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UPDATE ON IMMIGRATION ISSUES IN THE WORKPLACE FOR HEALTHCARE PROVIDERS

UPDATE ON IMMIGRATION ISSUES IN THE WORKPLACE FOR HEALTHCARE PROVIDERS. Presented by: Laura Deddish Burton Smith Moore Leatherwood LLP 300 N. Greene Street Suite 1400 Greensboro, NC 27401.

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UPDATE ON IMMIGRATION ISSUES IN THE WORKPLACE FOR HEALTHCARE PROVIDERS

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  1. UPDATE ON IMMIGRATIONISSUES IN THE WORKPLACEFOR HEALTHCARE PROVIDERS Presented by: Laura Deddish Burton Smith Moore Leatherwood LLP 300 N. Greene Street Suite 1400 Greensboro, NC 27401 To ask a question during the presentation, click the Q&A menu at the top of this window, type your question in the Q&A text box, and then click “Ask.” After you click Ask, the button name will change to “Edit.” Questions will be queued and most will be answered at the end of the meeting as time allows.

  2. Terminology • U.S. Department of Homeland Security (DHS) • U.S. Citizenship and Immigration Services (USCIS) • Immigration and Customs Enforcement (ICE) • Customs and Border Protection (CBP) • U.S. Department of State (DOS) • U.S. Department of Justice (DOJ) • U.S. Department of Labor (DOL)

  3. Terminology • Immigrant vs. Nonimmigrant • Lawful Permanent Resident (LPR) • Citizenship and Naturalization • Consular Processing • Adjustment of Status (AOS)

  4. Family Tree of U.S. Immigration

  5. Keep in mind two goals: To make sure Employers only hire people who are authorized to work in the US (screen out unauthorized workers). To make sure Employers do not discriminate against people based upon foreign origin (name, appearance, accent) when hiring. BASIC I-9 CONCEPT

  6. NEW FORM I-9 • The US Citizenship & Immigration Services (USCIS) has issued a new version of the I-9 Employment Eligibility Verification Form. All US employers are required to use the new I-9 as of April 3, 2009. This is the only acceptable version of the form. • The Form’s validity has been extended until August 31, 2012. Employers may use the Form dated August 7, 2009 or the February 2, 2009 Form.

  7. I-9 Change: • All documents presented by an employee must be unexpired on the date presented (including U.S. passports and List B documents) • Section 1 – A new box has been added for an employee to self-identify: “A non-citizen National of the United States.” (separated from first box) • Section 2 -- Changes to List A documents (documents that may be used to prove both identity and work authorization) : • U. S. Passport must be unexpired • Adds new U.S. Passport card as acceptable document • Only I-766 Employment Authorization Document acceptable (Old cards I-688, I-688A and I-688B are no longer acceptable)

  8. List A Documents: Changes to List A documents (documents that may be used to prove both identity and work authorization): - Adds Foreign Passport with machine-readable immigrant visa documentation (I-551) - Adds documentation (passport and I-94 card) for citizens of the Federated States of Micronesia and the Republic of the Marshall Islands - Unexpired foreign passport with attached I-94 card for nonimmigrant aliens authorized to work for a specific employer (language is clarified on form).

  9. The new I-9 form should be used on a going-forward basis and does not need to be completed for existing employees. (With exception of specified federal contractors)

  10. The new I-9 instructions specifically state that the employee is NOT required to provide a Social Security Number in Section 1, UNLESS the employer participates in the E-Verify program.

  11. The new I-9 Form and the updated “Handbook for Employers, Instructions for Completing the Form I-9” are available to employers online at www.uscis.gov (near the bottom of the list of forms) or by calling USCIS at 800-375-5283.

  12. WHY WORRY ABOUT I-9 COMPLIANCE? Significant Potential Penalties for 4 Types of Violations

  13. PENALTIES • Knowingly hiring or continuing to employ an unauthorized worker: • 1st Offense: $375-$3,200 per alien. • 2nd Offense: $3,200-$6,500 per alien. • 3rd or Later Offense: $4,300-$6,500 per alien. • Additional criminal penalties for “pattern and practice”.

  14. PENALTIES • Discrimination on the basis of national origin or citizenship status: • 1st Offense: $375-$3,200 per individual. • 2nd Offense: $3,200-$6,500 per individual. • 3rd or Later Offense: $4,300-$16,000 per individual. • Additional remedies include back pay, injunctive relief and attorney’s fees.

  15. Paperwork violations: failing to properly complete I-9s or overdocumentation (for requesting too many documents): $140-$1,375 per individual (for each incorrect form). 10-day “cure” period for some violations. PENALTIES

  16. Document fraud for knowingly accepting a forged document: 1st Offense: $375-$3,200. Later Offenses: $3,200-$6,500. Additional potential criminal penalties. PENALTIES

  17. BASIC FOUR STEP PROCESS FOR COMPLETING I-9 FORMS • Employee completes§1 by the end of the first day of employment. • By the end of the third day of employment, employer reviews employee’s documents to verify identity and work authorization and completes§2. • If employee’s work authorization expires, put expiration date in tickler system. • Reverify before work authorization expires.

  18. Make sure all information is completed and proper box is checked. Check the employee’s Social Security number for legibility, but do not ask for Social Security card. Complete an I-9 for all employees. The employee must complete§1 on or before the first day of work. The employee may use a translator, but the employee should still sign and date §1. STEP 1: EMPLOYEE COMPLETES §1

  19. Obtain one document from List A OR one from List B AND one from List C. Let the employee choose the documents. Avoid overdocumentation. Suspend the employee if the documents are not received by Day 3. A receipt for a replacement document is acceptable. STEP 2: Employer Obtains and Examines Acceptable Documents by Day 3

  20. Examine documents for authenticity. Photocopy documents based on company policy (unless participating in E-Verify). Verification of Social Security numbers if based on consistent policy. Fill in Section 2 and sign and date. Retain I-9 forms in separate files. STEP 2: Employer Obtains and Examines Acceptable Documents by Day 3

  21. Enter work authorization in tickler system. Remind employee 90-120 days in advance of expiration. Do not reverify identity documents or lawful permanent resident cards. STEP 3: CREATE A TICKLER SYSTEM

  22. Just reverify work authorization, not identity. Accept any combination of documents: List A OR List B AND C. Complete§3. STEP 4: REVERIFY

  23. An employee’s I-9 form must be retained for the full period of employment. Once employment ends, the I-9 must be retained for the longer of: One year from the date of termination OR A total of three years from the date of hire. RETENTION REQUIREMENTS

  24. VISAS FOR HEALTHCARE PROVIDERS Nurses: TN Visa • Canadian and Mexican Citizens • Valid for up to three years • Must have valid VisaScreen Certificate • For RNs only, not LPNs • Can be full or part time • No dual intent

  25. VISAS FOR NURSES H-1B Visa: • More challenging because of visa requirements • Position must require BSN or higher • Only for advanced categories – nurse anesthetist, etc. H-1C Visa: • For nurses in certain HPSAs at certain designated medical facilities • 500 per year available in U.S.

  26. VISAS VISAS TN visas also available for: • Dentist • Dietitian • Medical Lab Technologist • Nutritionist • Occupational Therapist • Pharmacist • Research physician (non-clinical) • Physical therapist • Psychologist • Recreational Therapist

  27. SCHEDULE A“GREEN CARDS” SCHEDULE A “GREEN CARDS • Schedule A immigrant visas available for “certain medical personnel” • Available for registered nurses and physical therapists • Congress has designated these as shortage professions • No recruitment required for labor certification • EB-3 Skilled Workers – No “head of the line” treatment

  28. PHYSICIANS H-1B visa: • Clinical practice • Must have passed USMLE • ECFMG certificate • License to practice PHYSICIANS

  29. PHYSICIANS PHYSICIANS J-1 Waiver for International Medical Graduates: • 2-year home residency requirement can be waived in certain cases to work in HPSAs, MUA/MUP, or a VA facility • Exceptional hardship or sponsorship by an Interested Government Agency (IGA) • IGA = Conrad 30 (state public health department); VA; ARC; HHS; DRA

  30. PHYSICIANS PHYSICIANS J-1 Waiver for International Medical Graduates: • Physicians receive an H-1B for a specific employer in HPSA • Generally cannot change employees during waiver period • Cannot “moonlight” • After waiver period, visa is standard H-1B

  31. PHYSICIANS PHYSICIANS • Generally EB-2 Professional with Advanced Degrees • Certain National Interest Waivers available to avoid labor certification process

  32. E-VERIFY(EMPLOYMENT ELIGIBILITYVERIFICATION PROGRAM)

  33. E-Verify • Voluntary online verification • Participation requires Memorandum of Understanding with ICE • Currently free to use • 92% of queries receive instant verification • Non-citizen work authorization status mismatches to be resolved by USCIS staff • Currently 100,000 employers use E-Verify (out of approximately 6 million).

  34. E-Verify • Cannot use as a pre-screening tool. • Only used for after-hires (except federal contractors) and must use within 3 days of hiring. • If participating in E-Verify program, must use for all new hires. • Cannot use for employees hired before employer joins program (except federal contractors). • Cannot use for reverification, with some exceptions. • Offers rebuttable presumption that employment is authorized. • Must photocopy certain I-9 documents if participating in program.

  35. E-Verify for Federal Contractors • Under Federal Acquisition Regulation (FAR). • Went into effect September 8, 2009. • Federal contractor provision to be inserted in many memoranda of understanding for organizations that do business with U.S. government. • It appears that Medicare/Medicaid providers do not fall under the provision.

  36. Federal Contractors Who qualifies: • Businesses with a contract with federal government agency • Required for all contracts over $100,000 • Exceptions for commercially available off-the-shelf items (COTS) (Most food and agricultural products) • Provision applies to subcontractors providing services or construction over $3,000 • Must enroll in E-Verify within 30 days of entering contract

  37. Federal Contractors • Must agree to use E-Verify for all new hires • Must agree to use E-Verify for all existing employees working on the federal contract • May choose to verify all existing employees (different from standard E-Verify program) • Exception for institutions of higher education, state/local governments, and governments of federally recognized Indian tribes – do not have to verify all new hires • Required verification inquiries must be initiated within 90 days of enrollment

  38. E-Verify, Including Federal Contractors • I-9 Differences: • Employee must provide Social Security number; • List B document provided must have a photograph; • If employee provides I-551 (“Permanent Resident Card”) or I-766 (Employment Authorization Document), the employer must photocopy the document and keep it with Form I-9.

  39. Questions?

  40. Laura Deddish Burton Smith Moore Leatherwood LLP 300 N. Greene Street Suite 1400 Greensboro, NC 27401 T: (336) 378-5566 laura.burton@smithmoorelaw.com

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