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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The U.S. Immigration and Customs Enforcement (“ICE”) has issued yet another round of I-9 inspection notices to as many as 1,000 businesses located throughout the United States. Initially reported by the Associated Press, this announcement is another clear example of what has widely come to be known as the current administration’s “quiet immigration raid” policy. Instead of the high-profile immigration raids of years past, ICE has been focusing more on more on targeting employers (to the tune of 1000s) through the use of Form I-9 audits and investigations of their hiring practices.

Although ICE declined to name specific companies to be included in this round of audits, the AP is reporting that according to an ICE statement, “The inspections will touch on employers of all sizes and in every state in the nation, with an emphasis on businesses related to critical infrastructure and key resources.” You can read this Wall Street Journal article for additional insight here.

Recent I-9 Audits Numbers: The Trend is Clear

According to various reports, this latest batch of  inspections will bring the total number of ICE I-9 audits to 2,338 so far for this fiscal year, which already exceeds ICE’s record-breaking I-9 audit total of 2,196 from fiscal 2010 where average audit fines exceeded $110,000.

Recently, we attended a workforce symposium in the San Francisco Bay Area where representatives from ICE, the Department of Labor, and the Department of Justice all spoke about their agency’s efforts to determine whether businesses are violating U.S. employment laws by hiring unauthorized workers and what step their respective departments are taking to discourage such hiring practices. The ICE agent stated that I-9 audits are the key ICE initiative on this front. The agent also warned that one of the agency’s enforcement goals was to have the resources in place to handle 10,000 annual I-9 audits by the beginning of next year. Given ICE’s current pace, this goal seems achievable.

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

First, companies should consider conducting a preemptive internal 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 internal 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. Of course, employers should always consider the need for involving informed counsel on your employment and immigration issues.

I-9 Auditing Overview

Over the past year, we published several articles on the I-9 audit process, including potential fines. For your convenience, here are links to these various resources.

• DHS announces 1,000 new I-9 audits nationwide (February 2011)
• DHS memo sets out new I-9 enforcement strategy
• Anatomy of an I-9 Subpoena
• DHS releases I-9 penalty schedule and overview of inspection process
• The New I-9 Audit: A “Quiet” Immigration Raid

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.

This week, the U.S. Citizenship and Immigration Services (USCIS) announced a final rule that adopts, without change, an interim rule from April 3, 2009 that changed the Department of Homeland Security regulations governing the acceptable documents for completing the Employment Eligibility Verification (Form I-9) process.

Since the final rule does not differ from its predecessor, employers should already be familiar with the main changes made by the interim rule, including:  “prohibiting employers from accepting expired documents; revising the list of acceptable documents by removing outdated documents and making technical amendments; and adding documentation applicable to certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands.” These as well as other government guidelines for how to complete the Form I-9 can be found in the M-274 Handbook for Employers.

The final rule in its published form, available here, is about a 29 page document, and only the first six pages detail the regulatory changes. The remaining pages are largely dedicated to reviewing and responding to comments submitted by the public. Many of these comments are similar to some of the suggestions poised at a recent Form I-9 stakeholders meeting for how to improve the Form I-9 or its process.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

The enforcement arm of the Department of Homeland Security, aptly named the U.S. Immigration and Customs Enforcement (“ICE”), recently publicized that they will issue a new batch of I-9 inspection notices to as many as 1,000 businesses located throughout the United States.

So, why is this important?

As initially reported by the Wall Street Journal, this announcement is yet another example of what people are calling the Obama administration’s “quiet immigration raid” policy. Instead of the high-profile immigration raids of years past, ICE has been focusing less on rounding up illegal workers and more on targeting unscrupulous employers through the use of Form I-9 audits and investigations of their hiring practices. Last month ICE announced the establishment of a new employment compliance inspection center and it appears they plan on putting these new resources to work. You can read the full WSJ article here.

As we previously reported, ICE released a worksite enforcement memo which details the most common reasons why a company might receive an audit, as well as who can be targeted.  Frequently, ICE investigates companies based upon an employee or public whistleblower complaint.

Although ICE declined to name specific companies to be included in this rounds of audits,  according to their statement, “The inspections will touch on employers of all sizes and in every state in the nation – no one industry is being targeted nor is any one industry immune from scrutiny.”

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

First, companies should consider conducting a preemptive internal 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 internal audit you will want to implement a trustworthy electronic management 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. Of course, employers should always consider the need for involving informed counsel on your employment and immigration issues.

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 not act upon it without consulting legal counsel as individual situations and facts may vary.

As of April 3, 2009, all U.S. employers must use a new version of the Form I-9 (dated 2-2-09), to verify the work eligibility of new hires. Here’s what you need to know about the new form:

Employers can no longer accept expired documents

Previously, the U.S. passport and all List B documents were acceptable, even if expired.

This latest version of the I-9 form includes a revised “List A” set of documents

List A documents are those that establish both a worker’s identity and employment authorization. The following documents have been added: Foreign passports containing the I-551 permanent residence notation printed on a machine-readable immigrant visa; the new U.S. Passport Card; passports and certain other documents for citizens of the Federated States of Micronesia and the Republic of the Marshall Islands.

Certain documents have been removed from List A

The following documents have been eliminated from List A: Forms I-688 (temporary resident card) and the I-688A and I-688B (Employment Authorization Cards) which are no longer issued.

Several changes were also made to Section 1 of the I-9 form

Section 1 is where the employee provides biographic information and attests to his or her employment status. In particular, the form has been revised to include a separate section for non-citizen nationals of the U.S., such as persons born in American Samoa; certain former citizens of the former Trust Territory of the Pacific Islands; and certain children of noncitizen nationals born abroad.

The new form is available on the USCIS web site here: http://www.uscis.gov/i-9.

As before, the new I-9 form can be completed electronically

Employers should consider switching over to an electronic I-9 solution, such as Tracker I-9 , which offers built-in compliance rules and peace of mind in knowing that you’re always using the latest version of the I-9. More information on Tracker I-9′s lastest release was published on Friday.

According to the recently released data from the U.S. Citizenship and Immigration Services (USCIS), more than 100,000 U.S. employers are now participating in the Federal Government’s online eligibility verification program, known as E-Verify. The Internet-based system, operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA), allows participating employers to electronically verify their employees’ eligibility to legally work in the United States. USCIS administers the program.

While the use of E-Verify continues to be voluntary for most U.S. businesses, recent legislative and executive branch actions at both Federal and state level suggest a growing trend to make participation in E-Verify mandatory for more categories of employers. The latest group to be affected by these changes are Federal contractors and subcontractors.

USCIS reported that for FY2009 to date, more than 2 million employment verification queries have been run using E-Verify.  During FY2008, approximately 6.6 million employment verification queries were processed (as compared to a total of 3.27 million in all of FY2007).   The Department of Homeland Security’s FY2009 appropriation legislation, signed into law on Sept. 30, 2008, provided $100 million to continue, expand and improve E-Verify in FY2009.

In a move likely to vastly increase employer participation in the program, Federal contractors and subcontractors will be required to begin using E-Verify starting February 20, 2009. Several states already mandate its use for employers receiving state contracts or grants.  While some businesses welcome E-Verify as a useful tool to keep their workforce legal, business and civil rights groups tend to oppose mandatory employment verification requirements. Legal challenges have delayed but did not stop the planned implementation of the new rule affecting Federal contractors and subcontractors.

State-specific E-Verify laws are detailed and complex. Employers can request a free E-Verify and Form I-9 HR Toolkit from the Tracker I-9™ website to help you to manage these new requirements.
Tracker Corp has recently released the latest version of its Form I-9 software, which includes the option of selective use of E-Verify among multiple worksites and for individual employees to meet the latest requirements for Federal and state contractors. Backed by a staff of accomplished attorneys and software designers, Tracker I-9™ offers the most secure solution to electronically prepare, sign, store and manage I-9 forms while complying with the latest E-Verify rules.

Today, the parties to the recent lawsuit challenging the E-Verify Federal Contractor Rule announced that the government had agreed to postpone the implementation date until February 20, 2009. The E-Verify Federal Contractor Rule had been slated to take effect on January 15, 2009, requiring federal contractors and subcontractors to enroll and use E-Verify for all new hires as well as existing employees who directly perform work under the federal contract or subcontract. A notice announcing the suspension will most likely be published in the Federal Register early next week.

According to this latest agreement, federal contracting agencies will not be required to include the E-Verify clause in any contracts awarded or solicitations issued prior to February 20th. In the meantime, the plantiffs in the lawsuit will file expedited briefs with the court in support of their argument that the regulations should not be implemented at all. It remains to be seen whether the court will issue a ruling prior to February 20, 2009, the new implementation date.

Today, the U.S. Chamber of Commerce and several other organizations filed a federal lawsuit challenging the legality of requiring federal contractors and sub-contractors to use E-Verify. Among other things, the plaintiffs argue that the practical difficulty of identifying which employees are covered by the requirements, as well as the potential that its violation may result in suspension or debarment will force many employers to electronically “reverify” all of their existing employees hired after November 6, 1986. This will then increase the likelihood that many employers will face expensive and time-consuming lawsuits brought by individuals who believe they have been discriminated against on the basis of race and/or national origin.

The Chamber and co-plaintiffs also allege that the regulations violate existing law, exceed statutory authority, constitute improper rulemaking by the Executive Branch, and fail to account for the significant costs to employers who, must replace workers who become unauthorized to work solely by operation of the E-Verify requirements. The government had estimated that for fiscal year 2009 alone, employers’ startup and training costs for complying with the E-Verify Federal Contractor requirements would total $188,138,945.

The lawsuit seeks an injunction, preventing the government from enforcing the E-Verify rule and a declaration that President Bush’s executive order is illegal and invalid.

Today, the interim final rule revising the Form I-9 and list of acceptable documents was published in the Federal Register with an effective date of February 2, 2009. As previously reported , the new rule calls for minor changes to the Form I-9, revises the list of acceptable documents and stipulates that employers can no longer accept expired documents. The entire rule is available online in PDF and also includes an “informational” or sample copy of the new Form I-9 that will be made available to employers on the USCIS web site. Until the new rule goes into effect, employers should continue using the currently valid June 5, 2007 version.

The Department of Homeland Security (DHS) has published the long-awaited final rule on the use of E-Verify by federal contractors and subcontractors, which will take effect starting Jan. 15, 2009. The substance of the rule is mostly the same as what was initially proposed in June 2008, although the DHS has limited its overall use by stipulating that it will only apply to federal contracts with a period of performance longer than 120 days and value above $100,000. As before, it will not apply to contracts for commercial off-the-shelf items (those offered to the government without modification, in the same form in which they are sold in the marketplace).

Those employers affected by the rule will need to use E-Verify for all new hires as well as existing employees who will directly perform work under the federal contract. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. Within 90 days from the date of enrollment, contractors must begin to initiate verification queries for employees already on staff who will be working on the contract and begin using the system to verify newly hired employees.

The following is a summary of some of the main points of the final rule:

• The final rule amends the Federal Acquisition Regulation and requires Federal contractors to use E-Verify for all new hires as well as existing employees who will directly perform work under the federal contract.
• The rule requires the insertion of the E-Verify clause for prime federal contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold ($100,000).
• The rule only covers subcontractors if a prime contract includes the clause.  For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000.
• When a contractor wins the bid on a federal contract that contains the FAR E-Verify clause, the contractor and any covered subcontractors on the project are required to enroll in the E-Verify program within 30 calendar days of the contract or subcontract award date.
• Within 90 days from the date of enrollment, contractors must begin to initiate verification queries for employees already on staff who will be working on the contract and begin using the system to verify newly hired employees.
• Institutions of higher education, state and local governments, and Indian tribes will be only be required to E-verify existing or new employees assigned to work under a federal contract; they do not have to use E-Verify to verify the work eligibility of all new hires.
• The rule applies only to employees working in the United States, which is currently defined to include the fifty States and the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands.

The United States Citizenship and Immigration Services (USCIS) has posted an FAQ and a Fact Sheet which provides more information. The entire rule is available for viewing on the Federal Register Web site in PDF format.