E-Verify & I-9 News

A $50,760 settlement by the DoJ against Brand Energy and Industrial Services and its subsidiary, Industrial Services LLC (ISI), a Louisiana company, proves the need for careful understanding of and adherence to Form I-9 documentation rules and best practices.  According to their press release, Justice Department Settles Allegations of Employment Discrimination by Louisiana Industrial Services Company, the settlement resolved “allegations that ISI  engaged in a pattern or practice of discrimination against non-citizens in the hiring and employment eligibility verification process.”

This case involved the company’s termination of an employee–who was an immigrant authorized to work in the U.S.–after he could not comply with ISI’s request to provide specific employment eligibility documents, a request that went beyond what’s  required by law. According to the press release, the DoJ found that one of ISI’s offices would only accept documentation issued by the Department of Homeland Security from non-immigrants for the purpose of verifying employment authorization, whereas U.S. citizens and other non-immigrant employees were not asked to produce specific I-9 documentation.

The Immigration and Nationality Act’s (INA’s)  prohibits employers from discriminating against work-authorized employees during the hiring and employment eligibility verification process. When completing a Form I-9, the rules clearly state that “Employers are not permitted to request more or different documents than are required or to refuse to honor documents tendered that reasonably appear to be genuine and to relate to the individual presenting the document.”

The United States Citizenship and Immigration Services (USCIS) publishes The Handbook for Employers, Instructions for Completing Form I-9 (Rev. 06/01/2011), also known as the M-274, to provide guidance to employers on how to complete the Form I-9 . All HR staff or managers who complete I-9s should, at a minimum, familiarize themselves with this handbook. The handbook’s instructions for completing Section 2, as well as the instructions on the I-9 form itself, describe which List A or List B and C document combinations are acceptable. Of course, it’s always a good idea to consider consulting with an immigration attorney to make sure your I-9 processes and procedures are in compliance, especially when facing uncommon or unfamiliar employment eligibility documents. Using a good electronic I-9 system can also help prevent accidental over-documentation. A well-designed electronic I-9 system can provide automatic selections that ‘force’ proper Section 2 documentation choices, and lock in ONLY appropriate issuing authorities and documentation combinations.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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As a result of ICE’s worksite enforcement strategy,14 employers in New England have been fined this fiscal year for various violations, including failure to comply with Form I-9 rules, that enabled the companies to hire illegal aliens.

According to the ICE press release, Fines in the New England region include:

• A $118,000 settlement from Jasper Wyman & Son in Milbridge, Maine
• A a $100,000 fine of Commercial Cleaning Service of Allston, Massachusetts
• A $22,792 fine paid by D’Agostino Associates, Inc., in Newton, Massachusetts

“Nationally, from fiscal year 2009 to date, ICE has initiated Form I-9 inspections against nearly 4,000 businesses resulting in fines of nearly $7 million,” the ICE report says.

“These settlements serve as a reminder to employers that ICE will continue to hold them accountable for hiring and maintaining a legal and compliant workforce,” said Bruce M. Foucart, special agent in charge of ICE HSI in Boston. “We encourage companies to take the employment verification process seriously.”

In announcing this fine, ICE reminded employers that they have implemented a new, comprehensive strategy to reduce the demand for unauthorized employment by focusing their resources on auditing and investigating employers who are suspected of cultivating and hiring undocumented workers. In addition, ICE has also been increasing the number of random Form I-9 audits on all employers, regardless of size or industry. For more information on these initiatives, please browse our blog posts on ICE enforcement.

Foucart also added that ICE continues to promote its IMAGE program as a way for employers to work towards a legal, compliant workforce. As a brief overview for those of you who are not familiar with program, IMAGE is a voluntary initiative that aims to reduce unauthorized employment and minimize I-9 compliance vulnerabilities for participating businesses.  In exchange for receiving training on hiring practices, fraudulent document detection, use of the E-Verify employment eligibility verification program, and anti-discrimination procedures, participants must agree to an I-9 audit conducted by ICE and enroll in E-Verify, amongst other conditions.  Upon enrollment in and commitment to IMAGE Best Employment Practices, program members will be deemed “IMAGE certified.” For more detailed information about IMAGE, please visit ICE’s website.

A new Enforcement Review Board, made up of volunteer citizens will examine complaints from registered Georgia voters about public bodies’ failure to use either the E-Verify system or the federal Systematic Alien Verification for Entitlements database.

This state-sanctioned panel was established in the wake of Georgia’s new immigration and E-Verify law and may threaten Georgia mayors, county commissioners and even business-license clerks with $5,000 fines if found failing to comply with the new law, which took effect on July 1, 2011.

Made up of non-paid members appointed by Governor Nathan Deal, Lieutenant Governor Casey Cagle and David Ralston, speaker of the House of Representatives, the board will have the power to cancel state funding of public agencies it finds have willfully violated the law and levy fines against governments and even individuals. Governor Deal says the panel will begin working in January, 2012.

Beginning in January, the new law requires almost all Georgia companies to use the federal E-Verify system to confirm their employees’ legal eligibility status. Since July 1, the law has required state entities to E-Verify employees and contractors.

Read more in this Bloomberg Article.

The U.S. Immigration and Customs Enforcement (“ICE”) has issued yet another round of I-9 inspection notices to as many as 1,000 businesses located throughout the United States. Initially reported by the Associated Press, this announcement is another clear example of what has widely come to be known as the current administration’s “quiet immigration raid” policy. Instead of the high-profile immigration raids of years past, ICE has been focusing more on more on targeting employers (to the tune of 1000s) through the use of Form I-9 audits and investigations of their hiring practices.

Although ICE declined to name specific companies to be included in this round of audits, the AP is reporting that according to an ICE statement, “The inspections will touch on employers of all sizes and in every state in the nation, with an emphasis on businesses related to critical infrastructure and key resources.” You can read this Wall Street Journal article for additional insight here.

Recent I-9 Audits Numbers: The Trend is Clear

According to various reports, this latest batch of  inspections will bring the total number of ICE I-9 audits to 2,338 so far for this fiscal year, which already exceeds ICE’s record-breaking I-9 audit total of 2,196 from fiscal 2010 where average audit fines exceeded $110,000.

Recently, we attended a workforce symposium in the San Francisco Bay Area where representatives from ICE, the Department of Labor, and the Department of Justice all spoke about their agency’s efforts to determine whether businesses are violating U.S. employment laws by hiring unauthorized workers and what step their respective departments are taking to discourage such hiring practices. The ICE agent stated that I-9 audits are the key ICE initiative on this front. The agent also warned that one of the agency’s enforcement goals was to have the resources in place to handle 10,000 annual I-9 audits by the beginning of next year. Given ICE’s current pace, this goal seems achievable.

So how can you best prepare for a potential ICE audit?

First, companies should consider conducting a preemptive internal audit to get your I-9 house in order. Then analyze your results, initiate targeted training, and standardize your I-9 practices and procedures.

As you will probably find out, the paper Form I-9 process is error-prone and hard to centralize. Therefore, after conducting the internal audit you will want to implement a trustworthy I-9 software system to keep track of all the I-9 documents, deadlines, and work visa reverification requirements.

These steps are especially important for companies that have a large number of employees, high turnover rates, and/or multiple worksites. Of course, employers should always consider the need for involving informed counsel on your employment and immigration issues.

I-9 Auditing Overview

Over the past year, we published several articles on the I-9 audit process, including potential fines. For your convenience, here are links to these various resources.

• DHS announces 1,000 new I-9 audits nationwide (February 2011)
• DHS memo sets out new I-9 enforcement strategy
• Anatomy of an I-9 Subpoena
• DHS releases I-9 penalty schedule and overview of inspection process
• The New I-9 Audit: A “Quiet” Immigration Raid

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

As part of a tough new immigration reform bill signed into law by Governor Robert Bentley on June 9, 2011, all Alabama employers, both public and private, must begin using E-Verify when hiring new employees no later than April 2012.

Similar to Georgia and Arizona’s E-Verify law, employers who violate the Alabama E-Verify requirement risk a suspended or revoked business license, or loss of employee expensing for state income tax purposes. Alabama employers should note that the April 2012 E-Verify enforcement date applies to all employers simultaneously. Unlike other state E-Verify rules, the Alabama law does not implement the E-Verify requirement through a phased-in approach where larger employers are required to be the first E-Verify adopters, and then gradually the E-Verify requirement rolls out to smaller employers over time.

It’s worth noting that many consider Alabama’s new law to be one of the toughest state immigration enforcement measures in the country. Also known as the Alabama Taxpayer and Citizen Protection Act, or SB256, the law expands police powers to investigate the immigration status of certain individuals, requires schools to collect student citizenship status information, and penalizes people who knowingly transport or harbor illegal immigrants, including landlords. While these controversial enforcement provisions will likely be challenged in court, the E-Verify requirement is probably one component that will remain intact in light of the fact that a recent Supreme Court decision upheld a similar mandatory E-Verify law in Arizona. In its decision, the Supreme Court pronounced that states can require employers to participate in E-Verify and have the authority to revoke a business license as the penalty for non-compliance.

Full details of the new law can be found here.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

Today, the Governor of Georgia, Nathan Deal, signed into law a stringent immigration bill making the “Peach State” the latest to join the ever growing list of states that mandate E-Verify participation for private companies. The law also expands police powers to investigate the immigration status of certain suspects, penalizes people who transport or harbor illegal immigrants, and makes it a felony to use fake identification to get a job, amongst other immigration and related enforcement measures.

Full details of the new law can be found on the Georgia legislature web site.

You can also read the Governor’s Office official press release here.

Several years ago, Georgia enacted legislation requiring all state contractors and subcontractors use E-Verify. With today’s signing, Georgia’s new Illegal Immigration Reform and Enforcement Act of 2011 (also known as HB 87) widely expands the state’s E-Verify requirement, making it mandatory for many private businesses through a phased in approach. As of Jan. 1, 2012, private employers in Georgia with 500 or more employees must E-Verify newly hired full-time employees. Businesses with 100 or more employees but fewer than 500 must begin using E-Verify for newly hired full-time employees on or before July 1, 2012. Finally, the E-Verify requirement applies to all private businesses with between 11 and 99 employees starting July 1, 2013. It’s worth noting that businesses with 10 or fewer employees are exempt.

According to the new law, employers will be expected to provide evidence that the company is enrolled with E-Verify or is exempt from the requirement in the form of an affidavit that will be provided by the Attorney General and posted on the Department of Law’s official web site on later than January 1, 2012 . Failure to comply could result in the suspension or denial of a business license, occupational tax certificate, or other document required to operate a business in the state.

Arizona has a similar E-Verify law on the books. A coalition of businesses and immigrant rights groups is suing to stop Arizona’s law, arguing it is unconstitutional. The case is pending before the U.S. Supreme Court.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

This week, the U.S. Citizenship and Immigration Services (USCIS) announced a final rule that adopts, without change, an interim rule from April 3, 2009 that changed the Department of Homeland Security regulations governing the acceptable documents for completing the Employment Eligibility Verification (Form I-9) process.

Since the final rule does not differ from its predecessor, employers should already be familiar with the main changes made by the interim rule, including:  “prohibiting employers from accepting expired documents; revising the list of acceptable documents by removing outdated documents and making technical amendments; and adding documentation applicable to certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands.” These as well as other government guidelines for how to complete the Form I-9 can be found in the M-274 Handbook for Employers.

The final rule in its published form, available here, is about a 29 page document, and only the first six pages detail the regulatory changes. The remaining pages are largely dedicated to reviewing and responding to comments submitted by the public. Many of these comments are similar to some of the suggestions poised at a recent Form I-9 stakeholders meeting for how to improve the Form I-9 or its process.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

Introducing our latest Tracker I-9 video, explaining the Five Best Practices to Follow When Completing the Form I-9 and E-Verify for Under-Age 18 or Disabled Employees.

Click this link to watch the video:

A free E-Verify Self-Check feature that allows individuals over the age of 16 to confirm the accuracy of their U.S. employment eligibility will go live on March 21, 2011 in selected states.  The E-Verify Self-Check (Self-Check) phase one roll-out will be available to individuals who currently maintain residency in Arizona, Colorado, Idaho, Mississippi and Virginia, or the District of Columbia.  As initial testing and system improvements are made, it is expected that USCIS will expand Self-Check to other states, and eventually be available nationwide.

If the new feature works as expected, individuals will be able to use Self-Check in much the same way as employers use E-Verify, except that individuals will need to take extra steps to verify their own identity. After entering certain biographical information, an independent third party service is used to complete the identity verification process, and if successful, the user is redirected to Self Check to enter additional information in order to complete the employment eligibility check. Self Check will then return one of three results: Work Authorization Confirmed, Possible Mismatch with SSA, or Possible Mismatch with Immigration Information.

If any mismatches are found between the information provided to Self-Check and the governments records, the system will provide instructions on how resolve the issue. Below is a diagram of Self-Check workflow process (click on the image to enlarge).

Employers are warned not to use Self-Check to pre-screen the employment eligibility of new hires. If an employer or potential employer asks to see a Self-Check query to prove work authorization, individuals are instructed to notify the Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices at 800-255-7688. Also, a positive Self-Check result does not guarantee that individuals will pass through E-Verify without issue at a later date.

If you are interested in learning more about the Self-Check process, USCIS has posted an E-Verify Self-Check Interactive Preview on its website.

The enforcement arm of the Department of Homeland Security, aptly named the U.S. Immigration and Customs Enforcement (“ICE”), recently publicized that they will issue a new batch of I-9 inspection notices to as many as 1,000 businesses located throughout the United States.

So, why is this important?

As initially reported by the Wall Street Journal, this announcement is yet another example of what people are calling the Obama administration’s “quiet immigration raid” policy. Instead of the high-profile immigration raids of years past, ICE has been focusing less on rounding up illegal workers and more on targeting unscrupulous employers through the use of Form I-9 audits and investigations of their hiring practices. Last month ICE announced the establishment of a new employment compliance inspection center and it appears they plan on putting these new resources to work. You can read the full WSJ article here.

As we previously reported, ICE released a worksite enforcement memo which details the most common reasons why a company might receive an audit, as well as who can be targeted.  Frequently, ICE investigates companies based upon an employee or public whistleblower complaint.

Although ICE declined to name specific companies to be included in this rounds of audits,  according to their statement, “The inspections will touch on employers of all sizes and in every state in the nation – no one industry is being targeted nor is any one industry immune from scrutiny.”

So how can you best prepare for a potential ICE audit?

First, companies should consider conducting a preemptive internal audit to get your I-9 house in order. Then analyze your results, initiate targeted training, and standardize your I-9 practices and procedures.

As you will probably find out, the paper Form I-9 process is error-prone and hard to centralize. Therefore, after conducting the internal audit you will want to implement a trustworthy electronic management system to keep track of all the I-9 documents, deadlines, and work visa reverification requirements.

These steps are especially important for companies that have a large number of employees, high turnover rates, and/or multiple worksites. Of course, employers should always consider the need for involving informed counsel on your employment and immigration issues.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should not act upon it without consulting legal counsel as individual situations and facts may vary.