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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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.]

"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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[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 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.]

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.

Share this with your network: