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Posts Tagged ‘I-9 Audits’

OSC & ICE Publish Guidance to Employers on Internal I-9 Audits

Wednesday, December 16th, 2015

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The Department of Justice’s Office of Special Counsel (OSC) and the U.S. Immigration and Customs Enforcement (ICE) have issued a six-page joint Guidance for Employers Conducting Internal Form I-9 Audits that can be viewed here:  http://www.justice.gov/crt/file/798276/download

This guidance is a result of a six-month intra-agency initiative to foster greater cooperation across government agencies in the I-9 audit space. The group overseeing this initiative, entitled the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws, is tasked with improving the effectiveness of investigations by ICE and the OSC.

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Recent DOJ Worksite Enforcement Settlements that Shed Light on Form I-9 Employer Compliance

Sunday, September 20th, 2015

One group of customers standing on a red target bullseye, with magnifying glass hovering above it

Plain and simple, failing to comply with IRCA’s I-9 rules have, and are continuing at a rapid rate, to result in significant fines, loss of access to government contracts, an onslaught of negative publicity, business closure, criminal penalties and even imprisonment.  Here are a few examples of recently settled cases in August 2015:

1) Creating discriminatory barriers for immigrants who have permission to work in the United States, $165 civil penalty with $50K in back pay:
http://www.justice.gov/opa/pr/justice-department-settles-discrimination-claim-against-louisiana-crane-construction

2) Requiring non-U.S. citizens, but not similarly-situated U.S. citizens, to present specific documentary proof of their immigration status to verify their employment eligibility, $200K civil penalty: http://www.justice.gov/opa/pr/justice-department-settles-immigration-related-discrimination-claim-against-nebraska-based

3) City of Eugene, OR improperly restricted law enforcement positions to U.S. citizens at the time of hire, even though no law, regulation, executive order or government contract authorized such a restriction. must pay a civil penalty, train its employees about the anti-discrimination provision of the INA and be subject to monitoring by the Justice Department for a period of three years!
http://www.justice.gov/opa/pr/justice-department-settles-citizenship-discrimination-claim-against-city-eugene-oregon

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Immigration Compliance Group provides US inbound immigration services to individuals and employers throughout the USA and abroad. We specialize in business immigration and have a depth of experience in the IT, healthcare, arts, entertainment and sports industries, amongst others. Our services include complex business visas for investors, multinational managers, skilled professionals, outstanding individuals of high achievement (O-1, P visas, EB-1 and EB-2 Exceptional Ability cases) and PERM Labor Certification.  We additionally provide employer compliance consulting services on proper I-9 (Employment Eligibility Verification) management, auditing, training, and work with our clients to develop a culture of immigration compliance. Our door is open for new clients — we extend a 20% discount on the first case with our firm.  Contact us at info@immigationcompliancegroup.com or call 562 612.3996.

Electronic I-9 Form Soon to be Released

Saturday, June 20th, 2015

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At the Council for Global Immigration’s 2015 Symposium June 10, 2015 (ICE and OSC reps in attendance), it was announced that the I-9 form will help guide employers in filling them out correctly, with the goal being to prevent easily fixable errors such as not filling out required fields.  The soon-to-be-released form will have drop-down boxes and guides – but will not offer all of the features of electronic I-9 forms on the market… and will not connect with E-Verify, the government’s taxpayer-funded electronic employment verification system.

We will certainly continue to share the development of the launch of the electronic I-9 form – for sure – and are pleased to see USCIS continuing to provide additional compliance resources for US employers.

 

Agriculture: An impossible I-9 Form Employment Eligibility Hurdle

Friday, June 5th, 2015

http://www.dreamstime.com/-image20105530Broetje Orchards in Washington state, one of the country’s largest apple growers, has agreed to pay a $2.25 million fine for hiring illegal immigrants. The fine is one of the largest ever levied against an agricultural concern, according to government officials who announced it Thursday.  The Broetje case, which dragged on for years, highlights the uncertain environment for employers in agriculture –  as U.S. immigration policy remains in flux – and US citizens continue to refuse to do these jobs.

The civil penalty levied against Broetje on Thursday was for employing nearly 950 people who weren’t authorized to work in the U.S., according to Immigration and Customs Enforcement. The fate of the workers remains unclear. The majority are unlikely to be a priority for deportation, according to Obama policy that targets felons for removal from the U.S.

A family-run concern that grows apples and cherries on more than 4,000 acres in eastern Washington, Broetje was first found to have undocumented workers in a 2012 ICE audit. At the time, the federal agency’s investigators identified about 1,700 workers who were suspected of being in the U.S. illegally.

In ensuing years, Broetje management negotiated with the federal government and lobbied in Congress to avert a high-profile raid of its facilities by authorities and to spare longtime workers, according to sources familiar with the matter.

“Companies want to keep their workers as long as possible because the environment will change,” said Julie Myers Wood, who headed ICE during the George W. Bush administration. “Someone who is not authorized today could be permitted to work tomorrow.”

All businesses are expected to comply with the law and to ensure the information provided on a form I-9 (employment form) is accurate,” ICE Director Sarah R. Saldaña said in announcing the fine.  Undocumented workers typically secure jobs by presenting fake documents, such as Social Security numbers.  Under the settlement, Broetje doesn’t admit to criminal wrongdoing, but acknowledges that auditors found the company continuing to employ unauthorized workers after being advised by ICE those employees didn’t have permission to work in the U.S.

Broetje is the largest employer in Walla Walla County. It has more than 1,000 permanent employees and hires up to 2,800 people during harvest season. Many of them live on the company’s grounds in Prescott, Wash., where the grower has built housing, school and a day care center for workers.

The case highlights what is clearly a dysfunctional and broken immigration system.  The Obama administration began targeting employers because they are regarded as magnets for illegal immigration, since they provide jobs that lure undocumented workers.  Immigration and Customs Enforcement said it audited the company’s records last summer and found that nearly 950 of its employees over several years were suspected of not being authorized to work in the United States.

The ICE audits are an answer to calls by many members of Congress to strictly enforce current immigration laws before consideration of wholesale reform of the country’s immigration system.  The audits have drawn flak from both proponents and opponents of an immigration overhaul.  Rep. Lamar Smith (R., Texas), a leading voice among foes of giving illegal immigrants amnesty, has deemed audits ineffectual because they don’t result in deportations.

Audits have hit national chain Chipotle Mexican Grill, garment maker American Apparel and janitorial firms in recent years.

ICE doesn’t disclose the names of audited companies, and it said it also doesn’t keep tabs on how many workers lose their jobs.

Georgia and Alabama were two of five states to pass tough crackdowns on illegal immigration in 2011, a year after Arizona made headlines for a hard-line immigration enforcement law that ended up being challenged in the U.S. Supreme Court.

Immediately after the laws were passed, farmers in both states complained that foreign workers who lived there had left and that the itinerant migrants who generally came through were staying away. American workers weren’t stepping forward to perform the back-breaking work immigrants had done for years, and crops were rotting in the fields because of a lack of laborers, they said.

An informal survey conducted in Georgia showed that farmers of onions, watermelons and other hand-picked crops lacked more than 11,000 workers during their spring and summer harvests of 2011, Georgia Department of Agriculture Commissioner Gary Black told a U.S. Senate subcommittee hearing on immigration enforcement and farm labor.  But then as courts began blocking significant elements of the law and some loopholes became apparent, some of the workers who had fled for fear of arrest and deportation returned. Others were drawn back by their longstanding ties to the communities.

The audits have drawn flak from both proponents and opponents of an immigration overhaul, however.  Rep. Lamar Smith (R., Texas), a leading voice among foes of giving illegal immigrants amnesty, has deemed audits ineffectual because they don’t result in deportations.  Audits have hit national chain Chipotle Mexican Grill, garment maker American Apparel and janitorial firms in recent years.

“We are pleased to put this process behind us and to get back to the business of growing fruit,” the company said in a news release. But the case, the company continued, illustrates the need for immigration reform.

“This case nevertheless highlights what is clearly a dysfunctional and broken immigration system,” the company said, and urged Congress to pass immigration reform.

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As always, we welcome your feedback. If you are interested in becoming a client of our office, please call 562 612.3996 or email info@immigrationcompliancegroup.com. We handle a broad range of business related immigration matters and have an active employer compliance practice, and consult on proper I-9 (Employment Eligibility Verification) best practices, auditing, training, and work with our clients to develop compliant immigration policies and procedures.

I-9/E-Verify: Preventing Discrimination in Hiring Practices

Sunday, October 6th, 2013

http://www.dreamstime.com/-image24769455The Immigration and Nationality Act (“INA”) prohibits employers from discriminating against individuals based on their citizenship or immigration status, or based on their national origin, in the Form I-9 process. It is important for employers to develop, implement and enforce anti-discrimination policies, practices and procedures, and to ensure that all employees conducting Form I-9 verification or E-Verify confirmation understand all program rules. Employers should also provide appropriate and adequate employee education on employer responsibilities and worker rights.

To prevent discrimination, employer’s should treat all people equally when

 

  • announcing a job
  • taking applications
  • performing interviews
  • making job offers
  • verifying the individual’s authorization to work
  • hiring the individual
  • terminating the individual’s employment

Employers also must not retaliate against a person who             

  •  files a charge of discrimination with OSC or EEOC
  • participates in an investigation or prosecution of a discrimination complaint
  • asserts his or her rights or the rights of another person under anti-discrimination laws

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) investigates charges of employment discrimination related to an individual’s citizenship or immigration status or national origin.  The Equal Employment Opportunity Commission (EEOC) also investigates employment discrimination based on national origin, in addition to other protected bases. OSC investigates national origin claims against employers with four to 14 employees, and EEOC investigates national origin claims against employers with 15 or more employees. 

There has been a high level of enforcement by OSC this year concerning the anti-discrimination provision, with three more cases recently publicized in the last month:

  1. OSC settled with Texas-based Infinity Group who required non-citizens present specific DHS-issued documents such as green-cards or employment authorization to establish identity and employment authorization while similarly not requesting the same of US citizens.  They were fined $53,000, had to pay $35K in back pay to those who were damaged as a result of their practices.
  2. OSC settled with PA-based Huber Nurseries for engaging in citizenship discrimination by preferring to hire temporary H-2A visa holders over Permanent Residents (green-card holders).  Huber has agreed to pay $2,250 in civil penalties to the USA and $59,617 in back pay to the six injured parties, who are former refugees; and
  3. OSC settled with IBM for violating the anti-discrimination provision for placing online job postings for software developers with a preference for F-1 and H-1B visa holders.  IBM has agreed to pay $44,400 in civil penalties to the USA.

So, what’s an employer to do?

Employers must accept all documents that are indicated on the List of Acceptable Documents to complete the I-9 form as long as they appear reasonably genuine on their face and relate to the employee. For example, all individuals who possess a driver’s license and unrestricted Social Security card may present those documents to satisfy Form I-9 requirements. Employers may not request or require potential employees to produce “green cards” or United States citizens who look or sound “foreign” to produce birth certificates. The employee chooses which of the acceptable Form I-9 documents to present.  Employers must assure that those charged with the responsibility of I-9 management are trained on I-9 regulations and the anti-discrimination provision of the INA – and they must not          

  • Demand that an employee show specific documents
  • Ask to see employment authorization documents before an individual accepts a job offer
  • Refuse to accept a document, or refuse to hire an individual, because a document will expire in the future
  • Refuse to accept a receipt that is acceptable for Form I-9 purposes
  • Demand a specific document when reverifying that an employee is authorized to work

We recommend that you take some time and read the OSC’s Guide to Fair Employment that can be accessed here, that contains some thought provoking What would you do? scenarios that start on page 6.

Should you have questions or require particular guidance on this topic, please feel free to contact our office.

Part II — Our Continuing Saga of USCIS Answers Concerning the New I-9 Form

Tuesday, September 24th, 2013

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The question of whether “N/A” may or must be entered in non-applicable fields, or whether N/A is sometimes required and sometimes optional – is a question we’ve all been wondering about.  Here’s recent guidance on the topic . . .

If the passport number and country of issuance fields in Section 1 do not apply, the employee MUST write “N/A.”  If all else fails, follow the instructions!…In essence that’s the recent guidance – read the instructions when determining if an N/A response is required as it states when an employer or employee may use N/A or must use N/A.  Failing to provide a response in a required field may be considered a verification violattion (yes, it’s true!).

Not to belabor it, but this is another very good reason for providing the instructions to the employees when they are filling out Section 1 and deciding which documents to present in the I-9 process. It would be advisable for the employer representative to also have a copy of the instructions on their desk

The I-9 Instructions:  http://www.uscis.gov/files/form/i-9.pdf

How have you been dealing with the “N/A” requirement so far?  No judgements – let us hear from you.

Nestle KID-Kat Bars?: Audit Helps Chocolate Maker “Grow Up”

Saturday, July 21st, 2012

By:  Timothy Sutton, Communications Editor

Swiss based Nestle has discovered “numerous” violations of its internal work rules as a result of internal auditing aimed at combatting child labor. The manufacturer of Kit-Kat bars reported that four-fifths of its cocoa comes from unmonitored labor channels. The Fair Labor Association is insisting Nestle implement higher supply chain standards moving forward. The cocoa industry is fraught with child labor issues, with child worker rates reaching upwards of 89% in the Ivory Coast. Unfortunately this far-reaching problem will not be solved overnight, “The complexity of child labor in the cocoa supply chain means solving the problem will take years,” Nestle said.

As a result of Nestle’s voluntary audit, the company has avoided penalties thus far. However, their involvement in child labor comes at a price. The company is now committed to altering supply chain practices and will invest heavily in future monitoring services.

While most American businesses can rest assured they are not supporting the underground child-labor industry, Nestle’s efforts to self-assess and reform should be applauded. Domestic and international companies will benefit greatly from routine internal audits that track workforce compliance. USCIS and ICE encourage employers to frequently perform internal audits of their Form I-9 practices. In fact, records of regular auditing of your workforce may help you avoid hefty civil penalties in the event of an official government audit. The next time you “break off a piece of that Kit-Kat bar,” consider following Nestle’s example of self-auditing and contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

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Undercover Boss: Preventative Medicine for Businesses | Immigration Compliance Group

Tuesday, July 10th, 2012

By: Timothy Sutton, Communications Editor

One of my favorite television shows is Undercover Boss. If you’re unfamiliar with the show, the premise is: a CEO/President takes on a disguise to go undercover within their own business to find ways to (1) become more successful and (2) reward hardworking employees. Obviously, there is an essential element of Hollywood magic that prevents most of us from going “undercover” within our own business; but the lessons learned from this show are no less valuable.

Every episode begins with a slightly troubled, but optimistic executive. They instruct their trusted board of directors that they will be resigning from the company to go undercover as an employee over a week’s time in various lower levels of the company, entry-level to management. The goal is to see their business from a fresh perspective. A series of uncomfortable and often illegal encounters ensue where CEOs face discrimination, harassment and even get fired by their own employees. At the end of the hour-long television program, CEOs reward key employees and have “new and improved tools” to develop successful business practices.

There is a better way for your business to experience the same fresh perspective without shaving your head and slapping on a boar’s hair mustache; it’s called an audit. Yes the feared “audit” is most commonly associated with frightful agencies like the IRS and ICE. Yet, Undercover Boss is simply Hollywood’s version of a voluntary audit. In order to become more successful, discovering discrimination, harassment, and wrongful termination within your own business is necessary. The alphabet agencies (ICE, IRS, DOJ, DOL) insist that companies perform annual audits to comply with a multitude of legal formalities. Not only will audits improve business efficiencies and reveal valuable employees, but it will also save your company thousands of dollars for failing a government ICE initiated audit.

The Immigration Compliance Group has years of auditing and consulting experience and a touch of Hollywood magic! Before you invest in your own set of wigs and costumes, contact one of our immigration professionals to discuss I-9 compliance and workforce related issues. Discover how audit prevention and a fresh set of eyes can improve your business.  Contact us for support in planning and implementing legally sound solutions to protect your company’s future:  562 612.3996 | info@immigrationcompliancegroup.com.

Link up with us in our group, I-9/E-Verify:  Smart Solutions for Employers and stay informed:   http://www.linkedin.com/groups?about=&gid=4137860

I-9/E-Verify News: ICE Releases 500 More Employer Notices of Inspection

Thursday, June 21st, 2012

It has been reported in the last week by the American Immigration Lawyers Association (AILA) that ICE has issued another round of 500 NOIs (Notices of Inspection) focusing on agriculture, critical infrastructure and other industries, which is the 2nd wave of 500 NOIs this month.  The NOI  informs the employer that their I-9 Employment Eligibility Verification forms will be audited by ICE to determine their compliance with federal employment related immigration laws.

As we reported back in February, employers must make sure they are hiring only people who can work legally in the U.S. Businesses that previously have received warning letters or administrative fines may now be the subject of yet more fines if ICE Special Agents determine that  the employer continues to make the same mistakes.

Bear in mind, that several Federal agencies have the authority to review your I-9 forms, these agencies consist of ICE, The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) and the DOL, Wage and Hour Division.  Each of these agencies investigate violations in the I-9 process, and we strongly advise that employers need to be prepared for a visit from any one of them.

ICE announced earlier this year their enforcement related statistics in the area of I-9 compliance for 2011, as follows:

•           2,496 I-9 audits were conducted

•           3,291 worksite enforcement cases were initiated

•           Criminally arrested 221 employers

•           Issued 385 Final Orders for $10.4+ million in fines; and

•           Debarred 115 individuals and 97 businesses

These enforcement statistics should indeed be troubling to employers, particularly given that  they don’t reflect the number of ICE notices (such as the Notice of Discrepancies or Notice of Suspect Documents) that are sent to employers, who are otherwise compliant, but may have accepted fraudulent documents or whose employees may have purchased the identity of a US citizen for work authorization purposes, despite your best efforts.  As a result of this, employers across the country have had to terminate thousands of employees and incur the expense of hiring and training new employees.

ICE expects to audit some 3,000 or more employers in 2012.  We recommend that you hire experts in the field to conduct either a partial or full audit, depending upon your circumstances, train personnel who are charged with the processing of your I-9 forms, and develop a written policy statement that reflects your goals for remaining compliant.

Please contact us should you have any questions or wish to discuss our services and solutions and how we might assist you in developing and maintaining a compliant workforce.

Form I-9/E-Verify News: FBI & ICE Serve TX Surveyors 20 Counts, $5M in Fines and 100 Years in Prison for 19 Illegal Workers

Thursday, May 31st, 2012

By:  Timothy Sutton, Communications Editor

“Homeland Security Investigations is committed to holding businesses and their managers accountable when they knowingly hire an illegal workforce,” –John Kelleghan, Special Agent in charge of HSI Philadelphia.

Homeland Security, the FBI, and ICE did much more than hold GPX/GPX, USA, a seismic surveying company and their field supervisor, Donald Wiggill, “accountable,” by charging the company with a total maximum fine of $10 million, a probation term of five years on each count, and a special assessment totaling $8,000; Wiggill faces an unconscionable indictment of 100 years in prison on all 20 counts, a fine of $5 million, a supervised release term of 60 years, and a special assessment of $2,000. The Texas based company failed to verify the immigration status of nineteen employees and did not prepare the required Form I-9 and supporting documentation concerning the immigrants’ authorization to work in the United States.

John Kelleghan of Homeland Security further justified the Philadelphia HSI decision to levy such harsh punishment for I-9 non-compliance saying, “HSI and our law enforcement partners will continue to ensure that employers follow our nation’s hiring laws, which ultimately protect job opportunities for the nation’s legal workers, and levels the playing field for those businesses that play by the rules.”

The proportionality of the punishment sought for the crime is extremely shocking. Our blog has recently covered the penalties imposed upon, HerbCo, Chipotle, and most recently ABC Tree Professionals, which pale in comparison to the punishment GPX is now facing.

GPX is being treated like a national security threat for mishandling nineteen employees Form I-9s. The difference between thousands of dollars versus millions of dollars in fines, in addition to 100 years of jail time, is the involvement of the FBI and the Homeland Security. GPX is charged with harboring and transporting illegal aliens and conspiracy to commit those offenses as outlined in an indictment by the U.S. Attorney for the Middle District of Pennsylvania, Peter J. Smith. Whether GPX was honestly aware of their employees’ immigration status is still unknown, however proper planning and implementation of I-9 compliance would have saved the company millions in civil penalties and avoided a hundred years of jail time. With the stakes elevated so tremendously high by this multi-departmental crackdown on workforce compliance –  who can afford not to get their legal documents in order?

To protect your business and your employees please contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.