What Businesses Must Know About Immigration Today

HR Strategies To Survive Government Scrutiny

Presented by Ann Massey Badmus

Immigrant Demographics

Approximately 33.5 million foreign-born people live in the United States.

The foreign born represent 11.7 percent of the U.S. population.

Source: Current Population Survey, Annual Social and Economic Supplement, 2003US Census Bureau

Immigrant Demographics

Foreign born workers are 15.3% of the labor force and represent 44.6% of the 2.7 million increase in employment from 2005 to 2006

Bureau of Labor Statistics, 2006

In 2005, foreign born students obtained 41% of doctoral degrees in sciences and engineering

NSF, Science and Engineering Doctorate Awards 2005, Table 3

Government Oversight

Look Who’s Watching

Department of Homeland Security

U.S. Citizenship and Immigration Service (USCIS) www.uscis.gov - immigration benefits and services

U.S. Customs and Border Protection (CBP) – www.cbp.gov – border patrol and international travel facilitation

Department of Homeland SecurityImmigration and Customs Enforcement

Investigates employers for compliance with employment employer verification rules and removes undocumented aliens from the United States

www.ice.gov

U.S. Department of Labor

Investigates employer verification compliance, visa compliance, violation of worker rules

www.foreignlaborcert.doleta.gov

U.S. Department of JusticeOffice of Special Counsel (OSC)

www.usdoj.gov/crt/osc/

Investigates and prosecutes charges of immigration-related unfair employment practices

States of the Union

•1000s of pieces of immigration legislation introduced around the country since 2006.

•Over 20 states now impose their own immigration rules on Employers.

Focus on Employers

ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration. ICE will continue to arrest and process for removal any illegal workers who are found in the course of these worksite enforcement actions in a manner consistent with immigration law and DHS priorities. Furthermore, ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.

- DHS Secretary Napolitano April 2009

Immigration Enforcement Today

7/1/09 ICE announces audit of 652 businesses

7/7/09 Krispy Kreme fined $40K7/8/09 E-Verify FAR rule confirmed9/8/09 E-Verify FAR rule applied10/7/09 Social Security No-Match Rule

rescinded10/20/09 E-Verify program extended

Employment Verification Rule

• All employers must verify employment eligibility of new employees using the I-9 Form

• Employer must not knowingly hire or continue to hire unauthorized workers.

Constructive Knowledge

Defined as “knowledge which may fairly 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.”

8 C.F.R. §274a(1)(l)

Constructive Knowledge

Failure to fill out I-9 form or to complete correctly

Failure to re-verify form Information that an employee is not

authorizedFailure to reconcile conflicting

informationHire contractors that you know uses

unauthorized workers

Social Security No-Match Letter

Receipt of letter is not automatic notice that employee is unauthorized

Consider totality of circumstances – No “Safe Harbor” rule

E-Verify

Web-based formerly known as “Basic Pilot Employment Verification Program”

USCIS and Social Security Administration

Voluntary participation – for some employers

E-Verify Required

Federal agencies Federal contractors Certain State agencies and private

employers Companies located in states that require

E-Verify Employers of STEM F-1 students seeking

OPT extension

Anti-Discrimination Rules

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

Anti-Discrimination Rules

National origin discrimination cases on the rise

Title VII and the other antidiscrimination laws prohibit discrimination against individuals employed in the United States, regardless of citizenship

In Fiscal Year 2008, EEOC received 10,601 charges of national origin discrimination. Including charges from previous years, 8,498 charges were resolved, and monetary benefits for charging parties totaled $25.4 million (not including monetary benefits obtained through litigation)

Costs of Non-compliance

Fines/Penalties for I-9 and Unauthorized Employment Offenses

I-9 technical violations - $110 to $1110 each

Unauthorized employment offenses occurring onor after March 27, 2008 -

$375 to $3200 – 1st offense$3200 to $6500 – 2nd offense$4300 to $16000 – more than 2 offenses

Fines/Penalties for I-9 and Unauthorized Employment Offenses

To determine the amount of the penalty, ICE considers:

• The size of the business of the employer being charged

• The good faith of the employer• The seriousness of the violation• Whether or not the individual was an

unauthorized alien• The history of previous violations of the

employer

Good Faith Defense

If you can show that you have, in good faith, complied with Form I-9 requirements, then you have established a “good faith” defense with respect to a charge of knowingly hiring an unauthorized alien, unless the government can show that you had actual knowledge of the unauthorized status of the employee.

Criminal Penalties

Knowingly hire or continue to employment unauthorized worker – fines up to $3000 per employee and/or 6 months imprisonment

False statements, misusing visas & identity documents – fines and/or penalties up to 5 years imprisonment

Harboring alien – up to 5 years imprisonment and $250,000 in fines

Criminal Charges -Who Can Be Charged?Business OwnersPlant Managers & SupervisorsHR PersonnelUnion StewardsIntermediate and Senior Executives

Anti-Discrimination Violations Fines and Penalties

• $110 to $16000 depending upon the violation

• Back pay (no more than 2 years before claim was filed)

• Hire or re-hire• Personnel training• Attorneys Fees

Immigration Best Practices for Businesses

Develop a Culture of Compliance

Immigration Compliance Plan

Written procedures and policiesTraining and Supervision Contractor complianceConsolidation of multiple locations

Immigration Compliance Plan

Secure and consolidate recordsE-VerifySocial Security no-match lettersInternal investigations

Annual I-9 Self-Audits

Prepare for government auditIdentify errors for correctionIdentify training issuesTest your systemDemonstrate good faith compliance

and avoid fines/penalties

Post-Audit Procedures

Conduct TrainingEnsure Corrections are MadeReview Audit ReportImplement Procedural ChangesStore I-9 Audit RecordsMaintain Ongoing Project Attitude

Scenario: Audit Results

200 I-9 forms

10% error rate = 20 deficient forms

$800 typical fine x 20 = $16000 fines

I-9 Self Audit with Attorney Certification

Approx. $2000

$16000 - $2000 = $14000 saved

Response Plan for Government Audits and Enforcement Actions (RAIDS)

Training of Employees Designation of Company Point of

Contact Immigration Attorney Criminal Defense Attorney

Q & A

"Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold."

- USCIS spokeswoman Karen Kraushaar

Immigration Counsel

Develop written compliance plansand audit safeguards

Conduct compliance audits and certifications

Develop contractor complianceand termination policies

Immigration Counsel

Conduct training and reviewsAdvise before immigration-related

hiring or firingDefend against enforcement

actionsKeep you updated on changing

rules

Three Key Steps to Reduce Your Risks

Evaluate the strength of your current compliance process

Educate yourself on I-9 self-audit procedures

Conduct I-9 self-audit and obtain certification from an immigration attorney

Legal Notice

Facts of individual situations differ.

The information provided here is general in nature and should not be relied upon for specific situations.

Consult with an experienced immigration attorney to ensure compliance.

Thank You

This information is provided as an educational service by Badmus Law Firm. If you have questions or comments about immigration rules for employers, you’re invited to contact attorney Ann Massey Badmus at 469-916-7900 ext. 202, annbadmus@badmuslaw.com.