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 continuing trend of higher fines and forfeitures, the U.S. Attorney’s Office and U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) announced ABC Professional Tree Services Inc. (ABC) had agreed to pay $2 million as forfeited funds to the Department of Homeland Security and adhere to revised immigration compliance procedures in return for the government agreeing not to criminally prosecute the company.

ABC is a Houston-based company that provides right of way vegetation management for electric utilities in more than a dozen states. ICE-HSI agents, in Birmingham, Alabama, began investigating ABC in early 2008 following complaints that a significant portion of the company’s employees were undocumented aliens. In March 2008, agents conducted traffic stops on ABC crews and detained employees, who were determined to be unlawfully present in the United States.

In June 2008, ICE-HSI agents reviewed the I-9 forms and supporting documentation for about 2,500 employees at ABC. The inspection revealed a significant number of employees had presented invalid personal identification documents, such as permanent resident cards, work authorization cards, and driver licenses, at the time of hire. As of the second quarter of 2009, about 30 % of the workforce was determined by ICE to be undocumented workers.

On March 4, 2010, ICE-HSI agents executed a search warrant at ABC’s Houston headquarters seizing employment and personnel records. Additionally, agents detained undocumented workers, who were on site at the headquarters. More undocumented ABC employees were detained during a traffic stop in Birmingham on that same day.

The government’s investigation revealed ABC had ignored federal law for years, by falsely attesting on I-9s that work authorization documents presented by new hires appeared genuine. In addition, for several years, ABC had received “no-match letters” from the Social Security Administration (SSA) and similar information from the company’s payroll processor, both of which indicated employee names and Social Security numbers did not match SSA records. However, the company failed to take corrective measures, resulting in the continued employment of the undocumented aliens.

ABC derived at least $2 million in revenue from the provision of services to electrical utilities with its undocumented workforce from 2006 through 2011. This figure represents the amount of money that ABC agreed to forfeit to the government.

Since September 2008, ABC has used E-Verify to verify the employment eligibility of new hires. Beginning in the fall of 2008, the company also revised its immigration compliance procedures to include new policies concerning the proper completion, retention and auditing of I-9s and for responding to SSA no-match letters. Furthermore, ABC has terminated hundreds of undocumented workers.

Just in 2012, ICE-HSI has fined or agreed to forfeitures at the following companies or business executives in these amounts (only listing those of $100,000 or more): Atrium Companies – $2 million; Advanced Containment Systems Inc. (ACSI) – $2 million; HerbCo – $1 million; Sun Drywall and Stucco, Inc. – $225,000; two executives of LTCI Ltd. – $223,000; and J & J Industrial Supply – $150,000.

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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Last week, Immigration and Customs Enforcement (ICE) made public its 5-year strategic plan for FY 2010-14, which lays out the agency’s priorities on three homeland security missions: (1) preventing terrorism and enhancing security; (2) securing and managing our borders; and (3) enforcing and administering our immigration laws.

Looking more closely at the document, it becomes clear that one of ICE’s top objectives is to continue its worksite enforcement program and hold employers accountable for their hiring practices. The following excerpt from page five of the document details ICE’s stated efforts to address illegal employment and “Create a Culture of Employer Compliance:”

The opportunity to work in the United States motivates many to seek illegal entry. Therefore, enforcing the immigration-related employment laws is a critical component of border security. To create a culture of compliance among employers, ICE will use the following two-pronged strategy: (1) aggressive criminal and civil enforcement against those employers who knowingly violate the law; and (2) continued implementation of programs, such as E-Verify and ICE’s IMAGE program, to help employers comply. Criminal investigations will increasingly focus on employers who abuse and exploit workers or otherwise engage in egregious conduct. To support a meaningful civil audit program, ICE will hire additional auditors and centralize some auditing functions. Through the “I E-Verify” campaign, ICE will work with U.S. Citizenship and Immigration Services (USCIS) to increase public support for companies that use compliance tools. Finally, ICE will seek better statutory tools to address illegal employment.

In an atmosphere of increased worksite enforcement in the coming years, it will be more important than ever for employers to review their own internal hiring practices and procedures, including the completion and retention of the Form I-9. Tracker Corp has many freely available I-9 resources to get you started, while also introducing you to a more efficient and effective compliance tool.

The entire seven page strategic plan is available below.

ICE Strategic Plan 2010

The US Department of Energy (DOE) has released an I-9 inspection report of its Savannah River Operations Office in South Carolina, which found that several subcontractors were not verifying employment eligibility in accordance with federal law. The DOE conducted the inspection to determine if site subcontractors (which total over 800) were properly verifying the employment status of their employees, many of whom access the site, which is co-located with the National Nuclear Security Administration (NNSA). During the investigation, the DOE reviewed 600 Form I-9s from 21 subcontractors and conducted a judgmental sample of individuals who accessed the site during a six month period. In particular they found that:

• Four contractors failed to use the Form I-9 at all. When interviewed, the subs stated they were unaware of the I-9 requirement.
• Twenty-two percent (136) of the 600 I-9 Forms obtained from the sample of 21 site subcontractors were missing key elements, including Section 1 and Section 2 signatures as well as Section 2 documents. When questioned regarding the incomplete documentation, several of the subcontractors explained that they lacked proper oversight procedures to prevent mistakes.
• Three subcontractors utilized E-Verify, while several others used “other internet-based databases” to spot discrepancies. One of the subcontractors using E-Verify noted that they only give employees 3 days to correct discrepancies.

As a result of the investigation, the DOE notified the NNSA and the Savannah River Operations Office and issued the following recommendations:

1. Ensure contractors establish a method to notify existing and future subcontractors to comply with federal requirements related to employment verification; and
2. Develop a process to notify contractors of the E-verify system.

According to the report (available in its entirety here), the site management concurred with all of the recommendations.

In a press release issued yesterday, ICE is reporting that George’s Processing Inc., a southwest Missouri poultry-processing plant, has paid a $450,000 administrative fine as a result of a worksite enforcement investigation conducted by ICE in 2007. As part of the settlement agreement, George’s has agreed to train its human resource managers and employees on proper Form I-9 procedures, and to establish a compliance program to ensure that its hiring and employment practices are in order.

The May 2007 enforcement action at George’s poultry plant led to administrative arrests of 136 undocumented workers, some of whom were later prosecuted for various immigration violations, including falsely claiming U.S. citizenship. Two of the company’s hiring personnel were subsequently convicted of criminal charges for knowingly hiring the undocumented workers.

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

The Atlanta Journal-Constitution reports that companies are becoming more concerned about their I-9 and document review processes in light of increasing audits by ICE. As a result, many businesses are contacting their immigration counsel for advice or to request an external audit. Many immigration law firms will conduct I-9 audits and assist in developing proper employer-wide I-9 protocols going forward, including the use of electronic I-9 software.

Before contacting counsel, employers should review their own internal procedures and decide if a formal review is necessary. Tracker Corp maintains a library of useful I-9 and E-Verify resources to get you started, including PowerPoint training slides, best practices, and a sample compliance program.  These items can be downloaded or requested here.

This week, ICE Assistant Secretary John Morton reiterated DHS’ commitment to I-9 and worksite enforcement during several “pen and pad” sessions with Southern California reporters. According to the Wall Street Journal, Mr. Morton announced that ICE intends to increase the number of companies it will audit and systematically impose fines on violators. From the WSJ article: “You are going to see audits regularly and on a larger scale,” Mr. Morton said during a two-day visit to southern California, his first since being appointed four months ago. “You will see the resuscitation of…civil fines.”

In related news, two Directors from the family-owned Yamato Engine Specialists pleaded guilty today to federal charges of aiding and abetting the use of a false statement on immigration forms. As previously reported, 28 workers were arrested for working unlawfully for the manufacturer. In their pleas, the directors admitted that they knew workers at the company submitted false names and social security numbers on the I-9 forms but took no steps to deter the practice. According to the plea agreement, Yamato Engine Specialists is expected to pay a significant fine in connection with the case. For more information, you can read the ICE press release.