Live Blogging: the Worksite Immigration Compliance Symposium
STANFORD, CA – Everyone’s favorite one-page government form takes center stage on Monday, June 6 at the Worksite Immigration Compliance Symposium, a one-day all-you-can-eat buffet of I-9 and E-Verify discussions led by experts from government, private practice and academia. Hosted by the Stanford Law School Rock Center for Corporate Governance, the symposium will cover recent trends in I-9 related worksite enforcement, various government programs (including E-Verify) and emerging best practices from the field. Throughout, the speakers will evaluate the impact of I-9 and E-Verify issues on corporate behavior in light of recent high-profile government investigations and fines. To read more about the symposium, please click here. Can’t make time to attend the event? No problem! We’ll be live blogging the entire symposium and also taking questions/ comments for the panelists. To receive live updates, please check back to this blog posting throughout the day and follow us on Twitter for timely notifications. Have a question or comment for the panel? Make sure you to tweet us with your remarks or leave a comment here. See you online! 6:18 pm: The Symposium has concluded. Thanks for following along! 6:14 pm: What is the status of the feedback loop to the government (ICE, USCIS, etc.)? The liaison groups at AILA are still effective and important. Paul would like to see some specific proposals from the government (whether through regulations or otherwise) which addresses this important issue. Regardless, the dialog needs to be focused on concrete proposals. 6:10 pm: we still have to be hopeful for comprehensive immigration reform – it’s difficult to imagine today. Without a doubt, proper reform will cost money. 6:02 pm: Both the administration and Congress will look closely to the recent U.S. Supreme Court case in deciding how to proceed with enforcement or immigration-related bills. 5:47 pm: In 1996, Congress passed an amendment to the INA introduced by Congressman and restaurant owner Sonny Bono to provide employers with the opportunity to correct “technical or procedural” I-9 violations if the deficiencies occurred in the context of a “good faith” effort to comply with I-9 rules. Under the Bono Amendment, employers that are found to have committed certain omissions or failures in the I-9 procedures will not be subject to a fine, but will be given notice of the “technical” violations, and will be granted 10 days to cure the deficiencies. Subsequently, in 1997,the so-called Virtue memorandum was born – outlining the agency’s position regarding which violations were “substantive” and which were “technical or procedural.” 5:30 pm: now, the moment many have been waiting for: the keynote address from Paul Virtue, the author of the well-known “Virtue Memo” on I-9 good faith paperwork violation defense policy. 4:45 pm: Tina Sciocchetti, Assistant US Attorney in the Northern District of Albany discusses the corporate charging factors for employers with criminal I-9 violations. In particular, the prosecutor must weigh all of the factors normally considered in the sound exercise of prosecutorial judgment: the sufficiency of the evidence; the likelihood of success at trial; the probable deterrent, rehabilitative, and other consequences of conviction; and the adequacy of noncriminal approaches. Prosecutors will also consider the nature and seriousness of the crime, pervasiveness, company history, existence of compliance programs, remedial actions, collateral consequences, and the adequacy of civil or regulatory remedies. These corp charging guidelines are the “bible” for prosecutors. 4:37: the last shoe to drop – the notice of suspect documents.Paul Zulkie feels that ICE (at least in the midwest) is willing to consider a phased termination, which takes into account the employer’s business realities. It’s important for employer to provide frequent updates so that ICE sees the employer is cooperating in good faith. 4:30: by and large, ICE will look favorably upon an employer’s decision to use E-Verify as part of a settlement negotiation. 4:35 pm: ICE has publicly stated that its mission is NOT to put employers out of business. In some situations, attorneys need to explain this as a negotiating point. 4:06 pm: The last panel discussion begins now with a talk about ICE and U.S. Attorney Negotiations. For paperwork violations (strictly civil), it really is all about money. Eric Bord says that ICE is consistently inconsistent with their fine assessment – lesser offenses may receive harsh fines while more extensive violations see just a warning. 2:59 pm: Sharon Mehlman thinks that “good faith” is in the eye of the beholder. What may be good faith to the employer may be viewed suspiciously by ICE. For example, no-match letters at one point had a legend stating that it should not be copied. If an employer doesn’t have the letters when inspected by ICE, is this bad faith? Certainly doesn’t seem like it, but that may take some convincing. 2:51 pm: Is E-Verify a panacea for I-9 problems? Not entirely. There is no such thing as an entirely fool-proof system that will shield employers from liability. Nevertheless, it can be a positive factor for ICE. 2:41 pm: Prosecutors often get creative when pursuing employers with immigration violations – there are document fraud statutes, identity theft laws, conspiracy to interfere with SSA’s lawful functions, money laundering, bank, mail, wire fraud, alien smuggling, overlap with human trafficking, etc. 2:26 pm: Most often, criminal cases arise from disgruntled workers. Sometimes cases arise from media stories – illegal dumping by the company and unauthorized employment – a prosecutor will most likely get involved. Sometimes it arises out of a civil suit – competitors suing each other b/c one has a workforce of undocumented workers. Or unions losing contracts. 2:15 pm: we begin again with worksite criminal cases. Companies have not made I-9 issues a priority – not their fault b/c government hasn’t made it a priority either. However, today, every organization out there is a potential target. And not only the fines, but also the criminal implications. Now, there is more cooperation between government agencies – now, you have an NOI and all of the sudden, there is a Wage and Hour audit. Another trend is reacting to politics of unauthorized employment – more pressure on ICE and other agencies to go after employers. Very similar to IRS – companies pay their taxes because they know they will face criminal and civil fines. 1:49 pm: What to do right now? Treat I-9 and related compliance areas as if they are a critical control and engage in an internal process, books & records and policy analysis. Employers also need to get the attention of the CFO, GC & Audit Chair. 1:22 pm: For the average publicly traded company, the perspective is “we don’t have any undocumented workers so I-9 compliance is not important.” 1:14 pm: Is I-9 compliance similar to an invisible monkey? Check out this video here to see how easily GC’s get blindsided by emerging complex issues. 1:04 pm: Dan Siciliano is now speaking on corporate immigration compliance in a Sarbanes-Oxley, Dodd-Frank World. 12:01 pm: Concerned about anti-discrimination in the I-9 process? You must examine the employer’s compliance policies and procedures, compliance manuals, training programs and implementation to ensure consistency and compliance. This section of the law is “clear as mud!” 11:30 am: The current minimum penalty for paperwork violations are a minimum of $110 and the maximum penalty at $1110. After the base minimum penalty amount is determined, the attorney auditor must consider the 5 statutory factors to see if the fine will be enhanced or mitigated. 11:15 am: I-9 paperwork violations are considered to be continuing violations until they are corrected (also known as “cured”) or until the employer no longer is required to retain the I-9 form, three years after the date of hire or one year after date of termination, whichever is later. 11:12 am: Having uncorrected I-9s is essentially a contingent liability – remaining on the books of a publicly traded company. 11:07 am: There is an important window to remember in I-9 liability audit: The Form I-9 and the accompanying document list remained virtually unchanged from November 21, 1991 until November 26, 2007, a period of over 16 years! 11:04 am: After a networking break, we’re back to discuss liability auditing, including I-9 administrative civil liability determination, unlawful immigration-related employment practices and anti-discrimination compliance. 9:55 am: What do you if you discover that all of the I-9s have been thrown out – inadvertently (misunderstanding of the 3 year/1 year rule). Gregory says remediate – better late than never. If possible, go through the I-9 process again. This will depend upon whether the source documents were maintained. Remember though – never back date the I-9! 9:54 am: Decentralized I-9 practice can pose huge problems – just recalling all of them can take lots of time. With the advent of electronic I-9s, this can be resolved. 9:47 am: Remediation is the crux of the Immigration Compliance Audit – allows mitigation and preserves good faith. The remediation steps outlined in the Immigration Compliance Auditing for Attorneys (AILA Publications 2011) include how to deal with missing I-9s, timeliness violations, knowingly hired/continuing to employ violations, and paperwork errors. 9: 45 am: ICE recognizes the E-Verify program rule that an I-9/E-Verify can be completed in 4 days (if employee starts on Monday, must complete by Thursday) 9:39 am: The interplay between an “auditor” and an “attorney” can be conflicting – ethical obligations as an attorney and the need for “independence”. An attorney needs to establish how he or she is being engaged. Once this analysis is complete, the attorney prepares a proposed engagement with an appropriate description of its scope, objectives and methodology. 9:25 am:Chuck Miller and Gregory Wald have now taken the stage to discuss immigration compliance auditing. The lynchpin of the immigration compliance program is the external compliance audit, designed to provide the attorney auditor’s independent assessment regarding a client employer’s compliance under the applicable laws. 9:15 am: Chris Stowe and I just spoke about the present and future likelihood of employer compliance programs.In light of the recent Supreme Court decision on the Arizona Legal Arizona Worker’s Act, we predict the patchwork of state verification laws to continue unabated. In addition, on a federal level, Congress may indeed pass legislation which requires all employers (most likely through a phased-in approach) to use the E-Verify system. 8:45 am: E-Verify is the topic of conversation, and although it’s always been a “voluntary” program, we now know it better as a mandated program for employers. Is E-Verify free? Well, yes and no. While it may be free to register and use the system, there are many “transactional” costs which employers will need to bear, including training, policies, procedures, and the potential lost time when workers need to resolve government mismatches.