Tamar Jacoby

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IMMIGRATION ENFORCEMENT AND COMPLIANCE

• Tamar Jacoby
• President
• ImmigrationWorks USA

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TODAYS AGENDA

• 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
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AUDITING EMPLOYERS, NOT DEPORTING WORKERS
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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
  anti-
• discrimination 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
  donts.
• MOST IMPORTANT DONT Dont 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 DONTS
• See a sampling of tips in the slides that
  follow.
• All agree on three core points
• Treat all employees the same way. Dont vary
• procedures. Dont fish for answers. Dont 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
• 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
• Treat all employees the same regardless of
  national origin or citizenship status
• Do not ask for additional or different documents
• BE PREPARED
• 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

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• I-9 COMPLIANCE
• 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. 
• Dont ignore red flags!

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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 peoples 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
• employees 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 employment-
• authorization.
• 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.
• Smiths 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 agents 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.
• Here too you can negotiate response time.
• ASK workers to rectify situation reasonable
  time frame.
• Many workers will flee.
• Pay employees whats due them.
• Treat all similar employees the same way.

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ITS NOT OVER EVEN WHEN ITS OVER

• An audit is not the end its 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 USA737 8th
Street, SESuite 201Washington, DC
20003202-506-4541info_at_immigrationworksusa.org
ImmigrationWorks USA is a national federation
of employers working to advance better
immigration law. The network links major
corporations, national trade associations and 25
state-based 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 Americas annual legal intake of
foreign workers more realistically into line with
the countrys labor needs.