March 17, 2008 - As a national corporate immigration law firm representing numerous companies in a wide variety of industries and with our active involvement in the nation's capital, BAL is able to provide a macro view of the overall state of immigration law and policy in the U.S. From time to time, BAL provides a "state of the union" to brief our clients on trends, changes, and prospective issues. As we stand in the first quarter of 2008, the single largest issue facing corporate America is enforcement. And it's only getting bigger. As Bob Dylan sang..."the times they are a changin"...Since enforcement touches on so many areas, we will provide a series of six updates which together will paint the picture of current immigration policy from 30,000 feet. Specifically, we will cover: I-9 Enforcement Actions, Social Security No-Match Letters, State Law Immigration Issues, E-Verify, LCA and PERM Audits and A Return to the Culture of No.

We are in a new era in immigration law...an era of anti-immigrant sentiment, strict federal enforcement proceedings, federal criminal investigations, enactment of challenging state laws, and strict interpretations of immigration law that has permeated across all government agencies that deal with immigration law and policy including the Department of Homeland Security, the Department of State and the Department of Labor. Beginning in 2006 and now into 2008, immigration policy in the U.S. continues to persist as one of the most difficult and emotional issues facing voters and lawmakers. This past year witnessed Congress' failure to pass any form of comprehensive immigration reform, while the various immigration agencies under the auspices of the Department of Homeland Security ("DHS") expanded their enforcement mechanisms, leaving immigrants and employers in the U.S. in a strict enforcement environment with little hope of legislative relief. With the presidential election looming in November 2008, there is little hope of major positive reform passing at least in the next year, and perhaps even two years. Undocumented immigrants are unlikely to see any movement from Washington in their efforts to legalize their status, while Immigration and Custom Enforcement's ("ICE") hard-line detention policy will continue to strive to detain individuals and families without hope of parole until their deportation proceedings are complete.

On the employers' front, business owners now must comply with tougher worksite enforcement measures, including the threat of increased I-9 audits and inspections, as well an increased threat of ICE raids at their business locations. Attempts by federal agencies to set up a permanent verification system for checking a new hire's employment authorization status in the U.S. have lead to frustration over the unreliability of the system and concern over the large potential for error. Out of frustration with lagging progress at the federal level, state and local lawmakers are passing their own immigration laws, putting the onus on U.S. employers to vet undocumented workers before hiring them. Tougher enforcement is therefore being implemented at all levels of government, while lawmakers are struggling to create any relief for the immigrants and employers affected most by the enforcement measures.

The DHS worksite enforcement efforts significantly ramped up in the past year. I-9 audits are increasingly commonplace with companies selected either randomly or for cause. In addition to an increase in the number of I-9 audits and raids, U.S. Attorney General Michael B. Mukasey has recently announced higher civil fines against employers who violate federal immigration laws. Under the new rule, civil fines will increase by as much as $5,000. The new rule is scheduled to take effect on March 27, 2008. Accordingly, it is crucial for employers to assess their Form I-9, Employment Eligibility Verification (I-9) program, records and practices with an internal audit. As a general rule of thumb, it is wise for employers to conduct an I-9 self-audit on at least an annual basis.

The I-9 Form and Internal Audit

The I-9 form appears deceptively simple, but is fraught with potential problems. As such, it is imperative that companies ensure that their I-9 documentation is accurate. Naturally, there are always potential paperwork violations and other issues when different employers or different managers actually complete the I-9 form, when different employees are not adequately prepared to fill out section 1 of the I-9 form, and when a company has multiple locations. These factors buttress the need for an internal audit.

The internal audit should mirror a government compliance audit as much as possible. Following such a procedure enables the company more adequately to review its I-9 documentation. In addition, the use of this process will help the company's human resources department function and compliance personnel to be better trained on I-9 procedures. Therefore, the first step is to obtain a list of employees. A sound approach is to secure a payroll record for the company that lists all current and terminated employees. The terminated employees should be employees who were terminated within the last three years. Next it is necessary to secure the form/file for each current employee. The I-9 form should be kept in a separate file outside of the employee's personnel file. If it appears that I-9 form/files are missing, this should be noted immediately. I-9s for terminated employees should be kept for three years from the date of hire or one year after termination, whichever is longer. The I-9 forms that do not fall within these time frames should be destroyed or removed, consistent with your company's policies for document destruction or removal.

If, in the course of an internal audit, any information arises that would cause a reasonable person to be concerned about the legitimacy of the documents presented or the identity of the individual presenting those documents, further steps and action are needed. When the I-9 is initially executed, the documents must appear reasonably to relate to the person presenting them and must appear on their face to be genuine. If, for some reason, these two criteria are not satisfied either from the I-9 review or from subsequent information (such as from a Social Security no-match letter and the follow-up steps that an employer should take), then there is a duty to investigate further. This further investigation could include asking the employee to meet with HR, present documentation, etc. Special care must be taken to ensure that the employer complies fully with the I-9 employment verification process but does not run afoul of the unfair immigration-related employment practice provisions.

As employers are faced with tougher worksite enforcement actions, including the threat of increased I-9 audits and inspections, as well as an increased threat of ICE raids at employer sites, it is of the utmost importance for an employer to ensure its I-9s are maintained accurately to guarantee compliance with all immigration laws. An internal audit of an employer's I-9 program, policies and practices is the best way to protect the company.

BAL's Services

BAL provides a range of I-9 audit services, from a one-time audit - to training - to comprehensive electronic storage programs with audits performed on every I-9. BAL's electronic storage solution provides secure access to an electronic I-9 completion tool with online instructions to aid in proper verification. Reporting functions enable timely compliance and re-verification. Our electronic system provides all the following benefits:

• On-line guidelines for I-9 completion
• Error checking and notification
• Electronic signature and storage of I-9 data
• Compliance reports
• Automated notification of upcoming expirations
• E-Verify access and filing capability

In addition, BAL offers enhanced services to provide comprehensive outsourced program management for the entire I-9 process. Enhanced BAL services provide expertise and assistance in running effective immigration compliance programs. BAL's I-9 Program Management Services offers compelling advantages for employers including:

• Online completion and signature
• Secure and centralized storage
• Nationwide web-accessible access for I-9 completion
• Automated validation of data providing immediate feedback on possible problems
• Automated reporting, including notification of expirations
• Integration with government databases, including E-Verify
• Auditing and resolution for existing I-9s
• Training on compliance and program maintenance
• Virtual compliance oversight for entire program management
• Legal support for all questions and issues

For more information on BAL's services, please contact your BAL attorney.