Transcript Slide 1

IMMIGRATION ENFORCEMENT
AND COMPLIANCE
Tamar Jacoby
President
ImmigrationWorks USA
TODAY’S AGENDA
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Enforcement – the big picture
I-9 preparedness
Is E-Verify right for you?
What to do when you get audited
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Part One
ENFORCEMENT – THE BIG PICTURE
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NEW TREND: SILENT RAIDS
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SILENT RAIDS –
WHAT THEY MEAN FOR EMPLOYERS
 Audits reach more companies than raids. Instead of hundreds of
agents going after one company, now a few agents go after
hundreds of companies.
 Audits force businesses to terminate every unauthorized immigrant
– not just those on the job at the time of a raid.
 Audits limit future hiring.
 After an audit, unauthorized workers may seek employment at a
competing company.
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RISING TIDE OF ICE AUDITS
3000
2500
2000
1500
1000
500
0
FY2008
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FY2009
FY2010
FY2011
AUDITING EMPLOYERS,
NOT DEPORTING WORKERS
WORKSITE ENFORCEMENT ARRESTS
6000
5000
4000
3000
2000
1000
0
FY2003 FY2004 FY2005 FY2006 FY2007 FY2008 FY2009 FY2010
Administrative arrests
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Criminal arrests
NEW LEGAL LANDSCAPE
 Criminal charges against employers and management.
 Most common charges – pattern or practice of knowingly hiring
unauthorized workers, harboring unauthorized workers.
 “Reckless disregard” standard.
 Inferred knowledge.
 Absence of I-9s for many unauthorized workers.
 Employer failed to respond to SSA inquiries about
unauthorized workers.
 Double whammy – more aggressive enforcement of antidiscrimination laws.
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POSSIBLE CHARGES
 Criminal sections of IRCA
 Racketeer Influenced and Corrupt Organizations Act (RICO).
 Identity theft.
 Bringing, encouraging, transporting, harboring and
concealing unauthorized immigrants.
 Money laundering.
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AUDITS HAVE CONSEQUENCES
WORKSITE ENFORCEMENT
 FY2004 – three letters from INS to
employers
 FY2008 – 500 ICE I-9 audits
 FY2012 – ICE aiming to audit 4,000
employers
FINES
 FY2006 – $0 collected
 FY2012 – ICE on pace to collect $15
million
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CASE STUDY –
NATIONAL BURRITO CHAIN
 Audited in Minnesota, Virginia,
Washington DC.
 Lost 450 of 1,200 employees in
Minnesota.
 Protests by labor and immigrants
rights groups.
 Customers complained about
service as company trained new
employees.
 $1.3 million in legal costs in first
year alone.
 DOJ criminal investigation
ongoing.
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RICO SUITS
 In 1996, Congress expanded the Racketeer Influenced and
Corrupt Organizations Act to include violations of federal
immigration law.
 Knowingly hiring illegal immigrants systematically and on a
large scale can fall under RICO.
 A RICO conviction carries triple penalties.
 In 2002, a major chicken processor was accused of seeking
out illegal immigrants and faced a RICO lawsuit. The suit
lasted six years until the court finally dismissed the charges.
 RICO cases are rare – six in two years, none successful.
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SOCIAL SECURITY NO MATCH
LETTERS ARE BACK
 SSA resumes no-match letters to employers in April 2011.
 DOJ Office of Special Counsel issues dos and don’ts.
 MOST IMPORTANT DON’T – Don’t jump to conclusions.
 Conduct follow-up on the no-match letter, document all
follow-up activities.
 The no-match letter alone is not valid grounds for
termination.
 Do not terminate without consulting legal counsel.
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Part Two
I-9 PREPAREDNESS
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A LEGAL CONSENSUS
 Immigration law firms have learned the hard way – it pays to
listen to their DOS and DON’TS
 See a sampling of tips in the slides that follow.
 All agree on three core points –
 Treat all employees the same way. Don’t vary
procedures. Don’t fish for answers. Don’t ask for
particular documents.
 Have a system. Dedicated employees, established
procedures, policies and routines you always follow.
 Preventive measures will pay off – self audits and
course corrections.
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BEST PRACTICES
FOR I-9 COMPLETION
GET THE BASICS RIGHT
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Provide adequate training and clear written policies for your HR staff
Take all instructions on the form literally and fill in every blank
Meet every deadline lateness cannot be cured
Workers’ documents must be original and unexpired
BE CONSISTENT
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Treat all employees the same regardless of national origin or citizenship status
Do not ask for additional or different documents
BE PREPARED
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Conduct regular self-audits – catch your own mistakes
Deal with constructive knowledge situations (no-match letters, complaints about
unauthorized workers)
But refrain from jumping to conclusions or taking action prematurely
I-9 COMPLIANCE
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Make immigration part of all employee handbooks – explain the
criminal exposure.
Centralize hiring.
Establish clear accountability for hiring and maintaining I-9s.
Treat all workers the same regardless of national origin or
citizenship status.
Do not demand more or different documents from any employee.
Institute standard procedures to follow when receiving
government inquiries.
Don’t ignore red flags!
I-9 compliance – 7 tips
1. Establish an IRCA compliance policy.
2. Do not delegate I-9/visa responsibilities to the department
making the hire.
3. Accept only original documents.
4. Track dates of hire and termination, purge files no longer
required for retention.
5. Conduct preventative audits.
6. Automate a reverification system.
7. Switch to an electronic I-9 system.
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Best practices for 1-9
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Common Mistakes in Hiring
 Unequal treatment because of citizenship or
immigration status
 Unequal treatment because of nationality, which
includes place of birth, appearance, accent and
language
 Asking for specific documents from employee, such
as “Green Card”
 Verifying some people’s documents and not others
 Having a citizen-only hiring policy
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Ten 1-9 mistakes
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Correcting Errors Found During an
In-House I-9 Audit
 New I-9 form should not be substituted for
incorrect, old I-9
 I-9 may either be corrected, showing date of
correction, or
 New amended I-9 completed and stapled to old
incorrect I-9
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Part Three
IS E-VERIFY RIGHT FOR YOU?
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WHAT IS E-VERIFY
 Free, voluntary, internet-based system to confirm the legal
status of newly hired employees.
 Created in 1996, rapid growth in recent years.
 Compares SS# and DHS immigration databases to the
employee’s name and other Form I-9 information.
 Takes three to five seconds to process.
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E-VERIFY – ACCURACY
 96 percent of E-Verify inquiries correctly determine employmentauthorization.
 99.5 percent of work-authorized employees verified through
E-Verify are verified without secondary processing.
 Inaccuracy rate for authorized workers is less than 1 percent.
 More than three-quarters of the cases in which there is an inaccurate
determination are unauthorized workers.
 Inaccuracy rate for unauthorized workers estimated in the 50
percent range. (E-Verify does not catch identity theft.)
 As of April 2012, more than 345,000 employers were using the
system, up from 9,300 in June 2006.
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RESTAURATEURS USING E-VERIFY
 First months can be confusing and disruptive
– transition issues.
 Applicant pool changes. Turnover often
increases. New training procedures
sometimes required.
 After transition period, many restaurateurs
seem satisfied.
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BENEFITS OF E-VERIFY
 Controllable costs now vs. uncontrollable costs later if
company is audited
 Discourages unauthorized job applicants
 Fewer discrepancies in Social Security records
 Limited safe harbor under federal and state laws
 Favorable public image
 Eligibility for federal and some state contracts
 Prerequisite for business license in some states
 Shows intent to comply – a plus with ICE auditors
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DRAWBACKS OF E-VERIFY
 Transition headaches, different labor pool
 Added burden of government oversight
 Must permit DHS and SSA inspections
 Continued susceptibility to ID fraud
 No inoculation from ICE audit
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E-VERIFY IN CONGRESS
 Mandating E-Verify for all employers was a priority for House
Judiciary Chairman Lamar Smith.
 Smith’s mandate passed in the House Judiciary committee.
 U.S. Chamber, National Restaurant Association and
ImmigrationWorks supported the Smith bill – because of safe
harbor provisions and preemption language.
 Opposition from agriculture and anti-preemption Republicans
has prevented bill from coming to the floor.
 E-Verify must be extended by Congress before October 2012.
 LONG VIEW – mandatory E-Verify is coming. Not if, but when.
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E-VERIFY IN THE STATES
 19 states mandate E-Verify for some or all employers.
 Some states mandate only for state agencies or state
contractors, others for all employers, public and private.
 Depending how you count, seven to nine states mandate
E-Verify for all employers: Alabama, Arizona, Georgia,
Louisiana, Mississippi, North Carolina, South Carolina,
Tennessee, Utah.
 2011 California law prohibits state and municipalities from
requiring E-Verify.
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Part Four
WHAT TO DO WHEN YOU GET
AUDITED
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BE PREPARED –
A TALE OF TWO AUDITS
 Regional staffing company and national cleaning service.
 Full preventive audit vs. last-minute dash to comply.
 Five violations vs. half of workforce.
 $10 to $25 per I-9.
 Shows company where to improve.
 Self-audits and preventive efforts make a difference in ICE eyes.
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DEFENDING AN ICE I-9 AUDIT
 Cooperate, but know your rights
 Do not waive the 72-hour response time
 You can negotiate for more time
 Seek legal counsel
 Keep copies of all documents provided to ICE
 Do not accept the ICE agent’s assessment as final
 Review Notice of intent to fine with counsel
 Negotiate liability and amount of penalty
 Consider appealing
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THE OUTCOME
 ICE response can take months.
 Notice of discrepancies – things you can fix.
 Notice of unauthorized aliens.
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Here too – you can negotiate response time.
ASK workers to rectify situation – reasonable time frame.
Many workers will flee.
Pay employees what’s due them.
Treat all similar employees the same way.
IT’S NOT OVER
EVEN WHEN IT’S OVER
 An audit is not the end – it’s often the beginning of a
relationship with ICE.
 Past audits increase the likelihood of future audits.
 ICE may encourage enrollment in E-Verify or IMAGE.
 Negotiation is often possible – be prepared.
 ICE may not be so friendly the second time around.
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CLEAN BILL OF HEALTH
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TAMAR JACOBY
ImmigrationWorks USA
737 8th Street, SE
Suite 201
Washington, DC 20003
202-506-4541
[email protected]
ImmigrationWorks USA is a national federation of employers working to advance better
immigration law. The network links major corporations, national trade associations and 25 statebased coalitions of small to medium-sized business owners concerned that the broken
immigration system is holding back the growth of the U.S. economy. Their shared aim:
legislation that brings America’s annual legal intake of foreign workers more realistically into line
with the country’s labor needs.
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