What Employers Must know about Immigration Control and Enforcement (ICE) may 2010

1. – KPA CONFIDENTIAL –
What Employers Must know about ImmigrationWhat Employers Must know about Immigration
Control and Enforcement (ICE)Control and Enforcement (ICE)

2. – KPA CONFIDENTIAL –
What Employers Must know about ImmigrationWhat Employers Must know about Immigration
Control and Enforcement (ICE)Control and Enforcement (ICE)

3. Presenter
John P. Boggs, Esq.
Fine, Boggs & Perkins LLP
(650) 712-8908
jboggs@employerlawyers.com

4. KPA – Company Profile
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5. Questions
• If you have questions
during the presentation,
please submit them using
the “Questions” feature
• Questions will be
answered at the end of the
webinar

6. Employers are required to comply with a myriad of complicated
local, state and federal employment regulations. These
regulations are difficult to understand, poorly communicated by
regulatory agencies and continually changing.
Regulatory requirements present a confusing and often
overwhelming task for managers. As the cost of non-compliance
continues to skyrocket in both punitive fines and employee
litigation costs & settlements, the challenge is made worse by
economic downturn and the increase in employee ligation that
results from hard
times.
Webinar Overview

7. Immigration Reform and Control Act ofImmigration Reform and Control Act of
1986 (IRCA)1986 (IRCA)
• The Immigration Reform and Control Act of
1986 (IRCA) bars employers from hiring
individuals, including illegal aliens, who are
not legally entitled to work in the United
States.

8. • IRCA prohibits employers from
discriminating in hiring, firing, recruiting, or
referring on the basis of national origin or
citizenship status. It is also illegal to
retaliate against an employee who has filed
a discrimination charge. This provision
applies to employers with four or more
employees.
Immigration Reform and Control Act ofImmigration Reform and Control Act of
1986 (IRCA)1986 (IRCA)

9. • The law is administered by the United
States Citizenship and Immigration
Services (USCIS), which is part of the
Department of Homeland Security (DHS).
This agency was formerly known as the
Bureau of Citizenship and Immigration
Services (BCIS) and the Immigration and
Naturalization Service (INS) and was part of
the U.S. Department of Justice.
Immigration Reform and Control Act ofImmigration Reform and Control Act of
1986 (IRCA)1986 (IRCA)

10. PUT I.C.E. ON ICE
• The Obama administration's Immigration and
Customs Enforcement (ICE) under the leadership
of Secretary of Homeland Security Janet
Napolitano implemented a bold new worksite
enforcement strategy and shifted the focus onto
employers in 2009.
• The result was immediately noticeable, and a new
era of stricter corporate compliance means the
business community should now be on guard and
expect an increase in I-9 audits, employer
recordkeeping audits, unannounced site visits,
and a big push for E-Verify for use by employers in
2010.

11. PUT I.C.E. ON ICE
• The focus is the criminal prosecution of employers
for knowingly violating immigration laws in their
employment practices.
• This stepped up enforcement includes attention to
I-9 document compliance and the far more serious
crimes of trafficking, smuggling, and harboring
illegal immigrants.

12. PUT I.C.E. ON ICE
• The goals of the new strategy are to penalize
employers who knowingly hire illegal workers, deter
employers who are tempted to hire illegal workers, and
encourage all employers to take advantage of
compliance tools.
• The compliance tools, such as Everify, aid employers
in determining whether an employee is authorized to
work. Under the new strategy, one of ICE's main
priorities is the criminal prosecution of employers who
violate immigration laws and employ individuals
unauthorized to work.

13. PUT I.C.E. ON ICE
• According to ICE statistics, "in 2008, worksite enforcement
resulted in more than 6,000 arrests, but only 135 were
employers." Under the new enforcement strategy, it is
expected that more employers will face criminal
prosecutions and civil fines for employing individuals
unauthorized to work in the U.S.
• According to the new enforcement strategy, the arrest of
employees will be secondary to the investigation of their
employers.
• ICE plans to have indictments, criminal arrests or search
warrants, and a commitment to prosecute the targeted
employer before arresting employees for immigration
violations at the worksite.

14. PUT I.C.E. ON ICE
• Under the new worksite enforcement strategy, ICE is using
Form I-9 Notices of Inspection as the main mechanism to
determine whether employers are in compliance with
immigration laws. Since implementing the new strategy in
April, ICE has issued 1,652 Notices of Inspections to
businesses, which is a remarkable increase when compared
to the 503 notices issued in 2008.

15. PUT I.C.E. ON ICE
• Another round of I-9 Notices of Inspection
occurred on November 19, 2009 when ICE issued
Notices to 1,000 more employers nationwide.
• The Notices of Inspection require employers to
allow ICE to inspect their I-9 forms to determine
compliance with employment eligibility verification
laws.
• Once served with a Notice of Inspection,
employers are generally given three days to
provide their I-9 forms to the government for
review.

16. PUT I.C.E. ON ICE
• Since the new enforcement strategy was implemented
on April 30, ICE has reported the following statistics:
– 142 Notices of Intent to Fine totaling $15,865,181
• 32 Notices of Intent to Fine totaling $2,355,330
were issued in FY 2008
– 45 Final Orders totaling $798,179
• 8 Final orders totaling $196,523 during the same
period in FY 2008
– 1,897 cases initiated
• 605 initiated during the same period in FY 2008
– 1,069 Form I-9 Inspections
• 503 Form I-9 Inspections in FY 2008

17. • Employers must verify that individuals are eligible to work by
obtaining an Employment Eligibility Verification Form, known
as Form I-9, and inspecting the required supporting
documents at the time of hiring.
• Employees must provide employers with documents that
show (1) identity and (2) employment eligibility.
• Employees must also attest under penalty of perjury that they
are either U.S. nationals or aliens authorized to work in the
United States.
Immigration Reform and Control Act ofImmigration Reform and Control Act of
1986 (IRCA)1986 (IRCA)

20. • Employers must review the documents of new employees to
verify both the identity and employment eligibility of all
persons hired after November 6, 1986, and may not specify
which documents the new hire must provide.
• Any one item produced from List A of the I-9 form will verify
an applicant's identity and employment eligibility.
Alternatively, the applicant may produce any one item from
List B and any one item from List C to satisfy the
requirements.
• I-9 forms must be retained for 3 years after the worker is
hired or for 1 year after termination, whichever is longer.
Inspection of DocumentsInspection of Documents

21. • Employers may only accept original documents and those
that appear to be genuine and relate to the person presenting
them.
• While regulations do not require employers to copy and
retain the documents presented by individuals, it is good
practice to do so. However, remember to follow the same
procedure for all new hires and keep the documents
separate.
Inspection of DocumentsInspection of Documents

22. • Under the receipt rule, an individual may present a "receipt"
in lieu of a listed document to complete section 2 of Form I-9.
The receipt is valid for a temporary period. There are three
different documents that qualify as receipts under the rule:
• A receipt for the application for a replacement document
when the document has been lost, stolen, or damaged. This
receipt is valid for 90 days, after which the individual must
present the replacement document to complete the I-9 form.
This rule does not apply to individuals who present receipts
for new documents following the expiration of their
previously held document.
The Receipt RuleThe Receipt Rule

23. • Employers are not required to re-verify the status of
individuals they previously employed if the worker is
rehired within 3 years of the initial execution of the I-9
form.
Rehired EmployeesRehired Employees

24. • Many work authorization documents must be renewed
on or before their expiration date, and the I-9 form must
be updated. During this reverification process
employers must accept any valid documents an
employee chooses to present, whether or not they are
the same documents provided initially. Identity
documents need not be inspected when an I-9 form is
updated.
Reverification

25. How to Comply with the Regulations:
• Do not request more or different documents for discriminatory
purposes
• Do not knowingly use, attempt to use, possess, obtain, accept, or
receive any forged, counterfeit, altered, or falsely made documents
• Do not backdate or otherwise falsely make Form I-9 appear as if it is
or has been in compliance with IRCA
• Have new employees complete Section 1 of Form I-9 by filling in the
correct information and signing and dating the form.
• Ensure that employees fully and properly complete Section 1 of
Form I-9
• Examine the original document(s) presented by the employee and
then fully complete Section 2 of Form I-9 (note that a certified copy
of a birth certificate is an original document for this purpose)
Employment Eligibility RegulationsEmployment Eligibility Regulations

26. How to Comply with the Regulations:
• Keep Form I-9 for 3 years after the date employment begins or 1 year
after the person's employment is terminated, whichever is later
• Verify that employees present original documents to establish their
identity and employment eligibility within 3 business days of the
date employment begins if employment will last more than 3 days. If
employees are unable to produce the required documents within 3
business days, they must produce a receipt showing that they have
applied for the document and present the original document within
90 days of hire. However, employees must present the documents at
the time of hire if they are hired for fewer than 3 days.
• Verify that employees indicate if they are already eligible to be
employed in the United States and capable of presenting acceptable
documents within 3 business days of employment by checking the
appropriate box in Section 1 of Form I-9.
Employment Eligibility RegulationsEmployment Eligibility Regulations

27. • Employers may be assessed civil penalties for hiring or
continuing to employ unauthorized aliens, failing to
comply with Form I-9 requirements, or not requiring
identification.
• Failure to properly complete and retain Form I-9 may
subject employers to civil penalties exceeding $1000 per
violation
Civil and Criminal PenaltiesCivil and Criminal Penalties

28. • Employers are also subject to criminal penalties for
engaging in a pattern or practice of knowingly hiring or
continuing to employ unauthorized aliens; engaging in
fraud or false statements; or misusing visas, immigration
permits, or identification documents.
Civil and Criminal PenaltiesCivil and Criminal Penalties

29. • A recurrent issue encountered in ICE worksite enforcement
investigations today is the abuse of the Social Security card
by individuals seeking to satisfy the work authorization
requirements mandated by federal law.
• The Social Security card has long been a favorite of
fraudulent document vendors. In fact, immigration fraud
investigators have coined the term “three pack” to refer to
the frequently encountered fraudulent document combination
of the Social Security card, the state driver's license or
identity card, and a work authorization document.
Social Security Card/Number AbuseSocial Security Card/Number Abuse

30. • A common Social Security card fraud theme is for individuals
without work authorization to assume the identity of persons
with valid identity and work authorization documents to
establish employment eligibility during the I-9 process.
Social Security Card/Number AbuseSocial Security Card/Number Abuse

31. • ICE has issued a worksite enforcement advisory to make
employers aware of significant fraud trends encountered by
the law enforcement community so that employers do not
inadvertently facilitate acts of identity theft within their own
workforce. See advisory at:
http://www.ice.gov/doclib/pi/news/newsreleases/articles/wse_adv
• ICE, in cooperation with other federal agency partners, such
as the Social Security Administration, USCIS and the Federal
Trade Commission are working together to enhance efforts
to protect and promote the integrity of the Social Security
number and card.
Social Security Card/Number AbuseSocial Security Card/Number Abuse

32. Additional Resources and IssuesAdditional Resources and Issues
• Employers may utilize commercially available
database software or credit checks to compare
the reported use of the Social Security card
number with the reported work history and
residences of the employee. This information
may indicate either that your employee is the
victim of identity or other fraud, or it may
indicate that your employee is using a stolen
number– HOTLINKHR

33. • Do not ignore information that you learn as an
employer that indicates an employee is not
authorized to work.
Additional Resources and IssuesAdditional Resources and Issues

34. E-Verify—E-Verify—
Employment Verification ProgramEmployment Verification Program
• E-Verify is an Internet-based system operated by the
DHS in partnership with the SSA that allows
participating employers to electronically verify the
employment eligibility of their newly hired employees.
• E-Verify involves verification checks of the SSA and
DHS databases using an automated system to verify the
employment authorization of all newly hired employees.

35. • Participation in E-Verify is voluntary to participating
employers.
• HotlinkHR verifies Social Security Numbers
Automatically
E-Verify—E-Verify—
Employment Verification ProgramEmployment Verification Program

36. • Use the Employment Verification Program for all hiring– HotlinkHR
• Establish an internal training program, with annual updates, on how to
manage completion of Form I-9 (Employee Eligibility Verification Form), how
to detect fraudulent use of documents in the I-9 process, and how to use the
Basic Pilot Employment Verification Program- HotlinkHR
• Permit the I-9 process to be conducted only by individuals who have received
this training—and include a secondary review as part of each employee’s
verification to minimize the potential for a single individual to subvert the
process--HotlinkHR
• Arrange for annual I-9 audits by an external auditing firm or a trained
employee not otherwise involved in the I-9 and electronic verification
process.
Immigration Best Hiring PracticesImmigration Best Hiring Practices

37. • Establish a self-reporting procedure for reporting to ICE any violations or
discovered deficiencies.
• Establish a protocol for responding to no-match letters received from the
Social Security Administration--HotlinkHR
• Establish a Tip Line for employees to report activity relating to the
employment of unauthorized aliens, and a protocol for responding to
employee tips--HotlinkHR
• Establish and maintain safeguards against use of the verification process for
unlawful discrimination-- HotlinkHR
• Establish a protocol for assessing the adherence to the “best practices”
guidelines by the company’s contractors/subcontractors.
• Submit an annual report to ICE to track results and assess the effect of
participation in the IMAGE program.
Immigration Best Hiring PracticesImmigration Best Hiring Practices

38. Questions and Answers
John P. Boggs, Esq.
Fine, Boggs & Perkins LLP
(650) 712-8908
jboggs@employerlawyers.com

39. Contact Information
The recorded webinar and presentation slides will be emailed to
you today including your local representative’s contact information.
www.kpaonline.com
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866-356-1735