Here is another example of one of the major blunders made by employers in 2011 which is to require specific work authorization documents (permanent resident cards or employment authorization card) of non-US citizen employees rather than permitting them to choose from the list of acceptable documents on the I-9 form.

The Justice Department announced today that it reached a settlement with BAE Systems Ship Repair Inc., a leading provider of ship repair services, to settle allegations that its subsidiary, BAE Systems Southeast Shipyards Alabama LLC, engaged in a pattern or practice of discrimination by imposing unnecessary and additional document requirements on newly hired permanent residents (green-card holders) when establishing their eligibility to work in the USA by requiring them to present Permanent Resident Cards, a/k/a/ “green-cards,” as a condition of employment.

The investigation was initiated after BAE Southeast Alabama suspended a lawful permanent resident even though he had presented valid documents sufficient under the Immigration and Nationality Act (INA) to establish his work authorization on three separate occasions.

BAE agreed to pay a fine of $53,900. The lawful permanent resident who was suspended was previously reinstated and fully compensated by BAE.  BAE agreed to ensure that the employment eligibility verification policies and procedures of all its subsidiaries comply with the law, to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process, and to produce Forms I-9 for inspection for three years.  We cannot emphasize enough the importance of employers with subsidiary companies and multiple jobsite locations establishing written, uniform policies and procedures concerning employment eligibility compliance matters.  We also recommend that an I-9 Compliance Manager be appointed to oversee adherence to your compliance standard operating procedures for all subsidiary companies at all locations.

The INA requires employers to treat all authorized workers in the same manner during the employment eligibility verification process, regardless of their national origin or citizenship status.  Employees may choose which document(s) they want to present from the list of acceptable documents.  Employers must accept any document from List A or combination of documents (one from List B and one from List C) as long as it the documents reasonably appear on their face to be genuine and to relate to the person presenting them.  To act in any other manner can be an unfair immigration related employment practice in violation of the anti-discrimination provision of the INA.

We frequently are asked:  If an employee writes down an Alien Number or Admission Number when completing Section 1 of the I-9 form, may I ask to see a document with that number?  The answer to this, based upon the above, is “no”.  It is your responsibility to ensure that your employees fully complete Section 1; however, the employee is not required to present a specific document in order to complete this section.  When the employer completes Section 2, you may not ask to see a document with the employee’s Alien Number or Admission Number or otherwise specify which document(s) an employee may present.

Should you wish to communicate with our office regarding audits, training and policy development, please email us at info@immigrationcompliancegroup.com or call 562 612.3996.  Please sign up for our free news and visit our Blog and employer compliance resource center at:  www.I-9Audits.com

We recommend that every employer read this brochure very carefully. As it clearly states, the: “OSC vigorously investigates and prosecutes such claims of discrimination.  Employers found to be engaging in discriminatory activity may be required to pay civil penalties and any appropriate back pay to injured parties.”

The case examples provided with accompanying fines mentioned in the brochure are excellent studies for HR professionals that deal with I-9s on a daily basis. We highly recommend that you print this out and add it to your M-274 Employer Handbook.  Make sure that all HR representatives, HR and hiring managers involved with the I-9 process has a copy of this brochure.

Should you have any questions, please feel free to contact our office at:  info@immigrationcompliancegroup.com, or by phone 562 612.3996.

Do you need an I-9 Audit?

Most employers think that because they have never filed an immigration case for a foreign worker, that they do not need to worry about their I-9’s or immigration laws. This type of thinking in today’s enforcement climate, is indeed risky business.

YOU MAY BE AT RISK.

What most employers do not understand is that employment verification requirements are governed by the Immigration Reform and Control Act of 1986 (“IRCA”). The provisions of the law hold every employer in the USA responsible for verifying the identity and work authorization status of the employees that they hire. The means by which this is done is the I-9 Employment Eligibility Verification Form that every employee must fill out on the day of hire or earlier (both citizen and non-citizen).  Employers are being fined for clerical and technical mistakes and violations on their I-9 forms, whether an employee is a US citizen or non-citizen  – it makes no difference.

Penalties and Fines

The penalties for ignoring the legal requirements of the I-9 process can be quite severe, even in cases of unintentional omissions and uncorrected I-9 mistakes. Civil penalties for such errors may range from $110 to $1,100 for each affected employee.  A business with thousands of employees and multiple worksites may face a significant financial burden in noncompliance penalties.  The fines may be further increased if the Department of Homeland Security (DHS) determines that an employer knowingly hired unauthorized foreign nationals, and can range from $375 to $16,000 per violation with repeat offenders on the high end. Employers and their representatives convicted of having engaged in a pattern or practice of knowingly hiring unauthorized foreign nationals, may also face criminal charges and fines of up to $3,000 per employee and/or six months’ imprisonment.  Other federal criminal statutes may provide higher penalties in certain fraud cases.

“FINES CAN RANGE FROM $375 UP TO A MAXIMUM OF $16,000 PER VIOLATION”

Employers and individuals who commit citizenship status or national origin discrimination may be ordered to pay civil fines and attorneys’ fees. The penalties range from $375 to $3,200 for the first offense for each individual discriminated against; from $3,200 to $6,500 for the second offense; and for subsequent offenses, not less than $4,300 up to $16,000 per violation for each affected person.

How We Can Help?

Our I-9 audits can help employers:

• Become aware of the reoccurring mistakes and violations contained in their I-9 population and correct the I-9 form before the government intercedes
• Provide a confidential “Risk Assessment Report” on your overall Form I-9 program and make proactive recommendations for compliant I-9 processing and management
• Develop reasonable I-9 policies and procedures that make sense for your business

Internal training on all Form I-9 requirements and procedures including but not limited to:

• I-9 laws and regulations
• How to complete and correct the Form I-9
• Required Documents and Examination
• Re-verification of the Form I-9
• Discrimination and Penalties
• What to do if ICE comes knocking?
• Best Practices for Employer Compliance – and more

Don’t wait! Call (562) 612-3996

Or fill out the form here if you’re interested in an I-9 audit for your business or wish to inquire about other compliance services and solutions that we offer.

For Immediate Distribution

ICE announces record breaking 375% increase since 2008 in I-9 Form Audits – $36.6M this year in fines and forfeitures.

Long Beach, CA, October 17, 2011.  Employers must be proactive regarding worksite compliance matters.  Immigration-related employment regulations are complicated.  The truth is, it’s difficult for employers to keep up with the ever-changing world of employment laws and compliance issues. Even if you have a fully staffed human resources department, many critical compliance issues can go overlooked, such as formal training, audits and executive oversight that end up getting bumped for more pressing needs.

If you keep putting off a Form I-9 audit, you could most certainly find yourself in the middle of a complex investigation or lawsuit that will take center stage very quickly, that could have been avoided with some basic preventive maintenance.

“Our clients tell us that they award our bids and proposals because we have a process that we walk them through that is strategically planned and implemented, easily understood and efficient – from getting prepared for an outside audit, followed by targeted training and policy review and development that ensures the establishment of a successful compliance program. Continued education and information is available through our extensive outreach via monthly newsletters, client alerts, blog and social media.  Our suite of services and solutions are comprehensively packaged to bring sustainable results to our clients,” explained Leslie Davis, Managing Director of Immigration Compliance Group.

Immigration Compliance Group assists their clients with developing and implementing comprehensive tools, processes and standard operating procedures that enable them to remain committed to ongoing employment verification compliance.  “The reality is that the odds of encountering a Form I-9 audit have skyrocketed because of a pervasive business enforcement climate,” she added.  Now is the time to assess your weaknesses and minimize your liability.

Press Contact, Leslie Davis

Email:  info@immigrationcompliancegroup.com

www.immigrationcompliancegroup.com and www.I-9Audits.com

562 612.3996

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Immigration Compliance Group focuses its practice on corporate employment verification compliance and US and Canadian inbound business immigration. Our team has a depth of experience in providing uniquely tailored services and solutions to assist clients in developing comprehensive employment authorization and immigration-related compliance. We conduct onsite and offsite partial and full I-9 audits for companies of all sizes, design training curriculum to assure that staff is knowledgeable concerning the management of their I-9 program, and we assist with policy development so that our clients have a plan and strategy that assures their compliance in a manner that makes sense for their business and evidences their good faith effort in establishing a compliant workforce.

We have heard similar stories such as this over the last few years.  The charges against Taqueria El Balazo stem from a 2008 incident in which U.S. Immigrations and Customs Enforcement (ICE)  agents raided 11 El Balazo restaurants and arrested 63 undocumented workers, drawing the ire of immigration advocates across the Bay Area.

According to the U.S. Attorney’s Office, they later re-hired at least 10 of the illegal employees after receiving written notification from U.S. Immigration and Customs Enforcement and Homeland Security investigators informing them of the employees’ identities. BIG mistake!

Proprietors of the restaurant chain behind Haight Street’s popular Taqueria El Balazo pleaded guilty to a series of violations surrounding immigration, social security, and tax evasion practices.  The owners  told the court they under-reported employee wages to the payroll company; they admitted that, based upon their actions, the amount of employment taxes paid to the Internal Revenue Service were understated, and admitted to hiring employees they knew were not legally allowed to work in this country. According to the plea agreement, between August 2007 and August 2008, they employed more than 100 illegal aliens.

Owners, Marino and Nicole Sandoval. are scheduled to be sentenced December 14^th and could face up to 20 years in prison and a half a million dollars in fines, according to San Ramon Express News. Sandoval’s brother, Francisco Sandoval, who owns and operates the restaurant chain with the couple, pleaded guilty to tax charges last August.

Taqueria El Balazo currently operates nine restaurants throughout the Bay Area in addition to its Haight Street outpost.

For more on this story:  http://www.sanramonexpress.com/news/show_story.php?id=4368

What do restaurant owners need to consider:

• Are you training your employees who are charged with employment eligibility verification?  How thorough are you when it comes to the I-9 process of employment verification?  It’s time to get serious about this.
• Have you been proactive and called for a Form I-9 Audit by a qualified and experienced immigration firm that specializes in this practice area?  We strongly recommend you consider this.
• Are you screening, coaching, training and counseling your employees to ensure compliance with immigration laws?

This is very serious business for all employers and is the major enforcement tool for the economic and political climate we are in at the present time.  The goal on both the state and federal level is to punish egregious employers and convince farmers, restaurant owners, clothing manufacturers, meatpackers and other employers to change their behavior.

Plain and simple, the national debate is heating up over mandatory E-Verify.  Some members of Congress seem intent on pushing the issue without taking into account the harm they will cause for American businesses and workers.  Now is the time to get your house, so to speak, in order.

The Department of Justice (“DOJ”) reported that it had reached a settlement with Brand Energy and Infrastructure Services and its subsidiary, Industrial Services LLC (ISI) on July 21, 2011. The DOJ reports that Industrial Services engaged in a pattern and practice of discrimination while completing Form I-9 on its non-citizen workers requiring specific employment documentation beyond what was required by law.

The investigation was prompted after a work-authorized immigrant lost his job when he could not comply with ISI’s request to provide specific employment documentation beyond what was required by law.   Further investigation revealed that ISI’s Prairieville, LA office required all newly hired non-U.S. citizens to present documents issued by the Department of Homeland Security upon hire.  The company did not require U.S. citizens to present any particular documents.

ISI has agreed to pay $43,560 in civil penalties and $7,200 in back pay, plus interest, to the injured party.   Brand and ISI have also agreed to monitoring provisions, as well as training for their human resources personnel.

What employers need to know: You just cannot presume that the employees charged with  managing your I-9 program are compliant with the law and adhering to anti-discrimination rules and regulations if you’re turning a blind eye to your compliance issues, the consequences of which today  are severe and expensive – not to mention the bad press that accompanies such an investigation. Employers must accept ANY acceptable document from List A that appears to be genuine and that relates to the worker, or a combination List B plus a List C document.  Additionally, employers are not to require more documentation than what is itemized on the List of Documents for Form I-9.

Let’s re-visit ICE’s list of best practices that include the following as a reminder to employers:

• Internal compliance & training program

• Polices/procedures safeguard against discrimination incl. training

• Require I-9 process only by those trained

• Secondary review for each I-9

• Annual I-9 audits by external auditing firm or trained person not involved in I-9 process

• Written I-9 policy

• Protocol to respond to tips/information/constructive knowledge

• Maintain copies of documents

• Participation in E-Verify/SSNVS

We are available  to assist you with your compliance  needs.  Please visit our Employer Resource Center and contact us should you wish to discuss our services and solutions.

Kinro Mfg. a subsidiary of Kinro Inc., which is wholly owned by White Plains, N.Y.-based Drew Industries Inc., has been fined a $25,000 civil penalty and $10,000 in back pay to the injured party for engaging in a pattern/practice of discrimination against work-authorized non-citizens in the employment eligibility verification process.  The company is a manufacturer of components for recreational vehicles and manufactured homes.

Kinro has also agreed to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process, to produce Forms I-9 for inspection and to provide periodic reports to the DOJ for one year.

According to the department’s findings, the company subjected newly hired non-U.S. citizens to excessive demands for documents issued by the Department of Homeland Security in order to verify their employment eligibility, but did not require U.S. citizens to show any specific documentation . The charging party, a lawful permanent resident, filed his charge of discrimination after he was required to provide additional proof of his employment eligibility not required by law before he could begin work at the company.

View Press Release

A southern Arizona tomato grower has pled guilty and was sentenced for knowingly hiring and employing illegal immigrants from Mexico, despite the company’s knowledge that these employees were unauthorized to work in the U.S.

Kenneth Ward, HR Director, pled guilty to similar federal charges in 2007 and is awaiting sentencing. In his guilty plea, he alleged that four top company officials, whom he didn’t name, knew of the illegal hiring and that the number of employees illegally hired was more than 1,000.

Eurofresh’s CEO, Johan van den Berg, denied all those allegations in response to questions  on 8/26/11 and said that Ward was fired more than four years ago after the company learned he had been bringing in illegal immigrant employees without higher officials’ knowledge.

The plea agreement said that payment is to compensate for the money Eurofresh earned from the hiring of 17 illegal immigrants from Mexico over the last decade for supervisory jobs. Eurofresh does not agree that the $600,000 is an amount directly related to the violations. Rather, it is a negotiated amount between Eurofresh and the Justice Department. The company will also be required to remain on probation for five years until the judgment is satisfied in full.

Since the illegal hiring was discovered, Eurofresh has implemented tight systems and regular audits to prevent illegal immigrants from obtaining jobs there and is an E-Verify user.

For more on this story.

The highest civil penalty paid through settlement since the enactment of the INA anti-discrimination provisions in 1986 was assessed today against Farmland Foods in the amount of $290,400.

This is a very strong reminder that any request for specific documentation is unlawful if it is made for the purpose or with the intent of discriminating against an individual on the basis of national origin or citizenship status. Employers, however, who make such requests to clarify ambiguity or conflicts in the employee’s presented documents should not be held liable for document abuse.  The employer’s discrimination must be knowing and intentional.

An employer SHOULD NOT:

1. Set different employment eligibility verification standards, or require that different documents be presented by employees, because of national origin and citizenship status.  For example, employers cannot demand that non-U.S. citizens present DHS-issued documents.  Each employee must be allowed to choose the documents that s/he presents from the list of acceptable Form I-9 documents. For example, both citizens and work authorized aliens may produce a driver’s license (List B) and an unrestricted Social Security card (List C) to establish identity and employment eligibility.

2. Request to see employment eligibility verification documents before hire and completion of the Form I-9 because the employee looks or sounds “foreign” or because someone states that s/he is not a U.S. citizen.

3. Refuse to accept a document, or refuse to hire an individual, because a document has a future expiration date.

4. Request during reverification that an employee present a new unexpired employment authorization document (EAD) if s/he presented an EAD during initial verification. For re-verification each employee must be free to choose to present any document either from List A or from List C. Refugees and asylees may possess EADs, but they are authorized to work based by virtue of their immigration status and may present other documents that prove work authorization from List A or List C to show on re-verification, such as an unrestricted Social Security card.

5. Limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law, regulation, executive order, or federal, state, or local government contract. On an individual basis, an employer may legally prefer a U.S. citizen or national over an equally qualified alien to fill a specific position, but the employer may not adopt a blanket policy of always preferring citizens over non-citizens.

6. Refuse to accept documents during the employment eligibility verification procedure that are acceptable documents under the law, that relate to the individual, and that appear on their face to be genuine (also called “document abuse”). An employer cannot be held liable for document abuse unless the employer’s refusal to honor documents is made for the purpose or with the intent of discriminating against an individual on the basis of national origin or citizenship status. For example, an employer should not be held liable if it refuses to honor documents that conflict with statements made by the employee.

7. Engage in intimidation, threats, coercion, or retaliation, including discharge, against an employee who exercises his/her rights under IRCA’s anti-discrimination provision. This protection extends not only to an employee who is the target of discrimination, but also to an employee who may speak up in support of the targeted employee.

Should you have any questions concerning this “balancing act”, please do not hesitate to contact our office for more information.

Immigration Solutions August 2011 newsletter is now available, full of updates and information that you will find extremely useful.  This month we take a look at: