E-Verify & I-9 News

[Editor’s Note: today’s post is brought to you by guest blogger Katie Minervino, Associate Attorney in the Immigration Group at Pierce Atwood LLP. Katie assists employers and employees in employment authorization needs and provides clients with support and guidance on employment verification requirements, best practices, and audit response.]

1. Am I complying with applicable laws requiring E-Verify use?

E-Verify is an online service administered by the federal government that allows employers to run information about new hires through Department of Homeland Security and the Social Security Administration databases to attempt to verify work authorization.

In the absence of comprehensive federal immigration reform, and particularly in the face of high levels of unemployment, states and local governments are stepping hard into the employment verification debate. A number of states, counties and municipalities have passed laws that mandate use of the otherwise voluntary E-Verify program.

E-Verify laws warrant a close and careful look by all employers to determine when, if and how E-Verify mandates may affect them. Employers already using E-Verify should confirm they are making any necessary updates to their program use to meet state requirements (for example, adding hiring sites in affected states, if they are currently only using E-Verify in other locations).

Currently only certain federal contractors are required to use E-Verify under federal law. More expansive legislation that would require E-Verify use by all employers has been introduced in both the House and the Senate, but such federal requirements are not currently in effect.

2. Does my company have a contract that includes an E-Verify provision?

Employers should be monitoring all federal contractors for an E-Verify clause. Additionally, state contractors are also increasingly required to use the program, and private employers are now including immigration compliance provisions to the terms of service contracts that include required use of E-Verify now or in the future. Employers should review all contracts for any language that may require their use of the program.

3. If my company will be required to use E-Verify, what steps should we be taking now to prepare?

Employers should note any upcoming deadlines for required use of E-Verify. A company facing an upcoming E-Verify requirement should familiarize itself with the E-Verify Memorandum of Understanding, notice and employer requirements of the program, and make internal decisions and designations about how the program will be administered and by whom. Before the internal start date of E-Verify use, a company should plan to train appropriate human resource professionals and update its employment verification compliance policy to reference and incorporate its use of E-Verify.

4. Should my company voluntarily enroll in E-Verify to avoid the burden of monitoring local and state developments?

As states and local governments continue to pass E-Verify laws, employers must closely and regularly monitor specific requirements where they do business. Multi-state employers may consider nation-wide voluntary participation in the program to avoid the burden of complying with varying state requirements, depending on the employer’s views relating to the program and ability to satisfy E-Verify requirements.

5. How well does my company currently comply with employment verification requirements?

Most companies are aware of the federal requirement that companies verify the employment authorization of new hires by completing Form I-9. Employers should evaluate current employment verification compliance practices and consider a self-audit to confirm the employer’s Form I-9s are properly prepared and retained.

E-Verify is a supplement to, not a replacement for, the current I-9 verification system. Employers currently enrolled in E-Verify must still fulfill all obligatory employment verification requirements under current federal law, such as completing and retaining Form I-9. Employers considering enrolling in E-Verify should confirm they are currently meeting all federal employment verification requirements before undertaking additional responsibilities and requirements relating to E-Verify.

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 Katie Minervino, Associate Attorney in the Immigration Group at Pierce Atwood LLP. Katie assists employers and employees in employment authorization needs and provides clients with support and guidance on employment verification requirements, best practices, and audit response.]

Georgia’s comprehensive immigration law requires that private employers enroll in E-Verify as a condition to obtaining or renewing a broad range of business licenses and other documentation required to operate a business or engage in a professional service.

While some provisions of the Georgia law took effect on July 1st, the E-Verify requirements are being phased in, with staggered E-Verify compliance dates based on the size of an employer. The initial phase-in for private employers started in the new year, with businesses employing more than 500 employees required to use E-Verify for new hires as of January 1, 2012. Businesses with less than 500 but more than 100 employees must start using E-Verify by July 1, 2012, and businesses with less than 99 but more than 11 workers must use the program by July 1, 2013. Businesses with 10 or less employees are exempt.

All employers must look closely at whether they have any employees performing services in Georgia that trigger a license requirement because if so, they may be caught in the cross-hairs of Georgia’s immigration enforcement efforts.

Counting your employees for purposes of compliance deadlines

To determine the number of its employees for E-Verify purposes under this law, a business must count its total number of employees working at least 35 hours a week as of January 1st of the year the E-Verify mandates for that employer kick in. The definition of “employee” in the Georgia law cross-references the Georgia tax code, and as it is currently written, does not specify that an employer need only count employees on a Georgia payroll. The law further contains no language limiting the employer’s required use of E-Verify to new hires within the state of Georgia, leaving the door open for an interpretation of the law with a far-reaching scope outside of the boundaries of Georgia for multi-state employers.

If an employer exclusively employs workers on a Georgia payroll, the analysis is simple and the employer should look to its number of full-time employees paid under its federal employer identification number to determine when the E-Verify requirement applies.

But my employee only works in Georgia – I’m not a Georgia-based business

If an employer has payroll employees in multiple states, including Georgia, the situation is a bit stickier. Such employers should determine, first, whether all these employers are connected to the same federal employer identification number (FEIN). If the employees are distributed among multiple FEINs (for example, in the case of a parent and subsidiary) and the total number on each FEIN is less than 500, the employer’s E-Verify requirements will be deferred in Georgia until at least July 2012.

If the employees are all paid under the same FEIN and number 500 or more, the recommended approach is for an employer to enroll in E-Verify for its Georgia hiring sites on or as soon after January 1st as possible, thus placing the employer in the strongest position to obtain the wide range of business and professional licensure in Georgia for which proof of E-Verify is required.

I’m not prepared to potentially “jump the gun” on an otherwise voluntary program.

A company applying to obtain or renew its Georgia business license or an employee obtaining a professional license in Georgia must present an affidavit attesting employer compliance with the E-Verify requirements of the Georgia immigration law. While Georgia has yet to release rules or provide any clarification on how employees should be counted under this law, the Georgia Department of Law released affidavits for employers to present when applying for licensure: one for claiming less than 11 employees, and thus exemption from the E-Verify requirements, and another for employers with 500 or more employees. The affidavit for employers with more than 500 employers (valid from January 1, 2012 to June 30, 2012), like the immigration law itself, does not specify that the total number of employees is restricted to Georgia. The affidavit also asks for an employer’s E-Verify identification number and the date that number was issued.

Employers not already in E-Verify with 500+ employees and a limited Georgia presence may be justifiably on the fence about whether they want to enroll in E-Verify under the earliest possible deadline. These employers should consider the cost to working out the wrinkles in a license renewal process for a professional who needs a Georgia license and is unable to provide the required compliance affidavit.

For private employers without federal contracts, E-Verify use is limited to new hires. If an employer hires no (or a minimal number of) employees in Georgia in 2012, actual use of the program will be minimal and the burden relatively low compared to the cost if Georgia takes a hard line issuing licenses and later releases rules specifying that employers must consider all US employees for E-Verify compliance and deadlines.

Further, employers have a range of options in using and administering E-Verify within their company and can obtain the E-Verify Identification Number required as a condition to obtaining licensure without triggering E-Verify obligations for any hiring sites outside of Georgia.

Employers can also choose to administer E-Verify use for Georgia hires at a location outside of Georgia, for example, an out-of-state corporate headquarters.

The Georgia E-Verify law exemplifies the challenges that state-specific E-Verify requirements impose on employers, requiring additional compliance obligations for private employers while lacking clarity on practical aspects of the law.

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.]

Several states began requiring various employers to use the E-Verify system as of January 1, 2012.

Here is a list of these states and their E-Verify laws that go into effect in varying stages:

1. Louisiana: Act 376 will apply to private employers who bid on public entity projects or enter into contracts with a public entity on or after Jan. 1, 2012. The law requires that private employers who bid on a public entity project or enter into a contract agreement with a public entity for the physical performance of services, confirm in a sworn affidavit that the company uses the E-Verify® system to validate the legal citizenship or legal alien status for all employees within the United States. If the employer is awarded a contract, he is required to E-Verify all new employees in Louisiana hired through the duration of the contract. The requirement applies to both general contractors and their subcontractors. SOURCE

2. Alabama: Effective January 1, 2012, state contractors must use E-Verify. Effective April 1, 2012, every business entity or employer in this state shall enroll in E-Verify and thereafter, according to the federal statutes and regulations governing E-Verify, shall verify the employment eligibility of the employee through E-Verify. A business entity or employer that uses E-Verify to verify the work authorization of an employee shall not be deemed to have violated this section with respect to the employment of that employee.   SOURCE

3. Tennessee: under the Tennessee Lawful Employment Act of 2011,the employment verification provisions will be phased in as follows [SOURCE]:

• All state and local government agencies must enroll and participate in E-Verify or request and maintain an identity/employment authorization document from a newly hired employee no later than January 1, 2012

• All private employers with 500 or more employees must enroll and participate in E-Verify or request and maintain an identity / employment authorization document from a newly hired employee no later than January 1, 2012

• All private employers with 200 to 499 employees must enroll and participate in E-Verify or request and maintain an identity / employment authorization document from a newly hired employee no later than July 1, 2012

• All private employers with 6 to 199 employees must register and utilize E-Verify or request and maintain an identity / employment authorization document from a newly hired employee no later than July 1, 2013

4. South Carolina: the South Carolina Illegal Immigration and Reform Act requires all employers to enroll in the U.S. Department of Homeland Security’s E-Verify system beginning January 1, 2012 and to verify the legal status of all new employees through E-Verify within three business days. Employers may no longer confirm a new employee’s employment authorization with a driver’s license or state identification card. SOURCE

5. Georgia: The E-Verify Provision in Georgia’s H.B. 87 will require Georgia businesses with 500 employees or more to check their employees using E-Verify. Workers must be U.S. citizens or otherwise authorized to work in the country in order to be hired. The requirement takes place in phases. Starting July 1, businesses of 100 or more must use E-Verify. By January 2013, all businesses with more than 10 employees will be required to use the system. Those with 10 or fewer employees are exempt. SOURCE

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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[Editor’s Note: today’s post was written by guest blogger Robert C. Divine, Chairman of the Immigration Group of Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C.]

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) in the U.S. Department of Justice recently published a three-page “Fact Patterns Flyer,” listing examples of immigration status and national origin discrimination in employment.  In viewing the set of employer actions purely from the point of view of discrimination, the OSC accidentally gives the false impression that certain actions are appropriate if all workers are treated the same, and employers should be counseled not to take that implication.

Misleading Examples. For instance, the list includes when an employer “rejects valid work authorization documents from non‐U.S. citizens but accepts the same documents from U.S. citizens,” implying that it would be lawful for an employer to reject Social Security cards as List C documents of work authorization for I-9 purposes for ALL workers, whether they check Section 1 to reflect U.S. citizenship, nationality, permanent residence, or foreign national status.  But it is unlawful to refuse a Social Security card as a List C document from ANY worker if the document reasonably appears to be genuine and to relate to the worker.

The list finds unlawful discrimination when an employer “Demands that lawful permanent residents present new ‘green cards’ when theirs expire but does not ask U.S. citizens to produce new documents when theirs expire,” implying that it would be okay if the employer required re-verification of everyone whose documents presented in the I-9 process expire, such as green cards and U.S. passports.   But it is always unlawful to require ANYONE with permanent status to present new documents for re-verification.

The list includes several actions “on a selective basis,” including when an employer “Terminates or suspends employees for whom it receives TNCs,” “Pre‐screens using E‐Verify,” “Pre‐screens all applicants using E‐Verify,” “requires employees who receive TNCs to provide additional documentation establishing their work authorization,” and “Re‐runs employees through E‐Verify when re-verifying Employment Authorization Documents, and then terminates or suspends employees who receive TNCs.”  But it is NEVER appropriate to do these things, even if they were done with ALL applicants or employees.

We can appreciate that DOJ might use unlawful discrimination as a theoretical basis for pursuing action against employers who do these things, but DOJ should be more careful about the implications of what it says in an environment in which employers are naturally confused and easily mislead.

The Problem of “Coming Clean.” The OSC opens a special can of worms with its example of an employer who “Fires work‐authorized workers for lying about their prior undocumented status, but does not fire other workers for lying about different aspects of their background.” Could an employer have a policy NOT to fire ANY workers for past lies in certain circumstances including when presenting a newly obtained legal status in his real identity?

This whole issue arose out of the 1986 immigration amnesty law.  It made little sense for Congress to pass a law legalizing persons who had been in the U.S. unlawfully for certain periods of time, only to have their employers fire them when they presented anew their true identity, and a federal court upheld a discrimination charge against an employer who did that.  The old INS used to state on its web site that it was acceptable for an employer to allow continued employment of a worker who presented a new, valid identity, having legalized his status (but warning employers to be mindful of their general honesty policies).

Ironically, when the Justice Department tried to prosecute Tyson Foods in 2003 for knowing employment of  unauthorized workers, the prosecutor included this practice as an example of Tyson’s alleged callous indifference to the law prohibiting employment of unauthorized workers. On cross examination, Tyson’s lawyer elicited testimony from the company’s ethics officer (my client) about the company’s reliance on the INS web site, projecting on the wall of the courtroom the web site and a follow up email from an INS “business liaison” officer.  The jury was flabbergasted at the government’s overreaching and acquitted Tyson as a corporation, despite some other blatant practices of a wayward local manager.

After INS was merged into the Department of Homeland Security in 2003, USCIS continued to include on its web site in various places a statement that it was not unlawful to accept a worker’s true identity after previously presenting a false identity:

DISCOVERING FALSE DOCUMENTATION

False documentation includes documents that are counterfeit or those that belong to someone other than the employee who presented them. It occasionally happens that an employee who initially presented false documentation to gain employment subsequently obtains proper work authorization and presents documentation of this work authorization. In such a case, U.S. immigration law does not require the employer to terminate the employee’s services. However, an employer’s personnel policies regarding provision of false information to the employer may apply. The employer should correct the relevant information on the Form I-9.

USCIS removed this statement around 2009 without explanation, and it has not included this language or anything close in its Handbook for Employers that guides employers in the I-9 process.

Some ICE investigators have not seemed to appreciate the “Catch 22″ an employer faces when a worker reveals past false identity and newly lawful status. I have seen ICE use evidence of the practice of retaining such employees as grounds for prosecution, even long after the Tyson case. I have used USCIS’ former web site as proof to DOJ prosecutors of the government’s sanction of the practice and of the pitfalls of prosecution on that basis, with success.  I had wondered where the government stood on the issue now, and the new OSC discrimination listing seems to give cover to employers who don’t want to lose a good employee who now has become legalized and wants to “come clean.”

But this does not mean ICE likes it, and for various reasons employers should consider policies to treat all serious lying as a basis for termination, including resume fraud and false identity.  Employers also should consider a policy that prior false statements are not necessarily grounds for termination if revealed in the context of the worker volunteering the truth.  And an employer considering a policy to accept newly confirmed authorized identities should consider limiting the policy to employees who volunteer this, not those who come up with a new identity only when confronted with problems about the currently used identity.

Obviously, the Office of Special Counsel is trying to help by publishing examples of what constitutes unlawful discrimination, but employers need to avoid becoming confused by the possible implications of the listing in the “Fact Pattern Flyer.”

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 features guest blogger Angelo Paparelli, Partner and Certified Immigration Law Specialist (CA) at Seyfarth Shaw, LLP.]

Angelo Paparelli talks about how companies can best prepare for an ICE audit of their Form I-9s, by converting paper i9s to an electronic system (like Tracker I-9) and consulting a law firm with I-9 expertise, such as Seyfarth Shaw, LLP, to do a preliminary audit to fix any problems. Visit Angelo’s blog, Nation of Immigrators.

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 Bruce Buchanan, partner-in-charge of Immigration Practice, King & Ballow, LLP.]

A recent Office of Chief Administrative Hearing Officer (OCAHO) decision, U.S. v. Alyn Industries d/b/a Electronic Source Company, 10 OCAHO No. 1141 (2011), demonstrates continuing evidence of differences between Immigration & Customs Enforcement (ICE) and OCAHO in the calculation of fines from ICE audits.

In Alyn Industries, the company disputed ICE’s calculation of fines due. The company conceded it violated the Immigration Reform and Control Act of 1986 by: (1) hiring two employees without preparing an I-9 form; (2) hiring 59 employees without properly completing Section 2 of the I-9 form; and (3) hiring one employee without ensuring the employee properly completed Section 1 of the I-9 form.

ICE sought a total of $63,767 for the 62 violations. ICE calculated the fine by determining 100% of the I-9s contained substantive errors. Thus, under ICE’s Guide to Civil Monetary Penalties, Alyn was assessed the highest amount for a first offense – $935 per violation. The Guide has the following sliding scale:

Percentage of Substantive Violations            Fine

0 – 9%                                                                                       $110
10 -19%                                                                                   $275
20 – 29%                                                                                 $440
30 – 39%                                                                                 $605
40 – 49%                                                                                 $770
50% and Over                                                                       $935

[Editor's note: for more details on fines, see ICE's Form I-9 Inspection Overview.]

Additionally, there are five aggravating or mitigating factors, each worth 5%. The five factors are: size of business, good faith, seriousness of violations, whether any employees were unauthorized, and history of previous violations.

ICE determined 10% should be added to $935 due to the company’s lack of good faith and seriousness of the violations. Thus, $935 + 10% = $1,028.50 x 62 violations = $63,767. Alyn challenged ICE’s determination of aggravating and mitigating factors, asserting it was a small business that acted in good faith and had no previous violations. Thus, it asserted the fine per violation should be reduced by 15%.

Alyn asserted it was a small business because it employed 62 employees in July 2009, the time of the I-9 audit, and was down to 50 employees in December 2010. Moreover, it had a net loss of about $271,000 in 2010 and net income of only about $78,000 in 2009. ICE argued Alyn was a moderate sized business, which should not be the basis of an aggravating or mitigating factor.

OCAHO found Alyn was a small business since prior case law defined companies with less than 100 employees to be a small business. However, OCAHO declined to use the size as a mitigating factor, because it was not a “failing ‘mom and pop’ operation.”

ICE argued Alyn’s tenure as a business for over 10 years with revenue in the millions demonstrated it should have been able to train its management on verifying employment eligibility and its 100% failure rate showed its lack of good faith. Alyn asserted the errors were based on carelessness and after the I-9 audit, it enrolled in E-Verify and “instituted stringent compliance checks.” OCAHO was not persuaded by either party that good faith or lack thereof was an aggravating or mitigating factor.

Concerning the seriousness of the violations, OCAHO found all but two of the 62 violations were serious. However, OCAHO declined to use such as an aggravating factor.

Alyn argued because it did not have a history of previous violations, it should receive a mitigating factor. OCAHO found “never having violated the law does not necessarily warrant” leniency. Thus, this factor did not change the amount of the fine.

Despite not finding Alyn should receive any reduction in the amount of fines due to any mitigating factors, OCAHO concluded… [A]s a matter of discretion, a penalty nearer the mid-range are found more appropriate… and the penalties are accordingly set at $700 each for the 60 most serious violations and $500 each for the other two violations, for a total penalty of $43,000.

Although OCAHO denied this was a similar case to U.S. v. Snack Attack Deli (Subway), 10 OCAHO No. 1137 (2010), where OCAHO determined the company could not afford the fine sought by ICE, the result is eerily similar. In Snack Attack, OCAHO lowered the fines from $110,000 to $27,150 without any reasoned analysis.

The Alyn decision demonstrates OCAHO will continue to assert its discretion in determining the penalties and will not feel bound by ICE’s Guide in this determination.

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, partner-in-charge of Immigration Practice, King & Ballow, LLP.]

The U.S. Immigration and Customs Enforcement (ICE) issued Notices of Inspection (NOIs) to a number of employers on November 4, 2011. ICE will not release the number of NOIs, though it is believed to be about 500, or the names and locations of the businesses served with NOIs.

If your business was not targeted, count yourself lucky. If your business is served with a NOI, what should you do and what will happen during the inspection/investigation? Having represented clients in several ICE audits in past few years, here are my thoughts and insights.

The NOI, which begins the ICE audit, is hand-delivered by an ICE agent of Homeland Security Inspections (HSI) to the business with a demand to inspect the I-9 records plus other employment-related records, such as payroll records, Social Security no-match letters, and a list of related companies. An employer has three days to comply with the NOI and should never provide the requested records upon initial receipt of the NOI. Sometimes ICE is willing to provide more than three days, if requested. An employer should contact their immigration counsel immediately upon being served with a NOI.

During the period between the delivery of the NOI and the deadline to provide the I-9s and other records, the employer and immigration counsel have the opportunity to determine if all of the employees’ I-9s are in order and, if not, make any necessary corrections/additions plus determine whether all employees have proper work authorization. During these three days, the employer’s HR manager (or whoever is in charge of immigration compliance for the employer) and immigration counsel will be spending a lot of time together. You should delegate the gathering of non-I-9 related records to another management official besides the one in charge of I-9s.

ICE will then return to the employer’s facility and remove the I-9s and related records or the employer and counsel must hand-deliver them to the local ICE office. (Employers should always make copies of the I-9s before providing ICE with the original I-9s.) At this point, the I-9s are sent to an ICE auditor.

Following the audit, which may take 2 to 18 months, ICE will provide a Notice of Suspect Documents, if applicable. This notice lists the names of all employees who could not be authenticated as having valid work authorization. At this point, the employer must give notice, in writing or verbal, to each affected employee and provide him or her with an opportunity to correct any mistakes, provide proper work authorization documents, or assert ICE made a mistake. The employer then provides such documents or assertions to ICE for their review. If an affected employee does not comply, the employer should terminate the employee.

Moreover, if the employer terminates the affected employees after providing notice and an opportunity to provide new documentation, an employer will not be subject to any fines or penalties for knowingly employing unauthorized workers – unless ICE discovers other evidence that the employer was aware of the affected employee’s illegal status. The fact that the employer hired an illegal alien, who provided a false A number, permanent resident card, work authorization document or Social Security number, is insufficient to prove the employer knowingly hired any illegal aliens.

Thereafter, ICE will provide the employer with a Notice of Technical or Procedural Failures and the underlying I-9s that have such errors. The employer has 10 days to correct the technical errors. If they are correctable and corrected, ICE will not issue any fines for these violations.

The final step in the audit is a “Notice of Intent to Fine” for substantive and uncorrected technical violations and/or for “knowingly employing” illegal aliens. Additionally, “knowingly employing” illegal aliens’ charges carry possible criminal indictments. An employer has 30 days to agree to pay the fines, reach a resolution on the amount of the fines or challenge the determination before the Office of Chief Administrative Hearing Officer (OCAHO).

Before ICE comes knocking at your door, your business should develop an immigration compliance program, which includes a self-audit of your I-9s, training for applicable management, draft and implement immigration compliance policies, including whether to use E-Verify.

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 Patrol.]

Taps for E-Verify in CA?

On October 9, 2011, Governor Jerry Brown signed into law A.B. 1236. A.B. 1236 prohibits local governments from making E-Verify mandatory for employers within their borders.

Here is the full text of the bill: A.B. 1236

As part of the bill, the Legislature made a number of interesting findings:

1) A 2007 independent evaluation commissioned by the federal Department of Homeland Security found that the electronic employment verification database was still not sufficiently up to date to meet requirements for accurate verification. This has led to employers being unable to hire employees in a timely manner and kept workers from earning wages.

2) Mandatory use of an electronic employment verification program would increase the costs of doing business in a difficult economic climate. The United States Chamber of Commerce estimates that the net societal cost of all federal contractors using the E-Verify Program would amount to $10 billion a year, federally.

(3) California businesses would face considerable odds in implementing such a program. Employers using the program report that staff must receive additional training that disrupts normal business operations. If E-Verify had been made mandatory for all [California] employers in 2010, it would have cost businesses $2.7 billion, $2.6 billion of which would have been borne by the small businesses, which drive our economy.

Cities such as Temecula, Lancaster, Murrieta, and Lake Elsinore did have existing E-Verify ordinances requiring private employers to use E-Verify. After A.B. 1236, these ordinances are now null and void.

Under A.B. 1236, therefore,except as required by federal law, or as a condition of receiving federal funds, neither the state nor a city, county, city and county, or special district shall require an employer to use an electronic employment verification system, including under the following circumstances:

(a) As a condition of receiving a government contract.

(b) As a condition of applying for or maintaining a business license.

(c) As a penalty for violating licensing or other similar laws.

“Employer” means an employer other than the state, or a city, county, city and county, or special district. Local government entities may still require other government entities to use E-Verify under A.B. 1236, and as required by federal law, or as a condition of receiving federal funds.

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 Patrol.]

On Wednesday, October 26, DHS Secretary Janet Napolitano testified before the United States House of Representatives Committee on the Judiciary. E-Verify was one of several topics in Secretary Napolitano’s testimony.

Here is the link to the entire DHS testimony:  NAPOLITANO

Highlights of Secretary Napolitano’s testimony include the assertion that USCIS has continued to improve E-Verify’s accuracy and efficiency, enhance customer service, and reduce fraud and misuse in a number of additional ways.  In addition, the Secretary points out that in March of this year, USCIS launched the new E-Verify Self-Check feature, an innovative service that allows individuals in the United States to check their own employment eligibility status before formally seeking employment.  Here is the portion of the testimony where Secretary Napolitano directly discusses E-Verify and Worksite Enforcement:

Worksite Enforcement and E-Verify

“DHS has implemented a smart and effective approach to worksite enforcement. By focusing on employers who knowingly and repeatedly hire illegal labor, we are targeting the root cause of illegal immigration, utilizing robust Form I-9 inspections, civil fines, and debarment, and enhancing compliance tools like E-Verify. Since Fiscal Year 2009, ICE has audited more than 6,000 employers suspected of hiring illegal labor, debarred 441 companies and individuals, and imposed more than $76 million in financial sanctions—more than the total amount of audits and debarments during the entire previous administration. In Fiscal Year 2011, ICE also criminally arrested 221 employers accused of violations related to employment, an agency record. In short, our approach to worksite enforcement has been working, and has been successful at bringing employers into compliance with the law.

As a corollary, we have strengthened the efficiency and accuracy of E-Verify – our web-based employment verification system managed by U.S. Citizenship and Immigration Services (USCIS) and designed to assist employers in complying with the law. As of Fiscal Year 2011, more than 292,000 employers have enrolled in E-Verify, representing more than 898,000 locations. More than 1,000 new employers enroll each week and the number of employers enrolled in E-Verify has more than doubled each fiscal year since 2007. In Fiscal Year 2011 alone, E-Verify processed 17.4 million employment queries.

In March of this year, USCIS launched the new E-Verify Self-Check feature, an innovative service that allows individuals in the United States to check their own employment eligibility status before formally seeking employment. This voluntary, free, fast, and secure service gives users the opportunity to submit corrections of any inaccuracies in their DHS and Social Security Administration records before applying for jobs, thereby making the process more efficient for employees and employers. The Self Check service is currently available in both English and Spanish to users who maintain an address in 21 states and the District of Columbia. Self Check will be available nationwide by March 2012.

USCIS has continued to improve E-Verify’s accuracy and efficiency, enhance customer service, and reduce fraud and misuse in a number of additional ways. To improve E-Verify’s accuracy, USCIS reduced mismatches for naturalized and derivative U.S. citizens by adding naturalization data and U.S. passport data to E-Verify. Because of this enhancement, in Fiscal Year 2011, more than 80,000 queries that previously would have received an initial mismatch requiring correction at the secondary verification stage were automatically verified as employment authorized. In June 2010, E-Verify launched improved navigational tools to enhance ease-of-use, minimize errors, and bolster compliance with clear terms of use. USCIS also has increased its staff dedicated to E-Verify monitoring and compliance, adding 80 staff positions to support monitoring and compliance since the beginning of Fiscal Year 2010. Finally, to more effectively address identity theft, USCIS now allows for the verification of passport photos through the E-Verify system.”

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.

Share this with your network: