E-Verify & I-9 News

A $50,760 settlement by the DoJ against Brand Energy and Industrial Services and its subsidiary, Industrial Services LLC (ISI), a Louisiana company, proves the need for careful understanding of and adherence to Form I-9 documentation rules and best practices.  According to their press release, Justice Department Settles Allegations of Employment Discrimination by Louisiana Industrial Services Company, the settlement resolved “allegations that ISI  engaged in a pattern or practice of discrimination against non-citizens in the hiring and employment eligibility verification process.”

This case involved the company’s termination of an employee–who was an immigrant authorized to work in the U.S.–after he could not comply with ISI’s request to provide specific employment eligibility documents, a request that went beyond what’s  required by law. According to the press release, the DoJ found that one of ISI’s offices would only accept documentation issued by the Department of Homeland Security from non-immigrants for the purpose of verifying employment authorization, whereas U.S. citizens and other non-immigrant employees were not asked to produce specific I-9 documentation.

The Immigration and Nationality Act’s (INA’s)  prohibits employers from discriminating against work-authorized employees during the hiring and employment eligibility verification process. When completing a Form I-9, the rules clearly state that “Employers are not permitted to request more or different documents than are required or to refuse to honor documents tendered that reasonably appear to be genuine and to relate to the individual presenting the document.”

The United States Citizenship and Immigration Services (USCIS) publishes The Handbook for Employers, Instructions for Completing Form I-9 (Rev. 06/01/2011), also known as the M-274, to provide guidance to employers on how to complete the Form I-9 . All HR staff or managers who complete I-9s should, at a minimum, familiarize themselves with this handbook. The handbook’s instructions for completing Section 2, as well as the instructions on the I-9 form itself, describe which List A or List B and C document combinations are acceptable. Of course, it’s always a good idea to consider consulting with an immigration attorney to make sure your I-9 processes and procedures are in compliance, especially when facing uncommon or unfamiliar employment eligibility documents. Using a good electronic I-9 system can also help prevent accidental over-documentation. A well-designed electronic I-9 system can provide automatic selections that ‘force’ proper Section 2 documentation choices, and lock in ONLY appropriate issuing authorities and documentation combinations.

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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As we previously reported, the government of Puerto Rico passed legislation that invalidates all Puerto Rican birth certificates issued before July 1, 2010. Recently, U.S. Citizenship and Immigration Services (USCIS) published guidance on accepting new Puerto Rico Birth Certificates for the purpose of completing the I-9 Process. Here are the key things that you need to know.

New Employees

Beginning Oct. 1, 2010, employers may only accept certified copies of Puerto Rico birth certificates that were issued on or after July 1, 2010. This means that if an employee presents a birth certificate issued by the Vital Statistics Office of the Commonwealth of Puerto Rico, the employer must look at the date the certified copy of the birth certificate was issued to ensure that it is valid.

Existing Employees

Employers must not re-verify the employment eligibility of existing employees who presented a certified copy of a Puerto Rico birth certificate for Form I-9 purposes prior to Oct. 1, 2010.

Federal Contractors

Employers awarded a federal contract that contains the Federal Acquisition Regulation (FAR) E-Verify clause may need to update an existing I-9 or complete a new I-9 before submitting the information to E-Verify.

• If completing new I-9s for existing employees, beginning Oct. 1, 2010, employers may only accept certified copies of Puerto Rico birth certificates that were issued on or after July 1, 2010. As noted above, employers must look at the date the certified copy of the birth certificate was issued to ensure that it is valid. Prior to October 1, 2010, employers with FAR contracts may accept all certified copies of Puerto Rico birth certificates when completing new I-9s.

• If updating existing I-9s, an employer must not ask an employee to present a new Puerto Rico birth certificate.

See the E-Verify Supplemental Guide for Federal Contractors for more information on E-Verify and FAR requirements.

Document Retention

Employers who choose to make photocopies of documents that their employees present when completing Form I-9 must do so for all employees, regardless of national origin or citizenship status.

The USCIS guidance, released on September 9, 2010, is available on their website.

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.

The Associated Press is reporting that Federal prosecutors have filed criminal charges against Yamato Engine Specialists, a manufacturing company in Bellingham, Washington, where 28 people were arrested during a raid by ICE in February. According to the AP, the company is being charged with conspiring to encourage undocumented workers to remain in the United States between 2006 and 2009. Prosecutors also charged two employees with allowing undocumented workers to file false employment forms with the government.

According to the original warrant application made available to us, ICE initiated the investigation against Yamato based on its arrest of two gang members who purportedly worked at the company. In August 2008, ICE subpoenaed the company for all I-9 forms, which showed that several employees had incorrectly presented themselves as lawful permanent residents by using another person’s alien registration number (A-Number). Other employees were shown to have presented A-Numbers and Social Security Numbers which had never been assigned.

Yamato maintains a press release on its web site indicating that it requires all prospective employees to present government required documents to prove that they are entitled to work in the US. Yamato also claims that their policy has been to hire people only if they meet the legal requirements for employment.

Today, ICE announced that Shipley Do-Nut Flour and Supply Company, a houston-based doughnut and catering company, was ordered to pay a criminal fine of $250,000 and forfeit $1.334 million to ICE for harboring undocumented workers.  The charges stemmed from a criminal investigation initiated by ICE in January 2008 which included interviews with former employees and a full audit of the company’s I-9 forms and SSA No-Match letters.

According to the press release, ICE agents administratively arrested 27 undocumented workers who lived in company-provided housing located at or near the warehouse. The agents also recovered 42 No-Match letters, which ICE claims placed the company “on notice” that the workers did not have valid Social Security numbers. The company subsequently plead guilty to the charges in September 2008.

John Morton, the newly appointed Assistant Secretary for ICE, recently spoke before the U.S. House of Representatives Committee on Homeland Security regarding the Fiscal Year 2010 Budget for ICE and operational priorities. In his speech, Mr. Morton emphasized that ICE is committed to worksite enforcement, and that he would continue to promote both criminal investigation of employers and the use of administrative tools such as Form I-9 audits and the imposition of “meaningful civil fines” as a deterrent. An April 2009 Fact sheet cited more than 5,100 administrative arrests in FY2008 for immigration violations, which represents a 30% increase over the previous year. ICE has also increased criminal arrests for owners, managers, supervisors, and HR employees who knowingly hire undocumented workers.

Source: http://www.ice.gov/pi/news/factsheets/worksite.htm

Mr. Morton also advocates E-Verify as a “valuable compliance tool” and promises to proactively partner with the private sector to train employers who want to avoid unwitting violations of the law. In a separate speech before an international employer group, Mr. Morton recognized that E-Verify’s 3% error rate could be improved, but insisted that it’s still a good working model and the best tool the government has at its disposal right now.