In a press release issued yesterday, ICE reported that Koch Foods of Cincinnati LLC paid a $536,046 fine as a result of a worksite enforcement investigation conducted by ICE in 2007. The investigation led to a raid of Koch’s Fairfield, Ohio, processing facility and the arrest of 161 undocumented workers in August 2007. ICE also executed a search warrant at Koch’s corporate offices in Chicago seizing relevant documents.
It’s important to note that the half a million dollar fine relates specifically to Form I-9 violations, which is consistent with ICE’s new approach to worksite enforcement. ICE issued the Notice of Intent to Fine on February 8, and the fine was paid on February 9 in Cleveland. Since the investigation, Koch Foods has apparently implemented new hiring procedures and an immigration compliance program to prevent future violations. The company is now also using E-Verify.
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.
On January 1, 2010, new state and local E-Verify requirements will go into effect in Georgia, South Carolina, Illinois, and Lancaster, California. Here is a quick summary for all employers doing business in these locations :
South Carolina: presently, the South Carolina Illegal Immigration Reform Act requires all employers with 100 employees or more to participate in E-Verify or only hire employees who possess or qualify for a South Carolina driver’s license (or other state license with similarly strict requirements). Starting in the New Year, the law will expand to include all state contractors, regardless of size. By mid-year (July 1), it will cover all employers. For more information regarding state contractor requirements in South Carolina, please visit this link.
Illinois: as of January 1, 2010, employers choosing to voluntarily enroll in E-Verify are urged to consult the Illinois Department of Labor website, which will contain information regarding the accuracy of E-Verify, the financial burden on employers, and their responsibilities. In addition, employers enrolling in E-Verify must complete an attestation form (available here) to indicate that the employer (a) has received E-Verify training materials and that all employees who will administer the program have completed the tutorial; and (b) has posted the required participation and anti-discrimination notices. The new law also creates a cause of action for employees and prospective employees in the event the employer fails to abide by the various E-Verify provisions. The entire law can be viewed here.
Georgia: On January 1, 2010, public employers (city, municipality and county), contractors and subcontractors will be required to post their federally issued E-Verify user identification number and date of authorization to use E-Verify on their website. Covered cities that do not maintain a website must annually publish the identification number and date of authorization in the legal organ for the county. (*O.C.G.A. Section 13-10-91 requires that all public employers register and participate with E-verify). See this page for more information.
Lancaster, CA: Beginning January 1, 2010, businesses operating in the City of Lancaster (California) will be required to use E-Verify for all new hires. The ordinance also states that those who hire unauthorized workers may have their business licenses revoked. For more information, visit this site.
On December 11, 2009, the state of Minnesota directed all of its agencies to stop using a Texas I-9 software vendor which state officials had hired to verify the work authorization of new employees. [Full article] The state notified approximately 500 employees that their personal data, including names, dates of birth and social security numbers, may have been accessible on the company’s web site. The state was using Lookout Services of Bellaire, Texas, to verify new hires’ U.S. employment eligibility through E-Verify.
The security issue came to light when Minnesota Public Radio was able to access state employee data on the software vendor’s web site without using a password or any encryption software. Allegedly, employee names, birth dates, social security numbers and hire dates were visible on the web site for every state agency using the service as well as a long list of private companies.
This apparent security breach serves as a reminder that protection of personal information does not depend on data encryption alone. For safety, all I-9 software user accounts should require complex passwords (not left blank). Ideally, each organization using a hosted SaaS (software as a service) solution should be allocated a physically separate database file rather than allowing it to be co-mingled with data from other organizations.
DHS has filed a lawsuit against a Detroit-area automobile plastics company to recover a $41,360 fine which was assessed following an I-9 audit. According to court documents (made available below), DHS completed the I-9 audit on March 17, 2009, and subsequently issued a Notice of Intent to Fine (NOIF) on March 25, 2009, for failure to complete ninety four (94) Form I-9s. By regulation, the company had 30 days to preserve its right to contest the fine or seek a negotiated settlement, neither of which it chose to do. As a result, the penalty became final and nonreviewable, and DHS filed suit last month. According to documents filed on Monday, the company has until January 11, 2010 to respond.
E-Verify has announced a new address which must be used by employers when mailing photos to DHS for case resolution. The photo matching process in E-Verify occurs automatically when an employee presents a green card or employment authorization document. If the photo presented by the employee does not match the photo in E-Verify, employers are instructed to notify the employee, and if he/she contests, to send a copy of the photo document to DHS.
This can be accomplished in two ways: (1) the employer can scan and upload a copy of the photo document (file must be in GIF format and be no larger than 1.5 megabytes) or (2) send a copy of the photo along with the DHS referral letter to the following new address:
U.S. Citizenship and Immigration Services
10 Fountain Plaza, 3rd Floor
Buffalo, NY 14202
Attn: Status Verification Office – Photo Tool
The E-Verify photo tool is currently available for both direct employers and designated agents (as of this month). The photo tool will also be made available to web services users who are using a third-party electronic I-9 and E-Verify system, although there has been no requirement or deadline imposed by DHS for those employers to utilize it yet.
Former U.S. Rep. Tom Tancredo filed a ballot proposal today that would require all Colorado employers to use E-Verify to confirm employment eligibility of new hires. Modeled after Arizona’s E-Verify law, the proposal calls for penalties and fines, a phased-in timetable, and prohibitions on the use of independent contractors to intentionally avoid compliance. The measure still has to pass a legal review and other steps before Mr. Tancredo can begin collecting signatures to have it placed on the 2010 ballot.
While the decision on sending No-Match letters remains to be seen, the SSA will continue sending letters directly to employees to request correction of discrepancies in their records. These letters (known as DECOR or Decentralized Correspondence letters) are not sent to employers.
The SSA has been engaged in a quality control study through its Office of Quality Performance (OQP) whereby they will contact an employer to request SSA documentation (either by mail or phone). According to SSA’s response today, this information is not being shared with other government agencies and is to be used for SSA internal purposes only. Thus far, seventy employers from six regions (Boston, New York, Kansas City, Dallas, Denver, and Seattle) have been contacted.
SSA also indicated that is not involved in conducting E-Verify compliance audits, data mining, or other E-Verify reporting. This appears to be under the exclusive jurisdiction of the DHS.
DHS has announced that it will be adding a new security feature to the E-Verify Photo Tool this month to address employee privacy concerns. As previously reported, the photo screening tool is an automated step in the E-Verify system which prompts employers (and soon, designated agents) to compare an employee’s photo document with a photo displayed in E-Verify. At present, the photo screening tool will only “activate” when an employee presents a recent version of a permanent resident card (I-551) or employment authorization document (EAD) as proof of employment authorization.
The new security feature will add a watermark across the photo which reads “E-Verify Use Only” in order to prevent unauthorized use or manipulation of government-issued photos. In addition, DHS is also changing their mailing address for photo tool case resolutions. The new address will be released through the E-Verify system and appear on the DHS referral letters.
As employers brace themselves for the next wave of Form I-9 audits, it’s critical to plan a response strategy which is both thorough and efficient. Step 1: analyze a real-life I-9 subpoena and notice of inspection to ensure compliance on each point.
This subpoena and notice of inspection (courtesy of the American Immigration Lawyers Association) was issued by the ICE office in Seattle, Washington as part of the 1,000 I-9 audits sent last week. The subpoena commands the employer to personally appear before the ICE local office to give testimony and provide the requested documents. As is customary, the employer is given 3 business days. The subpoena below speaks for itself, but here are some interesting observations:
The investigators are requesting records of all current employees as well as any employees terminated in the last year (from Oct 2008)
Investigators will look to see if the employer has properly handled rehired employees
Independent contractors, temporary staff from an agency, and “on-call” individuals will be scrutinized as the employer must produce a roster and supporting documentation
Employers must produce Social Security no-match letters (technically known as “Employer Correction Requests”), although again, it is only going back 1 year
Employers must provide all immigration filings for foreign national employees requiring visa sponsorship
The NOI requests more than just I-9s: the employer must also provide employee roster, payroll reports, quarterly tax statements with the IRS, state unemployment insurance tax reports, etc.
Corporate information (articles of incorporation, business license, and annual report) must be furnished
Investigators will consider whether the employer participates in E-Verify
The employer must also provide copies of the organization’s I-9 procedures or policies, if available.
In reviewing these points, it’s important to consider the I-9 inspection process and newly released penalty guidance. Many technical I-9 violations can be corrected now, and developing a proper I-9 procedure (requested above) clearly demonstrates good faith. If you need assistance getting started, contact Tracker Corp for a free I-9 and E-Verify compliance kit.
Although the government is not releasing the names of employers that have been targeted in this latest I-9 investigative sweep, several online news sources have reported the raw numbers in various states based upon interviews with local ICE representatives. Here is a current breakdown by state:
According to one of the ICE representatives, “critical to infrastructure” employers included agricultural processors, large agricultural or food service employers, transportation companies, power plants and defense industry firms that have government contracts of at least $100,000.
