hr star immigration in an obama era

Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net

Immigration in the Obama Era—E-Verify, “Raids,” CIR & Being

Pat of the “Change”

Charles H. KuckCharles H. KuckKuck Immigration Partners LLC—The Immigration Law Firm

[email protected]


What’s Happening with E-Verify?1. New DHS rules on SSN “no-match” letters?

2. Federal Contractor Required to Use E-Verify on 6/30/20093. States unilaterally enforcing federal laws!4. Will electronic I-9 verification be required?

The Bush DHS stands

Firm and Reissues rule, Obama Does

Withdraw Rule, Yet

47 Different States pass conflicting laws on E-Verify

AFL-CIO/Chamber of Commercefiles suit


The “New” No Match Regs

• Basically, nothing changed• Virtually requires copies of all docs• Requires extensive follow up on No Match

Letters• SSA STILL NOT issuing No Match letters for

2007 or 2008 or 2009• Status Hearing in mid-June 2009• Obama Administration Likely to move forward


ICE APPROACH TO “RAIDS”

1. Focus on industries that historically employ unauthorized aliens

2. Determine that large majority of workers have fraudulent SS numbers

3. Select jurisdictions amenable to prosecuting individuals using fraudulent documents (recent Supreme Court Case)

4. Look for employers where assets could potentially be seized


EMPLOYER RESPONSE TO RAIDS

• Carefully review any criminal or civil warrants served on the employer-determine scope

• Document the name and numbers of all ICE supervisors or lead agents in charge of the operation

• Cooperate with law enforcement but document proceedings

• Offer to have staff accompany ICE to sensitive areas

• Request list of all employees arrested in order to arrange for payment of wages/disposition of employment records


ASSESSING EMPLOYER VULNERABILITY TO A “RAID” Conduct an audit of Forms I-9 (third party)

Identify errors Review job applications/personnel records

Determine potential existence of unauthorized aliens Determine if applications completed for all employees equally Look for indicators of discrepancies between I-9, application and

personnel record Review hiring practices and determine compliance by HR

staff Determine if HR staff has access to policies/procedures manuals Observe HR staff


NEXT STEPS IN THE “AUDIT”

Call in employees when necessary to correct I-9 errors

Interview employees when I-9, job application and other personnel records do not correlate

Conduct interviews to fill in gaps in job application and other personnel records

Determine if company policy requires termination if the employee provided false information

Consult with legal counsel on terminating employees who declare to be unauthorized or provide false information


EVALUATE AVAILABLE PROGRAMS

• ICE Pilot Program (“E-VERIFY”)

• Pros & Cons• https://www.vis-dhs.com/EmployerRegistration/

StartPage.aspx?JS=YES

• I-9 Storage and Maintenance Systems

• Outsourcing I-9 Program


E-Verify Program goals

• Reduce unauthorized employment • Minimize verification-related discrimination• Be quick and non-burdensome to

employers • Protect civil liberties and employee privacy

(yeah right). • Beware—READ THE MOU!


E-VERIFY


E-Verify: How it Works• Users submit information

provided on the Form I-9 • System queries

databases of:– Social Security Administration – Department of Homeland

Security


E-Verify: How it Works (Continued)Initial Verification will return one of 3 results within

seconds:– Employment Authorized

The employee is authorized to work.– SSA Tentative Non-Confirmation

There is an information mismatch with SSA.– DHS Verification in Process

DHS will usually respond within 24 hours with either an Employment Authorized or DHS Tentative Non-Confirmation.


E-Verify: Case Resolution

• If Employment Authorized, the employer records the system-generated verification number on the Form I-9.

• If Tentative Non-confirmation, the employee can contest the finding and then:– Social Security Number mismatches are resolved with

SSA– Non-citizen status mismatches are resolved with DHS

• If the employee chooses not to contest, it is considered a Final Non-confirmation and the employer may terminate the employee and resolve the case.


E-Verify: Tentative Nonconfirmation (TNC)

– Inform the employee and print and review the TNC notice with the employee.

– The employee chooses to “contest” or “not contest” the TNC.

– Refer the employee to the appropriate agency if the TNC is contested.

– The employee has 8 Federal Government workdays from the date of referral to visit or call the appropriate agency to resolve the discrepancy.


E-Verify: TNC Case Resolution (Continued)

• Employee continues to work while the case is being resolved.

• Once the employee resolves the discrepancy in his or her records, they should inform the employer.

• With both an SSA TNC and a DHS TNC, a response is automatically sent to the employer through the system. The employer should check E-Verify periodically for the response.


E-Verify: TNC Case Resolution• The employer should check the system periodically

for a response from SSA or DHS.• The employer will receive one of three results:

– Employment Authorized– Final Non-confirmation– Review and Update Employee Data then

Resubmit • The employer then resolves the case in E-Verify.


Employer Responsibilities

• E-Verify can only be used to verify new hires, and must be initiated after the employee accepts the position (hire date) and within 3 days of the employee’s actual start date.

• E-Verify procedures must be applied to ALL new hires, regardless of citizenship status.


Employer Responsibilities

• Employer must post a notice in an area visible to prospective employees that it is a E-Verify Participant.

• Employer must post an Anti-Discrimination Notice issued by the Office of Special Counsel for Immigration – Related Unfair Employment Practices, Department of Justice (DOJ) in an area visible to prospective employees.


E-Verify: Registration• Register online: https://www.vis-dhs.com/employerregistration• Three access methods:

– Employer – perform verification queries for your own employees (most common)

– Corporate Administrator – oversight of all hiring sites using E-Verify

– Designated Agent – perform verification queries for a client company

• Sign a Memorandum of Understanding with DHS and SSA• Read the User Manual • Complete an online tutorial before performing queries


Photo Screening Tool

• The E-Verify photo tool currently enables employers to match the photo on an employee’s Employment Authorization Document (EAD) or Permanent Resident Card (“green card”) to the photo that USCIS has on file for that employee.

• Assist employers to detect instances of document fraud.• Photo tool was incorporated into E-Verify for all

employers in September 2007. • What about US Citizen Photos?


E-Verify Usage Statistics• Over 120,000 participating employers (out of 11 million!)• Nearly 6.6 million queries run in FY 2008• 96% of verification queries are instantly verified• Top Industries Using E-Verify:

– Doctors, Lawyers, CPA– Administrative and Support Services – Professional, Scientific, and Technical services – Food Services, Clothing and Accessories Stores

• All Enrollees/Users can be found online at

E-Verify Usage Statistics• Over 120,000 participating employers (out of 11 million!)

• Nearly 6.6 million queries run in FY 2008

• 96% of verification queries are instantly verified

• Top Industries Using E-Verify:

– Doctors, Lawyers, CPA

– Administrative and Support Services

– Professional, Scientific, and Technical services

– Food Services, Clothing and Accessories Stores

• All Enrollees/Users can be found online at http://www.smartbusinesspractices.com/pilot/index.php


State Legislation • States that have enacted legislation that

mandates the use of E-Verify. – GA (all state contractors and state agencies), OK (state

contractors only), AZ, MS , SC, MO (All Employers)

• States that have their state agencies participate in E-Verify.– ID, NC, PA, MO

• States that have legislation pending that mandates public and private employers to verify new hires using E-Verify. – TX, FL, KY, AK, KS, TN, NC, LA, MD, CA (would require public

employers)– UT, MO, VA, RI, (would require all public and private employers)


Comprehensive Immigration Reform

• 5 Key points-– Sensible Border Enforcement– Employer Responsibility/E-Verify– Expanded Visa Categories/Increased

Numbers of Legal Immigrants-Tied to Economy

– Temporary Worker Program (Future Flow)– “Legalization,” “Regularization,” “Amenesty”


5 Reasons Why CIR Will Happen This Year

• Obama is committed to Immigration Reform

• Democratic Leadership Is committed

• Latinos, Latinos, Latinos

• Changing Demographics of America/Voting

• The Economy—An immigration Stimulus


Business Involvement in CIR• http://www.immigrationworksusa.org


So, what to do?• Implement a compliance program• Self-Audit at least yearly, more often if you have

high turnover of employees• Don’t discriminate based on nationality• Know new State Laws as they are passed if you

represent a multi-jurisdictional employer • Go Paperless on your I-9s!• Get involved!


The End, unless you haven’t audited your I-9s!

Charles H. KuckKuck Immigration Partners LLC—The Immigration Law Firm

8010 Roswell Rd., Suite 300,Atlanta, GA 30350

404/816-8611(F) 404/816-8615

Toll Free: 1-866-286-6200Offices also in Charlotte, North Carolina, Orlando, Florida

and Dalton and Gainesville, [email protected]

www.immigration.net

hr star immigration in an obama era

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