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Transcript of Elise A. Fialkowski Kate Kalmykov Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800...
Elise A. Fialkowski Kate KalmykovKlasko, Rulon, Stock & Seltzer, LLP
Philadelphia New York1800 John F. Kennedy Blvd., 17th Floor 317 Madison Ave., Suite 1518Philadelphia, PA 19103 New York, NY 10017215.825.8600 212.796.8840 www.klaskolaw.com
Increased Immigration & Increased Immigration & Worksite Enforcement: Worksite Enforcement: Strategies and Solutions to Weather the Perfect Storm
Klasko, Rulon, Stock & Seltzer, LLP
Elise A. Fialkowski, Esq.
Elise Fialkowski is a Partner at Klasko, Rulon, Stock & Seltzer, LLP and she has been providing immigration assistance and solutions to leading universities, research institutions, multinational corporations and individuals for over 15 years.
Elise leads the firm’s worksite compliance group. Elise has particular expertise in advising employers with regard to worksite compliance with the Immigration Reform and Control Act including I-9 Employment Eligibility verification, E-Verify and worksite enforcement issues. An active member of the American Immigration Lawyers Association, Elise has served on AILA’s E-Verify Liaison Committee and she is on the Executive Committee of its Philadelphia Chapter as well as the Philadelphia USCIS Liaison Committee.
A Phi Beta Kappa graduate of the University of North Carolina at Chapel Hill, (B.A.1987), Elise received her law degree from the Villanova University School of Law (J.D., magna cum laude, 1991).
Klasko, Rulon, Stock & Seltzer, LLP
Kate Kalmykov, Esq.
Kate Kalmykov, an Associate in the Firm's New York City office, focuses her practice on business immigration.
Kate regularly works with corporate clients, hospitals and universities on providing creative immigration solutions to visa and work authorization needs of foreign nationals including skilled workers, persons of extraordinary ability, managers and executives, professionals, treaty investors and traders, as well as corporate trainees.
Kate received her J.D. from the American University and is admitted to practice in New York and New Jersey.
A member of the American Immigration Lawyers Association, Kate chairs the New York CLE Committee and serves as Secretary of New York District Office Liaison Committee.
Klasko, Rulon, Stock & Seltzer, LLP
Overview
Increased I-9 Enforcement and Penalties Criminal Enforcement and ICE E-Verify and Data Mining Information Sharing Agreements-USCIS, ICE and OSC OSC Discrimination Claims Fraud Detection and National Security (FDNS)
Investigations Practical Strategies and Best Practices to Protect your
Company NOW
Klasko, Rulon, Stock & Seltzer, LLP
Increased I-9 Enforcement
Background–Form I-9 Immigration Reform and Control Act (“IRCA”) requires
employers to verify identity and employment eligibility of employees hired after 11/6/86
Section 1-Employee Information and Verification- must be completed by the employee at the “time of hire” –1st day of work
Personal information Attestation as to status
Klasko, Rulon, Stock & Seltzer, LLP
Increased I-9 Enforcement Background–Form I-9, cont’d
Section 2-Employer Review and Verification- must be completed by the employer within “3 business days of date employment begins”
Review Original documents that show identity and employment eligibility
List of Acceptable Documents – one document from List A or one document from List B and one from List C
Do NOT accept more than is required or request specific documents Record title, issuing date, authority, doc. no., expiration Documents must appear to (1) be reasonably genuine and (2) relate to
the individual presenting them –Attestation
Klasko, Rulon, Stock & Seltzer, LLP
Increased I-9 Enforcement
Background–Form I-9, cont’d Section 3 – Updating and Verification (or new Form I-9) For time-limited work authorization Reverify on or before expiration of work authorization –
documentation of continued work authorization Can NOT ask for a specific document Establish “tickler” system – at least 120 days notice Do NOT reverify an expired US passport or Permanent
Resident card
Klasko, Rulon, Stock & Seltzer, LLP
Increased I-9 Enforcement
New ICE Worksite Compliance Strategy Raid v. audit/investigation - NOI Focus on Employers Pledge to continue active criminal prosecution
of employers Pledge to issue detailed investigation protocols Support E-Verify/system improvements
Klasko, Rulon, Stock & Seltzer, LLP
Increased I-9 Enforcement
ICE Implements Strategy – Since 1/2009 More than 3200 employers audited Over $50 million fines Average employer fine $110,000 180 business owners, managers, supervisors
criminally charged 225 companies debarred from federal contracts
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Increased I-9 Enforcement
Calculation of penalties-12/09 Fine Guidance Issued
Penalty knowing hire/employ: $375-$16,000 per employee Penalty substantive/technical violations: $110 to $1,100 per
violation “Violation percentage” and base fine amount Enhancement/Mitigation Factors Example Abercrombie > $1 million fine 09/10
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Increased OSC EnforcementNon-Discrimination in I-9 Process
OSC-Office of Special Counsel for Immigration Related Unfair Employment Practices created w/IRCA
Enforces citizenship/immigration status discrimination, national origin discrimination, document abuse and retaliation
Civil penalties: Citizenship/national origin discrimination $374-16,000 Document abuse -$110-$1,100 Back-pay & injunctive relief
Klasko, Rulon, Stock & Seltzer, LLP
Increased OSC EnforcementNon-Discrimination in I-9 Process
Recent increased enforcement Catholic Healthcare West – 11/10 largest ever civil penalty
>$257,000 John Jay College- OSC sought $1100 per employee (settled 2010) Hoover Vacuum 2010 settlement-$10,200 (expired green card) Garland Sales, Inc.-7/8/10 suit alleges different and greater reqs-
non-US Citizens/retaliation Maricopa Community College-8/30/10 suit alleges college imposed
greater requirements on at least 247 non-US citizens Other actions – broad range businesses-landscaping, pool, beauty
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Avoiding Discrimination Claims
Immigration law (IRCA) prohibits discrimination in hiring and discharging based on national origin or citizenship status
Do Not use the I-9 process to pre-screen for hiring Only I-9 after written offer or on first day DO show the full list of acceptable documents Do NOT request specific documents Do NOT require more/different documentation for non-
citizens/those appearing foreign Do NOT require more than 1 List A or List B &C combination
Klasko, Rulon, Stock & Seltzer, LLP
Simple One Page Form?
Klasko, Rulon, Stock & Seltzer, LLP
Audited I-9
Klasko, Rulon, Stock & Seltzer, LLP
ICE – I-9 Best Practices Written I-9 policy Internal compliance & training program Require I-9 process only by those trained Secondary review for each I-9 Annual I-9 audits by external auditing firm or trained person
not involved in I-9 process Protocol to respond to tips/information/constructive
knowledge Polices/procedures safeguard against discrimination incl.
training Maintain copies of documents (E-Verify/SSNVS)
Klasko, Rulon, Stock & Seltzer, LLP
Electronic I-9 Program
Many providers Abercrombie & Fitch Do NOT have to use E-Verify but many provide
link should desire USCIS reports they are developing their own
Electronic I-9
Klasko, Rulon, Stock & Seltzer, LLP
Electronic I-9 Program
Benefits vary depending upon provider and functionality of program
Time-saving: data does not have to be reentered for E-Verify Alerts as to missing fields, inconsistent information and dates Tickler system for reverification Links to HR system Tools to easily purge I-9s consistent with retention
requirements Paperless “green option” — electronic signature, electronic
retention and scanning
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Electronic I-9 Program
Help features/pop-ups to assist with process/explain documents
Reminder emails to designated HR staff Customization-configured to company’s business
processes Immediate updates with changes in Forms/policy Support for program/E-Verify
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
E-Verify Compliance Issues The Basics
Electronic employment eligibility verification system
Checks I-9 information against SSA and DHS databases
Voluntary unless required by state law or federal contractor rule
E-Verify required by State law All employers: AZ, MS, UT, SC*
Contractors: CO, GA, MN, MS, MO, NB, OK, RI, SC, UT
Public employers: AZ, GA, MN, MS, MO, NB, NC, OK, RI, SC, UT, VA
Klasko, Rulon, Stock & Seltzer, LLP
E-Verify Compliance-Is Enrollment Required?
Federal Contractor Rule- “contractors” and “subcontractors” required to enroll Contractors
Contract must be issued after 9/8/09 or amended IDIQ contract Must be Acquisition Contract subject to FAR w/performance longer
than 120 days and value above $100,000 Contract must include “E-Verify clause”
Subcontractors Subcontract must flow from prime contract with E-Verify clause Only for subcontracts for Services or Construction w/value over
$3,000
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
E-Verify ComplianceFederal Contractor Rule
General rule Requires E-Verify query of:
All new hires, and All existing employees assigned to the contract, or 180 day option for all existing employees
Exemptions university May opt to only verify:
New hires assigned to contract, and Existing employees assigned to contract
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
E-Verify Compliance Main Employer Responsibilities – MOU
Post notices Agree to visits by ICE and/or designees Attach results to Form I-9 and retain for same time as form Rebuttable presumption of compliance if confirmation is obtained Notify DHS if continues to employ following non-confirmation (civil
penalties $550-$1,100 for failure to notify) If continued employment after Final Non-Confirmation a
rebuttable presumption of violation of INA § 274A(a)(1)(A) is created
Can only leave with 30 days notice
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Klasko, Rulon, Stock & Seltzer, LLP
E-Verify Compliance General Guidelines
Not a substitute for I-9 compliance Does not provide protection against worksite
enforcement Cannot be used to pre-screen Can only be used to verify eligibility of newly hired
employees unless federal contractor Queries must be conducted within 3 days after hire List B documents must have a photo Must copy green card, EAD and passport
Klasko, Rulon, Stock & Seltzer, LLP
Verification of Eligibility
What you need: Information from Section 1 and 2 from the Form I-9 Identification document provided from List “B” must
contain a photograph Results
Confirmation Tentative Non-Confirmation Final Non-Confirmation
Klasko, Rulon, Stock & Seltzer, LLP
Advantages of Using E-Verify
Rebuttable presumption of compliance if confirmation is obtained Swift Meatpacking case – no corporate fines for 1,000+
unauthorized workers
Allows employer to query system re validity of documentation
Saves time/training by identifying unauthorized workers prior to no-match
17 month STEM extension
Klasko, Rulon, Stock & Seltzer, LLP
E-Verify ComplianceDisadvantages of Using E-Verify
Problems with underlying databases Limited to new hires (except federal contractors) No formal appeals process for non-confirmations Additional HR and company time for process in
addition to I-9 Access to I-9s and related records
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
E-Verify ComplianceData Mining & Data Sharing
Memorandum of Agreement- MOA 12/08 USCIS MOA with ICE 3/10 USCIS MOA with Office of Special Counsel (OSC)
Data mining/audits Compliance Tracking & Monitoring System, staff Examples: completion w/i time-line, terminate TNC,
failure notify FNC, selective use, fraudulent use, etc. Referral to ICE and OSC
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Practical I-9 and E-Verify
Compliance Considerations Audit of older I-9s I-9 issues with existing employees under Federal
Contractor Rule / choosing among the options Tracking employees who are on a contract Who conducts queries/handles non-confirmations I-9 and E-Verify policies Training plan—including non-discrimination training Electronic I-9 program
Klasko, Rulon, Stock & Seltzer, LLP
H-1B LCA Audits
Increased DOL enforcement – Wage and Hour division
Civil fines, back pay and debarment
Criminal enforcement
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Site VisitsBackground
Visits (generally unannounced) to employers who have filed or have approved H-1Bs or other petitions
USCIS announced at least 20,000 this year
Conducted by Fraud Detection and National Security Unit (FDNS) officers or contractors hired by FDNS
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Site VisitThe Mechanics
Unannounced, scripted interview Will ask to see signatory Verify information in H-1B petition from
employer Business operations, locations, employees Information about H-1B employee including title,
job duties, credentials, salary work location
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Site VisitThe Mechanics
Photograph facility Tour facility, department or workplace May request paystubs/W-2s, financials or
job description, resumes, etc.
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Site VisitThe Mechanics
Generally will ask to see employee Verify position, title, duties, salary, location and
requirements Whether employee paid/reimbursed any money
related to H-1B Photo ID
May ask to see supervisor or other employees
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Site VisitWhat do we do if we are visited by
an Investigator?
Appoint a trained, designed company representative and backup
Request identification Lead to a conference room or neutral space
Klasko, Rulon, Stock & Seltzer, LLP
Respond to questions – don’t guess Detailed written notes Immigration/in-house
(cont’d)
H-1B Site VisitWhat do we do if we are visited by
an Investigator?
Klasko, Rulon, Stock & Seltzer, LLP
H-1B SiteHow do we prepare?
Inform staff of USCIS visits
Appoint a trained, designated company representative with appropriate back-up
Maintain immigration documents in central location
Klasko, Rulon, Stock & Seltzer, LLP
H-1B SiteHow do we prepare?
Have immigration counsel’s contact information handy in case problems arise
Educate all H-1B employees about the possibility that they will have to meet with FDNS investors
Conduct periodic internal audits of H-1Bs
Regularly train personnel on H-1B regulations and requirements
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Links
The Form I-9:http://www.uscis.gov/files/form/i-9.pdf
The M-274 Handbook for Employers: http://www.uscis.gov/files/form/m-274.pdf
Klasko, Rulon, Stock & Seltzer, LLP
Klasko, Rulon, Stock & Seltzer, LLP
For further information or to request a on-site presentation, please contact:
Visit us online:www.klaskolaw.com
www.worksite-compliance.com
http://blog.klaskolaw.com
Kate Kalmykov, Esq.Tele: 212.796.8856
Fax: 212.297.1799
E-mail: [email protected]
Elise A. Fialkowski, Esq.Tele: 215.825.8647
Fax: 215.825.8699
E-mail: [email protected]