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I-9 E-Verify Immigration Compliance

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  1. California’s New Law Requiring Employee Notification of ICE Audits and More

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The State of California has a new law, “The Immigrant Worker Protection Act” (AB 450), which requires employers to notify its employees by written notice within 72 hours of Notice of Inspection (NOI) of I-9 records and to notify its employees, individually, of the results of the I-9 audit by Immigration and Customs Enforcement (ICE) within 72 hours of receiving the results of the NOI. Concerning these notifications, the Labor Commissioner is required to develop a template.

    The new California law also requires ICE agents to provide a judicial warrant to employers to access non-public portions of worksites. Thus, employers may not simply consent for ICE to have access to non-public portions of the worksite. The new law does not restrict ICE from providing a NOI to an employer demanding the employees’ I-9 forms within three days of service of the NOI and the employer being required to honor it. Additionally, employers are prohibited from sharing confidential employee information, such as Social Security numbers, unless required to do so in a NOI or provided a judicial warrant.

    The penalty for a first offense is $2,000 to $5,000 and for each subsequent violation - $5,000 to $10,000. The enforcement of these penalties is under the exclusive authority of the Labor Commissioner or California Attorney General. Thus, employers or employees may not seek enforcement of the statute.

    The question that I have with this legislation is whether any of it is preempted under federal law, Immigration Reform and Control Act (IRCA). Under federal law, when ICE wants to inspect an employer’s I-9 forms, it issues a Notice of Inspection and usually an administrative subpoena. I don’t believe the portions of the legislation concerning notifying workers would be preempted by federal law. It’s unclear whether restricting access to non-public portions of the worksites is preempted.

    I will keep you updated on any litigation over this new state law. For a review of all employment and immigration-related state laws and other issues related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.
  2. Asplundh Tree Experts Agrees to pay $95 Million for Illegal Hiring

    BY: Bruce Buchanan, Sebelist Buchanan Law

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    Asplundh Tree Experts has agreed to pay $95 million concerning the employment of undocumented workers. This is the largest monetary penalty ever levied by Immigration and Customs Enforcement (ICE) in an immigration case. Based on Asplundh Tree Experts Company’s guilty plea in federal court, the Court imposed a sentence of $80 million forfeiture money judgment. Pursuant to a separate Civil Settlement Agreement, Asplundh will pay an additional $15 million dollars to satisfy civil claims arising out of their failure to comply with immigration law.

    Asplundh, an industry leader in tree trimming and brush clearance for power and gas lines, headquartered in Willow Grove, Pennsylvania, pleaded guilty to unlawfully employing aliens, regarding a scheme in which the highest levels of Asplundh management remained willfully blind while lower level managers hired and rehired employees they knew to be ineligible to work in the United States.

    Court documents show the hiring system was developed after a 2009 I-9 inspection by Homeland Security Investigations (HSI), which revealed Asplundh employed workers who were ineligible to work in the country. Asplundh fired at least 100 of them, but a regional manager, Larry Gauger, later instructed supervisors to hire some of them back by accepting fake forms of identification, including permanent resident cards or Social Security cards. Gauger knew the dismissed employees within his region were being re-hired under different and false names and false identity documentation and encouraged his supervisors and general foreman to continue this practice.

    Thereafter, the investigation revealed Asplundh decentralized its hiring so Sponsors (the highest levels of management) could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers, including unauthorized aliens, in the field. Hiring was by word of mouth referrals rather than through any systematic application process. This manner of hiring enabled Supervisors and General Foremen to hire a work force that was readily available. This decentralized model tacitly perpetuated fraudulent hiring practices that, in turn, maximized productivity and profit.

    The amount of the $80 million forfeiture was determined by a review of Asplundh’s payroll, which showed the employment of thousands of undocumented immigrants over four years. Asplundh had a workforce of approximately 30,000. Investigators determined that Asplundh used the fraudulent techniques to hire at least 10 percent of its workforce — or about 3,000 to 4,000 workers — in a four-year span, and earned $800 million in profits during that stretch. The presiding Judge, Josh A. Davison, said the idea of a forfeiture is to seize illegal gains, so the government reasoned that the illegally hired 10 percent of the workforce generated 10 percent of the profits. Thus, 10% of $80 million is $80 million.

    Prior to the company’s guilty plea, regional manager Gauger has pleaded guilty and is scheduled to be sentenced in October 2017, along with two supervisors, Juan Rodriguez and Jude Solis, who pleaded guilty in the same conspiracy.

    This case is another example of the U.S. government cracking down on employers who violate the immigration laws.
  3. Asplundh Manager & Supervisors Charged with hiring Undocumented Workers

    By: Bruce Buchanan, Sebelist Buchanan Law, PLLC

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    Federal prosecutors charged three managers/supervisors of Asplundh Tree Expert Inc. with conspiring to hire undocumented workers using false identification and Social Security numbers. Asplundh, a nationwide company, removes brush and vegetation from electric and gas lines.

    In 2009, Asplundh had their I-9 forms audited by Immigration and Customs Enforcement (ICE). The ICE audit determined over 100 employees were undocumented; thus, Asplundh fired the employees.

    After the ICE audit of Asplundh’s I-9 forms, prosecutors allege workers, fired for being undocumented, were rehired under false identities. Larry Gauger, a regional manager charged with conspiracy, "instructed management that it would have 'plausible deniability' as to the fraudulent hiring because even though the employees' Social Security numbers did not truly belong to these employees, the employees' proffered Social Security numbers would be positive matches in the E-Verify database." Jude Solis and Juan Rodriguez, supervisors for Asplundh, were also charged with conspiracy and fraud.

    These indictments are clear proof that knowingly hiring undocumented workers can have criminal consequences. This is especially so when you assist the undocumented workers to obtain fake ID.
  4. Missing Deadline for Providing I-9s to ICE is Costly

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    OCAHO’s recent decision in U.S. v. Alpine Staffing, Inc., 12 OCAHO no. 1303 (May 2017), demonstrates how untimely presentation of I-9 forms can be costly to an employer.

    Alpine Staffing is a small staffing company in Minnesota. It received a Notice of Inspection (NOI) on August 23, 2013 informing the company that it needed to present all of its I-9 forms for current employees and former employees for the past 2 years by August 29, 2013. On that date, Alpine Staffing delivered many I-9 forms to ICE. The following day Alpine Staffing discovered 271 additional I-9 forms. It immediately delivered the additional I-9 forms to ICE. On October 1, 2013, the company discovered another 39 Forms I-9 and thereafter delivered those to ICE.

    After a review of the I-9 forms, ICE issued a Notice of Intent to Fine (NIF) and then a Complaint which alleged in Court I – failure to timely present or prepare 345 Forms I-9 and Court II – company failed to ensure 132 employees properly completed Section 1 of the I-9 form and/or the company failed to properly complete sections 2 or 3 of the I-9 forms. ICE sought $367,000 in penalties.

    Alpine Staffing’s principal defense was it was unaware of a specific deadline for presentation of I-9 forms to ICE. However, this defense was belied by the fact that they presented numerous I-9 forms on August 29, 2013, the date that ICE stated the I-9 forms were due. Thus, OCAHO found all I-9 forms delivered after August 29, 2013 were untimely presented.

    OCAHO affirmed ICE’s assessment of $770 per I-9 form for the 34 instances of failure to prepare an I-9 form for those employees. However, OCAHO gave Alpine Staffing a break on the untimely presented I-9 forms. For those presented a day late, OCAHO set a penalty of $500 each, rather than $770. For those I-9 forms delivered at a later date, OCAHO set a penalty of $600 each, rather than $770. Overall, the penalty assessed for the failure to prepare or untimely present I-9 forms was set at $185,000. ICE had sought $256,000. Concerning the 130 Court II violations, OCHAO reduced the penalty from $770 to $700 per I-9 violation. Overall, OCAHO assessed penalties of $276,000. Thus, Alpine Staffing received a reduction of about 25% in penalties.

    This decision shows the importance of locating and providing all I-9 forms covered by the NOI by the deadline. The company’s error appears to be caused by the fact that their I-9 forms were not kept in one location. It is certainly best to keep all a company’s I-9 forms in one location at the company’s facility.

  5. Year in Review: 2016 OCAHO Decisions

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    No employer wants to receive the dreaded “Notice of Intent to Fine” (NIF) in connection with an audit of their I-9 forms. Dealing with an I-9 inspection alone is a costly affair, but the NIF can be downright crippling – particularly for small businesses. Fortunately, employers can appeal an adverse I-9 decision by requesting a hearing with the Office of Chief Administrative Hearing Officer (OCAHO), an administrative court that reviews employer sanctions cases under §274A of the Immigration and Nationality Act.

    Although OCAHO decisions adjudicating I-9 penalties have leveled off in the past few years, it is anticipated there will be many more decisions in future years as the number of Form I-9 inspections is on the rise in the Trump administration and, as shown below, employers continue to obtain significant decreases of I-9 penalties at OCAHO.

    In calendar year 2016, OCAHO issued 16 substantive decisions against employers in I-9 penalty cases. For a few employers, there were two or more decisions concerning substantive issues before the court reached a decision on the amount of the I-9 penalties. The number of cases is a slight increase from 2015, when there were 13 decisions but still much lower than the 30 decisions issued in 2013.
    For remainder of article go to LawLogix website where full article is published - https://www.lawlogix.com/the-year-in...sions-in-2016/.
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