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:

A story hit the news last week concerning a dispute between two electronic I-9 software providers where outsourcing I-9 software to a third party vendor was involved.  One of the parties wished to cancel its reseller agreement requesting that all I-9 data be returned to its customers.  In so doing, it was revealed that they would have to pay a rather high fee to obtain their customer’s I-9 data in a usable format.  Additionally, it was revealed that the 3^rd party provider had already been directly soliciting the other vendor’s clients to enter into a new I-9 and E-Verify service agreement.  Unable to resolve their differences, a lawsuit was filed on June 27, 2011, seeking an injunction to require the 3^rd party vendor, USVerify, to return its clients’ I-9 data in a reasonably usable and accessible format and to cease and desist from using or disclosing any confidential client information.

In light of the unraveling of this story, it brings clearly to the forefront the importance of being able to access your I-9 and E-Verify data because the employers who are customers of the vendor who is cancelling the reseller agreement, are unable to access their I-9 data at the present time. So, unless they have saved the data in another format or system, it can be assumed that if they were served with an ICE Notice of Inspection (NOI), they would not be able to comply with the NOI’s strict deadlines.

There are several I-9 software vendors in the marketplace, some good, some not.  This includes stand-alone providers that focus solely on I-9/E-Verify, in addition to “all-in-one” providers that offer electronic I-9 software that integrates with the employer’s personnel management software and employment screening/background check applications.

Apparently many all-in-one systems “outsource” the I-9 and E-Verify service to a third party vendor under a “reseller agreement.”  The reseller agreement governs the terms of use and other vital details regarding accessibility of the employer’s I-9 records. Given the rash of recent I-9 audits throughout the country, it is more important than ever for employers to very closely examine these arrangements to ensure that your best interests are protected.

It is not advisable for an employer to rely strictly on a vendor’s representations concerning their products and system compliance as these representations will not protect or insulate you from liability. Employers must undertake independent due diligence to ensure the system they choose complies with the applicable regulations.

If you are using a background screening provider, applicant tracking system, or all-in-one solution, it is imperative that you perform due diligence to ensure they you will have unrestricted access to your I-9 and E-Verify data, especially in the event the reseller agreement is terminated or if the you wish to terminate the agreement with your vendor.

We would recommend asking the following questions:

• Who owns the I-9 E-Verify data under the terms of the agreement?
• Can the employer request a backup of the electronic I-9 and E-Verify data at no or little cost?
• How often can the employer request such a backup and in what format will it be delivered?
• What happens if the vendor closes shop or decides to assign the data to another provider?

Lastly, we remind you that there are specific regulatory electronic I-9 requirements that affect almost every aspect of a vendor’s system and relationship.  These requirements are often confusing and unclear, and you should be encouraged to discuss these issues with experienced immigration counsel to ensure that your I-9 electronic system is compliant with enforcing agencies in all respects.

The American Immigration Attorneys Association (AILA) published an excellent article on the Minimum Requirements for Electronic Verification.  View article

Contact our office should you have any concerns that you’d like to discuss concerning this issue.

With a 2nd wave this year of Notices of Inspection (NOI’s) sent to employers across the country, and I-9 administrative audits being ICE’s driving force in determining whether an employer is adhering to employment laws –  it is a costly mistake for employers to presume that they can fly under ICE’s radar.  An ICE investigation can be triggered at any time by SSA No-Match letters, a tip from a disgruntled employee, a terminated employee, a customer, a competitor, or other “concerned citizens.”

With the above being said, we thought this would be a good time to review exactly what takes place when an employer is served with an NOI – starting with immediately contacting an attorney that specializes in employer compliance matters. Not all immigration or corporate attorneys do…so do your homework, or just call us.

Employers are allowed by law 3 days notice to respond by producing the I-9 records and other requested information.

The administrative inspection process is initiated by the service of a Notice of Inspection (NOI) upon an employer compelling the production of Forms I-9. Often, ICE will request the employer provide supporting documentation (an invasive Document Subpoena), which may include requests for a copy of your I-9 Compliance Policy, Employee Roster, copies of Payroll Summaries, I-9 forms for current and terminated employees, Quarterly Wage and Hour Reports, SSA Mismatch correspondence,   E-Verify and/or SSNVS documents, Articles of Incorporation, and business licenses.

ICE agents or auditors then conduct an inspection of the Forms I-9 for compliance. When technical or procedural violations are found, pursuant to regulations at INA §274A(b)(6)(B) (8 U.S.C. § 1324a(b)(6)(B)), an employer is given ten (10) business days to make corrections. An employer may receive a monetary fine for all substantive and uncorrected technical violations. Employers determined to have knowingly hired or continued to employ unauthorized workers will be required to cease the unlawful activity, may be fined, and in certain situations may be prosecuted criminally. Additionally, an employer found to have knowingly hired or continued to employ unauthorized workers may be subject to debarment by ICE, meaning that the employer will be prevented from participating in future federal contracts and from receiving other government benefits.

Monetary penalties for knowingly hiring and continuing to employ violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end. Penalties for substantive violations, which includes failing to produce a Form I-9, range from $110 to $1,100 per violation. In determining penalty amounts, ICE considers the size of the business, good faith effort to comply, seriousness of violations, whether the violation involved unauthorized workers, and history of previous violations, amongst other factors.

ICE will notify the audited party, in writing, of the results of the inspection once completed. The following are the most common notices:

Notice of Inspection Results – also known as a “compliance letters,” used to notify a business that they were found to be in compliance.

Notice of Suspect Documents – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has determined that the employee is unauthorized to work and advises the employer of the possible criminal and civil penalties for continuing to employ this individual. ICE provides the employer and employee an opportunity to present additional documentation to demonstrate work authorization if they believe the finding is in error.

Notice of Discrepancies – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has been unable to determine their work eligibility. The employer should provide the employee with a copy of the notice, and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility.

Notice of Technical or Procedural Failures – identifies technical violations identified during the audit and gives the employer 10 business days to correct the forms. After 10 business days, uncorrected technical and procedural failures will become substantive violations.

Warning Notice – issued in circumstances where substantive verification violations were identified but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer.

Notice of Intent to Fine (NIF) – may be issued for substantive, uncorrected technical, knowingly hire and continuing to employ violations.

We’d like to close with emphasizing the importance of creating an I-9 compliance policy that is integrated with your overall personnel policy.  A comprehensive written policy will help establish guidelines for all employees to follow, will establish good-faith efforts towards compliance, and potentially could mitigate penalties.  A company should also designate an overall I-9 compliance administrator. To ensure consistency, designate one person who is charged with centralized oversight, management, and training of the company’s compliance program.  To provide guidance to hiring managers about I-9 procedures, managers should know who must complete Form I-9; when and how to conduct verification; what permissibly may be asked prior to the actual hiring; what limits may be placed on hiring of certain individuals; what, how, and for how long I-9 records should be maintained.

.. We link to an inspection process chart that is a good illustration of the various steps in the NOI process

.. We also link to a copy of an ICE NOI and a Document Subpoena

.. For a list of I-9 Technical and Substantive Violations

We work with our clients to create compliant workforces, and now is the time to be proactive if you absolutely know that you have problems with your I-9 forms; and, by the way, most employers do.  We encourage you to be proactive and take action now before you pay the high price of being put in a position where your options have considerably diminished.

We are happy to hear from you and are very flexible with our package of compliance services and solutions.  Our talented team is read to assist you with whatever you’d like to accomplish with your compliance program.  Visit our I-9 Resource Center here

In our June Newsletter we cover what’s new in employer compliance:  New I-9 Employer Handbook, new Q&A for I-9 and E-Verify, the new E-Verify RIDE interface and other information to assist you with staying current and developing a compliant workforce.

For more information regarding our services, please contact our office, 562 612.3996 or via email at info@immigrationsolution.net.

Yesterday, USCIS made the announcement that  a final rule was released that reflects changes made to the I-9 Form process over 2 years ago by DHS.  The changes were rolled out in April 2009 which included, amongst other changes, no longer accepting expired documents for identity and employment authorization.

Two years out from this ruling, there is still much confusion concerning the world’s most complicated 1-page form!  We hope that when USCIS does finally release the new website “I-9 Central,” that is will truly do what they are claiming it will – and that it to provide employers with additional clear & concise guidance and tools to become I-9 compliant.  In the meantime, we link to the FAQs regarding the final rule here, and link to additional I-9 employer resources here.

The owner of a Southern California furniture manufacturing company, Brownwood Furniture located in Rancho Cucamonga, has been sentenced to 10 months in federal prison for knowingly hiring illegal immigrants and six months for continuing to employ illegal aliens.  The sentences will be served concurrently.  In addition to the prison terms, he was ordered to pay a $15,000 fine.

Prosecutors say 57-year-old Brownwood Furniture owner Rick Vartanian was told earlier that 61 of his 73 workers at the facility were illegal immigrants and had submitted invalid documents to obtain their jobs.  In November 2009, Vartanian told U.S. Immigration and Customs Enforcement agents that the illegal immigrants no longer worked for Brownwood Furniture, but investigators discovered 18 illegal immigrants were still working for him.  Vartanian, who was convicted of obstruction of justice and employing illegal immigrants, was sentenced Monday by a Los Angeles federal judge.

Brownwood Furniture vice president Michael Patrick Eberly pleaded guilty to employing illegal immigrants and he was placed on a years’ probation and fined $10,000.

The charges against the defendants stem from an investigation that began after ICE HSI received an anonymous tip that Brownwood furniture was using unauthorized labor. An audit of the company’s hiring records in July 2009 revealed that 61 of the firm’s 73 employees had submitted invalid documents to obtain their jobs. After ICE HSI notified the company about the discrepancies, the executives told investigators the unauthorized workers had been terminated. However, when ICE HSI agents executed a search warrant at the business in Dec. 2009, they encountered 30 unauthorized workers, 18 of whom had purportedly been terminated following the July audit.

These sentences make very clear that employers who knowingly hire unauthorized workers, face seriously dire consequences.

Should you require the services of an expert team of employer compliance specialists, please contact our office to discuss your situation and visit our I-9 Employer Compliance Resource Center:  www.I-9Audits.com

Last week the House subcommittee on immigration policy and enforcement held their first hearing on “ICE Worksite Enforcement – Up to the Job?” The major agenda item was whether or not Immigration and Customs Enforcement (ICE) was adequately enforcing worksite immigration laws.  The Republican members called upon ;their usual sources to diminish the Obama administration’s enforcement efforts, even though Deputy Director of ICE, Kumar Kibble stated quite clearly that ICE has achieved record numbers of investigations, audits, fines, and deportations by citing the below  statistics.  Frankly, after listening to the majority members, one can’t help but wonder if any amount of enforcement would be sufficient to meet their expectations.

Under the Obama administration, ICE has moved  away from raids, and stepped  up the pace of auditing businesses who may be suspect to employing undocumented workers.  However, the emphasis today is more on employers who hire immigrants and not just arresting undocumented immigrants who are working in the factories, the hotels, restaurants and construction businesses.  The vehicle being used to police the workforce is the auditing of I-9 forms,  levying fines and utilizing employer verification tools such as E-Verify and the Ice Mutual Agreement Between the Government and Employers Program.

The Deputy Director cited the following statistics as evidence of the success of ICE’s worksite enforcement: for FY 2010:

• A record 2,746 worksite enforcement investigations, more than doubling the 1,191 cases initiated in FY 2008.
• ICE criminally arrested 196 employers for worksite related violation, surpassing the previous high of 135 in FY 2008.
• ICE also issued a record 2,196 notices of inspection to employers, surpassing the prior year’s record of 1,444 and more than quadrupling the 503 inspections in 2008.
• ICE issued 237 final orders – documents requiring employers to cease violation the law and directing them to pay fines – totaling $6,956,026, compared to the 18 issued for $675,209 in FY 2008.
• The total of $6,956,026 last year represents the most final orders issued since the creation of ICE in 2003.
• In addition worksite investigations resulted in a record $36,611,320 in judicial fines, forfeitures, and restitutions.
• Finally ice brought a new level of integrity to the contracting process by debarring a record 97 businesses and 49 individuals preventing unscrupulous companies from engaging in future business with the government.

The glaring facts that came out of the hearing are that no matter whether it’s worksite raids or company audits with deportations of undocumented aliens, the current state of how foreign born workers are processed into the country is no longer working.  The conversation that we all should be having is the comprehensive reform of how workers are brought into the USA.  We can only hope that the GOP and the Democrats can have civil and reasonable debate that results in meaningful change.  Let’s see what happens.

Our January 2011 newsletter with I-9 and E-Verify updates and US and Canadian immigration news is now available.

If you haven’t had a look at our I-9 Employer Resource Center, please take a minute to do so, fill out the Survey and send it along to us:  www.I-9Audits.com

USCIS released a revised January 5, 2011 version of the I-9 Employer Handbook today.  Our office received an emailed  Press Release from USCIS Director Alejandro N. Mayorkas announcing the release of the Handbook that is published in cooperation with the Department of Homeland Security partners. Director Mayorkas states:

“By law, U.S. employers must verify the identity and employment authorization for every worker they hire after November 6, 1986, regardless of the employee’s immigration status. To comply with the law, employers must complete Form I-9, Employment Eligibility Verification. The Handbook for Employers is a guide for employers in the Form I-9 process.

It has been revised and updated with new information about applicable regulations, including new regulations about electronic storage and retention of Forms I-9; it clarifies how to process an employee with a complicated immigration status; and, it addresses public comments and frequently asked questions. We thank the many stakeholders who have provided comments on the Form I-9 process and the Handbook since the Handbook was last revised (Rev. 7/31/2009).

Some of the many improvements, new sections, and tools included in The Handbook for Employers are:

• New visual aids for completing Form I-9
• Examples of new relevant USCIS documents
• Expanded guidance on lawful permanent residents, refugees and asylees, individuals in Temporary Protected Status (TPS), and exchange visitors and foreign students
• Expanded guidance on the processing of employees in or porting to H1-B status and H2-A status; and
• Expanded guidance on extensions of stay for employees with temporary employment authorization.

The Handbook for Employers now also includes information for employers in the Commonwealth of the Northern Mariana Islands (CNMI) who must verify their employees’ employment authorization on Form I-9 CNMI. It also highlights information about documents CNMI employers may accept from their employees.

We are pleased to release this revised and updated handbook. We are hopeful it will serve as a useful guide for employers complying with the Form I-9 process.”

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Should you have questions following the reading and review of the new Handbook, please contact our compliance team at Immigration Solutions.  Should you require compliance services and solutions, our talented team is ready to assist you.

The new director of U.S. Citizenship and Immigration Services said today he wants to emphasize public engagement, transparency and information technology modernization of the immigration agency during his term.

To meet those goals, Alejandro Mayorkas said he has created a new Office of Public Engagement and is debuting a new, interactive Web site Sept. 22 that will allow for public feedback on agency policy and proposals. The updated Web site also will allow for greater ease of use and more access to information about pending requests and applications.

USCIS’ involvement with community stakeholders “should be more of a collaborative effort, engaged and interactive,” Mayorkas said. “We want to have the community involved at a level where we can understand what we are doing well — and what we are doing wrong.”

Another high priority is moving forward on implementing the next stages of the USCIS’ information technology transformation project, which will digitize the agency’s paper-based records systems, Mayorkas said. The project was started in 2005 and is expected to cost more than $500 million.

Mayorkas, a Cuban immigrant, was sworn in Aug. 24 to head the nation’s immigration and naturalization systems. He previously served as U.S. Attorney for the Central District of California and was a partner at the O’Melveny and Myers law firm.