What Changes will Employers Face if Immigration Reform Comes to Pass?

Theres news this week that a bipartisan group of senators have unveiled a statement of principles for immigration reform, which in part proposes the creation of an effective employment verification system that prevents identity theft and ends the hiring of future unauthorized workers.  Further,  President Obama and the White House have released a Fact Sheet containing similar principles, including craking down on employers who hire undocumented workers through:

  •  mandatory, phased in electronic employment verification
  • creation of and required use of fraud-and tamper-resistant documents to prove employees authorization to work
  • increased penalties for employers who hire undocumented workers
  • protection for workers against retaliation for exercising their labor rights

I am generally not a fan of speculating.  When it comes to football games, like the BCS College Football Championship or the upcoming Super Bowl, I dont enjoy commentary about who people think will win.  Just play the game already!  So, I generally do not like to speculate on how the law might change.  Im more of a lets wait and see and then deal with it type of guy.

Neverthess, I cannot help myself from wondering what may be on the horizon for employers and worksite enforcement if comprehensive immigration reform occurs.  For example,

  • Will all employers be required to use E-Verify?  (In Alabama, that already is the law, but my guess is that there still is mass non-compliance and federal law and federal enforcement would change things quite a bit)
  • Will there be a new and improved electronic verification system?
  • Will increased enforcement and higher  penalties apply only to employers who knowingly hire unauthorized workers, or will the employers who just make paperwork mistakes on I-9s also be impacted?
  • Will this news further delay the release of the new two-page I-9 form?
  • Will employers have to become experts in detecting fraudulent documents as opposed to just making good-faith determinations about their authenticity?

Regardless of whether reform occurs or what it will ultimately entail, I believe the one thing we know for sure is government worksite enforcement is not going to let down, and if anything will increase.  So, employers should continue to make immigration compliance a priority and stay tuned for more changes and perhaps challenges.



How will DHSs Deferred Action (DACA) process affect Alabama Employers?

Lets first discuss new employees.  Alabama employers now have a segment of new potential employees.  Deferred Action for Childhood Arrivals (DACA) beneficiaries are eligible for employment authorization if they file a petition for employment authorization (USCIS Form I-765) and receive their Employer Authorization Document I-766 (EAD).  Absent this, they are not authorized to work in the United States.

Next, lets discuss current employees.  If an existing employee informs his or her employer that he or she has filed for DACA consideration, this means that the employee is currently not authorized to work in the United States, which in turns means the employer has knowledge or at least constructive knowledge of the employees lack of work authorization, because only individuals who are not lawfully present in the United States may apply for DACA consideration.  To comply with the law, the employer must terminate employment immediately.

Why would the employee tell his or her employer that he or she has filed for DACA consideration?  Consider this scenario: Employee comes to HR department and asks for a letter or documentation to confirm that he or she has been working for the employer for a specified period of time. When asked what will this information be used for, the employee states that he or she is applying for DACA.   Ooops!

Adding to the risk associated with continuing to employ the individual who is currently applying for DACA consideration is the fact that any employment information provided by a DACA petitioner may be shared with ICE, which might lead to an investigation or audit into the hiring practices of the employer.

Issuance of New I-9 Form Delayed Employers Will Continue to Use Current I-9 Form Even After August 31 Expiration Date

USCIS recently announced that employers who were eagerly awaiting the release of the new I-9 Form will have to wait a little longer.  http://www.uscis.gov/i-9   But hold on a moment.  The current I-9 Form has an expiration date of 8/31/2012 printed in the upper right hand corner. So, what are employers supposed to do if a new form is not released by August 31, 2012?  Indeed, employers could get into trouble if they use expired I-9 forms.

Per USCIS, even after the current form expires on August 31, 2012, employers should continue to use the current I-9 Form until USCIS instructs otherwise.  USCIS instructions for the Form I-9 currently available on I-9 Central also indicate that the agency will accept the use of the prior version of the Form I-9 that bears a revision date of February 2, 2009.  (The February 2, 2009 I-9 Form has an expiration date of June 30, 2009.)

Why the delay? As announced in March of 2012, USCIS is in the process of updating and publishing a newly revised two-page Form I-9. When the comment period of the revisions was opened to the public, USCIS received a large number of comments over 3,000.  So, USCIS is taking a little longer than expected to absorb all these insightful comments.

Should Alabama Employers Consider Joining IMAGE?

What is IMAGE?  IMAGE stand for ICE Mutual Agreement between Government and Employer.   In my words, IMAGE is a government  outreach program to emphasize compliance relating to worksite enforcement.  IMAGE used to be considered by some as the bad boys club for employers who were facing significant liability for poor immigration practices and were forced to join the club as a remedial effort.  However, ICE made some changes to IMAGE in an attempt to improve its programs image.

I recently heard Adam Wilson, Section Chief of ICE, provide ICEs new selling points to employers to join IMAGE.  The employer must:

1.  Enroll in E-Verify within 60 days.  (Pursuant to the Alabama immigration law, all Alabama employers should already be enrolled in E-Verify);

2.  Establish a written hiring and employment eligiblity verification policy that includes internal Form I-9 audits at least once per year (No one knows how extensive or comprehensive the annual audit must be); and

3.  Submit to a Form I-9 inspection by ICE (Now thats something to think through before agreeing to it).

To entice employers to consider joining IMAGE, ICE will do the following:

1.  Waive potential fines if substantive violations are found on fewer than 50% of the employers I-9 forms (From my experience, some employers might exceed the 50% threshold);

2.  In the event more than 50% of the I-9 forms have substantive violations, mitigate the fines or fine at the  minimum of $110 per violation;

3.  Not conduct another I-9 inspection for two years (Is two years long enough?); and

4. Train the employer before, during and after the I-9 inspection (ICE probably provides good training, but the training is probably  from ICEs perspective only and not from the perspective of other government agencies such as the OSC).

Any takers?   There are definite pros, but there could be significant cons depending on the circumstances.  Definitely seek counsel before signing on the dotted line.

Initial Steps To Respond to a Notice of Inspection by ICE

ICE continues to serve employers with  Notices of Inspection (NOI) and subpoenas that request the production of I-9 forms and other documents. The latest wave of 2000 NOI’s went out within the last couple of weeks and more are scheduled to occur later this year.  Given the possible fines for substantive or uncorrected technical violations on I-9 forms, and the fact that many employers have audited their I-9 forms (through knowledgeable internal or external auditors),  knowing how to respond to a NOI can be critical to mitigating the exposure a company may face.

We recommend that all companies have an established  protocol to handle government subpoenas and inspections, which may include asking for identification from the government official, determining the purpose of the visit, and contacting individuals within the company (e.g., upper management, in-house counsel) to ensure that the companys rights are being protected.

Although an ICE forensic auditor will review the I-9 forms, a NOI is often served by an ICE agent or special agent, who may ask questions at the time the NOI is served.  Do not guess if you don’t know the answer, but simply state that you don’t know, and then direct the agent to someone in management or HR who can provide an answer.

After the ICE agent has left, it is critical that you immediately put together your team that will assist in responding to the NOI (HR, management, legal counsel).  Remember that you only have three business days to produce the I-9s.   You may request an extension of this deadline, but in our experience such requests are often denied.

While every NOI and company are different, here are some of the tasks the team should do:

  1. Read the NOI and accompanying subpoena carefully to determine what is being requested.
  2. Determine which member of the team will handle which tasks (e.g., pull payroll list, obtain I-9 forms). Organization of payroll rosters and knowledge of retention systems and files are often a big role in this process.
  3. Obtain expertise from experienced legal counsel on how to handle missing I-9s, I-9s that have errors, and other issues that may result in fines or problems.  Proper and careful remediation at this stage is critical, although remediation prior to ICE serving the NOI is much more beneficial.
  4. Carefully prepare the submission to ICE in an organized fashion, including a letter stating what is being produced.
  5. Keep a copy of everything that is being submitted.

Once you have responded to the NOI, you likely will have to wait to hear from ICE as to next steps.  These next steps, which may include a notice of suspect documents or a notice of technical deficincies, must be handled correctly to best mitigate possible fines.

What questions do you have about an ICE NOI?  Put a comment below.