1. The Orangeburg County
Chamber of Commerce Presents …
IMMIGRATION ENFORCEMENT:
NEW DEVELOPMENTS
October 23, 2008
David Dubberly
Certified Specialist in Employment and Labor Law
Melissa Azallion
Immigration Attorney
2. Agenda
• Overview of Worksite Enforcement
• Employment Eligibility Verification
– I-9 Compliance
– Enforcement and Penalties
• ICE Audits and Raids
• SSA No Match Letters
• E-Verify System
• SC Illegal Immigration Reform Act
4. Immigration Reform and Control Act of
1986
• Unlawful for employers to knowingly hire
or continue to employ unauthorized
workers
• ALL employers must complete and
retain I-9 form for new employees and
comply with retention rules
• Non-compliance punishable by civil and
criminal penalties
• Also prohibits national origin or
citizenship status discrimination
5. Since IRCA
• Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) authorized electronic
employment verification systems
– “E-Verify” (formerly Basic Pilot)
• Increased employer sanctions
• DHS Proposed Rule on SSA No Match Letters
• Employer audits by ICE
• Increased worksite enforcement actions
6. New Form I-9
• Revised form as of December
26, 2007
• SSN voluntary, but not required
– Unless employer participating
in E-
Verify
• More prominent anti-
discrimination statement
• Revised M-274 Handbook for
Employers
7. I-9 General Rules
• New employee must provide documents reflecting:
– Employee is eligible to work
– Identity must match work eligibility documents
• Complete I-9 form for every new employee within 3 days
of hire
• Retain for 3 years after hire or 1 year after termination,
whichever is later
8. Anatomy of Form I-9
• Establishes (1) employment eligibility; and (2) identity
• List A: Documents that establish both
– Examples: U.S. passport, Permanent Resident Card, Unexpired foreign
passport with temporary I-551 stamp, Unexpired foreign passport with
unexpired Form I-94 containing nonimmigrant status authorizing work
OR
• List B: Document that establishes identity; AND
– Examples: Driver’s license, government agency issued ID card
– Must include photograph if employer enrolled in E-Verify
• List C: Document that establishes employment eligibility
– Examples: Unrestricted Social security card, unexpired employment
authorization documents
9.
10. Non-discrimination Requirement
• Employers CANNOT:
– Request more or different documents
– Specify which documents they will accept
– Refuse to honor documents that reasonably appear genuine
on their face
– Refuse to accept a document or hire an individual because
a document has a future expiration date
• Employers MUST treat all employees the same when
completing I-9s
11. IRCA: “Knowledge”
• Actual knowledge
• Constructive knowledge
– May 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
• Reasonable steps taken by employer
• Totality of the circumstances approach
12. “Constructive Knowledge”
• Accepting incomplete or improperly competed I-9’s
• Failing to investigate suspicious circumstances
– Fake documents
– Hiring employee who previously used different name
– Hiring workers who can’t speak English but check U.S. citizen
or Lawful Permanent Resident on I-9
• New regulations:
– Failure to investigate employee’s request for employer’s
sponsorship for labor certification or visa petition
– Failure to address written notice from DHS or SSA
13. Interior Immigration Enforcement:
ICE at Your Business
• ICE has authority to conduct I-9 audits
• Must have warrant or employer’s permission to enter
private workplace
• Notice of Inspection
– Must give employers 3 days notice unless ICE has
search warrant
– ICE doesn’t need warrant to inspect or conduct I-9
audit if notice given
– Receptionist – key contact
14. Investigative Techniques
• ICE coordinates with IRS, DOL,
and other
agencies
• Audit v. raid
• Has authority to use wiretaps
• Has authority to establish and
operate undercover investigations
• Uses confidential informants
• ICE investigations take place in
form of:
– “Lead-driven” investigations
– Random audits
15. Investigations and Audits
• “Lead-driven” worksite • Random sudits
investigations – ICE can randomly select
– Anonymous tip along with review of employers to audit through
I-9 Forms often triggers “lead- General Inspection Program
driven” worksite investigation – Also randomly selects
– To initiate investigation, ICE needs employers to audit within
a lead and articulable facts that industries known to use
would give ICE reasonable undocumented workers through
suspicion that employer is not Special Emphasis Inspections
compliant Program
17. ICE: Worksite Enforcement
• If you’re blatantly violating our
worksite enforcement laws, we’ll go
after your Mercedes and your
mansion and your millions. We’ll go
after everything we can, and we’ll
charge you criminally.
Julie Myers, Assistant Secretary for Homeland Security,
U.S. Immigration and Customs Enforcement, quoted in
Washington Post article, “Immigration Enforcement’s Shift
in the Workplace,” on April 16, 2006
18. Penalties for I-9 Non-Compliance
• I-9 paperwork violations when worker is in fact authorized
– $110-$1100 per employee
– Good faith exception for paperwork violations
• “Knowingly” employing unauthorized workers
– Civil penalties for offenses occurring on/after 3/27/08
• 1st offense: $375-$3,200 for each violation
• 2nd offense: $3,200-$6,500 for each violation
• Thereafter: $4,300-$16,000 for each violation
– Criminal penalties for “pattern or practice”
• $3,000 per unauthorized alien and/or 6 months imprisonment
19. Criminal Focus
• Major emphasis on criminal activity:
– Unlawful employment (misdemeanor)
– Identity theft/“aiding and abetting” ID theft
– Fraud and misuse of immigration documents
– Money laundering
– Harboring illegal aliens
• ICE has moved way past misdemeanor
– In past ICE stressed misdemeanor offense for hiring unauthorized
aliens
– Said little or nothing about felony “harboring” and related offenses
– ICE charging felony harboring with much greater frequency
20. What is “Harboring”?
• With the intent to help alien avoid detection and
knowingly/recklessly disregarding illegal status:
– Hiring and continuing to employ a person
– Renting housing to, acquiring housing for, or otherwise providing housing for
person
• Paying a contractor while knowing/recklessly disregarding illegal status or fact it
is employing illegal alien
• Employment “plus” can also incur felony harboring charges:
– Housing or transporting workers with actual or constructive knowledge of
illegal status
– Warning workers of ICE raid activity
– Counseling workers to use fake documents
– Paying illegal workers off the books
– Transferring illegal workers between job sites to avoid detection
– Assisting illegal workers to complete Form I-9 with fake documents
21. Defense Against Enforcement Efforts: I-9
Compliance Tools
• Implement immigration compliance
program
– Understand I-9 process
– Provide training for
supervisors/managers
• Annual I-9 self audit
– Efficient records management
– Correct problem areas
• Consider E-Verify
22. SSA “No Match” Letters
• What they are:
– Notice from SSA to employee or employer that combination of name
and/or SSN submitted on W-2 earnings reports doesn’t match SSA
records
– To inform workers they aren’t getting credit for their earnings, which
can affect their SSA benefits
• What they aren’t:
– Notice to employer that employee is unauthorized to work
– Statement about employee’s immigration status or indication that
person is undocumented
– Employee should be terminated
23. DHS Rule and Constructive Knowledge
• DHS No Match Rule amends and
expands definition of constructive
knowledge to include:
– Employer’s failure to take action upon
receipt of SSA No Match letter or written
notification from DHS
• Also provides “safe harbor” against
constructive knowledge finding if
employer attempts to resolve
discrepancy and, if necessary, re-
verifies work authorization within 93
days of receipt of letter
24. No Match Letter Practical Issues
• Do not ignore letter
• Establish policies to address and resolve
discrepancies in uniform manner (typo?)
• Terminate employee if additional knowledge (e.g.,
admission by employee) indicates employee not
eligible to work in U.S.
– Do not use letter by itself for taking adverse
employment action
25. Practical Issues Cont’d
• Follow up may reveal actual or constructive knowledge
of unauthorized employment
• If new I-9 can’t be completed within 93 days because
employee can’t produce acceptable documentation
(without the questionable SSN), employer must decide
whether to:
– Terminate employee; or
– Risk being determined to have constructive knowledge in any
subsequent DHS enforcement action
26. E-Verify Background
• Formerly known as Basic Pilot Program
• Partnership between DHS and SSA administered by USCIS
• Web-based employment verification program allows
employers to electronically verify employment eligibility of
employees for new hires
– Prohibited from using to screen applications or reverify existing
employees
• Free of charge to employers in all 50 states
• Set to expire November 2008 but expected to be renewed
27. Federal Contractors
• President Bush issued Executive Order on June 9,
2008 requiring use of E-Verify as condition of each
future federal government contract
• Upon publication of Final Rule, executive
departments and agencies entering into contracts
must require contractor’s agreement to use E-Verify
for:
– All persons hired by the contractor
– All persons assigned by contractor to perform
work within U.S. on the contract
28. Federal Contractors Cont’d
• “Contractor” means any individual or other legal
entity that—
– (1) Directly or indirectly (e.g., through an affiliate),
submits offers for or is awarded, or reasonably may
be expected to submit offers for or be awarded, a
Government contract, including a contract for
carriage under Government or commercial bills of
lading, or a subcontract under a Government
contract; or
– (2) Conducts business, or reasonably may be
expected to conduct business, with the Government
as an agent or representative of another contractor.
29. E-Verify Registration
• Go to www.vis-dhs.com/EmployerRegistration
• Select the Sign Up link and follow instructions
• Must electrically sign Memorandum of Understanding
(MOU) with DHS and SSA
• Read user manual and complete web-based tutorial
• Designated employees authorized to use system
must also complete online training
30. How the Program Works
• Complete I-9 form for
new employee within
first 3 days of
employment
• After I-9 completed,
E-Verify user must
enter information
directly from I-9 form
31.
32. How The Program Works Cont’d
• System queries SSA and DHS databases to verify identity and
employment eligibility
– SSA first verifies name, SSN, and date of birth
– SSA also confirms citizenship if worker stated he/she is a U.S. citizen
– USCIS verifies noncitizen’s employment eligibility
• Initial verification returns 1 of 3 results:
– Employment authorized;
– SSA Tentative Non-Confirmation; or
– DHS verification in process
33. What Results Mean
• Employment Authorized
– If SSN provided by employee matches SSA records
and immigration documents (if applicable) match
CIS records = immediate confirmation
– User must record system generated verification #
on the I-9 or print screen within transaction #
• Tentative Non-Confirmation (“TNC”)
– If SSA unable to verify worker’s records
• DHS Verification In Process
– Receive notice of employment authorization or DHS
Tentative Non-Confirmation (usually within 24 hrs.)
34. TNC Process
• User must print non-confirmation notice
• Worker has right to contest finding with
SSA or USCIS, so employer must:
– Review TNC with employee
– Inform employee of right to contest and
have both parties sign
• If worker chooses to contest, additional
steps required
• If worker chooses not to contest,
considered a final non-confirmation and
employer may terminate employee
35. If Employee Contests
• Employer must make referral to SSA/DHS through E-Verify
website
• Print and provide Referral Notice to employee
– Contains info about resolving TNC and contact info
– Both parties must sign
– Employee takes notice to appropriate agency to resolve
– Employee has 8 federal workdays from date of Referral to contact SSA/
DHS
• Agency updates system with result in 2 business days
– 10-day period not made until employer makes Referral
– If additional time necessary, employer receives Case in Continuance
notice
36. Case Resolution
• Employer may not take adverse action against
employee during appeal process unless obtains
independent knowledge that employee lacks work
authorization
• If employer continues to employ worker after Final
Non-Confirmation:
– Employer must inform DHS via E-Verify
• Monetary penalty up to $1,000 for failure to notify
– Employer subject to rebuttable presumption that it knowingly
employed unauthorized alien
37. MOU and Employer Obligations
• Employer enters into detailed MOU with SSA and DHS
• Rebuttable presumption if use E-Verify and confirm identity and
employment eligibility
• Employer obligations under MOU include:
– Will use E-Verify only after employment offer accepted and I-9
completed for worker
– Will use E-Verify only to verify new employee’s eligibility
– Will apply E-Verify for ALL new hires within 3 days of hire
– Will display DHS-supplied notice of
E-Verify participation and Office of Special
Counsel DOJ-supplied Anti-Discrimination
Notice in prominent place clearly visible
to job applicants
38. More MOU Obligations
• Will only Accept List B ID documents with photograph
• Will carefully comply with employer responsibilities related to tentative
nonconfirmation (TNC) process, including:
– Follow up on TNCs
– No adverse action while employee challenging TNC without 10 day review
by DNS/SSA unless obtains independent knowledge
• Will permit DHS or SSA to make “periodic visits” to review E-Verify
related records
• Will record E-Verify authorization results
• Participation is not confidential
• Can terminate program after 30 days notice
• Good-faith compliance with E-Verify requirements may protect
employer from civil and criminal penalties regarding hiring unauthorized
workers
39. E-Verify Benefits
• Verification usually “within seconds”
• I-9 forms archived for easy retrieval
• Electronic confirmation reduces likelihood of receiving
No Match letter from SSA or DHS
• Presumption that employer has not knowingly hired
unauthorized workers if only retains employees who
DHS “confirms”
• Safe harbor under SC Illegal Immigrant Reform Act
40. E-Verify Drawbacks
• Must train (and re-train) point person to use
• Database errors causing some incorrect results
– Backlogs cause newly authorized citizens not yet added to
come up as unauthorized
• Must permit DHS/SSA inspections and audits
• USCIS provides TNC and Final Non-Confirmation info to
ICE
– Encourages audits, worksite enforcement raids, and other
employer sanction investigations
41. South Carolina Illegal Immigration
Reform Act
• Governor Sanford signed on June 4, 2008
• Touted as “toughest in the nation”
• Mainly specifies how employment authorization is to
be verified
• These requirements are phased in
42. Employment Verification Standards
• Applies to all employers in SC
– Public Employers
• “Public employer” is every department, agency, or instrumentality,
or political subdivision of the State
– Contractors, Subcontractors, and Sub-subcontractors
• “Contractor” is any person having contract with public employer for
physical performance of manual labor with annual value > $25,000
($15,000 if public employer is a political subdivision of the State)
– Private Employers
43. Public Employers
• Every public employer must register and
participate in E-Verify program
• May not enter into services contract unless contractor
agrees to comply with Act
• Must obtain written statement from contractor certifying
he will comply with Act’s requirements
• Public employer or contractor who complies with Act in
good faith won’t be sanctioned
44. Contractors and Private Employers
• Must verify legal status of all employees by:
– Registering and participating in E-Verify; or
– Hiring only employees who:
• Possess valid SC driver’s license or ID card
• Qualify for SC driver’s license or ID card
• Possess driver’s license or ID card from another state with similarly
strict requirements
• SC DMV to publish list of states with strict enough license
requirements
– LLR director to provide list to private employers by January 1,
2009
45. SC LLR
• Responsible for implementing Illegal Aliens and Private
Employment section of statute
• Published notice of intent to draft regulations on August
22, 2008
• Seeking comments from public
• Check http://www.llr.state.sc.us/Immigration/ for updates,
FAQs, and overview of statute
46. Private Employers and E-Verify
• If elect to participate in E-Verify, private employer must:
– Verify work authorization of every new employee within 5
business days of employment
– Provisionally employ new employee until work authorization
has been verified
– Submit new employee’s name and info for verification even
if terminate < 5 days after hiring
– Not employ, continue to employ, or re-employ if work
authorization not verified by E-Verify
47. Special Considerations For
Private Employers
• All private employers in SC imputed an employment
license on July 1, 2009
– Permits private employer to hire employees
– May not employ unless SC employment license is in effect
– Remains in effect as long as compliant with Act
• “A private employer shall not knowingly or intentionally
employ an unauthorized alien.”
• Presumed to be in compliance if good faith use of E-Verify
48. Private Employer Sanctions For
Employment Verification Violations
• $100 to $1000 per violation
• But, for “first occurrence,”
employer has 72 hours from
notification of violation to
remedy and incur no penalty
• Employer’s right to remedy also exists for “subsequent
occurrence” if no employment verification violation
within previous 5 years
49. Sanctions For Knowingly/Intentionally
Hiring Unauthorized Workers
• 1st occurrence: 10-30 day license suspension
• 2nd occurrence: 30-60 day license suspension
• 3rd occurrence: license revoked and may petition for
provisional license after 90 days
• Subsequent occurrences:
license revoked and can’t seek
reinstatement for 5 years
50. Sanctions For Knowingly/Intentionally
Hiring Unauthorized Workers Cont’d
• To reinstate business license, private employer must:
– Demonstrate terminated unauthorized alien
– Pay reinstatement fee equal to cost of
investigation/enforcement action up to $1,000
• If employer engages in business or hires new employee
while suspended:
– License shall be revoked
– Not reinstated for 5 years
51. S.C. Reform Act: Enforcement
• Director of LLR authorized to investigate employer upon
reasonable grounds of alleged violations
– Upon receipt of written complaint or
– Upon investigation initiated by director for good cause
• Director also must develop statewide random auditing
program to inspect private employers
• Act establishes hotline, website,
and database for reporting/
tracking alleged violations
52. Effective Dates of
Employment Verification Provisions
• Public employers: Jan. 1, 2009
• State contractors > 500
employees: Jan. 1, 2009
• State contractors 100 to 499
employees: July 1, 2009
• Private employers > 100
employees: July 1, 2009
• All employers: July 1, 2010
53. Wrongful Discharge Action
– Creates civil cause of action for wrongful termination
against employer when lawful worker terminated if
• Purpose is to replace with person employer knew or
should have known to be unauthorized
• Replacement occurred within 60 days of termination
– Potential recovery includes:
• Reinstatement to former position
• Actual damages and collection of lost wages
– Claim must be brought within 1 year
– Does not apply to private employer who terminates an
employee to comply with employment verification
provisions
54. New Tax Rules
• You may have received a letter because …
• The Act required director of SC DOR to send
written notice to all SC employers by July 1,
2008 explaining new tax rules imposed by Act:
– Generally no income tax deduction for payment of
wages or remuneration for physical services to
unauthorized aliens
– 7% income tax withholding for certain contractors
(presumed illegal) performing services
55. Other Relevant Provisions:
Criminal Penalties
• Furthering illegal entry or
avoidance of detection
– Felony charge for anyone who knowingly or in reckless
disregard of illegal status:
• Transports, moves, attempts to transport (or conspires);
• Conceals, harbors, or shelters from detection (or conspires)
– With intent to further that person’s unlawful entry or avoiding
apprehension or detection of unlawful status
– Maximum penalty: $5,000 and/or 5 years in jail
– Person convicted may not obtain any professional license
offered by the state
56. Other Relevant Provisions: Criminal
Penalties
• Financial identity fraud by false documents
– Criminal charge for person who:
• Displays, causes or permits to be displayed, or has in his possession
• A false, fictitious, fraudulent, or counterfeit identity document
– Maximum criminal penalties:
• First offense (misdemeanor) – $100 or 30 days in jail
• Subsequent offenses (felony) – $500 or 5 years in jail
– Person convicted:
• Must disgorge any benefit or make restitution to agency that administered
the benefit
• May be sued by person who suffers ascertainable loss of money or property
as result and exposed to damages of 3x actual damages, reasonably
attorney’s fees and costs
• Is jointly and severally liable for loss suffered by person or agency
