Transcript No Slide Title

WEBINAR June 11, 2009 1 pm. EDT.
The “Nuts and Bolts” of E-Verify
Are You Ready?
Brian Taylor, LawLogix (Guardian Systems)
[email protected] 602.295.6211
Linda Lee
HR Manager
Eliot Norman, Team Leader
Worksite Enforcement and
Corporate Immigration Compliance Team
Williams Mullen
804-783-6482
[email protected]
For updates:http://tinyurl.com/immupdates
www.williamsmullen.com/immigration
www.williamsmullen.com
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President Obama on Worksite
Enforcement
 Typical Press Conference on April 29th
 “What has Surprised, Troubled, Enchanted, and
Humbled you?
 Then got asked the Immigration Question.
 His answer in part:
 “We can't continue with a broken immigration
system. It's not good for anybody. It's not good
for American workers. [We need to be] “taking
seriously the violation of companies. That’s again
something we can start doing administratively.”
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New Assistant Secretary at DHS
 From the Senate Confirmation Hearings: John Morton,
New Director of ICE and former federal prosecutor on
April 23rd:
 Q. “What is your view of the worksite enforcement
operations conducted by ICE?”
A. “ WE NEED TO PLACE RENEWED FOCUS ON
EMPLOYERS TO ENSURE THAT THEY ARE PLAYING
BY THE RULES…THIS FOCUS SHOLD INCLUDE
MORE ROUTINE USE OF CIVIL SANCTIONS…AND WE
SHOULD CONTINUE TO DEVELOP PROGRAMS SUCH
AS E-VERIFY TO ENCOURAGE COMPLIANCE.”
 Mentioned good old days of $25 million annually in
civil fines. Time to bring em back.
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MINI-WEBINAR #1: The Nuts and Bolts of Filling in the
NEW I-9 Form (effective April 3, 2009)
Link to audio and slides for your HR
Managers or others who Missed It.
http://www.williamsmullen.com/fillingin-the-new-i-9-03-23-2009/
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Simple Case?
 Gopalan Balasubramanian
 Indian Software Engineer that works on your
Legacy IT Systems responsible for trillions of bits
of data
 Has a valid H-1b, walks in to do his I-9 on first day
of work
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“VALID FOR WORK ONLY
WITH DHS AUTHORIZATION”
UNEXPIRED DRIVER’S
LICENSE
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I-9 “Done Wrong”
xxxxxxx
Section 1: Not Complete
but employee is saying:
I only have temporary work
permit by checking box
X=“An alien authorized to
work until”
xxxxxxxxx
Section 2
HR Uses Drivers Lic & SS
Card
xxxxxxx
xxxxxxxxxxxxxxxxxxxxxxx
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$375 Fine+
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I-9 Done “Right”
Section1: Employee
completes data with # and
Date. Determines how
Section 2
to be completed by HR.
Section 2: HR recognizes
temporarily employed; Fills
In List A with double
combination of Foreign
Passport and I-94 Card
xxxxxxxxxxxxxxxxxxxxxxxxx
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TO DO: COME UP WITH
SPREADSHEET
REMINDER
TO RE-VERIFY Section 3
July 15, 2010 Still have
CONTINUING LIABILITY
RISK
Employee Completes Section 1: BUT EMPLOYER PAYS THE FINES
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WEBINAR # 2: May 4, 2009
The “Nuts and Bolts” of Electronic I-9s
Eliot Norman, Team Leader
Worksite Enforcement and
Corporate Immigration Compliance Team
Williams Mullen
804-783-6482
[email protected]
http://tinyurl.com/electronicI-9s
www.williamsmullen.com/immigration
www.williamsmullen.com
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Desired Features: I-9 Electronic System

Easy on-web access by new hires when offer is accepted

Electronic signatures

Must do more than just substitute an electronic form for a paper one;

Must have controls so that Employee cannot sign Section 1 if done
wrong; this means HR cannot fill in Section 2 until Section 1 properly
completed by employee;

HR cannot sign off on Section 2 if data incorrect

Wish list: HR can review electronically I-9 forms for trends, problems in
real time
 Some sort of “monitoring” or real-time “dashboard” feature.

Need for Date Tracking Systems; Controls; Reports

Scanning of existing records should meet federal standards, integrate
into new I-9 System?

Costs v. Benefits?
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Managing Risks Checklist for
I-9 Nuts and Bolts
1.
Sample, Scorecard, Train, Certify, Self-Audit: and then go
back 6 months later and do it again. See PDF Exhibits.
2.
When Box 4 (temporary employment eligibility) is checked
in the new Section 1, “Stop, Look, and Listen”
3.
Get the List of Available documents out as early as possible
in the application process: New and old U.S. Citizens in
particular are going to have problems with the new I-9;
4.
Go to Electronic I-9s: internal check against filling in Section
1 incompletely and proceeding to Section 2; and making
sure Section 2 squares with info on Section 1.
5.
Scan existing I-9s and Documents presented and shred the
paper ones.
6.
Purge your I-9 Data using the 3yr/1yr Rule.
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Reducing Liability and Risks:
I-9 Compliance: “Best Practices”
7.
M&A Situations: Successor Company can rely on I-9 Forms it inherits from
the acquired firm: does not have to re-verify identity/work authorization of
employees. What about E-Verify registrations?

Liability, however, also carries over for any violations. Consider using
immigration counsel to evaluate liability as part of due diligence

Query whether this is the time to integrate I-9s into your system, clear
up issues, errors, make corrections, eliminate “skeletons” in the closet

Use same approach with H-1Bs or pending Green Card applications
held by employees of acquired company: must be promptly transferred
to acquiring company or Newco. If you “assume immigration
liabilities” in the deal documents, you can avoid $2300 in government
filing fees per H-1B worker
8. SINGLE BEST PRACTICE (other than Score Cards and Training the Trainers):
Move to I-9 Electronic System, then scan in and shred the paper. Avoids
training and re-training. Reduces error rate dramatically.
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Part 3: Moving from I-9 to E-Verify

For the Employer: One of the motivating factors to consider Going
with Electronic I-9s to begin with.

For the Government: huge incentive: Lets take the data in Section 1
of the I-9 and compare it with the 60 million DHS and 425 million SSA
records to electronically verify identify and work authorization of
new hires.

Initially a voluntary or pilot program;

Initially applied only to new hires at one or more employer sites that
registered for E-Verify

Mixed results pre-2007 or 2008 in terms of accuracy and
effectiveness

HAS GENERATED OPPOSITION: Where is it coming from?

“Don’t Ask, Don’t Tell” Businesses: real meaning of “undocumented” aliens

(e.g. Naturalized citizens not being picked up in the process)
Estimated 4-6 million U.S. citizens would test as “false positive” =not authorized to
work
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E-Verify Results by June 2009

Voluntary with 127,000+ employers signed up

6.8 million queries, maybe 1/10 new hires in 2008 went through EVerify?

99% accuracy? Nationally, about 96%+ accurate enough to provide
instant verification of identity and work authorization. 3.5% TNC
become FNC without change. .5% are “false” hits and need
correction.

Cannot prevent identity theft or eliminate I-9 process

Expansion to Federal Government and Federal Contracts?

Meanwhile States: 17 now have E-Verify Statutes or Executive
Orders mandating its use: vary widely. See Chart, Ex. 5 in the PDF.

I-9s: still there whether you do E-Verify or Not

What’s an employer to do?
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14 E-Verify States in Red as of April 2009, subtract Ilinois,
by June 2009: Add 3 more: Arkansas, Nebraska, Utah
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“Nuts and Bolts” E-Verify

Register at http://wwww.vis-dhs.com/EmployerRegistration

Sign a MOU between your company and DHS/SSA

Take a Tutorial and score at least 70%

Must verify all new employees

After Section 1 and 2 of the I-9 completed, employer representative
logs on and submits Section 1 Data which is checked against data
bases in DHS and SSA. Must photocopy EADs and Green Cards.

Same 3 business day rule to submit E-Verification query as for I-9
certifications

However, can submit E-Verify query before employee starts paid employment and
after accepts offer of employment.

Practical implications when compare to timing of I-9 Form completion
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“Nuts and Bolts”
 Who is going to do the E-Verify?
 How do we handle multiple hiring sites?
 One MOU or multiple MOUs?
 Amend to include additional hiring sites?
 E-Verify Corporate Administrator?
 Differences with I-9
 Controlled Roll-out
 Centralize Tentative Nonconfirmations (TNC)?
 Complications of Photo Screen Tool
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“Nuts and Bolts”
RESULTS:
 Instant verification
 Tentative Nonconfirmation (TNC) or
 DHS needs more time (“Case in
Continuance”
 SSNs: what if employee doesn’t have one?
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THE TNC
Tentative Nonconfirmation (TNC)

SSA TNC

DHS TNC

Employer: must notify employee “as soon as possible” of a TNC
“Employer will determine whether the employee contests the TNC as
soon as possible after the Employer receives it.”

Best Practice to comply with ASAP rule?

Employee: 8 federal government work days to contact SSA or DHS

What to do while employee is contesting?

Employee has right to continue working

Employer must check E-Verify system regularly for updates

Document and clip to I-9
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The Photo Screening Tool
 Applies only to EADs and Green Cards
 Does not apply if you are using an E-Verify Designated Agent
 Practice Tips: must be exact match, hit Yes, E-Verify will
return “employment authorized” response.
 Hit NO, you will get a TNC
 Can’t tell: explain why and mail it in or send in an electronic
copy and let DHS decide.
 Problems and Issues
 Don’t need to compare with original Green Card/EAD?
 Potential Liability
 Exact Match Standard
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The Final Nonconfirmation (FNC)
 Must notify DHS if employer continues to employ a worker for
whom employer receives an FNC
 Failure to so notify DHS: Fines of $550 to $1100 per worker
 Practical Problem Area for the 1% of false positives or false
FNCs, , particularly naturalized U.S. citizens
 DHS recognition of the issue
 New I-9 Rules
 May or may not solve the quandry: do we get fined or do we
get sued for termination of lawful U.S. worker?
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E-Verify Real-World Experience
 Viewpoint of the busy Human Resources Manager
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MOU
 Major Benefits and “Safe Harbor”
 Current Areas of Controversy:
 Production of Records
 Sharing of Data
 Proposed Exemption from Privacy Act
 Rulemaking issued May 22, 2009
 Other Issues as they arise
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Use of E-Verify Designated Agent
 Comments and Demonstration
 Brian Taylor
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E-Verify and Federal Contracts
 How is it supposed to work?
 all new hires and all employees “assigned to the
contract” : how defined
 option: can verify all existing employees
 Universities, local governments, Indian Tribes,
special rules, apply it only to new employees or
existing employees assigned to Federal Contract
(FC). Have option of applying it to all new hires, all
existing employees.
 Security Clearance Employees exempt
 Bar on re-verifications
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E-Verify and Federal Contracts
 Timetables: Read the MOU , Article II.D.
 Not enrolled as Federal Contractor. 30 days to
enroll, 90 days to begin using
 Enrolled already as FC but less than 90 days,
must start using within 90 days
 Enrolled already as FC more than 90 days, 3
business days after new hires to use E-Verify
 For employees assigned to FC, 90 days after
contract award or 30 days after assigned to
contract, whichever is later
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Which Federal Contracts
All contracts except
 valued less than $100,000
 work performed outside the U.S.
 performance less than 120 days
 only for commercially off the shelf COTS items or which would be
COTS except for minor modifications
 applies only to entity signing the contract, not necessarily parent
or subsidiary not performing direct services under the contract
 Contracting Officer (CO) responsible for inserting E-VerifyFAR
clause. http://tinyurl.com/FAREVERIFY (FAR Regulations)
 Your company must insert it if covered subcontract is one for
services or construction with value of more than $3,000
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E-Verify and Federal Contracts
Future Issues?
 http://tinyurl.com/FEDERALEVERIFY (getting old)
 Court Litigation and Negotiated Result
 Disclosure of data to contracting officer, USCIS,
ICE, DOL
 Alternatives: National Database of New Hires
(NDNH)
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E-Verify: “Safe Harbor”

SAFE HARBOR: Participation in E-Verify does not provide
automatic or “blanket” protection from worksite enforcement.
However, an employer “who verifies work authorization under
E-Verify is presumed to have not knowingly hired an
unauthorized alien.”

Affirmative Obligation on Employers:
 Employer must notify DHS if it continues to employ any worker after
receiving a final non-confirmation (FNC) (meaning worker is not
who he says he is or does not have work authorization)
 Failure to so notify DHS: Employer is subject to $550 to $1100 civil
money penalty
 Employer is subject to rebuttable presumption that it has knowingly
employed an unauthorized alien if it continues to employ a worker
for whom it has received a final non-confirmation.
 Obligation to notify employee of TNC “as soon as possible”. Best
Pratice??
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E-Verify: “Nuts and Bolts” Reminders

If employee contests TNC, he has 8 government working days to
contact either SSA or DHS or both to clear up the problem

E-Verify now also requires employers to attempt to match scans of
photos on Green Cards or Work Cards (EAD) with DHS records; same
TNC rules apply;

However, Photo tool requirements currently do not apply if the
employer uses an E-Verify Designated Agent

Integrity of I-9 systems drives successful use of E-Verify

Can’t sit back while TNC time-clock is ticking

Tough cases, get help early
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E-Verify: “Best Practices”
1.
Sooner shift to E-Verify the better. May have to anyways.
2.
Should spur elimination of paper I-9 Forms. No sense inviting
errors TWICE
3.
Purchase or develop in-house Software that integrates the I-9
Data into the E-Verify Data. Makes no sense to fill in the I-9 By
Hand; and then retype data from one form (I-9) to the other (EVerify). Security Clearance Difficulties with in-house software and
keeping up with changes.
4.
Cost/Benefit analysis on how to roll-out E-Verify is critical.
Remember, under the proposed Federal Contractor rules, E-Verify
applies to all new hires (whether assigned to the federal contracts
or not) and to all employees assigned to the contracts. Under
proposed Federal mandates, you have the option of applying EVerify to all existing employees covered by your MOU with USCIS.
State laws apply (so far) only to new hires. Currently, different
locations can enroll in E-Verify.
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E-Verify: “Best Practices”
5.
Ultimately, given crazy patchwork quilt of state law and federal
contractor mandates, once you are in E-Verify, you might as
well apply it as broadly as possible. Caveat: there is only a 180
day window to roll it out .
6.
Your HR Team needs 24/7 web-based access to I-9 and E-Verify
processes to review real-time reports, monitor, train, and ensure
compliance. You may not want to do it with the I-9 paper records
and the government’s E-Verify software, which don’t link up and
don’t issue alerts when work permits expire.
7.
Cost/Benefit analysis. Compute the woman-hours needed to keep
up with 5,000, 10,000 disconnected records. Avoid Risks of
errors and “routine use of civil fines” per Morton at ICE.
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E-Verify: “Best Practices”
9.
Same team responsible for I-9s should handle E-Verify. Avoid
disconnect. Integrate payroll, I-9 and E-Verify software systems.
10. False TNC (non-confirmation notices.) Escalate for review by welltrained E-Verify team. There are technical exceptions and E-Verify
is now adapting software to be more flexible. Ultimately, counsel
has to weigh whether to continue employing worker while waiting
for resolution vs. risks of civil fine for continuing to employ
despite Government saying: “this person is not a match.”.
11. Use of E-Verify should eliminate risks of ICE audits and create
“Safe Harbor” from liability for substantive violations on I-9 Forms.
Government resources are focused elsewhere. Government
should go after the “Don’t Ask, Don’t Tell Employers”, not those
wired into the SSA and DHS databases.
12. Recent USCIS proposed rule-making and MOA between USCIS and
ICE raise, however, concerns about sharing of data in the E-Verify
system for enforcement purposes.
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Reducing Liability Risks from Contractors’
Immigration Violations
 What are the Issues?
 Wal-Mart I
 Wal-Mart II
 “Constructive Knowledge”: How defined?
 How does this whole area overlap with E-Verify?
 Special Problem: state law compliance
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14 E-Verify States in Red as of April 2009, subtract Ilinois,
by June 2009: Add 3 more: Arkansas, Nebraska, Utah
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“Best Practices” For Reducing Risks
from Contractors’ Immigration Violations
1.
Know your contractor, sub-contractor, most importantly your sub-sub
contractor.
2.
Your preferred vendor contracts do not preclude parceling out contract
work to smaller companies who may not be immigration-compliant.
Should they?
3.
Review contracts. Don’t leave it all up to the IT or other Line Managers.


Add indemnification and certification clauses, including obligation (at contractor
expense) to hire outside auditor to verify that contractor’s employees are
authorized to work. Wal-Mart and Verizon now impose these obligations on all
contractors, who in turn flow-down these obligations to sub-contractors.
Prohibit any non-compete/liquidated damages clauses that preclude your
recruiters/managerss from hiring away global talent from your
contractors/subcontractors.
4.
Confirm enrollment of sub-contractors on federal contracts in E-Verify and
in States where E-Verify now applies. Very confusing area right now.
5.
Consider requiring subcontractors to enroll in E-Verify for new hires as
part of commercial contracts, particularly when out-sourcing for IT
services or labor services.
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“Best Practices” For
Reducing Risks
from Contractors’ or Other Company’s Immigration
Violations
7.
Screen, centralize inquiries from workers requesting sponsorship for Green
Cards so conflicts between status represented on I-9 Forms and status
requested can be resolved.
8.
Engage immigration counsel to assist with evaluation of requests by
foreign national contractor employees to be hired directly by your company,
evaluate legality under H-1B regulations of any employment contracts,
payback provisions imposed by your contractors on employees.
9.
M&A: special situation: due diligence, evaluation of I-9 Forms, status of any
foreign national employees to avoid liability to successor firm. Allow for
timely conversion of pending H-1Bs and Green Cards to new company.
Avoid fines, violation of DHS and DOL regulations. Should you rely on EVerify and I-9 filings of acquired company or re-start the process? Rules are
currently different and/or in need of clarification.
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Questions ?
Eliot Norman , Immigration and
Worksite Enforcement Team
804-783-6482
[email protected]
For updates:
http://tinyurl.com/immupdates
www.williamsmullen.com/immigra
tion
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