© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.

UPDATE ON IMMIGRATIONISSUES IN THE WORKPLACE FOR

HEALTHCARE PROVIDERSPresented by:

Laura Deddish BurtonSmith Moore Leatherwood LLP

300 N. Greene StreetSuite 1400

Greensboro, NC 27401

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Terminology

• U.S. Department of Homeland Security (DHS)– U.S. Citizenship and Immigration Services

(USCIS)– Immigration and Customs Enforcement (ICE)– Customs and Border Protection (CBP)

• U.S. Department of State (DOS)• U.S. Department of Justice (DOJ)• U.S. Department of Labor (DOL)

Terminology

• Immigrant vs. Nonimmigrant

• Lawful Permanent Resident (LPR)• Citizenship and Naturalization• Consular Processing• Adjustment of Status (AOS)

Family Tree of U.S. Immigration

B y B irth

D E R IV E Dfro m p are n t(s)

N a tu ra liza tion

U n ited S ta tesC IT Z E N S

F a m ily-B a sed

E m p loym e nt

D V Lo tte ry

A sylee /R e fu g ee

C o u n try-S p e c if ic

IM M IG R A N T S N O N -IM M IG R A N T S"A lph ab e t S ou p"

N O N -C IT IZ E N S

BASIC I-9 CONCEPT

Keep in mind two goals: • To make sure Employers only hire people who are authorized to work in the US (screen out unauthorized workers).

• To make sure Employers do not discriminate against people based upon foreign origin (name, appearance, accent) when hiring.

NEW FORM I-9

• The US Citizenship & Immigration Services (USCIS) has issued a new version of the I-9 Employment Eligibility Verification Form. All US employers are required to use the new I-9 as of April 3, 2009. This is the only acceptable version of the form.

• The Form’s validity has been extended until August 31, 2012. Employers may use the Form dated August 7, 2009 or the February 2, 2009 Form.

I-9 Change:

• All documents presented by an employee must be unexpired on the date presented (including U.S. passports and List B documents)

• Section 1 – A new box has been added for an employee to self-identify: “A non-citizen National of the United States.” (separated from first box)

• Section 2 -- Changes to List A documents (documents that may be used to prove both identity and work authorization) :

– U. S. Passport must be unexpired

– Adds new U.S. Passport card as acceptable document

– Only I-766 Employment Authorization Document acceptable (Old cards I-688, I-688A and I-688B are no longer acceptable)

List A Documents:

Changes to List A documents (documents that may be used to prove both identity and work authorization):

- Adds Foreign Passport with machine-readable immigrant visa documentation (I-551)

- Adds documentation (passport and I-94 card) for citizens of the Federated States of Micronesia and the Republic of the Marshall Islands

- Unexpired foreign passport with attached I-94 card for nonimmigrant aliens authorized to work for a specific employer (language is clarified on form).

• The new I-9 form should be used on a going-forward basis and does not need to be completed for existing employees. (With exception of specified federal contractors)

• The new I-9 instructions specifically state that the employee is NOT required to provide a Social Security Number in Section 1, UNLESS the employer participates in the E-Verify program.

The new I-9 Form and the updated “Handbook for Employers, Instructions for Completing the Form I-9” are available to employers online at www.uscis.gov (near the bottom of the list of forms) or by calling USCIS at 800-375-5283.

WHY WORRY ABOUT I-9 COMPLIANCE?

Significant Potential Significant Potential Penalties for 4 Types of Penalties for 4 Types of

ViolationsViolations

PENALTIES

• Knowingly hiring or continuing to employ an unauthorized worker:

– 1st Offense: $375-$3,200 per alien.

– 2nd Offense: $3,200-$6,500 per alien.

– 3rd or Later Offense: $4,300-$6,500 per alien.

– Additional criminal penalties for “pattern and practice”.

PENALTIES

• Discrimination on the basis of national origin or citizenship status:

– 1st Offense: $375-$3,200 per individual.

– 2nd Offense: $3,200-$6,500 per individual.

– 3rd or Later Offense: $4,300-$16,000 per individual.

– Additional remedies include back pay, injunctive relief and attorney’s fees.

PENALTIES

• Paperwork violations: failing to properly complete I-9s or overdocumentation (for requesting too many documents):

– $140-$1,375 per individual (for each incorrect form).

– 10-day “cure” period for some violations.

PENALTIES

• Document fraud for knowingly accepting a forged document:

– 1st Offense: $375-$3,200.

– Later Offenses: $3,200-$6,500.

– Additional potential criminal penalties.

BASIC FOUR STEP PROCESS FOR COMPLETING I-9 FORMS

• Employee completes §1 by the end of the first day of employment.

• By the end of the third day of employment, employer reviews employee’s documents to verify identity and work authorization and completes §2.

• If employee’s work authorization expires, put expiration date in tickler system.

• Reverify before work authorization expires.

STEP 1: EMPLOYEE COMPLETES §1

• Make sure all information is completed and proper box is checked.

• Check the employee’s Social Security number for legibility, but do not ask for Social Security card.

• Complete an I-9 for all employees.

• The employee must complete §1 on or before the first day of work.

• The employee may use a translator, but the employee should still sign and date §1.

STEP 2: Employer Obtains and Examines Acceptable Documents by Day 3

• Obtain one document from List A OR one from List B AND one from List C.

• Let the employee choose the documents.

• Avoid overdocumentation.

• Suspend the employee if the documents are not received by Day 3.

• A receipt for a replacement document is acceptable.

STEP 2: Employer Obtains and Examines Acceptable Documents by Day 3

• Examine documents for authenticity.

• Photocopy documents based on company policy (unless participating in E-Verify).

• Verification of Social Security numbers if based on consistent policy.

• Fill in Section 2 and sign and date.

• Retain I-9 forms in separate files.

STEP 3: CREATE A TICKLER SYSTEM

• Enter work authorization in tickler system.• Remind employee 90-120 days in advance of

expiration.• Do not reverify identity documents or lawful

permanent resident cards.

STEP 4: REVERIFY

• Just reverify work authorization, not identity.• Accept any combination of documents: List A

OR List B AND C.• Complete §3.

RETENTION REQUIREMENTS

• An employee’s I-9 form must be retained for the full period of employment.

• Once employment ends, the I-9 must be retained for the longer of:

– One year from the date of termination

OR

– A total of three years from the date of hire.

VISAS FOR HEALTHCARE PROVIDERS

Nurses:

TN Visa

• Canadian and Mexican Citizens

• Valid for up to three years

• Must have valid VisaScreen Certificate

• For RNs only, not LPNs

• Can be full or part time

• No dual intent

VISAS FOR NURSES

H-1B Visa:

– More challenging because of visa requirements

– Position must require BSN or higher

– Only for advanced categories – nurse anesthetist, etc.

H-1C Visa:

– For nurses in certain HPSAs at certain designated medical facilities

– 500 per year available in U.S.

VISAS

TN visas also available for:• Dentist• Dietitian• Medical Lab Technologist• Nutritionist• Occupational Therapist• Pharmacist• Research physician (non-clinical)• Physical therapist• Psychologist• Recreational Therapist

VISAS

SCHEDULE A “GREEN CARDS

• Schedule A immigrant visas available for “certain medical personnel”

• Available for registered nurses and physical therapists

• Congress has designated these as shortage professions

• No recruitment required for labor certification

• EB-3 Skilled Workers – No “head of the line” treatment

SCHEDULE A“GREEN CARDS”

PHYSICIANS

H-1B visa:• Clinical practice• Must have passed USMLE• ECFMG certificate• License to practice

PHYSICIANS

PHYSICIANS

J-1 Waiver for International Medical Graduates:

– 2-year home residency requirement can be waived in certain cases to work in HPSAs, MUA/MUP, or a VA facility

– Exceptional hardship or sponsorship by an Interested Government Agency (IGA)

– IGA = Conrad 30 (state public health department); VA; ARC; HHS; DRA

PHYSICIANS

PHYSICIANS

J-1 Waiver for International Medical Graduates:

– Physicians receive an H-1B for a specific employer in HPSA

– Generally cannot change employees during waiver period

– Cannot “moonlight”

– After waiver period, visa is standard H-1B

PHYSICIANS

PHYSICIANS

• Generally EB-2 Professional with Advanced Degrees

• Certain National Interest Waivers available to avoid labor certification process

PHYSICIANS

E-VERIFY

(EMPLOYMENT ELIGIBILITYVERIFICATION PROGRAM)

E-Verify

• Voluntary online verification

• Participation requires Memorandum of Understanding with ICE

• Currently free to use

• 92% of queries receive instant verification

• Non-citizen work authorization status mismatches to be resolved by USCIS staff

• Currently 100,000 employers use E-Verify (out of approximately 6 million).

E-Verify

• Cannot use as a pre-screening tool.

• Only used for after-hires (except federal contractors) and must use within 3 days of hiring.

• If participating in E-Verify program, must use for all new hires.

• Cannot use for employees hired before employer joins program (except federal contractors).

• Cannot use for reverification, with some exceptions.

• Offers rebuttable presumption that employment is authorized.

• Must photocopy certain I-9 documents if participating in program.

E-Verify for Federal Contractors

• Under Federal Acquisition Regulation (FAR).

• Went into effect September 8, 2009.

• Federal contractor provision to be inserted in many memoranda of understanding for organizations that do business with U.S. government.

• It appears that Medicare/Medicaid providers do not fall under the provision.

Federal Contractors

Who qualifies:

• Businesses with a contract with federal government agency

• Required for all contracts over $100,000

• Exceptions for commercially available off-the-shelf items (COTS) (Most food and agricultural products)

• Provision applies to subcontractors providing services or construction over $3,000

• Must enroll in E-Verify within 30 days of entering contract

Federal Contractors• Must agree to use E-Verify for all new hires

• Must agree to use E-Verify for all existing employees working on the federal contract

• May choose to verify all existing employees (different from standard E-Verify program)

• Exception for institutions of higher education, state/local governments, and governments of federally recognized Indian tribes – do not have to verify all new hires

• Required verification inquiries must be initiated within 90 days of enrollment

E-Verify, Including Federal Contractors

• I-9 Differences:

– Employee must provide Social Security number;

– List B document provided must have a photograph;

– If employee provides I-551 (“Permanent Resident Card”) or I-766 (Employment Authorization Document), the employer must photocopy the document and keep it with Form I-9.

Questions?

Laura Deddish BurtonSmith Moore Leatherwood LLP

300 N. Greene StreetSuite 1400

Greensboro, NC 27401T: (336) 378-5566

laura.burton@smithmoorelaw.com