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As of June 23, 2011, all cities, all counties, and private employers with at lest 25 employees in North Carolina are required to use the federal government’s E-Verify program to verify the work authorization of newly hired employees.
Public universities, community colleges and other North Carolina state agencies are already required to use E-Verify. The new statute applies to municipalities, counties and employers that employ 25 or more employees in North Carolina.

Timeline for employers to register and participate in E-Verify:

• October 1, 2011:  municipalities and counties in North Carolina.
• October 1 2012: Employers who employ 500 or more employees in North Carolina.
• January 1, 2013: Employers that employ 100 or more employees in North Carolina
• July 1, 2013: Employers that employ 25 or more employees in North Carolina

Employers with seasonal temporary employees who work fewer than 90 days in a consecutive 12-month period are excepted from compliance, and the law also does not apply to employers that employ fewer than 25 employees in North Carolina.

An employer covered by the Act will be required to enter a new hire’s information reported on the Form I-9, Employment Eligibility Verification, into the E-Verify program to determine the eligibility of that employee to work in the United States. An employer must retain the records of the verification of the employee’s work authorization during the length of that employee’s employment and for one year after the end of the employment period.

Any person who has a good faith belief that an employer is violating the requirement to use E-Verify may file a complaint with the North Carolina Commissioner of Labor. The complaint may be anonymous. The commissioner will investigate valid complaints and may issue subpoenas for employment records from the employer as part of this investigation.

For a first violation of the Act, the North Carolina Commissioner of Labor will order the employer to file a sworn affidavit within three business days after the determination that the employer has violated the Act. The employer must swear in the affidavit that it has consulted with the employee and requested a verification through E-Verify. Failure to timely file this affidavit subjects the employer to a $10,000 civil penalty. A second violation of the Act subjects the employer to an additional $1,000 civil penalty, and a third violation subjects the employer to a $2,000 civil penalty for each required employee verification that the employer failed to make. The Act contains a provision allowing an employer to appeal the commissioner’s determination that the employer has violated the Act.

 For more information about instituting an E-verify program, please call Donna Ray Chmura at 919-706-4200 or dchmura@sandsanderson.com

The H-2A nonimmigrant visa program (“H-2A program”) allows foreign nationals to enter into the U.S. to perform agricultural labor or services of a temporary or seasonal nature. In order to employ foreign nationals under the H-2A program, employers must prove that no qualified U.S. workers are available at the time and place needed and that use of foreign workers will not create an adverse effect on the wages or working conditions of similarly employed US workers. The employer must also provide housing (if employee cannot reasonably commute from home), three meals a day, and transportation.

Although similar to the H-2A program, the H-2B nonimmigrant visa program (“H-2B program”) allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. H-2B workers are frequently used to fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services. Like the H-2A program, employers must prove that no qualified U.S. workers are available at the time and place needed. Up to 66,000 H-2B visas are granted each year with half reserved for jobs with start dates in the first half of the government fiscal year and the remainder reserved for the second half. The employer must pay the employee’s transportation costs home if the employee is terminated early. Unlike the H-2A program, H-2B program employers are NOT required to provide housing or meals for their H-2B workers.

For more information about the H-2A or H-2B programs, please contact our offices.

In the January 15, 2010 statement released by Secretary Napolitano, she stated:

“This is a disaster of historic proportions and this designation will allow eligible Haitian nationals in the United States to continue living and working in our country for the next 18 months. Providing a temporary refuge for Haitian nationals who are currently in the United States and whose personal safety would be endangered by returning to Haiti is part of this Administration’s continuing efforts to support Haiti’s recovery.”

For more information, please see our previous post on TPS.

Section 287 (g) was added to the Immigration and Nationality Act by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996. 287(g) authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, provided that the local law enforcement officers receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers.

Since its beginning, the 287(g) has been surrounded by a whirlwind of controversy with accusations of the program encouraging racial profiling. Although many support the program, it has come under intense criticism more recently, with over 500 organizations, including the ACLU and the Congressional Hispanic Caucus, calling on the government to end the program.

So, what will happen with 287(g)? Only time will tell. It will at least have to wait until Immigration Reform hits Congress’ front burner.

On October 6, 2009, Sgt. Wesly Farris and Stephen Schneider pleaded guilty to marriage fraud in federal court in Greenville, North Carolina. The two men, while soldiers at Fort Bragg military base in Fayetteville, North Carolina, married Russian women in 2005 and 2006, respectively, after meeting them through brothers Alexander “Sasha” Manin and Pavel “Pasha” Manin.

The marriages took place in civil ceremonies on the same day that the men met the women. After which, the women returned to New York while the men filed both the immigration paperwork necessary for the women to remain in the U.S. and the paperwork with the army to secure higher living allowances and off-post housing.

Svetlana Kaloshina, wife of Farris, pleaded guilty in August to making a false statement on an immigration application and is out on bond awaiting sentencing. Tatyana Urazova, wife of Schneider, pleaded guilty Monday to conspiracy to commit marriage fraud. She remains in jail and will likely be removed (deported) after sentencing.

A third woman charged in the case, Anya Ivanova, was in a fraudulent marriage with a third Fort Bragg soldier, Jason Hawk, who was convicted at court-martial in February. Jason Hawk was demoted from sergeant to private, paid a fine of $20,000 and served a fourth month sentence on post. He was then discharged. Ms. Ivanova is currently a fugitive, and authorities believe she is in Canada.

Will further mechanisms to prevent marriage fraud be a big part of the inevitable immigration reform?

For years, foreign nationals who wanted to become U.S. permanent residents (green card holders), paid Ms. Camarillo as much as $12,000 to arrange marriages between them and U.S. Citizens. The foreign nationals then used their marriage to a U.S. citizen as basis for obtaining U.S. permanent residency and often citizenship.

Ms. Camarillo recruited her children, grandchildren, nieces, and nephews (all U.S. citizens) into the conspiracy. Each was paid a portion of Camarillo’s $12,000 fee for agreeing to marry foreign nationals.

The new rule is applicable to Federal contractors and subcontractors who are awarded a contract, on or after September 8, 2009, which contains the Federal Acquisition Regulation (FAR) E-verify clause. These employers must enroll and begin using the E-verify program within 30 days of the contract award date.

Although there has been controversy surrounding the E-Verify program, the program is voluntarily used by many employers in an attempt to minimize liability. As of July 2009, USCIS reports that more than 148,000 employers used E-Verify to electronically verify their workers’ employment eligibility.

For more information on the E-Verify program, please contact our offices.

Over the past several years, there have reports of insufficient medical care and poor treatment of foreign nationals held by ICE. Earlier this year, the NY Times published an article about a computer engineer from China who died from a lack of proper medical care while he was detained in a contracted detention center in Rhode Island.

So, what will the new overhaul include? According to John Morton, Assistant Secretary of ICE, the next three to five years will bring facilities located and operated solely for immigration detention purposes. These facilities will be run by ICE and, according to Assistant Secretary Morton, will address many of the issues regarding oversight and medical care.

What will the cost be? Will it cost more or less than contracting with public and private facilities? The data isn’t in or at least it hasn’t been yet.

The I-9 system of employment verification, created by the Immigration Reform and Control Act of 1986, is the nation’s sole mandatory employment eligibility verification program. All U.S. employers are responsible for the completion and retention of Form I-9 for each individual hired for employment in the United States, including citizens and non-citizens.

This newest enforcement effort by ICE follows a recent Department of Homeland Security (DHS) announcement that ICE will focus its resources on criminal prosecution of employers who knowingly hire illegal workers and that the agency “will use all available tools, including civil fines and debarment, to penalize and deter illegal employment.”

“Knowingly hiring” can be a tricky legal concept. Employers can also be held liable if they had “constructive knowledge” that a worker wasn’t eligible for employment. Constructive knowledge means that the employer “should have known.” Constructive knowledge has been found where employers did not complete I-9 forms or completed I-9 forms incorrectly.

Many errors on forms result from inadvertent mistakes pertaining to preparation, storage, and retention that can result in civil fines, and even criminal charges. Civil fines for employers can range from $3200 (per violation) for a first offense to $16,000 (per violation) for a third or subsequent offense. All company representatives verifying employment eligibility of employees are potentially liable, both criminally and civilly, for errors in completing I-9 Forms.

So what can U.S. businesses do to mitigate exposure stemming from their I-9 programs? It is imperative, now more than ever, that employers implement I-9 Compliance Plans that include proper training, internal audits, and third-party audits. The voluntary E-Verify program (formerly the Basic Pilot/Employment Eligibility Verification Program), an online system operated jointly by the Department of Homeland Security and the Social Security Administration (SSA), also provides employers with a “safer harbor” within which to operate.

As of September 2008, 31,000 employers have voluntarily enrolled in the program. On June 6, 2008, President Bush issued Executive Order 13465 “Economy and Efficiency in Government Procurement through Compliance with Certain Immigration and Nationality Act Provisions and the Use of an Electronic Employment Eligibility Verification System,” This Executive order provides that “executive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the federal contract.”

The final rule was to be effective as of January 15, 2009. However, as mentioned above, the effective date of the new rule has been delayed several times and will now be effective September 8, 2009.

All employers, whether Federal Contractors or not, may enroll for E-Verify online at www.dhs.gov/E-Verify.

As of April 2009, 117,000 employers have voluntarily enrolled in the program, up from 9,300 in June 2006, according to US Citizenship and Immigration Services (USCIS). Despite its growth in popularity, E-Verify remains controversial. Many Security experts worry that E-Verify provides no greater security, business groups see it as costly, and labor and immigration advocates are concerned about negative effects on legal workers and the industries that employ them.

NEVA was born out of the E-Verify controversy and attempts to address some of E-Verify’s shortcomings. Under NEVA, employers would be able to confirm the work eligibility of U.S. citizens and non-citizens in more specific database-targeted ways. For U.S. citizens, employers would use the Social Security Administration database. For non-citizens, employers would use the U.S. Department of Homeland Security (DHS) database. Another interesting aspect of NEVA would be that employers could choose to utilize a biometrics option during the verification process.

With pressure for Immigration reform from the current administration and the ongoing E-Verify controversy, NEVA (or another new program) could replace E-Verify in the coming years. So, what do you all think? Should E-Verify live on?

Previously, various documents, such as U.S. Passports, were acceptable for I-9 purposes, even if expired. The general belief has been that these documents were impossible to fraudulently duplicate and therefore evidence of citizenship, whether expired or unexpired. According to CNN’s Mike Ahlers, this belief has been proven false by a congressional investigation.

According to Mr. Ahlers’ news report, An investigator with the Government Accountablity Office (“GAO”), Congress’ investigative arm, used a false identification to obtain a U.S. passport and then used the passport to get an airline boarding pass and go through an airport security checkpoint. In fact, the investigator was able to receive four different passports using the identities of a man who died 1965 and a five year old child.

Regardless of varying feelings about employment eligibility and undocumented workers, this investigation raises a much more drastic picture of problems with our national security. It has been over eight years since September 11. Does it grind your gears that we are still having these types of national security issues?

So what can U.S. businesses do to mitigate exposure stemming from their I-9 programs? It is imperative, now more than ever, that employers implement I-9 Compliance Plans providing four primary tools to mitigate potential liability.

Tool 1: Proper I-9 Training
The majority of Form I-9 errors have little to do with unauthorized workers and more often involve a lack of proper training resulting in inadvertent errors. Errors are also often a result of a lack of understanding of Immigration Documents such as Nonimmigrant and Immigrant visas, Employment Authorization Documents, and Permanent Resident Cards.. Knowing which documents are acceptable and which require re-verification in the future can be quite technical.

Tool 2: The Self Audit
Most often I-9 forms are completed, filed, and never reviewed thereafter. By conducting regular self-audits, employers not only strengthen their “good faith” compliance but provide themselves with the opportunity to evaluate their progress and identify areas of weakness requiring further training or amendment of their I-9 Compliance Program.

Tool 3: The Independent Audit
Because these issues can be highly technical, having regular independent I-9 Audits conducted by counsel not only greatly strengthens the employer’s “good faith” compliance, but provides further opportunity for review of procedures and error-spotting by an attorney with greater expertise in the field.

Tool 4: E-Verify
E-Verify (formerly the Basic Pilot/Employment Eligibility Verification Program) is an online system operated jointly by the Department of Homeland Security and the Social Security Administration (SSA). Participating employers can check the work status of new hires online by comparing information from an employee’s I-9 form against SSA and Department of Homeland Security databases.

Although in this age there is no absolute protection for employers against potential liability in connection with I-9 Compliance, these tools are vital in mitigating potential liability.

Mandatory use of the controversial employment eligibility tool, E-Verify, by Federal contractors and subcontractors has been delayed until May 21, 2009. E-Verify is an internet based system for verifying employment eligibility.

For more information, please see my article and blog post on this issue.

U.S. Citizenship and Immigration Services (USCIS) announced last friday that it has delayed by 60 days, until April 3, 2009, the implementation of an interim final rule entitled “Documents Acceptable for Employment Eligibility Verification.” The new I-9 form, originally scheduled for implementation today, February 2, 2009, should not be used for employment eligibility verification until the final rule is implemented on April 3, 2009 (sans further delays).

For more information please see my previous blog post on this issue.

The VWP enables foreign nationals of certain countries to travel to the United States for business or tourism for stays of 90 days or less without obtaining a visa. The Visa Waiver Program was introduced in 1986 with the aims of facilitating tourism and short-term business visits to the United States, while allowing the U.S. Department of State to focus consular resources on addressing higher risks. To be eligible for a visa waiver under the VWP, the traveler seeking admission to the United States must be a citizen of a “program country,” as designated by the Secretary of Homeland Security.

The electronic program assists in determining eligibility to travel to the United States under the VWP. According to DHS, the electronic system will mitigate VWP security risks by enabling DHS to evaluate whether an individual is eligible to travel to the United States under the VWP, and whether such travel poses any law enforcement or security risks prior to their boarding a U.S.-bound carrier.

So, although this is simply aiding in security for a particular group of travelers to the U.S., it may be one step closer to securing our boarders. What do you think?