Immigration Basics For Employers George C Maxwell Scott

Immigration Basics For Employers George C. Maxwell & Scott Borene Law Firm P. A. ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082

Outline • Part 1: Overview • Part 2: Interview Questions Related to Immigration- Status and Sponsorship • Part 3: I-9 • Part 4: Short Review of E-verify • Part 5: Temporary and Permanent Employment-Based Immigration Options • Part 6: Red Flags ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 2

Part 1: Immigration Overview • Statutory Groups of People – United States Citizens – Aliens • Immigrants • Non-Immigrants • Statuses and Visas – Visa • Permits the Alien to Approach the Border • Not an Immigration Status ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 3

Immigration Overview (Cont. ) • Immigration Status – Two Basic Kinds: Temporary and Permanent – Some Common “Statuses” with Work Permission • Temporary (restricted): H, L, TN, E, O, R, F-1(OPT), F-1 CPT, F-1 STEM OPT, J-1, H-2 A, H-2 B • Temporary (unrestricted): Pending Adjustment Applicants • Permanent (unrestricted): LPR, Refugees, Asylees • Common Misconceptions with Status and Visa Issues – Possible to Have a Valid Visa and Not Be in Legal Status – Possible to Have a Valid Status and an Expired Visa ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 4

Immigration Overview (Cont. ) • Main Government Agencies – Department of Homeland Security (DHS) • United States Citizenship and Immigration Services (USCIS) • Customs and Border Protection (CBP) • Immigration and Customs Enforcement (ICE) • Transportation Security Administration (TSA) – Department of Labor – Department of State ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 5

Immigration Overview (Cont. ) • Recent Trend Towards Increased Protection of US Labor Market By Altering Adjudications Standards • Increased Focus on Fraud Detection • Trend Towards Increased Enforcement • Employers Face Increased Risk of Enforcement Action For Employing Illegal Aliens ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 6

Immigration Overview: “Extreme Vetting” • New Trend Is to Allow For More Vetting – – – • Applies Beyond Just Those Subject to Travel Ban Greater Likelihood of Visa Processing Delays or Denials Potential for Search of Electronic Devices at the Border • OCTOBER NOVEMBER DECEMBER JANUARY FEBRUARY MARCH TOTAL Information Sought – – Cell Phones - contact list and photos could be examined by embassy or consulate staff Social media handles and passwords so that both private and public posts can be viewed. Previously, the Department of Homeland Security has requested handles only to review public posts Provide 15 years’ worth of travel history, employment history and addresses Potential to also lead to questions that are akin to an “ideological test” such as questions focused on the traveler’s view of women’s treatment in society, whom they view as a legitimate target in a military operation and whether they believe in honor killings. ©Borene Law Firm P. A. 2018 U. S. Customs and Border Protection International Arrivals Processed With Electronic Device Search • FY 2016 857 1, 208 1, 486 1, 653 1, 470 1, 709 8, 383 FY 2017 2, 560 2, 379 2, 404 2, 756 2, 299 2, 595 14, 993 Although the numbers are small, it represents an increase of over 70% www. borene. com 612. 321. 0082 7

Part 2: Questions By Employers Regarding Immigration Status At Job Interviews • Potential For Discrimination on National Origin, Citizenship, or Document Abuse • Department of Justice Office of Civil Rights Enforces Complaints of Discrimination • Citizenship Discrimination Protects A Narrow Group -“Protected Persons” (e. g. USCs, LPRs, TRs, Refugees, & Asylees) • National Origin and Document Abuse Protects a Broader Group ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 8

Questions At Job Interviews • Guidance on permitted questions has been provided in letters (still no ‘Safe Harbor’) • Generally not citizenship discrimination – To make an employment decision (e. g. hire) exclusively based on an individual’s status as a temporary visa holder or as an applicant for adjustment of status to permanent residence – Carefully worded pre-employment inquires about applicants who require employer visa sponsorship • Inquiries relating to the expiration date of the H-IB visa and F-1 OPT dates, for example, are permitted ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 9

Questions At Job Interviews • Trasvina Questions – (Long-held by DOJ OSC as permitted) – Are you legally authorized to work in the U. S. ? – Will you now or in the future require sponsorship for employment visa status (e. g. H-1 B visa status)? ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 10

Don’ts of Interview Questions Examples of Specific Questions Not Recommended Are you authorized to work on an unrestricted basis? Do you now or will you at any time in the future require the filing of any application or petition with the USCIS (e. g. , Form I-765, application for employment authorization)? • If hired, can you provide proof that you are legally able to work in the U. S. for at least 12 months? General Areas to Avoid • Questions Asking For A Particular Document in an Interview to Confirm Immigration Status • Questions Asking A Person’s Citizenship or National Origin • • ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 11

Part 3: I-9 Compliance • All Employers Are Required To Comply With I-9 Rules • New Employee Must Complete Page 1 of I-9 Form At the Time of Hire (On or before the 1 st day of paid employment). • Employer Technically Has Up to 3 Days to Complete – Page 2 • Best Practice is to complete entire I-9 after acceptance of job offer and prior to Start Date • Key Element In Employer Immigration Compliance • Proper Implementation Can Help Detect and Prevent Hiring and Retention of Unauthorized Workers ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 12

I-9 Compliance (Cont. ) • Fines for Civil Violation For First Offense – $275 - $1, 900 per form for failure to comply with I-9 requirement or committing document abuse. – $375 -$2, 725 per worker for hiring or continuing to knowing employ a person that is not authorized – Amount depends on percentage of non-compliant forms • Mistakes In Form Completion Can Lead to Civil Fines Even If No Unauthorized Worker Was Hired – Hartmann Studios Fined $605, 250 for I-9 paperwork violations – most violations (797 I-9 violations) were for repeated failure to sign section 2; failure to fill out I-9 for 4 individuals, 8 I-9 s it failed to produce timely; failure to ensure the employee completed section 1; forms missing List A, B, and C documents • Failure to Follow Procedures And Instructions Can Also Lead To Discrimination and Document Abuse – Health. Care Industry Company Paid $257, 000 to Settle Document Abuse (Charges by DOJ OSC) ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 13

I-9 Compliance • The Current I-9 Form • Common Mistakes • Do provide the 15 pages of instructions with this form to Employee • Do provide the page listing acceptable documents • Do use the most current Version dated 07/ 17/2017 • Do Encourage Filling Out Form Before First Day of Work Begins or No Later Than First Day on Payroll ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 14

I-9 Compliance: First Page 1. 2. 3. 4. 5. ©Borene Law Firm P. A. 2017 Insist that Employee Fills Out The First Page Completely, Signs, and Dates SSN Optional If Not Signed Up With E-Verify Do Pay Attention to Expiration Date for Employees Checking Box Most I-94 s Are Now Electronic Preparer Portion Must be Filled Out if Someone Other Than the Employee Fills Out Page One www. borene. com 612. 321. 0082 15

I-9 Compliance: The First Page 1. Don’t Discriminate Because A Hire's Work Authorization May Expire In the Future 2. Do Follow-up for Reauthorization on Box 4 Employees (Authorized to Work Until) to Ensure Still Work Authorized ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 16

List Of Acceptable Documents • In Addition, New Employee Furnishes Documents of Her/His Choice • Do Not Demand Specific Documents • Document(s) Required: – 1) List A Document(s) OR – 2) One List B Document AND One List C Document ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 17

Examining Documents Checklist 1. Determine Whether the Document is a List A, List B, or List C Document 2. If the Document is a List A or List B Document. Examine the Picture On the Document And Compare It To the Employee Sitting In Front Of You 3. Examine the Document to See It Has Not Expired (Some Acceptable Documents Have No Expiration and Some May Be Extended With A Receipt) 4. Make Sure Document Is Original and a Not Copy ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 18

Examining Document Continued 5. Examine Genuineness of Document A. Examine Document Carefully B. Not Required To BE An Expert or to Have Fraudulent Document Experts Examine The Document 6. If the Employee Furnishes A Document Discussed In the Employer Handbook Look For Security Features Described in the Handbook 7. If Employee Furnishes a List A OR a List B and List C That Does Not Have An Example in the Handbook – DO NOT Request New Documents, Reject Documents, or Otherwise Discriminate. Contact Legal Counsel ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 19

Examples From Employer Handbook (List A) ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 20

I-9 s List A and Electronic I-94 s • • • Many Work-Authorized Statuses Such as H’s, L’s, TN’s, E’s, and F’s Involve an I-94 As Evidence of Status and Duration of Status For Admission and Work Authorization For I-9 Purposes the I-94 (when combined with a foreign passport) may be used as a List A document Moving To Electronic I-94 s – Paper I-94 s Are Largely Phased Out – Individuals Arriving At Airports No Longer Receive Them – Have the Employee • go to www. i 94. cbp. dhs. gov • Fill In the Requested Name, Passport Number and Admission Date to Print Off the I-94 ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 21

Auto-Extended Employment Authorization Documents Based On A Pending Filed Timely Renewal Application • Foreign nationals in certain employment eligibility categories who file an EAD renewal application may receive automatic extensions of their expiring EAD for up to 180 days. The extension begins on the date the EAD expires and continues for up to 180 days unless the renewal application is denied. – The employee must have timely filed an application to renew their EAD (except Temporary Protected Status (TPS)), and the application remains pending; – The eligibility category on the EAD is the same eligibility category code (except TPS C 19/A 12); and – The eligibility category is listed on uscis. gov as eligible for EAD automatic extensions. Currently, A 03, A 05, A 07, A 08, A 10, C 08, C 09, C 10, C 16, C 20, C 22, C 24, C 31 and A 12 or C 19. – The employee’s expired EAD in combination with the Form I-797 C Notice of Action showing that the EAD renewal application was timely filed and showing the same qualifying eligibility category as that on the expired EAD is an acceptable document for Form I-9. This document combination is considered an unexpired Employment Authorization Document (Form I-766) under List A. ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 22

More EAD Auto-Extensions • F-1 Students Applying for a STEM OPT Extension That is Timely Filed Can Also Benefit From an Automatic Extension - the Shorter of 180 Days or Until Adjudication – an expired EAD presented with Form I-20 endorsed by the student’s designated school official recommending a STEM extension. – If the student presents an expired EAD and an endorsed Form I-20 recommending a STEM extension, the employer should enter the following information under List A in Section 2: – EAD document title; – EAD document number; – Date the EAD expired in the expiration date space; and – “ 180 -day ext. ” in the Additional Information field. – Employment authorization must be reverified after 180 days from the date the EAD expires to continue employment. ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 23

Examples From Employer Handbook (List B Establish Identity) (Cont. ) Example of ID or Driver’s License • • • ©Borene Law Firm P. A. 2018 Issued by any state or territory of the United States (including the District of Columbia, Puerto Rico, the U. S. Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands) or by a Canadian government authority. Contains a photograph or other identifying information such as name, date of birth, gender, height, eye color, and address. Some states may place notations on their drivers’ licenses that state the card does not confirm employment authorization. Form I-9 purposes, these drivers’ licenses, along with every other state’s, establish the identity of an employee. www. borene. com 612. 321. 0082 24

Examples From Employer Handbook (List C Establish Employment Authorization) (Cont. ) • • • ©Borene Law Firm P. A. 2018 U. S. Social Security account number card is issued by the Social Security Administration (SSA) (older versions issued by the U. S. Department of Health and Human Services). Can be presented as a List C document unless the card specifies that it does not authorize employment in the United States. Metal or plastic reproductions are not acceptable. (laminated cards are also not acceptable) State and Territory Birth Certificates: Only an original or certified copy of a birth certificate issued by a state, county, municipal authority, or outlying possession of the United States that bears an official seal is acceptable. Versions will vary by state and year of birth. Beginning 10/ 31/ 2010, only Puerto Rico birth certificates issued on or after July 1, 2010 are valid. Check www. uscis. gov for guidance on the validity of Puerto Rico birth certificates. www. borene. com 612. 321. 0082 25

I-9 Employer Portion of Form 1. Do Fill Out the 2 nd Page At the Time of Hire 2. Do List Either List A Document(s) OR One List B and One List C 3. Do Describe Document As Required Filling In All Information 4. Do List the actual day the employee began work or will begin on the form 5. Do Fill Out Signature Section – Remember to Sign and Date ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 26

To Copy or Not To Copy? • Employer’s Choice Whether to Copy List A, B, and C Documents, But Employer Must Be Consistent • Only Copy If There Is A Consistent Policy to Copy Everyone • If the Employer Signs the MOU for E-verify Then Certain Documents Must Be Copied. We will cover this in the E-verify Section. ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 27

Some Specific Issues To Watch For • • • Receipts, including Refugee I-94 s Temporary Work Authorizations Over Documentation Accepting improper or expired documents Employer’s Failure to Review Section 1 (Employee Section) to Ensure It is Properly Completed ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 28

I-9 Specific Issues: Refugees and Asylees • Refugees/Asylees/Amerasians and Iraqi/Afghan special immigrants should indicate N/A for the status expiration in part 1 • No Need to Re-verify if they provide a valid List B and List C • I-94 With Refugee or Asylee Stamp – Refugees – I-94 with Stamp • A List A Document Equivalent to a Receipt • Receipt - After 90 days Follow-up Required – Refugee may choose to present other documentation such as List B and List C or a different List A ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 29

I-9 Specific Issues: Refugees and Asylees • Asylees – – I-94 with Asylee Stamp is considered an unexpired employment authorization document issued by Department of Homeland Security under List C (8) – Individual Does Need to Furnish a Valid List B document – No Need to Re-verify ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 30

Other Receipts • Only Certain Receipts Are Acceptable (Employment must last longer than 3 days) – Receipt for a replacement, lost, stolen or damaged List A, List B or List C document – Good for 90 days from Date of Hire – After 90 days, Employee should present actual document • Temporary I-551 Stamp on I-94 or passport from a Lawful Permanent Resident – Good until the expiration date on the I-551 or if none 1 year from its issue date – At expiration, Employee should present Permanent Resident Card ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 31

Other Receipts (Cont. ) • Expired Permanent Resident Card if combined with a USCIS Notice of Action that indicates the card is valid for an additional year. – List C document. – Must be re-verified after the one year. • Other Receipts – Are Not Acceptable – Common Examples of Unacceptable Receipts – Receipts from USCIS stating that a person has applied for Employment Authorization Unless its own of the category that is automatically extended – Welcome Notice ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 32

F-1 Student Interns on CPT or OPT • • • F-1 nonimmigrant foreign students on CPT or OPT – unexpired EAD Curricular practical training (CPT) - – The employment end on the Form I-20 should be entered in Section 1 as the date employment authorization expires. – List A documents include the combination of: • • • – Or • • Unexpired foreign passport; Form I-20 with the DSO endorsement for employment; and Form I-94/Form I-94 A indicating F-1 nonimmigrant status. List B and List C documents. The F-1 student could present a List B document (such as a state driver’s license) and under List C #7, Form I-94 indicating F-1 nonimmigrant status with a properly endorsed Form I-20. An acceptable Form I-20 for CPT must have all employment authorization fields completed. These fields include employment status, employment type, start and end date of employment, and the employer’s name and location. ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 33

Temporary Work Authorizations and Other Follow-up • Follow-up Required – Section 1 – Checked “authorized to work until”[Date] – Receipts or I-551 Stamps – Person Provided an Employment Authorization Document which specifies work authorization valid until [DATE] • Calendar in the HR Calendar – Some Best Practices – Note date 90 days prior to re-verification to verbally remind the employee that they may need to address the expiring work authorization – Set re-verification date to meet with employee to verify that work authorization obtained ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 34

Other I-9 Requirements • Document Retention – Current Employees Must Have an I-9 On File – For Terminated Employees • Retain the I-9 for 3 years After Hire or 1 Year After Termination (whichever is longer) – Best Practice Is To Retain I-9 s In A Separate Folder(Not With Other Employment Records) ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 35

Review Questions • New Employee Has Filled Out the Top Part of the I-9 Form Checking Box 4 and Providing an Expiration Date. Can I refuse to hire the individual because their employment authorization might expire in the future? • Please Identify the List A, List B, and List C Documents 1. ©Borene Law Firm P. A. 2018 2. 3. www. borene. com 612. 321. 0082 36

Review Questions • New Employee Provides The Following Documents (Assume For Same Person And Valid) • Which Documents or Set of Documents Satisfy the Requirements? • What Should You Do? ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 37

Review Questions • Employee Furnishes Older But Valid and Unexpired Versions of Acceptable Documents. Is this a Problem? ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 38

Review/Samples • Employee provides a receipt for a Minnesota Drivers License and a valid Social Security Card. What should you do? • Employee presents an I-94 with a Refugee Stamp. What should you do? • Employee is temporarily authorized to work. At reverification, employee presents a paper notice from USCIS that USCIS has received a request for additional employment authorization. Employee has not yet received the actual Employment Authorization Document. The Employee’s lawyer has assured the employee that “it’s in the mail. ” What should you do? ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 39

Review Questions Answers To I-9 Questions • No, You cannot refuse to hire someone because their employment authorization might expire • (1) is List C; (2) is List A; (3) is List B • If the employee presents too many documents, let the employee chose, which ones to use. In theory, either the passport (List A) OR the State ID (List B) plus I-197 (List C). • Older but unexpired acceptable documents are fine. • The receipt for the MN driver’s license can be accepted in lieu of the license for 90 days. After 90 days, the employer must follow-up. • Refugee I-94 is an acceptable List A receipt document but requires follow-up 90 days later. • Depends, if the employee has timely filed and has one of the Employment Authorization Documents that may be extended up to 180 days, then re-verify and recheck when the application is adjudicated or after 180 days (whichever is shorter). If the employee does not have an Employment Authorization Document with a 180 day extension than unfortunately an I-797 receipt to renew an expired Employment Authorization Document is not sufficient. If no other genuine acceptable list A, B, or C documents are presented by the Employee, the Employee cannot be permitted to work until the actual authorization documents has been granted. ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 40

Part 4: E-Verify • What is it? – A program that electronically confirms a newly hired employee’s eligibility to work after completion of an I-9 • Company signs Memorandum of Understanding (MOU) With Department of Homeland Security • Electronic Training Program – Additional Webinars and Training at www. uscis. gov/e. Verify ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 41

E-verify Basics • Except for Federal Contractors under “FAR Rule”, E-verify applies only prospectively to newly hired employees • Compliance Is Important – Termination of the MOU and use of E-verify – Enforcement – Civil and Criminal - Fines ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 42

E-Verify Privacy and Data Protections • Employee Personal Information Must be Safeguarded and Used Only as Outlined in the MOU • Allow Only Authorized Users to Use E-verify • Secure Access to E-verify – Protect Passwords • Protect and store employee information properly • Discuss E-verify results in Private ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 43

E-Verify Process • E-Verify Process is in addition to the I-9 Process – Not Instead of • After execution of MOU, Create E-Verify Account For New Hires After Employee Accepts Job and Completes I-9 – FAR Contractor Exceptions • Technically no later than 3 rd Day to create E-verify Case – Best Practice is 1 st day right after completion of I-9 • All New Hires of E-verify Employers Are Required to Fill out Social Security Number on Part 1 of Form I-9 – New Arrived Immigrants Applied For SSN • Make A Note on I-9 • Permit New immigrant to continue to work • Create E-verify case as soon as SSN is available • If SSN arrives later than 3 rd day, Provide Reason from Drop Down Menu ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 44

E-Verify Process • Follow Regular I-9 Rules for Filling Out Part II • Picture ID (List A and List B) – Objection to Picture ID on Religious Grounds call E-verify 888 -464 -4218 • MOU Copy and Retention Requirement – – If Employee presents a U. S. Passport, Passport Card, Permanent Residence Card, or an Employment Authorization Document, Then Copy & Retain with I-9 – Do NOT insist that new hires provide any specific documents ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 45

E-Verify Process • Do Not E-verify a Reverification • Rehires Must Use E-verify • Rehires – No Prior E-verify Case • New I-9 Needed if Old I-9 Contains Expired List B document – Prior E-verify Case – Old I-9 has Expired List B – Either • Complete Section 3 and no new E-verify OR • Complete New I-9 and New E-verify ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 46

E-Verify Process • • Once I-9 complete - Create an E-verify Case Hire Date – Date Employee Began Work Section I Form I-9 Status Box Documents Listed on I-9 Enter Employee’s email if provided on I-9 If Alien Authorized to Work Until – I-94 Number If Entering Late, Must Specify Reason – Awaiting SSN – Technical Problem – Audit Revealed New Hire Missed or Other ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 47

E-Verify Process • Double Check the E-verify Information to Make Sure it Matches the I-9 • E-verify Photo Matching (Passport, LPR, EAD) – Compare photo in E-verify to the photo on the document ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 48

E-Verify Process: Initial Case Results • Employment Authorized – Match Information in E-verify to I-9 - Close Case • Interim Case – Requires Additional Actions • No Adverse Action Taken During Interim • Four Types – Review and Update Employee Data – SSA or DHS Case in Continuance – Employee contacted agency, more time needed – DHS Verification in Process – SSA and DHS Tentative Non-Confirmation ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 49

E-Verify Process: Interim Case Results. SSA TNC • • E-Verify Records Did Not Match SSA Records Does Not Mean Employee Not Work-Authorized Employee Must Be Notified Promptly In Private Print Further Action Notice and Provide to Employee In Private – Employer Signs Section on Page 1 (Keep Original) – Employee to Complete and Sign Page 2 (Gets Signed Copy) • Employee Chooses to Contest or Not Contest • No Contest Or Failure to Decide In Permitted Period – Terminate Employment – Case Becomes a Final Non-Confirmation ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 50

E-Verify Process: Interim Case Results. SSA TNC • Contests TNC – Employer Refers Case to SSA – Prints Referral Date Confirmation For Employee – No Adverse Action – After 10 Days Without Action – Case Will Become Final Non. Confirmation – If Employee Visits And Records Updated – Potential Outcomes Include: • Employment Authorized • SSA Final Non-confirmation • Temporary Interim Result – Case in Continuance – DHS Verification in Process – Review and Update Employee Data ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 51

E-Verify Process: Interim Case Results. DHS TNC • • E-Verify Records Did Not Match DHS Records Employee Still May Be Work Authorized Employee Must Be Notified Promptly In Private Print Further Action Notice and Provide to Employee In Private – Employer Signs Section on Page 1 (Keep Original) – Employee to Complete and Sign Page 2 (Gets Signed Copy) • Employee Chooses to Contest or Not Contest • No Contest Or Failure to Decide In Permitted Period – Terminate Employment – Case Becomes a Final Non Confirmation ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 52

E-Verify Process: Interim Case Results. DHS TNC • Contests TNC • Employer Refers Case to DHS – Prints Referral Date Confirmation For Employee • If DHS TNC is due to Photo Mismatch – Employer Must Send DHS Copy of Document Provided By Employee • Employee Has 8 Federal Gov. Workdays to Contact DHS • No Adverse Action Against Employee • Employee Fails to Contact in 10 Workdays – DHS No Show or DHS Final Non-confirmation – Terminate • If Employee Contacts DHS – Potential Outcomes Include: – Employment Authorized – DHS Final Non-confirmation – Case in Continuance ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 53

E-Verify – Final Case Resolution • All E-verify Cases Must Be Closed – Employment Authorized – Final Non-confirmation (FNC) – DHS No Show – Error Close Case and Resubmit • Note Employment Status of Individual • Select from one of 11 case closing statements – Allowing Employee to Work After FNC Could Have Civil and Criminal Ramifications • Record Verification number on I-9 or print screen and file with I-9 ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 54

E-Verify – Rules and Responsibilities in MOU Overview • Create an E-verify Case Only After the Applicant has accepted an Offer of Employment and completed Form I-9 • Treat all newly hired employees equally everyone gets an E-verify case • Notify each job applicant of E-verify participation and employee rights • Be Sure to Post E-Verify Posters and Notifications Provided by DHS After Signing the MOU • Do not use E-verify for existing employees unless the rules applicable to Federal Contractors apply ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 55

E-Verify – Rules and Responsibilities in MOU Overview • Provide Each Employee Who Receives a Tentative Non-Confirmation (TNC) the Further Action Notice (FAN) in private with an opportunity to contest. • Allow Each Employee to Work Throughout Period of E-verify Verification Process Without Change in Work Conditions • Complete Form I-9 For Each Newly Hired Employee Before Creating E-Verify Cases and Follow E-verify Procedures ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 56

E-Verify – Rules and Responsibilities in MOU Overview • Do Not Use E-Verify to Prescreen • Do Not Use It to Discriminate Against Any Applicant on the basis of Citizenship, National Origin or Immigration Status • Do Not Selectively Verify • Do Not Delay a Start Date for a TNC • Do Not Take Adverse Action Against an Employee with a TNC ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 57

Part 5: Immigration Options: Temporary & Permanent • Temporary Work Visa Options for US Employers Hiring International Employees – Many Different Ways to Obtain Work Authorization – Some Common Options Available Regardless of Country of Citizenship (H-1 B, H-2 A, J-1, L-1 A & L 1 B, & O-1) – Some Options Available Due to Country of Citizenship (TN, E-3, Chile/Singapore H-1 B 1, and E-2) • Permanent Options – Options Requiring Labor Certifications – Options Exempt From Labor Certifications ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 58

Temporary Options: Common Options: H-1 B Professional • May Be an Appropriate Solution if: 1. Employer Plans to Offer A (Specialty Occupation) Professional Position 2. Position Meets Definition of a Specialty Occupation – Generally A Position Requiring at least the Equivalent of a Bachelor’s Degree 3. The Individual Has the Equivalent of the Required Degree • Annual Quota Opens on April 1 st for Positions Starting October 1 st • Department Of Labor Regulations Including Wage Requirements • Legal and Filing Fees Paid By Employer • Limited to 6 years Total Duration Unless Exception Applies ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 59

Temporary Options: Common Options L-1 A Transferred Executive Or Manager • May Be an Appropriate Solution If: 1. Employee Has Had An Executive/Manager/Specialized Knowledge Role for at least 1 Year of the Last 3 Years At Employer’s Offshore Affiliate, AND 2. Employer or Employer Subsidiary or Affiliate in the US Has a Qualifying Relationship of Ownership and Control with the Employer Offshore Affiliate, AND 3. Employer’s Overseas Employee Will Be an Executive or Manager at Employer or at Employer’s Subsidiary in the U. S. • Limit of 7 years Duration Unless Exception Applies • “Functional” Managers Can Be Difficult • Canadians Can Process At the Border ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 60

Temporary Options: Common Options L-1 B Transferred Employee With “Specialized Knowledge” • May Be an Appropriate Solution In a Situation When the Following Components Are or Will Be in Existence: 1. Offshore employer Affiliate Where the Employee Has Had An Executive/Manager or Specialized Knowledge Role for at least 1 Year of the Last 3 Years, AND 2. Employer or employer’s Subsidiary or Affiliate in the US Has a Qualifying Relationship of Ownership and Control with the Offshore Affiliate, AND 3. Overseas Employee Will Be Placed in a Position Using Their “Specialized Knowledge” at Parent or Subsidiary in the US • • • Limit to 5 Years Duration Unless Exception Applies Specialized Knowledge Can Be Difficult Canadians Can Process At the Border ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 61

Temporary Options: Country Specific: TN • NAFTA (Canada and Mexico) Professionals • May be Appropriate If: – Citizen of Canada or Mexico – Person Is Coming Temporarily to the U. S. – Offered Position Fits Into A Listed Profession on the list of TN Professions – Individual Has the Required Qualification(s) • Initial Duration up to 3 years Renewable (Potentially) Repeatedly • Several Adjudication Options ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 62

Temporary Options: J-1 Programs • The Home Country Requirement (212(e)) – Why is it important? – When does it apply? How can it be waived? • Higher Visa Denial Rate – 214 b Temporary Intentions • J-1 Sponsors • Popular J-1 Programs: Intern/Trainee/Summer Work and Travel ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 63

• • • Temporary Options: H-2 A Temporary or Seasonal Agricultural Labor – Labor on the Farm Wage, Housing, Meals, Transportation, Visa Fees, Tools, Workers Comp and Other Cost Regulations – – Wage Higher of Adverse Wage Rate, Prevailing Hourly Wage or Piece Rate – ¾ guarantee – Almost All Costs Must Be Borne By Employer – Must Treat US Workers the Same on Costs and Benefits Process, Timing, Agencies – Fiscal Year Starts October 1 st – Submit Job Order to State Workforce Agency – 75 to 60 days before date of need. State Workforce Agency inspects housing. – Department of Labor (Temporary Employment Certification) – Test Labor Market – 45 days Before Date of Need – If Successful, File I-129 With USCIS – If Successful at USCIS, Each Individual Applies for H-2 A Visa at Local US Consulate of Embassy ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 64

Temporary Options: H-2 B • • • Temporary Need (Peakload, Seasonal, Intermittent One-Time) – Not Agricultural Potential Employees Must Be From a Country on Approved List Cap of 66, 000 Per Year - Divided in Half - (Oct. 1 -March 31 st & April 1 st –Sept. 30 th) – Allocated According to Date of Need Start Date Highly Regulated – Many Costs Borne By Employers US Workers Must Receive Same Benefits Offered to H-2 Bs Process, Timing, Agencies – Fiscal Year Starts October 1 st – Prevailing Wage Set By Department Of Labor - e. g. Filed By May 17 th If Date of Need is October 1 st (Nov. 17 th if Need Date is April 1 st) – After Receiving Prevailing Wage – File Temporary Labor Certification with Department of Labor 90 to 75 days Before Date of Need e. g. (July 3 rd to July 18 th if Date of Need is October 1 st) (Jan. 2 nd to Jan. 17 th if Need Date is April 1 st) – If Temporary Labor Certification Accepted, Employer Follows Department of Labor’s instructions for Labor Market Test and Employer Submits Recruitment Report at End of Test – Department of Labor Decides to Approve All, Some or None of the Requested Positions – If Approved, Employer Files with USCIS an I-129 with Approved Temporary Labor Certification; – If I-129 Approved, H-2 Bs Apply for H-2 B visas at local US consulate/embassy ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 65

Permanent Resident Options: Options Requiring Labor Certification • Skilled Worker, Professional or Advanced Degree – Position Requiring a Master’s or Higher or A Bachelors plus 5 years of Progressive Experience (EB 2) – Professional – Position Requiring a Bachelor’s Degree (EB 3) – Skilled Worker – Position Requiring More than 2 years of Preparation (EB-3) – “Other Worker” - Position Requiring Less than 2 years of Preparation (EB-3) • Position Must Have Those Minimum Requirements and the Person Must Meet Those Requirements ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 66

Permanent Resident Options: Labor Certification • Labor Certification with Department of Labor – Employer Must Pay All Legal, Recruitment, and Other Expenses/Fees(No reimbursement by employee) – Labor Certification is a Test of the Labor Market Following Highly Regulated Recruiting Rules Set Forth by the Department of Labor – Department of Labor Reviews And Certifies If No Willing Able, Available and Minimally-Qualified “US Workers” Apply and If Employment Not Detrimental to US Wages or Working Conditions – Strictly Administered Process – A Significant Percentage of All Applications Either in Audit, Appeal or Supervised Recruitment or Withdrawn ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 67

Permanent Residence Options : Exempt from Labor Certification: Transferred Executive or Manager May Be Appropriate For Employees in: 1)Situations Similar to the L-1 A Transferred Executive or Manager 2)Basic Regulatory Requirements Similar to Those Seeking the L 1 A Transferred Executive or Manager ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 68

Part 5: Common Red Flags In Employer/ International Employee Relationship • Material Change in Job Terms: – – – Hours Reduction Pay Reduction Job Functions Change of Position – Promotion/Demotion Relocations • Reorganization, Merger, Acquisition, Restructuring or Change of Ownership – Structure of Deal Can Affect Immigration Status – Worst Scenario Can Put Person “Out of Status” ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 69

Red Flags (Cont. ) • Layoffs/Terminations In General – Severance Issues – Bona Fide Termination of H-1 s and E-3 Issue • “Benching” • Non-Competes & Clawback Provisions (e. g. for immigration fees and expenses) • Improper Payment or Reimbursement of Legal Expenses by Employee or Third Party • Return Ticket Obligation • Change of Employer or Moonlighting • Strikes/Lockouts ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 70

Red Flags (Cont. ) • Presentation of Fraudulent Documents At Hiring • Facts and Circumstances Suggesting that Employees May Not Have Work Authorization – Social Security “No Match” Letters – Problems with renewal of identity documents (i. e. Driver’s Licenses) – Purported USCs or Lawful Permanent Residents Requesting Sponsorship for Immigration Benefits ©Borene Law Firm P. A. 2018 www. borene. com 612. 321. 0082 71