Immigration concerns for swfl businesses

Southwest Florida C‐Suite Summit Tuesday, November 17, 2015

Immigration Concerns for Southwest Florida Businesses 1

Southwest Florida C‐Suite Summit

Immigration Concerns for Southwest Florida Businesses

Presented by:

Florida Bar Board Certified Immigration Lawyer Tulio G. Suarez

Employer Immigration Compliance(Form I‐9)

• Employers have certain responsibilities under immigration law during the hiring process

– All U.S. employers must complete and retain a Form I‐9 for each individual they hire for employment in the United States after November 6, 1986

• Includes citizens and noncitizens

• Is intended to verify your employees’ identity and employment authorization




Employer Immigration Compliance(Form I‐9)

– On the form, the employer must do three things:

• Examine the employment eligibility and identity document(s) an employee presents

• Determine whether the document(s) reasonably appear to be genuine and relate to the individual

• Record the document information on the Form I‐9


Employer Immigration Compliance(E‐Verify™)

• E‐Verify™ is a web‐based service of the Department of Homeland Security (DHS) and Social Security Administration (SSA) that allows employers to electronically verify the employment authorization of new hires

– Meant to allow employers to quickly verify employment eligibility of new hires

– It is an extension of Form I‐9 but not a substitute







• In order to participate in E‐Verify™, an employer must sign a Memorandum of Understanding (MOU) with DHS

• Submission of information may only be done online

– no phone or fax alternatives

• Employer may choose to authorize a third party to process its employees through E‐Verify™ (E‐Verify™ Employer Agents)So

uthwest Florida C‐Suite Summit




• Use of E‐Verify™ is growing

• Certain Federal Contractors are required to use E‐Verify under Federal Acquisition Regulations (FAR)

• Several state legislatures have mandated E‐Verify use



• E‐Verify in Florida:– Executive Order 11‐116 signed by Governor Scott on May 27, 2011, makes E‐Verify Use Mandatory for Florida State Agencies, Contractors and Subcontractors

• Gov. Rick Scott has made conflicting statements regarding his support for a bill mandating the use of E‐Verify state‐wide

– Florida participates in the E‐verify RIDE program, which allows employers to view State ID and driver's license photos during the verification processSo





– City of Bonita Springs Ordinance No. 09‐04

• Any vendor or contractor providing services to the City must use E‐Verify for any person hired during the contract term by the contractor and assigned by the contractor to perform work for the City

– Penalty: Prohibition for contracting with the City for a period of one year

– Exemptions:

» Contracts for services below $5,000

» Contracts for a single performance to be completed in less than 30 days or

» Service provider provides an affidavit that they are an individual and no one else will be hired to perform the work



– Hernando County Legislative File # 3516

• County Contractors and subcontractors doing business must use E‐Verify for all new employees

– Specific penalties for non‐compliance have not been announced, but the Board indicated violating contractors and subcontractors may be denied future county projects





• Pros to using E‐Verify™:

– Meant to allow employers to quickly verify employment eligibility of new hires

– Because E‐Verify is a voluntary program, participation is evidence of good faith compliance with IRCA

• Former DHS Secretary stated that good faith participation in E‐Verify will protect employers from civil and criminal penalties regarding the hiring of undocumented workersSo



• Pros to using E‐Verify™ (cont.):

– DHS also asserts that use of E‐Verify establishes a rebuttable presumption that the employer has not knowingly employed an unauthorized screened worker

• Note: this rebuttable presumption may be similarly achieved through the proper completion of an I‐9





• Cons to using E‐Verify™:

– Is not fraud‐proof and was not designed to detect identity fraud

• E‐Verify™ cannot detect when workers are using another person’s name and SSN



• Cons to using E‐Verify™ (cont.):

– Requires additional staff and administrative resources

• employer must take certain steps that go beyond the normal obligations of an employer completing an I‐9, e.g.:

– required to obtain a social security number from their employee

– if an employee presents a permanent resident card, employment authorization card, or a foreign passport, the employer must make a copy to compare with the E‐Verify photo toolSo





• Cons to using E‐Verify™ (cont.):– Costs of employing non‐confirmed workers

• 3 business days to open case

• DHS Policy guideline: Employees has 10 days to make decision to contest or not contest TNC

• 8 federal government working days for employee to contact appropriate agency

• 10 federal government workdays for most cases although some may take longer

• Employee must continue to work during the TNC process and employer should not take any adverse action against the employeeSo



• Cons to using E‐Verify™ (cont.):

– Despite the additional effort required for E‐Verify, participation will not immunize the employer from I‐9 compliance audits, nor will it preclude the possibility of a raid

– Verification data can be used as a means of targeting employers for I‐9 audits or Immigration‐Related Discriminatory Practices




Employer Immigration Compliance(Enforcement)

• The employer sanctions provisions, found in section 274A of the Immigration and Nationality Act (INA), were added by the Immigration Reform and Control Act of 1986 (IRCA)

– These provisions further changed with the passage of the Immigration Act of 1990 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996



• Enforcement by legacy Immigration and Naturalization Service (INS) and now U.S. Immigration and Customs Enforcement (ICE) has waxed and waned depending on the political winds

• Under our current political climate Congress and the Obama Administration have identified Immigration Enforcement as a key national interest issueSo





• Government enforcement efforts are in the form of inspections or investigations conducted by:

– U.S. Department of Homeland Security’s (DHS)

• Homeland Security Investigations (HSI) a directorate within DHS’s principal investigative arm, Immigration and Customs Enforcement (ICE); and



• The U.S. Department of Labor (DOL)

– Wage and Hour Division (WHD).

– Office of Federal Contract Compliance Programs







• With limited, albeit increasing, resources committed to worksite enforcement ICE/HSI will seek to fine and in some cases make a public example of employers who are caught

• Consequences for failing to verify employees’ identity and work authorization as well as for hiring unauthorized aliens can be expensive and severe




Employer Immigration Compliance(Penalties)

• Employer compliance under IRCA has focused primarily on civil fines:• Penalties for I‐9 paperwork violations can range from $110

to $1,100 per violation

• Amount of the penalty for each violation is determined according to the number of violations and other aggravating or mitigating factors







• Fines for knowingly hiring undocumented workers can reach $16,000 for each worker.

• For pattern and practice of unlawful hiring the maximum penalty of six months in prison, and a $3,000 fine for each unauthorized alien.






Unfair Immigration‐Related Employment Practices

• Immigration Reform and Control Act of 1986 (IRCA) also:– Enacted provisions prohibiting :

• Discrimination in hiring, firing, or recruitment/referral for a fee based on citizenship status or national origin

• Unfair documentary practices during the Form I‐9employment eligibility verification process (Document abuse)

• Intimidation, threats, coercion, and/or retaliation against employees who assert their rights under the INA's anti‐discrimination provisions

– Created the Office of Special Counsel for Immigration‐Related Unfair Employment Practices (OSC) within the U.S. Department of Justice to enforce these antidiscrimination provisionsSo



– Employers of more than three employees are subject to discrimination claims under IRCA

• By contrast, for claims under Title VII of the Civils Rights Act of 1964 only employers of 15 or more employees are covered

– In determining whether an employer has the requisite number of employees, the DOJ rules require that all part‐time and full‐time employees working on the date that the alleged discrimination occurred be counted

• This is different from the rule for determining whether Title VII applies which requires that the employer must have 15 or more employees for each working day in each of 20 or more calendar weeks





• Remedies for violating the antidiscrimination provisions of the INA include:

– Hire or rehire– Back pay– Injunctive Relief– Training– Monitoring– Civil penalties



• Civil Penalties





• Factors in assessing civil penalties

– The OSC has indicated that there is no rigid formula for calculating penalties, but it looks at the same factors that Office of the Chief Administrative Hearing Officer has traditionally examined including:

• The egregiousness of the violation

• The harm to the injured party

• The financial health of respondent

• The extent of cooperation by respondent in the OSC investigation



• The OSC investigations are either:

– Charge‐Based: OSC investigates charges of discrimination filed by injured parties or their representatives

– OSC‐Initiated: OSC has authority to open an investigation based on reasonable belief that an employer has committed a violation





• Justice Department Settles Immigration‐Related Discrimination Claim Against Miami‐Dade County Public Schools– The Justice Department announced on 10/22/2015 that it reached a settlement with Miami Dade County Public Schools (MDCPS) resolving claims that MDCPS discriminated against employees because of their citizenship status

– The department’s investigation, found that MDCPS required non‐U.S. citizens, but not similarly‐situated U.S. citizens, to present specific documents to prove their employment eligibilitySo



– Under the settlement agreement, MDCPS will pay a $90,000 civil penalty to the United States and will establish a $125,000 back pay fund to compensate individuals who lost wages because of the MDCPS’ practices

– Among other things, the settlement also requires MDCPS to undergo compliance monitoring for three years, permit OSC to train MDCPS students on worker rights, and train its human resources employees on the anti‐discrimination provision of the INA




I‐9 Compliance Plans

• Completion and Maintenance of Forms I‐9 requires formal training and planning

– Reading the I‐9 Instructions is not enough!

– Remember, penalties can be imposed merely for errors in properly completing the form even if no unlawful workers are hired

– In some cases the I‐9 form is not merely an action performed when an employee is hired, but may require future follow up

– Storage and disposal of forms I‐9 must be done in accordance with federal law



• Is your company comfortable answering the following questions:

– What is your procedure for when agents from U.S. Immigration and Customs Enforcement appear at your offices demanding to see your company’s I‐9 records?

– Is your company able to produce the required documentation within 3 business days?

– What happens if your company is found to be out of compliance with the legal requirements for employment eligibility verification?So





• I‐9 compliance plans provides accurate, reliable and easy to implement guidance about documenting, supplementing and updating employee employment eligibility and identity information in a nondiscriminatory manner

• A good I‐9 compliance plan goes beyond simply verifying an employee’s employment authorization and identity



• An I‐9 Compliance plan should, among other things:

– Enable a company to ensure that its employees are authorized to work in the United States

– Accurately confirm the identity of its employees

– Clearly identify who is in charge of insuring the I‐9 form is properly completed for every person hired

– Help HR employees learn how to process I‐9 forms and become proficient in working with the documents and policies involved





– Serve as a quick and simple reference whenever needed

– Identify the employer’s and employee’s responsibility in accurately completing I‐9 forms, and penalties for failing to do so

– Provide checklists for accurately completing the I‐9 form

– Outline the company’s I‐9 re‐verification process to track employees whose employment authorization have an expiration date



– Establish internal standards and schedule for auditing I‐9 forms

• An “audit” usually refers to a thorough review of an employer’s I‐9 records done either:

– In‐House; or

– By Independent Third Party

• Best practices involve frequent in‐house audits along with occasional third party audits





– Identify the appropriate steps to be taken when an employee’s Form I‐9 or supporting documentations aren’t in compliance

– Clearly outline company policies and procedures relating to secure maintenance and destruction of I‐9 forms and supporting documentation

– Outline policies and procedures in the event of a government inspection or investigation; and

– Provide guidance and procedures as to when in‐house or outside counsel should be consulted



• An I‐9 Compliance Plan should be rigorous and uniformly implemented




Questions?

Tulio G. Suarez, EsquireFlorida Bar Board Certified

Immigration & Nationality Law239.344.1177

[email protected]

www.henlaw.com/practices/immigration‐law/


Tulio G. Suarez brings over 17 years experience representing immigrants, professionals, foreign investors, and businesses in all areas of United States Immigration and Nationality Law. He is one of a few Florida Bar Board Certified Immigration and Nationality Lawyers providing expert strategies to assist clients in all areas of immigration law, including foreign investment, international adoption, family and employment based immigrant and non-immigrant visas, removal (deportation), asylum, citizenship, and hiring of foreign nationals. Tulio is admitted to practice in all Florida state courts, the United States District Court for the Middle District of Florida, the United States Court of Appeals for the Eleventh Circuit and the United States Supreme Court. Tulio previously served as an instructor at Florida International University, College of Continuing and Professional Studies, teaching U.S. Immigration and Nationality Law to paralegals and foreign attorneys. Tulio is married and currently resides in Cape Coral. When not working, he enjoys reading, cycling and technology. PROFESSIONAL AND CIVIC AFFILIATIONS Tulio is active in the local community and is a member of Board of Directors for United Way of Lee, Hendry and Glades Counties and Catholic Charities for the Diocese of Venice. He also serves on the Advisory Board for Catholic Charities of the Diocese of Venice, District II.

Tulio is a member of the American Immigration Lawyers Association (AILA) and former director of AILA’s South and Central Florida Chapters. While serving on the board of the AILA Central Florida Chapter, Tulio served as Education Chair for the Chapter’s Annual CLE Seminar. Tulio is also the former AILA liaison to the United States Citizenship and Immigration Services’ West Palm Beach, Florida office.

www.henlaw.com

Blogs: swflbusinessandIPbulletin ● swflemploymentlawblog.com ● legalscoopswflre.com

Practice Area Immigration and Nationality LawOffice Fort MyersDirect Dial 239.344.1177Fax 239.344.1523E-mail [email protected]

Undergraduate Degree St. John’s University, B.S., 1988Law Degree George Washington University Law School , J.D., 1995Admitted to The Florida Bar 1995

Tulio G. SuarezSenior Associate, Practice Area Chair

Immigration concerns for swfl businesses

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