E-Verify & I-9 News

[Editor’s Note: today’s post is brought to you by guest blogger Bruce Buchanan, an immigration attorney in the Nashville, TN office of Siskind Susser PC.]

In a case where immigration law and labor law intersected, Pacific Steel Casting Company (Pacific Steel) reached a settlement with the National Labor Relations Board (NLRB) concerning its obligations to bargain with the union about its implementation of E-Verify.

On February 23, 2011, Pacific Steel enrolled in E-Verify by signing a Memorandum of Understanding (MOU) with the Department of Homeland Security (DHS). However, in so doing, it did not notify the Glass, Molders, Pottery, Plastics & Allied Workers International Union, Local No. 164B (Local 164B), which represented its 600 employees at its Berkley, California facility.

At approximately the same time, Immigration & Customs Enforcement (ICE) served a Notice of Inspection on Pacific Steel. As a result of the I-9 audit, ICE concluded about 200 employees did not have valid work authorizations; thus, Pacific Steel terminated these 200 employees in December 2011.

In May 2011, Local 164B made an information request to Pacific Steel asking whether it had enrolled in E-Verify . As the bargaining representative, it is entitled to request certain information which could impact the employees’ terms and conditions of employment. Pacific Steel confirmed its participation in E-Verify but initially claimed it was required to do so because Pacific Steel was a federal contractor. Later, Pacific Steel conceded it was not a federal contractor but planned to continue using E-Verify.

Thereafter, Local 164B filed a charge with the NLRB alleging Pacific Steel violated Section 8(a)(5) of the National Labor Relations Act by unilaterally implementing E-Verify without bargaining Local 164B. In the March 2012 settlement, Pacific Steel agreed to provide written notice to the DHS terminating their enrollment in E-Verify. Furthermore, it agreed to reinstate employees, with backpay, who were terminated as a result of implementation of E-Verify. However, this does not appear to cover the 200 employees terminated in 2011 as those were as a result of the ICE audit of current employees while implementation of E-Verify covered new employees hired after February 23, 2012. Also, if it is determined these employees did not possess proper work authorization, the employees could not reinstated under NLRB law or awarded backpay. See Mezonos Maven Bakery, 357 NLRB No. 147 (Aug. 9, 2011) citing the Supreme Court decision, Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) – “awarding backpay to undocumented workers lies beyond the scope of [the Board’s] remedial authority”.

As one of the few immigration compliance attorneys who formerly worked as an attorney with the NLRB, I can tell you if Pacific Steel had in fact been a federal contractor and required to enroll in FAR E-Verify, this matter probably would have had a different result. Also, if Pacific Steel had offered to bargain with the union before implementation of E-Verify and reached an agreement to sign a MOU, it could have lawfully implemented E-Verify.

This is a reminder of how employers face obligations under multiple statutes in matters involving immigration compliance.

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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On April 20th, 2012, ICE Director John Morton warned that ICE will conduct 3,000 I-9 inspections this year, and that this number will remain the same or climb higher in the years to come.

This planned number for ICE was confirmed by Bill Riley, former Special Agent with both the INS and ICE for 20 years and Unit Chief for Worksite Enforcement, where he implemented the ICE Mutual Agreement between Government and Employers (IMAGE) and where he created the current ICE I-9 audit program.

In a worksite enforcement webinar on Thursday, May 3rd, Riley clarified that the 3000 Notices of Inspection (NOIs) would be issued in waves at the rate of 500 every two months.

As of March 29, the agency had notified 500 businesses “of all sizes and types” to turn over I-9 employment-eligibility forms and other documents for audits.  If you have received an NOI, don’t delay and reach out to informed legal counsel, including some of our esteemed guest bloggers, for guidance on how best to respond. You can read more about the I-9 audit and NOI’s, check out one of our previous posts from an attorney expert.

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

First, companies should consider conducting a preemptive 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 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.

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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[Editor’s Note: today’s post was written by our guest blogger Melinda McAfee, Esq., Vice President – Legal, Abercrombie & Fitch, Tracker I-9 client since 2010.]

Nothing tests your company’s best practices like an ICE audit. Any company that has been through a large scale ICE audit will come out of the experience with lessons learned. Converting these lessons learned into best practices can and will help you survive future ICE audits relatively unscathed. Below are a few of the “best practices” lessons learned that any large retailer or similar employer can benefit from.

Best Practice #1: Develop and Implement a Regular Audit Process
The most important lesson that any employer can learn from going through an ICE audit is the importance of a regular audit process for I-9 compliance. This is especially true with respect to electronic I-9s, which are susceptible to the vagaries of technology. The risk when errors occur is much higher with electronic I-9s where technological problems can affect hundreds or thousands of I-9s at once, and could subject a Company who has acted in good faith to disproportionate fines. Developing an audit program that regularly reviews both the behind the scenes working of your electronic I-9 system (i.e., database storage, stability and security) and the front end product (i.e., correct completion of the I-9) is essential.

Best Practice #2: Make it Fail Safe
There are numerous error types that are possible on an I-9 form, any one of which can result in a fine from an ICE audit. At a minimum, any electronic I-9 system must provide automatic error-checking. Ideally, the system should prevent I-9s from being submitted with invalid input or incomplete information. For example, your electronic I-9 software should prohibit the form from being submitted without all the required fields completed. Other error protections include prohibiting the entry of expired documents, date and number formatting checks to prevent typographical errors, and protections to prevent accidental over-documentation and subsequent accusations of discriminatory I-9 practices.

Best Practice #3: Keep it Simple
I-9 and E-Verify processing can be high risk, but is usually a low priority for retail managers, whose focus is, and should be, on running the business. Along with the fail safe protections discussed above, the electronic I-9 system and interface should be as simple to use as possible. Managers need to be able to do the following without becoming confused or distracted by too many extraneous features in your electronic I-9 system:

1. Create an I-9 record
2. See a list of every record in process, and
3. See the employees who need to be E-Verified.

Avoid putting extensive reporting and searching tools on your local interface. Make sure that the instructions and screens that local managers see are clear and concise, walking them step by step through the process. Save the bells and whistles for your Corporate Office HR professionals and auditors.

Best Practice #4: An Integrated Solution
If your Company uses an applicant tracking system (ATS), it is possible to integrate the electronic I-9 software with your ATS. This can provide another fail safe to ensure that I-9s are completed at or prior to the hire process, requiring the I-9 to be completed before the individual can hit the sales floor. For retailers with a large part-time workforce that may not work every day, this can ensure compliance with the mandatory I-9 completion time frame. Integrating the electronic I-9 system with the ATS also helps “Keep It Simple” because Section 1 of the I-9 can be pre-populated with information provided by the employee during the application process, requiring only the employee’s review, correction and signature.

Likewise, using Single Sign On simplifies the electronic I-9 system and makes security easier to control. Managers can sign on to the Point of Sale system and be authenticated at sign on, which will provide them access to the electronic I-9 system, ATS and the electronic hiring system. This prevents the manager from having to reauthenticate multiple times in order to process a new hire, complete an I-9 and initiate E-Verify.

Best Practice #5: Portable Authentication for Substitute Managers
Large retailers in cities with multiple stores often need to borrow or exchange managers from one worksite to another to cover vacations, sick days and turnover. This requires an I-9 system that is not only easy to use, but also enables portability of system access. Creating temporary access roles for a new user every time a manager goes to a new store creates a burden on IT staff, creates login and security complexities, and risks managers being unable to log into and use the system. By integrating your I-9 software with your other systems, the I-9 software can automatically permit access for managers to the specific stores at which they are scheduled to work, and then disable that access when they transfer to a different location.

Best Practice #6: Support Seasonal and Under-Age-18 Hiring
Retailers, food service and hospitality industries thrive on hiring seasonal, temporary and under-age-18 employees. The electronic I-9 system used by such employers must simplify the I-9 and E-Verify complexities inherent for these types of employees. For example, if an employee is working for three days or less, the three-day grace period to sign Section 2 does not apply and you cannot accept a receipt in lieu of an original Section 2 document. Your electronic I-9 system should automatically enforce compliance with these special rules.

By keeping these six best practices in mind, multi-worksite organizations in the retail or similar industries can help ensure the best compliance with I-9 and E-Verify and increase their chances of surviving an ICE audit with minimal impact to the business.

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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ICE Director, John Morton

Tracker participated in the Second Annual Worksite Immigration Compliance Symposium which took place at Stanford Law School’s Rock Center for Corporate Governance on April 20^th, 2012. This Symposium featured many of the top authorities and influencers in Form I-9 worksite compliance, for an insightful day of panel discussions on best practices in compliance and auditing, enforcement and penalties, IMAGE participation, and more.

Today’s post is an introduction to as series of future articles that will share details from some of the key discussions in this Symposium. Here is a quick overview of the discussion points that we will cover in greater detail in the coming weeks:

Executive Ethical Compliance Training

Featuring Charles H. Kuck (Partner, Kuck Immigration Partners LLC) and Carl Hampe (Partner, Baker & McKenzie) and moderated by Charles M. Miller, (Principal, Miller Law Offices, and Co-author of Immigration Compliance Auditing for Lawyers), this panel addressed the keys to managing a successful and ethical compliance program, developing I-9 policies, manuals, and training, and private external auditing. Their discussion covered the things all I-9 administrators must know, using a complete compliance audit as a best practice to avoid liability exposure, the steps to follow for proper remediation, and the essentials of how to do a private audit.

Updates on the IMAGE Program

Sharon Mehlman (Partner, Larrabee, Mehlman, Albi and Coker, LLP) and Adam Wilson, Unit Chief, IMAGE, DHS, ICE) provided an update on the IMAGE program, the Penalty Assessment Policy, the Memorandum of Understanding, and details on the private audit and IMAGE membership. Moderated by S. Christopher Stowe, Jr. (Law Office of S. Christopher Stowe, Jr., Executive Director of Homeland Security Compliance Council and Co-author Immigration Compliance Auditing for Lawyers), this session clarified what an IMAGE audit looks like, leniency towards companies undergoing an IMAGE audit, and recommendations for conducting internal audits.

ICE Worksite Enforcement Policies & Programs

Rachel Ross (Section Chief of the Employer Compliance Inspection Center, Worksite Enforcement Unit Office of Investigations (ECIC), DHS, ICE) and Paul Virtue (Partner, Baker & McKenzie and former INS General Counsel) discussed the current basis for ICE policies. This session provided information on the INS Virtue Memorandum on Technical errors versus Substantive violations, planned changes to the ECIC, recommendations about Self Auditing procedures, and a discussion on the government’s position on electronic I-9 systems.

Immigration Compliance Requirements

Rachel Ross (ECIC) and Jennifer Sultan (Acting Special Policy Counsel, Office of Special Counsel for Immigration-Related Unfair Employment Practices,  Department of Justice) discussed best practices for large corporations, including their biggest tips on how to avoid fines and discrimination charges, OSC guidance for acting on No Match letters, documentation best practices, and preventing issues that would appear to constitute “constructive knowledge” or a pattern of practice.

Keynote Speaker, ICE Director John Morton

John Morton (Director, United States Immigration and Customs Enforcement, Department of Homeland Security) was on-hand as the luncheon’s keynote speaker. Director Morton gave a history and background of ICE. He expressed the importance of employers adhering to proper hiring practices (warning that ICE will conduct 3,000 I-9 inspections this year. He also explained the benefits of participating in the IMAGE program (ICE Mutual Agreement between Government and Employers).

Look forward to more details

There was such a substantial windfall of information from this symposium, we look forward to sharing the insights from these discussions in our upcoming posts.

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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[Editor’s Note: today’s post is brought to you by guest blogger Bruce Buchanan, an immigration attorney in the Nashville, TN office of Siskind Susser PC.]

Atrium Companies, the owner of Champion Windows and Advanced Containment Systems, agreed to settle a case with Immigration & Customs Enforcement (ICE) for $2 million as a result of a pattern and practice of hiring illegal aliens.

An I-9 audit, conducted by ICE – Homeland Security Investigations (HSI) in February 2011, revealed 269 of Champion’s 451-person workforce consisted of undocumented aliens. Many employees’ I-9 documentation had numerous “egregiously suspect” errors, such as misspellings of agency names and/or containing the words “novelty item.” In November 2009, Thereafter, at the request of the government, all of the undocumented aliens were terminated from Champion by the end of April 2011.

The ICE HSI investigation also revealed that, since acquiring Champion, management at Atrium had become aware of the possibility of large numbers of undocumented aliens being employed at Champion’s Houston factory. A follow-up audit conducted by ICE HSI of Atrium Companies’ remaining 12 subsidiaries in May 2011 revealed that about 8.3 percent of the parent company’s 3,382 employees (excluding Champion employees) were undocumented aliens. All of these workers were terminated within a matter of weeks.

Atrium received multiple notices from the Social Security Administration (SSA) known as “no-match letters,” which indicated employee names and Social Security numbers did not match SSA records. The companies failed to take any corrective measures, resulting in the continued employment of the undocumented aliens.

The ICE announcement reported that since December 2010, Atrium Companies has revised its immigration compliance procedures to include new policies concerning the proper completion, retention and auditing of I-9 forms and for responding to SSA no match letters. Under the terms of the agreement, Atrium Companies must also hire a full-time chief compliance officer and continue to consult with immigration counsel in order to ensure the legality of its workforce.

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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[Editor’s Note: today’s post is brought to you by guest blogger Bruce Buchanan, an immigration attorney in the Nashville, TN office of Siskind Susser PC.]

March was a busy month for the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, a division of the Department of Justice. It settled cases against Onward Healthcare, Indrescom Security Technology, and Ross Department Stores, who were each accused of immigration discrimination.

Onward Healthcare, a healthcare staffing company based in Connecticut, resolved allegations that the company posted discriminatory job advertisements on its home page and third party websites that limited its jobs to U.S. citizens. Over a one year period, thousands of Onward Healthcare’s job postings impermissibly limited applications to U.S. citizens, even though work-authorized immigrants, such as lawful permanent residents, asylees and refugees, should have been allowed to apply.

The Immigration and Nationality Act (INA) generally prohibits employers from discriminating on the basis of citizenship status unless required by law, regulation or government contract. It was determined Onward Healthcare had no legal basis for its stated citizenship preference. Under the settlement agreement, Onward Healthcare agreed to pay $100,000 in civil penalties, to change its internal policies and manuals to reflect the INA’s protections, and to be subject to reporting and compliance monitory requirements for a period of three years.

The Indrescom Security Technology and Ross Stores settlements involved situations where the employers demanded more documentary requirements for permanent residents than U.S. citizens. Specifically, Ross Stores refused to honor a work authorization document and demanded a permanent resident card while Indrescom refused to accept a valid driver’s license and Social Security card and demanded a permanent resident card.

Per the settlement agreement, Ross Stores agreed to reinstate the charging party and pay $6,384 in back pay plus interest to the charging party and $10,825 in civil penalties to the United States. Ross Stores also agrees to comply with the law, to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process and to be subject to reporting and compliance monitory requirements for 18 months. Similarly, Indrescom agreed to pay $7,000 in back pay to the charging party, train its human resources personnel and be subject to reporting and compliance monitoring requirements for three years.

The lessons to be learned through these settlements are do not limit you applicant pool to only U.S. citizens unless you have a government contract or similar situation which requires only U.S. citizens and do not demand the employee’s permanent resident card if they have already provided you with sufficient documentation to establish work authorization.

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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[Editor’s Note: today’s post is brought to you by guest blogger Bruce Buchanan, an immigration attorney in the Nashville, TN office of Siskind Susser PC.]

"ICE fine, right ahead!"

Recent decisions of the Office of the Chief Administrative Hearing Officer (OCAHO) continue to demonstrate Immigration and Customs Enforcement (ICE) and OCAHO strongly disagree on the appropriate level of penalties for small employers committing I-9 violations. Three recent OCAHO decisions demonstrate that ICE continues to seek large penalties against small employers committing numerous I-9 violations while OCAHO continues to use its discretion to reduce the penalties by 50% or more.

In the most recent OCAHO decision, United States v. Pegasus Restaurant, 10 OCAHO No. 1143 (2012), OCAHO reduced ICE’s proposed penalty of $131,554.50 to $49,427, a reduction of about 62%. In this matter, the restaurant failed to fill out any I-9′s for 134 hired employees over a three year period. Of the 134 employees, four were not authorized to work. ICE sought a penalty of $981.75 per violation. ICE did not seek to aggravate or mitigate the proposed penalty based upon the five designated factors – size of business, good faith, history of violations, seriousness of the violations, and presence of unauthorized employees.

OCAHO accepted the restaurant’s argument that the proposed penalties were disproportionate in light of the size and resources of the business. OCAHO cited precedent which states a penalty should be sufficiently meaningful to accomplish the purpose of deterring future violations without being “unduly punitive” in light of the respondent’s resources; thus, proportionality is the key. See United States v. Jonel, 8 OCAHO No. 1008 (1998), and United States v. Minaco Fashions, Inc., 3 OCAHO No. 587 (1993).

Therefore, OCAHO reduced 130 violations from $981.75 per violation to $350 each while refusing to reduce the penalty involving the four unauthorized employees. OCAHO found a penalty of $47,427 to be “sufficiently substantial” to have a significant deterrent effect going forward.

Similarly, in United States v. Ice Castles Daycare Too, Inc., 10 OCAHO No. 1142 (2011), OCAHO substantially reduced the employer’s penalty from $55,352 to $18,500. In Ice Castles Daycare, the evidence established over a three-year period of time the daycare center failed to prepare I-9s for 74 employees although it did examine appropriate documents to verify employment eligibility.

ICE sought a penalty of $748 for each of the 74 violations. This amount was a reduction of the baseline penalty of $935 per violation based on 5% mitigation for each of these factors – small size of business (it averaged 30 employees), good faith of employer, no unauthorized employees and no history of violations.

The daycare asserted a fine of $55,000 could put them out of business since its ordinary business income from 2006 to 2009 was $21,000, ($4,000), $5,500, and $38,000, respectively. Based upon Ice Castles Daycare’s ability to pay, its small size, and its efforts to verify employment authorization, OCAHO reduced the 74 violations to $250 for a total of $18,500. Thus, the penalties were reduced by about 66%.

Previously, in United States v. Snack Attack Deli, Inc., 10 OCAHO No. 1137 (2010) (Subway case), OCAHO reduced the restaurant’s penalty from $111,000 to $27,150, a reduction of about 75%. In doing so, OCAHO cited the company’s inability to pay and relatively small size.

Two recent decisions where the penalties were not reduced by over 50% are United States v. Alyn Industries, 10 OCAHO No. 1141 (2011), and United States v. Ketchihan Drywall Services, 10 OCAHO No. 1139 (2011). However, in both of these cases, the employers were not small employers and had the ability to pay substantial fines.

My advice to small employers, who are facing substantial ICE penalties and cannot afford to pay them, is to hire an immigration attorney with experience in ICE audits and litigation (hopefully you have already done so) and litigate your case before OCHAHO. If successful, the reduction in the penalty should be greater than the cost of legal fees for the litigation, especially since the litigation involves a motion for summary judgment based upon the record evidence, not a hearing with witnesses.

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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On March 23rd, 2012, the U.S. Justice Department announced that it reached an agreement with Ross Stores Inc ., who will pay more than $17,000 to settle a claim that the company had engaged in a pattern or practice of discrimination based on citizenship status while verifying employment eligibility at its store in San Ysidro, Calif.

The claim alleged that Ross Stores discriminated against an employee by refusing to hire her, improperly requiring her to provide the company with a green card, even though she presented a genuine employment authorization document (EAD) for Section 2 of the Form I-9.  More broadly, the department accused Ross of subjecting 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 the same of United States citizens.

In the settlement, Ross Stores, Inc. agreed to reinstate the employee and pay $6,384 in back pay plus interest. The retailer also agreed to pay the government $10,825 in civil penalties. Ross Stores also agrees to comply with the law, to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process and to be subject to reporting and compliance monitory requirements for 18 months.

The anti-discrimination provision (§ 274B) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b requires employers to treat all authorized workers equally during the employment eligibility verification process, regardless of their national origin or citizenship status. This federal law specifically prohibits document abuse (unfair documentary practices during the Form I-9 employment eligibility verification 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.

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[Editor’s Note: today’s post was written by guest blogger Robert F. Loughran, a Partner in FosterQuan, LLP and managing partner of its Austin office. He is board certified in immigration and nationality law by the Texas Board of Legal Specialization and has 20 years of experience representing and advising multinational companies on U.S. and global immigration law. This article was originally published in Texas Lawyer.]

In 2011, U.S. Immigration and Customs Enforcement and the U.S. Customs and Immigration Service issued thousands of notices of inspection and subpoenas. In 2012, enforcement efforts against employers will intensify.

In 2006, ICE created the position of forensic auditor. It greatly expanded their numbers in 2009, providing specialized skills for and adding uniformity to a process that special agents/criminal investigators had handled for the preceding 20 years. The number of permanently staffed ICE forensic auditor positions has grown, as has the number of worksite enforcement special agents. When the government staffs up to this degree, the level of enforcement rises with an internal momentum that should last for years.

Given this continuing immigration enforcement focus, in-house counsel need to ensure that their companies comply with the myriad of immigration laws and regulations. It’s helpful to break efforts up in the time before a subpoena arrives and the time after the government issues a notice of inspection or immigration-related subpoena.

In-house counsel can educate managers and the human resources department to avoid common mistakes in connection with Form I-9.

• Unnecessary reverification. No one needs to calendar the expiration date of a driver’s license or an alien resident card (a green card) for re-verification. In-house counsel should train relevant departments that asking an employee to re-establish continued employment eligibility following an identity document’s expiration date some years after employment and requiring presentation of additional documentation could open up an employer to charges and fines related to document abuse and potentially even discrimination and disparate treatment.

• Overzealous self-help. When performing self-audits, human resources staff sometimes write in, complete or correct section No. 1 of Form I-9. In-house counsel should warn HR that completing this section is entirely the responsibility of the employee, who must personally complete the employee attestation. Only the employee — not HR — should make fixes to section No. 1, lest the attestation be undermined.

• Going too far. More is not necessarily better. HR and managers frequently fill out too many columns regarding documents — filling in Form I-9 columns A, B and C. The legally correct approach is to fill out column A or B and C. Such errors indicate that the employer has required the prospective employee to present more forms of identification and/or employment eligibility documents than the law requires.

This is risky, and the legal department should explain why: Subjecting only people who appear to be minorities or born in other countries to excessive documentation requests could create a rebuttable presumption of discriminatory employment practices.

• Lack of objectivity. When bringing a new administrator or HR representative on board, some organizations do not think ahead about who is going to complete the Form I-9, witness the presentation of documents and attest that they are genuine. That can result in the new hire attesting to herself about her presentation of employment eligibility verification documents: “I attest that I have presented my employment eligibility verification documents to myself and they appear genuine and relate to the individual named (me).”

Handling an ICE Subpoena

Minimizing liability and correcting misguided HR practices before a government inquiry or investigation is the most effective method for reducing liability. Once ICE issues a subpoena, the opportunity for self-help and mitigation drops significantly.

Now is the time for the legal department to develop policies identifying the company’s first responders. These people will address any inquiries from unscheduled government visitors. Then, it’s time to ensure training for the receptionist.

Investigators normally will enter the worksite through the main entrance. Management should instruct the person who serves as visitors’ first point of contact to notify the first responder immediately when government officials arrive. It’s important to stress that that person refrain from discussing any company or employee information with the investigator.

Ideally, any paperwork the company files with the CIS will include only accurate, consistent information about the company. Files at the company should be centrally located, so that the first responder quickly and easily may access information for verification purposes. It will be helpful for the first responder to have payroll records, employee records showing date of hire and work location, and corporate financial information easily accessible.

In-house counsel should know that the posture of an employer who is not under investigation is radically different from the posture of an employer who has received a subpoena. Once ICE issues a subpoena, responding prudently is as important as the company’s ongoing business operations. It can become a considerable management and operations distraction, but it’s critical.

• Move quickly. Once the government issues a subpoena, the company must respond in final form within three days. The legal department needs an initial analysis of potential exposure within the days following the government’s appearance on its doorstep, so lawyers can decide whether the company’s strategy should be responsiveness or point-by-point contention.

• Just say “no.” ICE often attempts to outflank future challenges to its notices and subpoenas by securing permission to review company documents. It may be tempting for employees to grant that permission. The mere presence of ICE agents may intimidate receptionists and lower-level employees, leading those workers to hand over whatever the agents request — sometimes more.

But in-house counsel should inform all employees that all communication with the government goes through the legal department. Generally speaking, there is a three-day notice to locate, assemble, analyze, chart, photocopy and deliver documents. It is invaluable for the legal department to analyze existing liability before ICE begins building its theory of the case.

The legal department should teach employees at all levels that no one should attempt to have a friendly conversation with ICE agents. The company gains little and loses much when employees chit-chat about deficiencies, mistakes, practices, etc. It is human nature to attempt to establish good faith and lack of personal culpability; however, lack of malice aforethought and innocence are distinct concepts.

Government agents are trained to gather evidence of employer wrongdoing and to prepare a case to be forwarded to the U.S. attorney for potential prosecution. Private sector understandings of what is reasonable and appropriate may be very distinct from the expectations of a government investigator.

• Cooperate. Without being unnecessarily forthcoming and waiving rights of representation and response time frames, the legal department should coach first responders and other involved employees not to act cantankerous and combative with the agent during the investigation. Some company owners react with a sincere and emotional response that the government unfairly is singling them out and persecuting them in industries rife with violators.

But the reality is that the government has broad rights in immigration law. It eventually will get much, if not all, of what it seeks. In-house counsel should caution first responders and company leaders that it’s counterproductive to draw attention, potentially securing the lasting focus of an investigator, who has tremendous discretion and resources.

Compliance starts with comprehensive policies, a trained, well-informed staff and consistent practice.

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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[Editor’s Note: today’s post is brought to you by guest blogger John Manley, U.S. Immigration Attorney and Co-Liaison to U.S. Customs and Border Protection.]

U.S. District Judge Thomas J. Whelan has ordered The French Gourmet, Inc. to forfeit $109,200 in illicit proceeds gained from the illegal hiring practices and pay $277,375 for its felony conviction of employing more than 10 illegal alien workers in a 12-month period.

This case has gained considerable attention and is a reminder to employers to make sure they have a proper I-9 Compliance Program.

In this case, the French Gourmet operated a restaurant, bakery and catering business for decades in La Jolla. All three defendants pleaded guilty in October to having hired numerous illegal alien workers between 2005 and 2008, and continued to employ the unauthorized workers knowing the aliens did not have legal authority to work in the United States. The defendants further admitted to hiring and employing illegal alien workers continuously as early as 2003, despite being fined in the 1990s by the former Immigration and Naturalization Service (INS) for employing illegal aliens. The pattern of illegal activity continued until May 2008 when agents from HSI searched the restaurant and arrested 18 illegal alien workers. The company admitted they repeatedly rehired illegal alien workers, even after the company received “no-match” letters from the Social Security Administration advising employees’ names did not match the Social Security numbers reported by the company on its tax returns. Source: ICE

These are heavy fines for a small business to pay. It would not surprise me if the company filed some sort of bankruptcy petition after this. ICE, however, can and will go after companies. Companies should consult with immigration lawyers to to ensure proper I-9 compliance.

According to ICE, “criminal prosecutions are just one of many tools ICE HSI uses to reduce the demand for illegal employment and protect job opportunities for the nation’s lawful workforce. That enforcement strategy also includes the expanded use of civil penalties, employer audits and debarment. In fiscal year 2011, ICE criminally charged a record-breaking 221 owners, employers, managers and/or supervisors – up from 196 in fiscal year 2010. In addition, during fiscal year 2011, ICE HSI initiated audits involving 2,496 employers nationwide – surpassing the record number conducted in all of fiscal year 2010. That figure includes 83 businesses in the San Diego area. Likewise in fiscal year 2011, ICE issued 385 final fine notices totaling more than $10 million to employers across the country, again surpassing the record fine total in fiscal year 2010.”

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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