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JAMES D. LEVINE, ESQ.
D IANE L . SOROKO, IMMIGRATION SPECIALIST
MCKENNA LONG & ALDRIDGE LLP
OCTOBER 6 , 2011
SHRM I-9 Compliance Issues
Classifications
Nonimmigrant. A foreign national entering the
United States intending to remain temporarily.
Lawful Permanent Resident. A foreign national
entering the United States intending to remain
permanently. Also known as “green card.”
U.S. Citizen. An individual who by birth or
naturalization is entitled to the enjoyment of full civil
rights in the United States.
2
Common Nonimmigrant Classifications
B-1/B-2 – Visitors
H-1B – Specialty Occupations (require bachelor’s
degrees in specialty)
L-1A/L-1B - Intra company Transferees
E-1/E-2 - Treaty Trader/Investor
TN - Canadian or Mexican Professionals
E-3 - Australian Professionals
3
No Discrimination 4
It is an unfair immigration-related employment
practice to: discriminate against any individual
with respect to hiring or recruitment for
employment or to discharging person from
employment based on the person’s “national
origin” or against certain “protected individuals”
(includes asylees, refugees, etc.)
Employment of Nonimmigrants – I-9 5
I-9 Requirements 6
A request for more or different documents than
are required or refusing to honor documents
provided that “on their face reasonably appear
to be genuine” shall be treated as an unfair
immigration-related employment practice if
request for the purpose or with the intent to
discriminate.
I-9 Requirements (Continued) 7
If USCIS discovers that an employee is not actually authorized to work, you can claim “good faith” defense, if you have done the following:
a. Ensured that employees fully and properly completed Section 1 of the I-9 at the time employment began.
b. Reviewed the required documents which should have reasonably appeared to have been genuine and to have related to the person presenting them.
I-9 Requirements (Continued) 8
b. Fully and properly completed Section 2 of the I-9,
and signed and dated the employer certification.
c. Retained the I-9 for the required period of time;
and
d. Made the I-9 available upon request to an USCIS,
DOL, or ICE officer
Document Retention 9
Employers must retain the I-9 for 3 years’ after
the date employment begins or 1 year after the
date the person’s employment is terminated,
whichever is later.
Independent Contractors 10
Employers are not required to complete an I-9
form independent contractors or their
employees
However, you must not knowingly use contract
labor or circumvent the law against hiring
unauthorized aliens.
Social Security Cards 11
Employment Authorization for Nonimmigrants
12
I-94 Cards 13
Visa is not employment authorization 14
Permanent Residency 15
Lawful Permanent Resident. A foreign national
who holds a “green card”
E-Verify 16
Internet-Based “Voluntary” System to provide
confirmation or tentative non-confirmation of
employees’ employment eligibility within three
(3) Federal Government workdays of the initial
inquiry
Public Employers
E-verify is already required in Georgia for “public
employers” (departments, agencies, etc. of the
state and political subdivisions) and
contractors/subcontractors/sub‐subcontractors
with public employers for “physical performance of
services”
Affidavits required
17
Public Employers
SB 87 requires public employers to certify
compliance annually, providing a list of contractors
Violators will be listed on the DOL website;
second‐time violators will be barred from entering
into public contracts for 12 months
18
Private Employers
Private employers in Georgia must participate in
E‐Verify:
01/01/2012 – private employers with 500 or more
employees
07/01/2012 – private employers with 100 or more
employees
07/01/2013 – private employers with 11‐99 employees
State takes position that employee count includes
total workforce, not just Georgia employees
19
Private Employers
Cities and counties will be prohibited from issuing
business licenses, occupational tax certificates or
other authorizations to do business without proof
of employer participation in E‐Verify
Department of Law must publish form of affidavit to
be used to certify compliance by 01/01/2012
Affidavits will be required for renewals of licenses
too
20
Electronic Forms I-9
April 2005 law took effect authorizing employers to
retain Employment Eligibility Forms (Forms I-9) in
electronic format
Immigration and Customs Enforcement (ICE)
promulgated rules setting standards for using
electronic I-9s in June 2006
Employers can convert to an electronic format by
scanning and indexing current Forms I-9 and storing
them using electronic I-9 software
21
ICE Standards
Forms must be legible on the computer screen and
when printed
Data order must be the same as paper versions
Back up systems must be in place
Software must have an indexing system
Must have the ability to reproduce hard copies
Unrestricted government access to software
Software must have user/action identifying system
22
Benefits of Electronic I-9s
Software has restrictions on completing the form
unless data is properly entered
Pre-filled employer sections save time
Monitoring is easier for multiple site employers
Reverification is automated
Can be integrated with E-verify
Reduces risk of identity theft
Easier to respond to ICE audits
Automation of records purging
Systems are searchable
23
Limitations
There is no 100% secure electronic system
Cost
Internet dependent
Vendor goes out of business
24
Employer Obligations
Implement records security program to ensure only
authorized personnel have access to records
Back-up records
Train employees and implement controls to minimize
the risk of records alteration or deletion
Ensure user/action identifying system is in place
Regular inspections of electronic data to ensure
integrity
25
Audit Requirements
Employer must provide description of electronic
generation and storage system
Employer must retrieve and reproduce forms and
audit trails requested by inspecting officer
Inspector must be provided with hardware, software,
personnel, and documentation to locate, retrieve,
read, and reproduce Forms I-9 and related data
Inspector can request electronic summary of all
immigration fields on a stored Form I-9
26
New Developments 27
No movement on federal immigration reform
Increased enforcement and inspections, including
I-9 audits
More automation – consistency critical
H-1Bs – focus on who is the employer
L-1Bs – heightened scrutiny
New Developments (cont’d) 28
PERM applications – timing; cases
Obtaining visas abroad – delays
Implications of convictions for U.S. citizens
traveling abroad
Contact Information 29
James D. Levine, Esq.
McKenna Long & Aldridge LLP
303 Peachtree St., NE
Suite 5300
Atlanta, Georgia 30308
(404) 527-4090
Diane L. Soroko, Immigration Specialist
McKenna Long & Aldridge LLP
303 Peachtree St., NE
Suite 5300
Atlanta, Georgia 30308
(404) 527-4969