Immigration Issues – Are You Ready for the New Administration’s Changes in Enforcement?

Although the new administration will bring some welcome changes in certain employment areas, a few issues are developing that are of great concern to the industry, beginning with immigration enforcement, including the reinstitution of worksite raids, increased I-9 audits by the federal government, decreased legal immigration, and greater potential for disruptions both production-wise, and publicity-wise. This timely program is intended to provide a forecast of what to expect as well as plans and options for avoiding such disruptions. It will be conducted by Jim Wimberly and Jim Hughes.

Watch This Webinar

J. Larry Stine (00:00:00):
I'm Larry Stine, Jim Hughes and Jim Wimberly. We're here to give you a report on the immigration and the issues involving immigration and how they impact your workplace, and what we see is coming down the pike. We're gonna start off with Mr. Hughes and we're gonna share our PowerPoint presentation and gimme a moment. Oh, there we do. Alright. And let's see, we're get it going. Alright, gentlemen.

James L. Hughes (00:00:39):
Good afternoon. As some of you know president Trump has issued a series of executive orders. The executive orders do not affect the legal workers in your plants, but they may affect workers who are determined to be illegal because of existing immigration laws. And those laws will be enforced and President Trump's application of those laws may end up reducing the number of legal and illegal alien workers in the future. One of the executive orders ended what has been called as catch and release. So if they catch illegal aliens at the border, they will not release them into the United States. Instead, they will be returned to their home country. Illegal aliens are not allowed to invoke the provisions of the Immigration and Nationality Act, and that basically means that some illegal aliens who try to get to the border will attempt to claim asylum and they will not be given the opportunity to claim asylum.

James L. Hughes (00:01:53):
There will be no entry unless there is medical and criminal clearance. This was a, a standard that is in the law, but was ignored during the Biden administration. It is the plan to remove all the legal aliens who entered on or after January 20th, 2025. As was true during the Trump administration previously, there will be enhanced screening of all applications for immigration benefits and existing immigration laws will be enforced. You may have heard about an app called ccbt one app. One of Trump's executive orders terminated the app. The app allowed people who were outside the United States to apply for parole or local status while outside the United States and to schedule an appointment at a port of entry. So, for example, they could be living in Cuba and fly to Miami and be admitted through the port of entry during the Biden administration. But that app has been terminated and no one can apply for parole or lawful status through that app. During the Biden administration, there were categories of people who were granted parole, for example they granted parole simply if you were a Cuban, a Haitian, a lan, or Venezuela. That program was terminated by one of the first executive orders issued by Trump. So there are no more categorical parole programs. In addition, president Trump has suspended any refugee admissions until he decides otherwise.

James L. Hughes (00:03:51):
Now, there are a variety of legal immigrant programs, and those programs may be reduced or eliminated under the new administration. Most immigrants fall into one of the following categories, and these categories are not directly affected by any of the executive orders that President Trump has issued. One of the categories is temporary protected status. Temporary protected status presently applies to migrants from approximately 17 countries, and the bulk of those migrants have come from El Salvador, Haiti, and Venezuela. Next one, there are parole programs. As I mentioned, there were categorical parole programs, by which approximately a million persons have been admitted and have been granted work authorization status. But the Trump administration has terminated those categorical parole programs. And we'll look at each individual circumstances to determine whether parole will continue for that individual. Then we have the DACA or DREAMERS program that presently covers about a million persons. President Trump during this prior administration tried to get rid of the Dreamer program but was rebuffed in the courts. He may try that again, but as he stated at the time, he would like to see Congress Act to grant lawful status to people who were in the dreamer program.

James L. Hughes (00:05:41):
There is also a program called Deferred Enforced Departure. That program basically does not give lawful status to people from Lebanon, Liberia, high Kong and Palestine, but grants them temporary work authorization and temporary reprieve from being removed from the United States. Next slide. <Inaudible>. I did look again. Look again. There are various guest worker programs. H two A primarily applies to seasonal agricultural workers, and H two B primarily applies to seasonal non-agricultural workers. Generally those programs are not available to people in the poultry industry or other industries, but we have been successful in obtaining H two B status quo for an employer who suffered and immigration raid and had several hundred workers removed. So, H two B can be used in a temporary need situation successfully, even though that work may not be seasonal in the traditional sense. You also have green card applicants and other non-immigrant visa applicants during the previous Trump administration.

James L. Hughes (00:07:19):
They interpreted the requirements more strictly than prior administrations, and that approach is returning. And then, as I previously mentioned, the Trump administration, it is looking at reducing the number of refugees were admitted into the United States. And his executive orders do limit or suspend admission in those programs for the present time. Now, how quickly must workers lead after the expiration of their program? Well, there's no statutory standard, but there are consequences for overstaying an authorized status, including removal from the United States. If a person overstays less than six months or 180 days and they leave without going through removal proceedings, they can generally return unlawful status at a later time. But persons who stay more than six months and less than a year will usually be borrowed from reentering the United States for three years from the date of their departure. And people who stay more than one year after their authorized period of stay expires generally will be barred from reentering the United States for 10 years from their daily departure. It's important to recognize that work authorization may expire, and at that time, the employer or is required to terminate employment or face civil or criminal penalties. Now, even if work authorization expires, there may be a period of time where the worker has authorized status and can stay in the United States, but they will not have work authorization. So you have to be pay attention to whether they have work authorization versus whether they have authorized status.

J. Larry Stine (00:09:21):
And normally you gotta look at their, when they present their I nines and calendar the expiration date.

James L. Hughes (00:09:27):
That's right. Next slide. Okay, let's talk about the countries that presently are recognized for TPS status. And I only wanna focus on three of them. The first one is El Salvador, and they have as of March of last year, over 180,000 people in TPS status in the United States. You'll notice that their authorized stay presently expires in September of next year, but their work authorization expires in March of next year. If you drop down to Haiti, which has over 200,000 people in TPS status, their authorized state expires in February of next year. But their work authorization presently expires in August of this year,

J. Larry Stine (00:10:19):
Which means it come August 4th. If you've got Haitians working for you, they gotta be gone from employment

James L. Hughes (00:10:26):
Unless Trump extends their authorized status. The last one I wanna mention is Venezuelan, where we have over 340,000 people in TPS status. There are two groups of Venezuelans, those who were admitted in 2021, and those who were admitted in 2023. For those who were admitted in 2021, their authorized stay expires in September of this year. But their work authorization expires in March of this year. Also, for those who were admitted in 2023, they do not have work authorization at the present time, but they can stay until April of this year. Let's continue. Now, there's also a program called Deferred and Forced Departure that is available for people from Lebanon, Liberia, Hong Kong and Palestine. And you can see that their work authorization may run coincidence with their authorized stay. I wanna mention something about Hong Kong. President Trump issued a memorandum in the administration extending the stay of people from Hong Kong into February of 2027. But that memorandum directed his department of Health and of Homeland Security to issue guidance extending their work authorization. They have not done that,

J. Larry Stine (00:12:18):
Nor are they likely to do

James L. Hughes (00:12:19):
So, <laugh>. So it those people from Hong Kong are kind of in a great period, as I will call it until there is further guidance from the Trump administration. Let's go to the next slide. Now, in January, the Biden administration announced a program for deferred action with respect to workers who were the victims or witnesses of labor violations. And, and basically if, if a worker complains to a government agency like osha okay, or E-E-O-C-N-L-R-B Department of Labor, and one of those agencies initiates an investigation, then that person will be granted the opportunity to stay and will be granted work authorization until the investigation is concluded. Presently they have protection for four years, and that comes with four years of work authorization. I have seen people who have claimed the benefit of this program. For example, they will have applied to their current employer under one name and then return with their real name <laugh>, and with real authorization because they have made a complaint to a government agency. So you could have workers take advantage of this program and return to your workforce in all likelihood. They have made a complaint Yeah, about your enforcement of labor and employment laws. You could not terminate them because that would be considered retaliation.

J. Larry Stine (00:14:22):
I I, I will tell you, I've been talking to the attorneys for OSHA and DOL, and they were complaining about how long it took the process to get the authorization from the immigrations. And sometimes I've talked to 'em and they said it was over a year, and they were at two years on some, they applied for it, but it hadn't been granted during the prior administration. So this is a very

James L. Hughes (00:14:47):
Wonky program. Now, Trump could terminate this program, but there are visa programs that allow for witnesses of domestic abuse or certain criminal violations to remain in the country. So Trump could terminate this program and these people may be forced into one of the other Visa programs that presently exists.

J. Larry Stine (00:15:13):
Alright, well, I'm gonna take over Jim, and I'm gonna talk about enforcement for right now. And I'd like to show you a few headlines. These are all from January and February, and they're all about the raids being taken across the country. And you can see that all the articles and the headlines are all about what's going on. But I, I, I want you to kinda look a little bit at some of the pictures that we're beginning to see. And so what you're gonna see is that I've gone to the HSI or the DEA sites and pulled 'em off. You'll notice basically there's one there, here is one from San Diego, Miami.

J. Larry Stine (00:16:11):
I had to do one from Atlanta. And you might notice that the guys carrying an M 16 when he is doing it. But as you'll see from these raids, for the most part, they're not huge. The, the reason I'm pointing out that they're not huge is a lot of y'all are concerned about the workplace raise. So what's what's going on now is we're beginning to see raise in the workplaces, but it appears for the time being that they're going in looking for criminals or, or people with deportation orders. And they're not doing large scale workplace race doesn't help you a whole lot. If they walk in to arrest one person and there's three other persons who are not there legally, they'll take 'em also. But it's not like the last time we showed you a slide, we showed you a slide of a workplace raid and they were 240 law enforcement officials in there.

J. Larry Stine (00:17:11):
And it takes a lot of effort and time to put together a coordinated effort for that. So right now, you're beginning to see the, they're going into the workplace more on the criminal and the deportations in a full blown workplace rate. However, we do still anticipate that they're going to do it sometime in the future. And I think in part for the impact and the press that they come in and bring 240 people and take out, you know, three or 400 of supposed illegal immigrants. So the ones that are likely to be are those that are deemed national security or critical infrastructure interest, which includes food processors like the poultry processors. They're also trying to identify those who abuse and exploit their workers aid and smuggling, trafficking, availing workforces, creating false identifying documents, facilitating document fraud, or creating an entire business model using an unauthorized workforce.

J. Larry Stine (00:18:20):
So what they're trying to do is still focus on the criminal aspects of this and trying to break that first. What they're also looking for is that the employees that frequently are always used in the E-Verify system ID cards issued by federal, state, or local government agency or entities when they're doing their when verification, because there's no real database to verify the identity. So what happens is you're getting somebody with a private, like driver's license and social security. Well, those IDs aren't gonna show up there anyway. And when they come in and see that you've been doing this, they're pretty aware now that you're manipulating that you verify to get bad paper through to get them through the e verification system. They're well aware of it. And if we're doing audits and we some see something like that, we're gonna point it out that you probably don't want to do that.

J. Larry Stine (00:20:12):
The other things on the expected priorities that if they have anybody that they think are knowingly employee unauthorized editing workers, you're gonna go up on the top of the list and employers are identified through the arrest of fraudulent document providers. We've actually had that happen once where it turned out somebody in HR was actually doing the the fraudulent documents and the government found out about it. And that is causing a lot of problems, even though the employer did not do.

J. Larry Stine (00:21:16):
The other way is sometimes if they're coming in doing their have hr, they're selling jobs, they'll, they'll look at that. And here's other things that will increase your I nine and e verify audit inspections. In a non rate situations, the employers must produce their I nine documents within 72 hours of demand. So you need to be prepared to have those in order. What we find sometimes is that employees put the I nines in the personnel files, and depending on how many employees you have, you've now gotta go through, you know, a hundred, 200, 2000 files. But we kinda recommend that you have them in a central location so that you can be prepared for circumstances like this. Now, if they've looked at the I nines and they'll give you 10 days to correct technical errors, but they don't allow you to correct what is called substantive errors, but that position is subject to challenge, we just want you to know that that's highly technical.

J. Larry Stine (00:22:17):
What they can consider technical and what they consider substantive. I think in common sense people would disagree, but hey, that's what they're doing. Then after the government review, the I nine employers may be required to terminate suspected workers within 14 days or less. I will say that if you have that circumstances, we've been able, particularly if they've gotten a large number of employees, we've been able to work out deals sometimes to, to slow down the release Yeah. To wind down, to wind down in a somewhat longer period than 14 days. It depending, and, and it depends on the particular ice, the supervisors, there's a lot of factors that go into it that basically at that point you need your attorneys involved in that.

James L. Hughes (00:23:09):
I would say that the cooperation of the employer is a big factor and whether the government decides to cooperate with the employer when lying down situation

J. Larry Stine (00:23:20):
True. But, and, and some of the, we've gotten questions about what to do when they come in for criminal for somebody that they believe is convicted of a crime they want to court. You get some different information. Immigration lawyers who tend to be employee based wants you to fight them and demand a warrant. We're not so certain that's the best advice for the employer. So you may want to bring them up front and not have ICE go back into your workforce and have them head that direction.

James W. Wimberly (00:23:50):
Let me tell a war story here, Larry.

J. Larry Stine (00:23:52):
Alright, go ahead, Jim. 

James W. Wimberly (00:23:55):
I talked to a company last week that had had ICE come out to potentially arrest a couple of employees, and the company initially had the attitude they were gonna be protective of their own workforce, right. And wouldn't cooperate initially with ICE. And carrying out the interview, sir, arrest ICE informed the employer that the employer should be assure that if they weren't cooperative in this investigation, that something would be on the desk of the President of the United States very quickly, and that caused the employer to reconsider.

J. Larry Stine (00:24:45):
Yeah.

James W. Wimberly (00:24:46):
So, you know, we routinely cooperate with ICE if they come out to arrest or interview a couple of people. Yeah. Some companies have partially cooperated, but not totally. So you may face that issue.

J. Larry Stine (00:25:05):
Well, my concern, my, my fundamental concern in this particular issue is, do you know how long it takes them to get a warrant? They, they drag up that warrant, they go down to the magistrate judge, and they'll have that warrant. And when they go in with a warrant, when they come in and put a warrant, they're, they're now got a search and seize your warrant for your workplace. Now they're gonna go into your workplace and you're gonna have a major impact on anybody that's undocumented. And unfortunately, if they're undocumented, they're ahead for the door. As soon as they head for the door, they're gonna get arrested. They may be legal, but they're gonna be arrested and hauled down, and they're gonna figure out you're gonna have a major impact. I, I think from an employer point of view, you need to cooperate. If they want to talk to three people, you have to supervise or bring 'em in and have 'em talk to the ice people, or either to talk to him or be arrested, is the, the alternative for the employer and the rest of the people in the workplace is far worse than being cooperative.

J. Larry Stine (00:26:09):
That's, that's my particular view of, of what happens. And by the way, a lot of times, you know, if the cops come in and just arrest an ordinary American citizen, we'll call 'em up front just to keep em wandering around in the back of airplane.

James W. Wimberly (00:26:23):
So

J. Larry Stine (00:26:24):
Anyway, that's, that's my, my general advice to them, <laugh> to do that. All right. And then they've added penalties. Back in June of 28, 20 24, they announced more penalties. And basically here the penalties, there's the 281, the $2,789 for your errors on I nines knowingly employed, unauthorized alien, 698 to 27 8 94. Honestly, if they think you're knowingly employed and unauthorized alien, this is probably a good thing. If they're not gonna come back to your criminally you, you verify and failure to do the property, verify the fines can be 973 to 1942 per individual employee document use 230 to 2,304.

James L. Hughes (00:27:22):
Yeah, let me explain what document abuse is. Okay.

James L. Hughes (00:27:26):
Basically the employee has the choice of what documents to present for the employer to use in completing section two of 4 99. Right. The Department of Justice has come in on many occasions when an employer is requiring an employee to present a particular document for completion of form I nine. So you can avoid a document abuse claim by making sure that it's the employee's decision about what documents the employee wants to produce so that the employer can complete section two of form I nine. Now, the employer still has the obligation to confirm that those documents appear to be genuine and appear to relate to the person presenting them. So that doesn't relieve the employee or of its obligation to confirm that the documents appear to be genuine and relate to the employee.

J. Larry Stine (00:28:35):
Yeah, I mean, it, sometimes it's easy, sometimes it's hard. I, I remember looking at one and they had eight digits for the social security number. That's kind of an easy one, but they had processed them with eight digits, you know, social security number. So, and, and the last one is the Unfair Immigration Related Employment Practices, which goes back to the Department of Justice,

James L. Hughes (00:28:55):
Right? And they're looking for just like Title VII violations. Mm-Hmm <affirmative>. The Department of Justice will enforce discrimination based on citizenship or immigration status. So you want to avoid taking any sort of employment action based on the person's citizenship or immigration status. Now, that doesn't prevent you from terminating someone who is not in the United States lawfully. Right? Or not hiring someone who is not in the United States lawfully. So,

J. Larry Stine (00:29:32):
Yeah. But they do put restrictions on how far you can go look for stipulations, which is the problem we sometimes deal with is dealing with justice limiting how far we can go right on that. And the, the work site raids, you know, if they come in on a work site, right, they're going to come in, they're gonna surround the premises, they're going to end the, the they're going to come in and end the operations, and the employees are not gonna be allowed to leave without permission. And the employees offer be moved to a contained area of question. The employees vote for the exits, they'll be waiting, and they most assured they will be handcuffed. Take down the, the funny thing is they do almost always return some of them, because some people just bolt and they're legal, and they'll take 'em down and they'll find out they're legal and they'll release them <laugh>.

J. Larry Stine (00:30:28):
But if you bolt for the door, you're gonna walk out with a, you know, the, the wrist behind your back tie and the items covered by the warrant can often include document or hard drive seizures. So the last warrant I had, which wasn't an ICE raid, but was for the Department of Labor, they had a warrant to take the seat to take the, the computers. But they gave us the opportunity to copy the hard drives. So if they give you the opportunity, and if they don't, you might wanna suggest they copy the hard drives. 'cause In one raid, they took the computers and I think, did they ever turn it about two and a half years later, something like that. So basically they, you know, they, they, they, they bought 'em back when all they were good for was salvage. And the investigations can result in civil or criminal prosecution and certainly adverse publicity. I will say, if you're doing your I nines properly and you're doing the verify properly, we haven't had the issues come against the employers in the criminal aspects. Oftentimes we've had rage where they don't go after the employer at all, other than the fact that all of a sudden the employers got 50% of their workforce there and they have other problems, but they're not being penalized with civil money companies or criminal prosecutions.

James W. Wimberly (00:31:46):
Yeah. I will tell one more story here, not mention any names, okay? But in a raid back in 2 0 0 6, as I recall I had to go to a meeting with ICE officials and local district attorneys. And the issue was whether either entity was gonna come after the company civilly, criminally, or not at all. And we got lucky and they didn't come after us at all, even though they had been a massive raid with probably a majority of the workers taken and found to be illegal. And that raid was instituted because they conducted a previous rate of a illegal producer of documents or producer of illegal documents, and they traced, they took the hard drives from that group and traced so much to the plan in question, but there were no civil or criminal penalties whatsoever that resulted from that situation. I attribute part of it to having a good relationship with ice. Right? you know, even in some ways, when you don't consent to certain things ICE wants to do, you can do it politely and go outta your way to be helpful to the extent possible to ice. And that paid dividends, because I believe that ICE not only themselves, didn't institute prosecution, but probably suggested to the das that they not criminally prosecuted. Right?

J. Larry Stine (00:33:30):
Of course, they're still suffering the fact that they had over half their workforce taken away one day,

James W. Wimberly (00:33:36):
Taken. Yes. that was <laugh>

J. Larry Stine (00:33:40):
Something we want to avoid if we can help help it. Well, Jim, it's now it's short term. You okay?

James W. Wimberly (00:33:47):
Well, I'm, I'm gonna take less than 15 minutes.

J. Larry Stine (00:33:50):
Okay.

James W. Wimberly (00:33:51):
And you notice the pattern in this webinar has been first talking about the changes to legal immigration. Secondly, talk about the changes in increased ice enforcement, which includes the so-called silent rates or I nine processes and possibly rates. So what can we do about it in advance? Well, in looking at the advice I'm getting ready to give you, I think you could sum 'em all up to plan, train, and audit <laugh>. Now, let's go through the 10 points. First use E-Verify. E-Verify is required in roughly half the states also government contractors. And many years ago, employers were scared of E-Verify because it eliminated some labor sources that they'd like to use. Now, employers look upon, he verifies a friend because they don't want to risk massive losses of their workforce. And for those of you in Georgia, it is a legal requirement to use E Verify if you have 10 or more employees under state law.

James W. Wimberly (00:35:15):
So it, it is a good device to use. Second point establish policies on hiring and employment eligibility. I'm gonna come back to this later when I talk about the plans that are available. Third point have an internal compliance and training program. And again, that compliance and training program can focus off of certain policies and plans that we have in place. And, you know, our HR people are responsible for a lot of really heavy, monumental tasks. Simply completing the employment verification process is not simple. Learning how to detect fraudulent identity documents and properly using E Verify. And we find in our audits, and, and Jim Hughes over there has done a lot of them, that some of our HR people are, are not sufficiently trained in those activities, and the consequences can be severe. Next slide, please, Larry. Okay. We believe that you have at least annually an internal I nine audit.

James W. Wimberly (00:36:38):
This is where you go over these documents yourselves, either all of 'em or a random sample, and determine where you have problems and correct those problems. And you're very upfront in making corrections because the notations are made on the documents and dated when they're changed or corrected in a few cases. A a new I nine needs to be prepared, but we're upfront on all those things. And ICE respects an employer that does internal corrections of its I nines. And Jim has audited facilities, this gym in which the compliance on I nine was zero <laugh>. And have you ever found one where it's a hundred percent compliance? Jim, there

James L. Hughes (00:37:26):
Are some clients who do a very good job.

James W. Wimberly (00:37:29):
Okay? A hundred percent. Well, any event, one close, close any event, you get the idea. Now here's a, a rather important item number five here. There are times when you receive notice that something's wrong with your documentation, particularly dealing with Social security numbers. And this may come from Social Security, it may come from the IRS or it may come from other sources. You may be contacted and informed that somebody else is using the same name and social security number at another facility or another company, another part of the country. And you need to know what to do with those things when they come in. We establish and set up protocols for dealing with those things. You may have to get some advice from an attorney at some point, but having a standard operating procedure and responding to those protocols is helpful.

James W. Wimberly (00:38:34):
And we even have suggested and included some of our plans, most of our plans, even having a log of investigations that we've conducted internally when we receive evidence that something's not matching based on information that's come to our attention. It could be from a an informant, but we're not obligated to track down each and every unverified suggestion that we have unauthorized workers. But if there's a credible presentation to us that we have unauthorized workers employed we recommend an investigation and even a log of what we've done. And, and by the way we have lots of clients that keep logs of their internal investigations, and we have never had a single occasion halfway, Jim, in which ICE has found fault in our internal investigations and conclusions. Again, because they encourage that they want employers to self investigate, to correct their documentation and to respond to information suggesting unauthorized workers or mismatch of social security numbers and the like.

James W. Wimberly (00:39:54):
Also, one thing that can get a company in trouble is having supervisors and managers go around making statements about having unauthorized workers. If we ever are investigated that can get a company in a lot of trouble, that employers have supervisors, and that it, it is also can be a, a defamation claim if the person is lawful. So I'm gonna show you in a minute a sample notice to go to supervisor and managerial personnel informing them of the efforts we take to hire a legal workforce, including that we do have a legal workforce, and if they have any information about unauthorized workers who they should report that to, because occasionally ICE contends that a company covered up a certain situation. And that's something they will investigate if they get a witness that that claims that. Next, as Jim has already reminded us, this, Jim, we have to remember, and this is important, that one half of our immigration laws, at least immigration reform, is devoted to protecting immigrants. Half is devoted to work status and ensuring we don't hire unauthorized workers. The other half is to present, prevent discrimination against immigrants. And those kind of situations generally involve document abuse that Jim has already talked about. We can't over document we have to allow them to choose the documents they choose to offer in most cases to prove they're authorized to work. Next slide, please.

James W. Wimberly (00:41:57):
We've already covered number eight. We like to keep I nine forms in a single place because this not only facilitates us providing them to ICE with three business days, but it facilitates our own audits. It potentially allows us to make corrections in that three day period before we turn the documents over to us. And of course, we know some type of workers have expiration dates on their work authorization, and we need to track those dates. I think Larry's already mentioned that those who have employment authorization cards, they may be refugees or TPS persons,

James L. Hughes (00:42:41):
But Jim, going back to number eight, you have it there, but we basically recommend that we, as you terminate them, put 'em in a folder with that month and year so that when the time comes to trashing, you're

James W. Wimberly (00:42:55):
Ready. Yeah, that's a good point. When ICE does their payroll audits, or I nine audits, they normally go back three years,

James L. Hughes (00:43:04):
But they can go back three years. They, I've seen ICE or DOL go back one year, two years, or three years. So it really depends on what they're looking for and how much effort they want to put into it, right?

James W. Wimberly (00:43:19):
But the bottom line, there's no value to us keeping those documents beyond the necessary retention period. And there's a disadvantage to keep 'em. You might say the same applies to some other company documents like job applications of employees that are not hired that are beyond retention period that we're required to keep. Alright, moving on the situation with contractors and subcontractors it is true that an employer, a company is generally not responsible for the work authorization status of the employees of its contractors and subcontractors, but there are exceptions to that general rule. So it behooves us to make sure we have documented in our relationship with contract and subcontractors or job temp services or what have you, that we expect them to comply with work authorization procedures and easy verifying matters of that nature.

J. Larry Stine (00:44:33):
Well, Jim, I remember a case where you worked on, in which the, a labor provider was provided about 300 and it turned out the 300 were all a document and you had to deal with that particular issue with, with the subcontract labor provider, who basically was only bringing in my documented workers and impact on the workforce and that, so that's another reason why you wanna make certain your contracting subcontract. So even if you don't get liability under ice or penalty underneath it, you can have the two or 100 to 200, 300 all of a sudden if ICE comes in and they're happy taken out of one day.

James W. Wimberly (00:45:12):
That's right. Last PowerPoint, and I'm really not going to discuss it I'm gonna go through it, Larry, kind of go through it slowly so people kind skim it. All right.

J. Larry Stine (00:45:26):
Tell

James W. Wimberly (00:45:26):
When they're discussing go to the next page. Okay. this is a sample memo that we suggest going to managers and supervisors because we found in a couple of investigations in which of were defending employers that were under attack by ICE in a case by, in some cases by district attorneys, that not only did the company have unauthorized workers, but it covered up their efforts to hire these unauthorized workers by discouraging supervisors from attempting to eliminate unauthorized workers and things of that nature. So this memo simply sets forth what the company policy is. It lets the supervisors know that we do hire authorized workers, that they should be careful and accusing workers of not being unauthorized and spreading those kind of statements because they can be defamatory, they can get us in trouble, but if they believe and have proof that someone is authorized someone central in the company, it should be reported to.

James W. Wimberly (00:46:43):
Because obviously if ICE ever finds some supervisor or manager claiming that we discouraged any activities to protect against unauthorized workers who they should report the problem to. And this sample memo proves that you might say that this sample memo gives you a hint of what goes in a company plan to comply with the immigration processes. Our plans are generally about 15 pages long. We would appreciate being engaged by anybody. We'd be glad to share some sample plans. The plan we use most often was actually originally developed by the head of ice enforcement. We've modified it considerably over the years, but it covers all the situations we've talked about. It covers things like what the lookout for and the going through the I nine process you know, how to avoid I nine in incorrect documentation and things of that nature. Larry, I think it's our time to throw the floor open to questions because we've covered lots of information.

J. Larry Stine (00:48:12):
Alright, if anybody has anything either let's see. I've got five Inly q and A. The first question is, does this mean that people cannot apply for an extension on TPS? I think Jim

James L. Hughes (00:48:29):
<Laugh>, I'll take that one. Okay. people can apply for an extension of work authorization on TPS. Each country situation is different. And we can, if you have a particular country that you're interested in, there is a website that the government has put up. You can google that website by simply googling TPS or temporary protected status, and then it will provide you a link to each country. If you don't want to go through that, just give me a call, <laugh>.

J. Larry Stine (00:49:11):
All right. The, the next one is, our company is switching I nine electronic systems. Both our E-Verify systems, should those who've already been verified in our old system, shall be entered into the new system. And would this trigger any alerts with E-Verify?

James L. Hughes (00:49:29):
You, you do not need to E-Verify a person who is already employed

J. Larry Stine (00:49:36):
That a violation of E-Verify program. If you go back and do it a second time, you,

James L. Hughes (00:49:40):
Well, you're not supposed to.

J. Larry Stine (00:49:41):
Okay. <laugh>. Alright.

James L. Hughes (00:49:42):
So if you've hired the person and E-Verify them, you do not need to E-Verify them again. Now, if their employment terminates and they come back, you could hire them as a new employee and E-Verify. Again, that is permitted, but you do not e run a an existing employee through E-Verify.

J. Larry Stine (00:50:07):
Okay. The next one is, what if you utilize 10 99 subcontractors that have A EIN, but they may be un, may have undocumented workers. What is the exposure of those to you?

James W. Wimberly (00:50:19):
Lemme take that

J. Larry Stine (00:50:20):
One. Okay,

James W. Wimberly (00:50:20):
Jim. There is a theory of liability to the primary company because of the undocumented status of its subcontractor employees. There, there are two theories. Number one is that the two entities adjoin employers and as joint employers, the knowledge on the part of the subcontractor should apply to the contracting entity. Also, the other theory is that the main company has knowledge or constructive knowledge of the unauthorized status of the employees of the contractor or subcontractor. So those are the two theories that can lead to legal liability on the part of the primary company. I will say that those cases are rarely prosecuted. The most famous prosecution was a number of years ago, I'd say at least 10, involving Walmart, where Walmart had a contract crew at night that was a subcontractor operation cleanup, and they had lots of unauthorized workers. And I will say that Walmart was being investigated by lots of outside entities at the time, including labor unions.

James W. Wimberly (00:51:57):
They wanted to defend Walmart, a lot of wrongdoing. They were complaints made, and Walmart was found liable because the unauthorized status of its contract cleanup crew that came in at night. So, at a minimum, this is why if you're using a contractor, you have a written contract. It's, it's more difficult to establish the person is really a contractor and not a joint employer if you don't have a contract, IE something in writing. But secondly, having the magic words in that main contract of the requirements on the subcontractor to have authorized workers use E Verify, et cetera, is some protection. So my short answer, which has been long, yeah. What short answer is that number one, there is some exposure. Number two, it is very rarely prosecuted except in the case of egregious violations.

J. Larry Stine (00:52:58):
All right, next one, and I'll take this one, is the unfair immigration violation of the previous slide in reference to an applicant filing an EEOC claim alleging discrimination. I didn't catch what that was in reference to. No, that's not a unfair immigration at that day. Well, well, let me, well, well the, the point being at that early stage, they're in the EEOC charge area. They haven't gone through and filed draft for protection.

James L. Hughes (00:53:28):
Well, there are two possible proceedings,

J. Larry Stine (00:53:31):
Right?

James L. Hughes (00:53:33):
With respect to unfair immigration. That is a process that is prosecuted by the Department of Justice. It is separate from a Title VII claim that is pursued by the EEOC. There is some overlap between what Department of Justice can do and what E-E-E-O-C can do. The claims may be similar. For example a Department of Justice can pursue a, a discrimination based on nationality or citizenship. EEOC can do the same thing. So you're really talking about the same sort of violation, which could be pursued by either Department of Justice or EEOC depending on the circumstances,

J. Larry Stine (00:54:27):
Right? But there also those employees, if there's an EEOC claim, you know, for example, we were taking a deposition, an EEOC lawsuit by a private attorney. And during the deposition, the employee admitted that the name that they had been operating for and the paperwork was false, which basically was, since they don't have any of additional paperwork, you're now on notice that they're an undocumented worker and you really are obligated to terminate them, which was to the chagrin of the plaintiff's attorney when we fired the employee the next day for being any undocumented work. Oh, okay. The next question is, is there any way available for employee to apply for an extension of the expiration date for work authorization? In other words, as an example, is there anything a Venezuelan employee could do to keep working beyond the expiration date, 3 10 25 shown on the chart? Is there anything an employer can do to help employees?

James L. Hughes (00:55:34):
I'll respond to that. First, with respect to TPS status we have to wait and see if the Trump administration will extend TPS status for Venezuelans. I do not expect that to happen because Venezuela is presently viewed as a stable democracy. So I would expect that Venezuelans should be returning to their home country. But it is possible that before the end of next week the Trump administration could grant extension for PS steps. Now, individual situations may exist where a person qualifies for another type of lawful status, such as marrying a US citizen or obtaining a work authorization under a different program than TPS, so that depending on the individual situation, they may be eligible for some other type of immigration status. And I'll leave it there.

J. Larry Stine (00:56:52):
All right. The next question is, can you show the memo again please? We will, we will be glad to send that to anybody that would like a copy of that memo. Yes.

James L. Hughes (00:57:01):
Send us an email and we'll get a copy of that memo to you. Right.

J. Larry Stine (00:57:06):
Another question is, can you expand on E-Verify process that if done incorrectly, we'll get it targeted? I believe the one that you're talking about is where you're using the wrong field, you using the one for the state and the government officials that they know if you're doing that, you're not going to get any non-confirmation 'cause there's virtually no database in there.

James L. Hughes (00:57:29):
Yeah, I'll expand on that. Okay. The any verify when you are identifying the type of list B document, you have several options. The first option would be a driver's license or identification card issued by a state or territory. The second option is identification card issued by a federal, state, or local government agency. It is the second option that can create problems for you because there is no database and if you consistently use the second option, that will be identified at E-Verify, which cooperates with ice <laugh> and other government agencies. Another way that E-Verify can cause you a problem is if you are list a people, if you're permanent residence, always give you a permanent resident card that can indi indicate discrimination and the Department of Justice will pursue a discrimination claim because you always use a list, a document for permanent residence. 

James W. Wimberly (00:59:00):
In other words, you demanded that particular document without giving them the option of providing other

J. Larry Stine (00:59:05):
Documents.

James L. Hughes (00:59:05):
Right. 

J. Larry Stine (00:59:11):
I think you've answered that question, Jim. The other one is will you receive a copy of the slides? If you just send us an email, we'll send you the memo and slides. Also, this webinar will be posted on our webpage so that it is there. And feel free to use it however you team appropriate. We're more than willing to let you use it for somebody else because of course we are happy to do that. One of your bullet points mentioned, keeping track of all employees who have authorization cards. However, the I nine has a section that states for verification due the same thing. Yeah, but you gotta keep up with it. You ba basically you better have a spreadsheet somewhere or a calendar or some device that triggers it. Because what I found and what I've seen is you'll pull it up and oh, it expired six months ago and, and somewhere in your system on your I nines, you've got it, but you haven't put it into the system to follow up on it either in your calendar or spreadsheet or some triggering device to let the HR people know that's what we're talking about.

J. Larry Stine (01:00:16):
So, yeah.

James W. Wimberly (01:00:18):
And, and don't many companies send out reminders to the employees about their, I don't know

J. Larry Stine (01:00:24):
If

James L. Hughes (01:00:24):
They keep track

J. Larry Stine (01:00:24):
Of them. <Laugh>? Yeah, those that do keep up with it, do send 'em reminders so that they can go back and get it updated. Yeah.

James L. Hughes (01:00:31):
And it is pretty common for E-Verify to notify an employer of an expiring work authorization 90 days before it expires. But you probably don't get any follow up reminders. So the employer is ultimately responsible for making sure that their workforce has authorized status. You can't really depend on the employee to keep track of that. So you, you need to take responsibility.

J. Larry Stine (01:01:02):
Okay. And, and the other two questions, I do believe we've already answered that one. The last one, well, let, let

James W. Wimberly (01:01:09):
Me, let me say this. I think Jim's point there is if we are obligated to accept the documents they offer, and it turns out they're offering all these state issued cards that can't be verified the employer's following the law, but in the process potentially triggering an investigation. So it's a catch 22.

J. Larry Stine (01:01:33):
I I don't, I mean from what I have seen in looking at the documents submitted, typically it's either the, the, the I nine, the the a registration card or the driver's license and the social security and you don't look in that field and you verify that document we're talking about. Like if you have somebody that's in a halfway house from a prison and they have a prison ID from, you know, the Georgia Department of Protective Actions, that was the one you would use that one, but it was state driver's license or a state ID license. Not that good.

James L. Hughes (01:02:10):
Yeah. just to kind of repeat what Larry said most departments of motor vehicles will issue a driver's license and they're also responsible for issuing the identification cards, right. So those types of cards should be identified on E Verify with the first option, right? State driver's license or ID card issued by a state or territory. A prison ID, for example, would be the second option, which is an identification card issued by a federal, state, or local government agency. There is no database for that second option on E-Verify. There is a database for the first option. So you, the first option gives you the opportunity to determine whether a person might not be lawful to employ. And typically if you select the first option and that person is not authorized to work, you will get a tentative non-confirmation that re requires further process. So it, it's important that the employer or use the option that is consistent with the card the employee has presented.

J. Larry Stine (01:03:46):
All right. And I think the last question that we have is Eads should be or can be kept in the payroll or HRIS.

James L. Hughes (01:03:58):
Well if you're on E-Verify, you should be keeping a copy of all list A documents with the I nine and the e verify records. That is a requirement of the E-Verify memorandum of understanding.

J. Larry Stine (01:04:18):
All right. Well thank y'all very much. That was all the questions you have. We really appreciate all the questions. This will be posted on our webpage. If you want the memo or the slide or both, send an email to J lh <laugh> at wim law.com and Mr. Hughes will take care of that. Or you can send it to me at j ls or wi j ww, any one of us you send it to and we'll respond back and if you a copy of the slide and the memo. And with that, thank you very much for your time and we will end at this point. Thank you very much. Bye.