Hr Star Immigration In An Obama Era
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Transcript of 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
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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!
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
E-VERIFY
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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.
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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.
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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.
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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.
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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.
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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.
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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.
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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?
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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)
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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”
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
Business Involvement in CIR• http://www.immigrationworksusa.org
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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!
Kuck Immigration Partners LLC –The Immigration Law Firm 2009 © www.immigration.net
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