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Executive and Legislative Updates: Immigration Reform Proposals
“The time has come for common-sense, comprehensive immigration reform. The time is now. Now is the time. Now is the time. Now is the time.”
– President Obama’s remarks in Las Vegas, Nevada, January 29, 2013.
President Obama seeks immigration reform that will include:
1. continued improvements to enforcement and border security;
2. a path to "earned" legalization and citizenship;
3. bringing our legal immigration system into the twenty first century with less wait time; and
4. better retention of students seeking science and technology careers, and encouragement of investors.
President Obama’s Key Focus Areas• Increase Federal control over all immigration issues, challenging state
laws purporting to enforce immigration law.• Enforcement focus on employers & criminal aliens.• Maintain current levels of I-9 investigations and employer sanctions.• Maintain or increase current levels of H-1B site visits and fraud
investigations.• Retain more foreign national STEM (science, technology, engineering
and math) graduates and exempt STEM “green cards” from the immigrant quotas.
• Retain Deferred Action for Childhood Arrivals (DACA) policy.• Encourage Congress to Pass the DREAM Act, a legal pathway for
military service and higher education.
Take Away: Get your company and Forms I-9 in order! Can hire more educated workers.
Bipartisan ProposalPresented January 28, 2013, by Senators Schumer (D-NY), McCain (R-AZ), Durbin (D-IL), Graham (R-SC), Menendez (D-NJ), Rubio (R-FL), Bennet (D-CO), and Flake (R-AZ).
Four Basic Legislative Pillars: 1. Create a tough but fair path to citizenship for unauthorized immigrants
currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required;
2. Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families;
3. Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers; and,
4. Establish an improved process for admitting future workers to serve.
Take Away: Get your company and Form I-9s in order. Revisit staffing needs.
Immigration Innovation (I2) Act of 2013
Introduced January 29, 2013, by Senators Hatch (R-UT), Klobuchar (D-MN), Rubio (R-FL), and Coons (D-DE).
1. H-1B Proposals:a. Increase cap from 65,000 to 115,000b. Establish market-based escalator for cap adjustmentc. Remove cap for U.S. advanced degree exemptions
(currently 20,000 per year)d. Authorize employment for H-4 spousese. Increase portability of skilled workers
Take Away: More staffing options for employers if more H-1Bs available.
2. Permanent Residence (Green Cards):a. Enable recapture and roll-over of unused visasb. Eliminate annual per-country limits for employment categories and
adjust those for family categoriesc. Exempt certain categories from the cap, such as persons with
extraordinary ability, outstanding researchers and professors, and dependents of employment-based cases
3. Student Visas: Allow for dual intent of foreign students to promote their future in the United States.
4. STEM: Promote STEM (Science, Technology, Engineering and Mathematics) education and retention of STEM graduates.
Take Away: Staffing could be impacted as more people have work authorization, but others’ permanent residence waiting time increases.
Immigration Innovation (I2) Act of 2013 (cont.)Be Careful What You Ask For
Deferred Action for Childhood Arrivals (DACA)• Deferred action for applicants who:
Entered the U.S. before age 16; Were under 31 years old as of June 15, 2012; Physically present in the U.S. on June 15, 2012, and at time of filing DACA
application; Continuously resided in the U.S. from June 15, 2007 to present; Currently attending school, graduated from high school or obtained a GED, or
honorably discharged veteran of U.S. Coast Guard or U.S. military; Entered the U.S. without inspection before June 15, 2012, or lawful
immigration status expired by June 15, 2012; and Have not been convicted of a felony offense, significant misdemeanor,
multiple misdemeanors, or otherwise pose a threat to national security or public safety.
• Can obtain employment authorization document (EAD) if at least 15 years old.
Take Away: Educated people added to workforce.
Latest Developments:A New Form I-9: Be Prepared!
Effective Date of New Form I-9
• USCIS has not indicated when the new form will go into effect.
• Implementation in 2013 is likely.
1) Employee may choose to enter email address and phone number.
2) Bar Code Included.
Significant Changes to the Form I-9: Section 1
3) Format Adjustments.a. An alien authorized to work, who
was issued a Form I-94 upon entrance to the U.S., must include his or her foreign passport number and the country of issuance.
b. Boxes throughout the Form I-9 are more clearly labeled and defined.• Example: Preparer/Translator
Section.
Significant Changes to the Form I-9: Section 1 (cont.)
1) Employee Information Box.2) Additional List A Blanks.• For Forms I-20, Foreign
Passports, etc.
3) New Hire Date Certification Section.• Easier to read and more
noticeable hire date certification section.
4) Bar Code Included.
Significant Changes to the Form I-9: Section 2
Implications of New Form I-9
• The new Form I-9 appears to be geared toward facilitating more investigations and fines. Requiring more information means
a higher rate of finable mistakes. The detailed instructions and
distinct separation between the employee and employer sections removes much of the doubt and leeway associated with previous versions of the Form I-9, thereby facilitating prosecution.
Latest Updates: E-Verify Electronic Employment Eligibility Verification
• Self Check is now available nationwide for users to check their own employment eligibility status.
• Florida joins Mississippi in allowing state driver’s licenses and ID cards to be verified through the Records and Information from DMVs for E-Verify (RIDE) Program.
• More states, cities and counties are enacting mandatory E-Verify requirements on public and private employers of all sizes. State laws are subject to change.
Latest Updates: The SAVE Program• The Systematic Alien Verification for Entitlements
(SAVE) Program is a web-based service that helps federal, state and local benefit-issuing agencies, institutions and licensing agencies determine the immigration status of applicants.
• Promotes automated status review, taking immigration status verification out of the hands of local agency representatives.
• Includes tiered process for status verification when immediate confirmations are unavailable.
• Result: Expect delays in applying for and renewing benefits, including driver’s licenses in most states.
Take Away: More driver’s license issues for temporary workers, including those with pending permanent resident cases.
• E-Verify expanded;
• Increased Notices of Inspection of Form I-9;
• Increased enforcement, especially if government funding is increased for enforcement.
-- Possible consequences: Work disrupted, workforce reduced, bad public relations for employers, and penalties.
Trends
- POSSIBLE PENALTIES: Civil, Administrative and Criminal Fines. Incarceration. Debarment.
- FINES for PAPERWORK VIOLATIONS: $110 to $1,100 per form. Factors considered in assessing fines: Size of Employer; Good Faith of Employer; Seriousness of Violations; History of Violations; and Unauthorized Workers
- POSSIBLE CRIMINAL CHARGES: Knowingly hiring or continuing to employ an unauthorized worker; Harboring; Conspiracy to harbor; Aiding & abetting document fraud; Aiding & abetting identity theft; Conspiracy, etc.
*Retain experienced criminal and immigration counsel if any of these allegations arise.
Employer Sanctions
U.S. Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices
• Investigates & prosecutes allegations of discrimination.
• Federal law prohibits discrimination based on Citizenship/Immigration status. National origin discrimination. Document abuse during Form I-9 employment
eligibility verification. Retaliation or intimidation.
• When verifying employment eligibility, do not request more or different documents than required, reject reasonably genuine-looking documents, or request certain documents. Do not use E-Verify or Self-Check to pre-screen employees.
• Unlawful discrimination may result in back pay, reinstatement and/or civil penalty of $375 - $16,000 per violation.
Build and Maintain a Culture of Compliance Within Your Company
• Identify what immigration issues may affect your company, such as those related to: Hiring Visas Social Security No Match letters Form I-9 and Reverification E-Verify Independent Contractors
• Conduct regular trainings for managers, HR professionals, staff and employees.
• Have a compliance policy, and review, follow, and enforce it.
Build and Maintain a Culture of Compliance Within Your Company
• Audit Public Access Files (be ready for DOL audits and USCIS visits), Forms I-9, and verification policies before an investigation. ** More weight is given to mitigation and compliance efforts made before being on ICE, USCIS or DOL’s radar.
• Stay abreast of the latest in enforcement actions.
• Create and train a first response team. Instruct everyone else in company to defer questions to first responders.
• Centrally store appropriate files for quick access, and audit periodically for accuracy.
• The new Form I-9 anticipates electronic completion using Form I-9 Software.
• Save time and reduce liability with electronic Form I-9 Software. Completion time would be reduced. Error rate is reduced. Electronic retention is cost effective. Purge notifications for Forms I-9
reduce liability drastically over time. Reminders when reverification needed
help reduce work disruption due to gaps in work authorization.
Build Your Culture of Compliance:Electronic Form I-9 Software
Build Your Culture of Compliance: Warnings for Form I-9 Audits and Software
CAVEAT EMPTOR - BUYER BEWARE!:
• It is important to use compliant, vetted and secure Form I-9 Software. • ICE has prosecuted employers for deficiencies in their Form I-9
Software, including poor audit trails.• OSC has fined employers for discriminatory Form I-9 Software.• No government entity certifies Form I-9 Software.• Seek experienced counsel when selecting a Form I-9 software program.
