant

• Random sudits– ICE can randomly select

employers to audit through General Inspection Program

– Also randomly selects employers to audit within industries known to use undocumented workers through Special Emphasis Inspections Program

ICE: Worksite Enforcement

– Restaurants– Hospitality– Farms (produce, dairy)– Poultry/meat

processing– Steel

– Janitorial contract services– Employment agencies– Textile producers– Construction

Increased enforcement—through August, 1022 criminal arrests, including 116 of owners, managers, and supervisorsIndustries targeted included:

ICE: Worksite Enforcement

• If you’re blatantly violating our worksite enforcement laws, we’ll go after your Mercedes and your mansion and your millions. We’ll go after everything we can, and we’ll charge you criminally.Julie Myers, Assistant Secretary for Homeland Security, U.S. Immigration and Customs Enforcement, quoted in Washington Post article, “Immigration Enforcement’s Shift in the Workplace,” on April 16, 2006

Penalties for I-9 Non-Compliance

• I-9 paperwork violations when worker is in fact authorized– $110-$1100 per employee– Good faith exception for paperwork violations

• “Knowingly” employing unauthorized workers– Civil penalties for offenses occurring on/after 3/27/08

• 1st offense: $375-$3,200 for each violation• 2nd offense: $3,200-$6,500 for each violation• Thereafter: $4,300-$16,000 for each violation

– Criminal penalties for “pattern or practice”• $3,000 per unauthorized alien and/or 6 months imprisonment

Criminal Focus

• Major emphasis on criminal activity:– Unlawful employment (misdemeanor)– Identity theft/“aiding and abetting” ID theft– Fraud and misuse of immigration documents– Money laundering– Harboring illegal aliens

• ICE has moved way past misdemeanor– In past ICE stressed misdemeanor offense for hiring unauthorized

aliens– Said little or nothing about felony “harboring” and related offenses– ICE charging felony harboring with much greater frequency

What is “Harboring”?

• With the intent to help alien avoid detection and knowingly/recklessly disregarding illegal status:– Hiring and continuing to employ a person– Renting housing to, acquiring housing for, or otherwise providing housing for

person• Paying a contractor while knowing/recklessly disregarding illegal status or fact it

is employing illegal alien• Employment “plus” can also incur felony harboring charges:

– Housing or transporting workers with actual or constructive knowledge of illegal status

– Warning workers of ICE raid activity– Counseling workers to use fake documents– Paying illegal workers off the books– Transferring illegal workers between job sites to avoid detection– Assisting illegal workers to complete Form I-9 with fake documents

Defense Against Enforcement Efforts: I-9 Compliance Tools

• Implement immigration compliance program– Understand I-9 process– Provide training for

supervisors/managers• Annual I-9 self audit

– Efficient records management– Correct problem areas

• Consider E-Verify

SSA “No Match” Letters

• What they are:– Notice from SSA to employee or employer that combination of name

and/or SSN submitted on W-2 earnings reports doesn’t match SSA records

– To inform workers they aren’t getting credit for their earnings, which can affect their SSA benefits

• What they aren’t:– Notice to employer that employee is unauthorized to work– Statement about employee’s immigration status or indication that

person is undocumented– Employee should be terminated

DHS Rule and Constructive Knowledge

• DHS No Match Rule amends and expands definition of constructive knowledge to include:– Employer’s failure to take action upon

receipt of SSA No Match letter or written notification from DHS

• Also provides “safe harbor” against constructive knowledge finding if employer attempts to resolve discrepancy and, if necessary, re-verifies work authorization within 93 days of receipt of letter

No Match Letter Practical Issues

• Do not ignore letter• Establish policies to address and resolve

discrepancies in uniform manner (typo?)• Terminate employee if additional knowledge (e.g.,

admission by employee) indicates employee not eligible to work in U.S.– Do not use letter by itself for taking adverse

employment action

Practical Issues Cont’d

• Follow up may reveal actual or constructive knowledge of unauthorized employment

• If new I-9 can’t be completed within 93 days because employee can’t produce acceptable documentation (without the questionable SSN), employer must decide whether to:– Terminate employee; or– Risk being determined to have constructive knowledge in any

subsequent DHS enforcement action

E-Verify Background

• Formerly known as Basic Pilot Program• Partnership between DHS and SSA administered by USCIS• Web-based employment verification program allows

employers to electronically verify employment eligibility of employees for new hires– Prohibited from using to screen applications or reverify existing

employees• Free of charge to employers in all 50 states• Set to expire November 2008 but expected to be renewed

Federal Contractors

• President Bush issued Executive Order on June 9, 2008 requiring use of E-Verify as condition of each future federal government contract

• Upon publication of Final Rule, executive departments and agencies entering into contracts must require contractor’s agreement to use E-Verify for:– All persons hired by the contractor– All persons assigned by contractor to perform

work within U.S. on the contract

Federal Contractors Cont’d

• “Contractor” means any individual or other legal entity that— – (1) Directly or indirectly (e.g., through an affiliate),

submits offers for or is awarded, or reasonably may be expected to submit offers for or be awarded, a Government contract, including a contract for carriage under Government or commercial bills of lading, or a subcontract under a Government contract; or

– (2) Conducts business, or reasonably may be expected to conduct business, with the Government as an agent or representative of another contractor.

E-Verify Registration

• Go to www.vis-dhs.com/EmployerRegistration• Select the Sign Up link and follow instructions• Must electrically sign Memorandum of Understanding

(MOU) with DHS and SSA• Read user manual and complete web-based tutorial• Designated employees authorized to use system

must also complete online training

How the Program Works

• Complete I-9 form for new employee within first 3 days of employment

• After I-9 completed, E-Verify user must enter information directly from I-9 form

How The Program Works Cont’d

• System queries SSA and DHS databases to verify identity and employment eligibility– SSA first verifies name, SSN, and date of birth– SSA also confirms citizenship if worker stated he/she is a U.S. citizen– USCIS verifies noncitizen’s employment eligibility

• Initial verification returns 1 of 3 results:– Employment authorized;– SSA Tentative Non-Confirmation; or– DHS verification in process

What Results Mean

• Employment Authorized– If SSN provided by employee matches SSA records

and immigration documents (if applicable) match CIS records = immediate confirmation

– User must record system generated verification # on the I-9 or print screen within transaction #

• Tentative Non-Confirmation (“TNC”)– If SSA unable to verify worker’s records

• DHS Verification In Process– Receive notice of employment authorization or DHS

Tentative Non-Confirmation (usually within 24 hrs.)

TNC Process

• User must print non-confirmation notice• Worker has right to contest finding with

SSA or USCIS, so employer must:– Review TNC with employee– Inform employee of right to contest and

have both parties sign• If worker chooses to contest, additional

steps required

• If worker chooses not to contest, considered a final non-confirmation and employer may terminate employee

If Employee Contests

• Employer must make referral to SSA/DHS through E-Verify website

• Print and provide Referral Notice to employee – Contains info about resolving TNC and contact info– Both parties must sign– Employee takes notice to appropriate agency to resolve – Employee has 8 federal workdays from date of Referral to contact

SSA/DHS• Agency updates system with result in 2 business days

– 10-day period not made until employer makes Referral– If additional time necessary, employer receives Case in Continuance

notice

Case Resolution

• Employer may not take adverse action against employee during appeal process unless obtains independent knowledge that employee lacks work authorization

• If employer continues to employ worker after Final Non-Confirmation:– Employer must inform DHS via E-Verify

• Monetary penalty up to $1,000 for failure to notify– Employer subject to rebuttable presumption that it knowingly

employed unauthorized alien

MOU and Employer Obligations

• Employer enters into detailed MOU with SSA and DHS• Rebuttable presumption if use E-Verify and confirm identity and

employment eligibility• Employer obligations under MOU include:

– Will use E-Verify only after employment offer accepted and I-9 completed for worker

– Will use E-Verify only to verify new employee’s eligibility– Will apply E-Verify for ALL new hires within 3 days of hire– Will display DHS-supplied notice of

E-Verify participation and Office of Special Counsel DOJ-supplied Anti-Discrimination Notice in prominent place clearly visible to job applicants

More MOU Obligations

• Will only Accept List B ID documents with photograph• Will carefully comply with employer responsibilities related to tentative

nonconfirmation (TNC) process, including:– Follow up on TNCs– No adverse action while employee challenging TNC without 10 day review

by DNS/SSA unless obtains independent knowledge• Will permit DHS or SSA to make “periodic visits” to review E-Verify

related records• Will record E-Verify authorization results• Participation is not confidential• Can terminate program after 30 days notice• Good-faith compliance with E-Verify requirements may protect

employer from civil and criminal penalties regarding hiring unauthorized workers

E-Verify Benefits

• Verification usually “within seconds”• I-9 forms archived for easy retrieval• Electronic confirmation reduces likelihood of receiving

No Match letter from SSA or DHS• Presumption that employer has not knowingly hired

unauthorized workers if only retains employees who DHS “confirms”

• Safe harbor under SC Illegal Immigrant Reform Act

E-Verify Drawbacks

• Must train (and re-train) point person to use• Database errors causing some incorrect results

– Backlogs cause newly authorized citizens not yet added to come up as unauthorized

• Must permit DHS/SSA inspections and audits• USCIS provides TNC and Final Non-Confirmation info to

ICE – Encourages audits, worksite enforcement raids, and other

employer sanction investigations

South Carolina Illegal Immigration Reform Act

• Governor Sanford signed on June 4, 2008• Touted as “toughest in the nation”• Mainly specifies how employment authorization is to

be verified• These requirements are phased in

Employment Verification Standards

• Applies to all employers in SC– Public Employers

• “Public employer” is every department, agency, or instrumentality, or political subdivision of the State

– Contractors, Subcontractors, and Sub-subcontractors • “Contractor” is any person having contract with public employer for

physical performance of manual labor with annual value > $25,000 ($15,000 if public employer is a political subdivision of the State)

– Private Employers

Public Employers

• Every public employer must register and participate in E-Verify program

• May not enter into services contract unless contractor agrees to comply with Act

• Must obtain written statement from contractor certifying he will comply with Act’s requirements

• Public employer or contractor who complies with Act in good faith won’t be sanctioned

Contractors and Private Employers

• Must verify legal status of all employees by:– Registering and participating in E-Verify; or– Hiring only employees who:

• Possess valid SC driver’s license or ID card• Qualify for SC driver’s license or ID card• Possess driver’s license or ID card from another state with similarly

strict requirements• SC DMV to publish list of states with strict enough license

requirements– LLR director to provide list to private employers by January 1, 2009

SC LLR

• Responsible for implementing Illegal Aliens and Private Employment section of statute

• Published notice of intent to draft regulations on August 22, 2008

• Seeking comments from public• Check http://www.llr.state.sc.us/Immigration/ for updates,

FAQs, and overview of statute

Private Employers and E-Verify

• If elect to participate in E-Verify, private employer must:– Verify work authorization of every new employee within 5

business days of employment– Provisionally employ new employee until work authorization

has been verified– Submit new employee’s name and info for verification even

if terminate < 5 days after hiring– Not employ, continue to employ, or re-employ if work

authorization not verified by E-Verify

Special Considerations For Private Employers

• All private employers in SC imputed an employment license on July 1, 2009– Permits private employer to hire employees– May not employ unless SC employment license is in effect– Remains in effect as long as compliant with Act

• “A private employer shall not knowingly or intentionally employ an unauthorized alien.”

• Presumed to be in compliance if good faith use of E-Verify

Private Employer Sanctions For Employment Verification Violations

• $100 to $1000 per violation • But, for “first occurrence,”

employer has 72 hours from notification of violation to remedy and incur no penalty

• Employer’s right to remedy also exists for “subsequent occurrence” if no employment verification violation within previous 5 years

Sanctions For Knowingly/Intentionally Hiring Unauthorized Workers

• 1st occurrence: 10-30 day license suspension• 2nd occurrence: 30-60 day license suspension• 3rd occurrence: license revoked and may petition for

provisional license after 90 days• Subsequent occurrences:

license revoked and can’t seek reinstatement for 5 years

Sanctions For Knowingly/Intentionally Hiring Unauthorized Workers Cont’d

• To reinstate business license, private employer must:– Demonstrate terminated unauthorized alien– Pay reinstatement fee equal to cost of

investigation/enforcement action up to $1,000• If employer engages in business or hires new employee

while suspended:– License shall be revoked– Not reinstated for 5 years

S.C. Reform Act: Enforcement

• Director of LLR authorized to investigate employer upon reasonable grounds of alleged violations– Upon receipt of written complaint or– Upon investigation initiated by director for good cause

• Director also must develop statewide random auditing program to inspect private employers

• Act establishes hotline, website, and database for reporting/ tracking alleged violations

Effective Dates of Employment Verification Provisions

• Public employers: Jan. 1, 2009• State contractors > 500

employees: Jan. 1, 2009• State contractors 100 to 499

employees: July 1, 2009• Private employers > 100

employees: July 1, 2009• All employers: July 1, 2010

– Creates civil cause of action for wrongful termination against employer when lawful worker terminated if

• Purpose is to replace with person employer knew or should have known to be unauthorized

• Replacement occurred within 60 days of termination– Potential recovery includes:

• Reinstatement to former position• Actual damages and collection of lost wages

– Claim must be brought within 1 year – Does not apply to private employer who terminates an

employee to comply with employment verification provisions

Wrongful Discharge Action

New Tax Rules

• You may have received a letter because …• The Act required director of SC DOR to send

written notice to all SC employers by July 1, 2008 explaining new tax rules imposed by Act:– Generally no income tax deduction for payment of

wages or remuneration for physical services to unauthorized aliens

– 7% income tax withholding for certain contractors (presumed illegal) performing services

Other Relevant Provisions: Criminal Penalties

• Furthering illegal entry or avoidance of detection– Felony charge for anyone who knowingly or in reckless disregard of illegal

status:• Transports, moves, attempts to transport (or conspires); • Conceals, harbors, or shelters from detection (or conspires)

– With intent to further that person’s unlawful entry or avoiding apprehension or detection of unlawful status

– Maximum penalty: $5,000 and/or 5 years in jail– Person convicted may not obtain any professional license offered by the

state

Other Relevant Provisions: Criminal Penalties

• Financial identity fraud by false documents– Criminal charge for person who:

• Displays, causes or permits to be displayed, or has in his possession• A false, fictitious, fraudulent, or counterfeit identity document

– Maximum criminal penalties:• First offense (misdemeanor) – $100 or 30 days in jail• Subsequent offenses (felony) – $500 or 5 years in jail

– Person convicted:• Must disgorge any benefit or make restitution to agency that administered the

benefit• May be sued by person who suffers ascertainable loss of money or property as

result and exposed to damages of 3x actual damages, reasonably attorney’s fees and costs

• Is jointly and severally liable for loss suffered by person or agency

Questions?

David Dubberly

(803) 253-8281

ddubberly@nexsenpruet.com

Melissa Azallion

(843) 689-6277 mazallion@nexsenpruet.com