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I-9 E-Verify Immigration Compliance

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  1. Placement of STEM OPT Workers in Third-Party Client/Customer Sites is Barred

    By: Bruce Buchanan Sebelist Buchanan Law



    In a below the radar move, the USCIS has updated its webpage for Science, Technology, Engineering, or Mathematics (STEM) Optional Practical Training (OPT) to reflect a ban on the placement of STEM OPT workers at third-party client/customer sites. In doing so, the USCIS is relying upon a March 11, 2016 final rule amending regulations to expand OPT for students with U.S. degrees in STEM. The rule included new provisions to obtain a 24-month STEM OPT extension including, each STEM OPT student must prepare and execute with their prospective employer a formal training plan that identifies learning objectives and a plan for achieving training objectives, and the employer must agree to announced and unannounced Department of Homeland Security (DHS)/Immigration & Customs Enforcement (ICE) site visits to employer locations where STEM OPT students are employed.

    Although the new rule does not prohibit placement of students at third-party worksites, the USCIS states the DHS/ICE site visit provision is the basis for the new prohibition. USCIS’s website states:
    The training experience must take place on-site at the employer’s place of business or worksite(s) to which U.S. Immigration and Customs Enforcement (ICE) has authority to conduct employer site visits to ensure that the employer is meeting program requirements. This means that ICE must always have access to a student’s worksite; if the student is sent to different worksite locations as part of the training opportunity, ICE must be able to access such worksite locations. For instance, the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.

    The change in the website did not provide any explanation as to why DHS/ICE lacks the authority to conduct a site visit on the premises of a third-party client if that client site had been clearly listed on an approved Form I-983 training application. The Form I-983 training application sets forth that DHS may, at its discretion, conduct a site visit. It would be reasonable to conclude that by listing a third-party client site as the student’s work location on the I-983, that the worksite is open to a site visit by ICE.

    Why would the USCIS update its website with no prior notice and no opportunity for comment? Great question without an answer. Hopefully, DHS will provide an answer but don’t count on it. If they do, I will report in a future blog article.

    Updated 05-10-2018 at 09:29 AM by BBuchanan

  2. Bay Area Restaurants Fear ICE I-9 Audits

    By: Bruce Buchanan, Sebelist Buchanan Law

    Restaurants in the Bay area of California are on pins and needles fearful of Immigration and Customs Enforcement’s (ICE) continued assault on California due to California passing laws viewed by ICE as restricting their ability to find and detain undocumented individuals. As discussed in prior blogs, ICE has been very active in delivering Notices of Inspection (NOI)/subpoenas to California employers.

    In an article in San Francisco Chronicle, https://www.sfchronicle.com/restaura...r-12823400.php, Gwyneth Borden, executive director of the Golden Gate Restaurant Association, was quoted as stating “Everyone is fearing a day that ICE could show up at their doors.”

    When ICE conducts an I-9 inspection/audit, their agents show up at employer locations and serve a subpoena and NOI demanding the employer produce the I-9 forms of current employees, and often former employees, within three days of service. Often, these inspections are referred to as “silent raids” because they can have the same effect as a raid – loss of employees through ICE detention, terminations or quick abandonment of jobs.

    Nick Cobarruvias, co-owner of Son’s Addition, employs roughly 29 people at his restaurant. He said about two-thirds are immigrants. Cobarruvias said one employee recently failed to show up for work for several days. Both he and staff members tried contacting him to no avail. “It turned out he was picked up by ICE. Just wrong place, wrong time,” Cobarruvias said. “This is the new reality we’re dealing with. People talk about it like it’s theoretical, but this is really happening.”


  3. How does ICE Calculate Fines in an I-9 Inspection

    By: Bruce Buchanan, Sebelist Buchanan Law


    As Immigration and Customs Enforcement (ICE) conducts more and more I-9 inspections (the ICE director stated they would be increasing by 400 to 500%), employers need to know how ICE calculates any fines assessed against employers. AILA’s I-9 Verification Committee, through Rick Gump and Eileen Momblanco, recently drafted a fine Practice Pointer, which I encourage AILA members to read. For non-AILA members, this article will discuss the same concepts.

    It begins for an employer when ICE serves a Notice of Inspection (NOI)/subpoena to review the employer’s I-9 forms as well as many other HR-related records. The NOI gives the employer three business days to provide the subpoenaed documents. The ability to receive an extension of time to provide the I-9 forms and other documents seems to vary with what ICE office you are dealing. I have been successful in receiving extensions in almost all NOIs, but I never ask for more than one week and usually only five days. After the ICE auditor reviews the I-9 forms, the employer will receive a series of notices – Notice of Suspect Documents and Notice of Technical and Procedural Failures are the most common notices.

    If substantive paperwork, hiring, or continuing to employ (H/CTE) violations are found, ICE normally issues a Notice of Intent to Fine (NIF), although if the errors are less than 10%, ICE usually only issues a Warning Notice without a penalty. The fine/penalty amount in the NIF is determined by ICE attorneys and special agents in charge. Fines can be challenged by requesting review by an Administrative Law Judge (ALJ) of the Office of Chief Administrative Hearing Officer (OCAHO) within 30 days of receipt of the NIF. If litigated, the ALJ can adjust the fine amount.

    In November 2008, ICE issued a Memorandum, “Revised Administrative Fine Policy Procedures”, which contained a set of matrixes and required ICE to follow specific procedures for calculating paperwork and H/CTE fines. The Policy Procedures state the following to determine the level of fine within each matrix:


    • Use the number of violations of each type (paperwork or H/CTE) as the numerator and the number of total employees as the denominator; and
    • The percentage calculated above would be used to determine the percentage box in the fine matrix to start, and then fines could be adjusted up or down five percent for each of the five factors - business size, good faith, seriousness, employment of unauthorized aliens, and prior history with ICE/INS.


    However, ALJs can consider any factors it deems necessary to calculate an appropriate fine based on the case at hand. Cases with both paperwork and H/CTE violations sometimes produce higher fines for a greater number of paperwork violations compared to fines for a fewer number of H/CTE violations.

    To increase the level of penalties, ICE has begun to create a higher level of fine on each matrix by adding the number of paperwork violations to the number of H/CTE violations as the numerator, which in some cases dramatically increases the level of the fine in each matrix. Here are two examples:


    • If you have 100 employees with 10 substantive paperwork violations and 20 H/CTE violations, you add 10 + 20 = 30 to calculate 30% violations for each matrix. This would lead to a fine of $60,270 using the 2017 matrixes.
    • If you have 100 employees with 10 substantive paperwork violations and 20 H/CTE violations, you add 10/100 = 10% for paperwork and 20/100 = 20% for H/CTE violations for each matrix. This would lead to a fine of $40,560 without any aggravating or mitigating factors applied.


    In other words, instead of taking the number of paperwork violations and dividing them by the
    number of employees, and then calculating the H/CTE violations the same way, ICE adds the
    number of paperwork violations to the number of H/CTE violations when calculating the
    violation percentage from each matrix. This is resulting in a higher fine based on the matrix
    percentage of violations for each of the paperwork and H/CTE violations.

    ICE has defended this calculation method by pointing to language in the 2008 fine policy procedures, “The recommended base fine amount is determined by dividing the number of ‘knowing hire,’ ‘continuing to employ,’ and substantive verification violations by the total number of Forms I-9 presented for inspection to determine a violation percentage.”

    However, as the Practice Pointer states:
    On the next two pages, ICE instructs agents to “divide the number of ‘knowing hire’ and ‘continuing to employ’ violations by the number of employees for whom a Form I-9 should have been prepared to obtain a violation percentage” and to “divide the number of substantive violations by the number of employees for whom a Form I-9 should have been prepared to obtain a violation percentage.” Each instruction is paired with a separate fine matrix and no other ICE issued documentation instructs agents or attorneys to add the violations together. ICE’s I-9 inspection webpage also makes no mention of the double-dipping method of fine calculation.

    In evaluating NIFs, attorneys for employers should ask these questions:
    1. Are the fines calculated within the confines of the statute as updated by DOJ?
    2. What baseline and method did ICE use to calculate the fine in the instant case?
    3. What factors were used to aggravate or reduce the level of the fine?
    4. Were the factors appropriately used?
    5. Did ICE apply the 5% enhancement for employment of unauthorized aliens to only those violations as opposed to across the board?
    6. Did the NIF miscalculate the fines by double-counting violations? And
    7. Did ICE make other errors in its calculations?

    After evaluating these issues and trying to negotiate a settlement, one must assess the propriety of settling with ICE versus challenging the fine with an OCAHO ALJ.

    If you want to know more information on I-9 penalties/fines, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  4. Has the Trump Administration Revived ICE Raids?

    By: Bruce Buchanan, Sebelist Buchanan Law


    Immigration and Customs Enforcement (ICE), in conjunction with the IRS and the Tennessee Highway Patrol, raided Southeastern Provisions, a slaughterhouse near Morristown, Tennessee on April 5, 2018. The raid was pursuant to a criminal search warrant issued by a Federal judge in Eastern District of Tennessee earlier in the week.

    In so doing, ICE/Homeland Security Investigations (HSI) initially detained 97 workers, who were transported to a local armory. Of the 97 detained, 86 were put into ICE detention, 10 were arrested on federal criminal charges, and one was arrested on state charges. Later, 32 individuals were released from ICE custody due to a review of their biometrics, which established legal status or were released on their recognizance due to being a single parent with children at home.

    Additionally, the government seized lots of records and documents related to the company’s finances and payroll. After a review of these records and documents, it is expected the federal government will charge Southeastern Provisions with knowingly employing undocumented workers and various tax fraud offenses.

    This raid is very unusual in that ICE has not conducted any such large raids since August 2008, when it raided Howard Industries in Laurel, Mississippi. For the past 10 years, ICE has executed many so-called “silent raids” through the delivery of a Notice of Inspection (NOI)/subpoena. As an example, in January 2018, ICE appeared at 98 of 7-Eleven convenience stores nationwide to deliver NOIs. However, these were not raids pursuant to federal criminal search warrant.

    ICE released a statement about the Southeastern Provisions “operation” which stated HSI encountered “individuals who are determined to be subject to removal, will be administratively arrested and placed in removal proceedings."

    One of my initial questions was why the IRS was involved in the raid. A 26-page affidavit from an IRS Special Agent filed in federal court to obtain a criminal search warrant gives insight as to what led to the IRS’s involvement in the raid. It was due to probable cause to believe the company violated federal law by filing false tax returns, willfully failing to collect federal employment taxes, and evading the assessment and payment of other federal employment taxes.

    According to the affidavit, federal authorities were originally tipped off by bank employees about large cash withdrawals from Citizens Bank in Morristown made by management/owners of Southeastern Provisions. When bank employees questioned the transactions, the affidavit said they were told the cash was used for payroll. Investigators say $25 million in cash was withdrawn from the bank accounts beginning in 2008. Thereafter, for an unknown reason, bank officials toured the slaughterhouse in December 2016 and they were told by management that most of their employees were Hispanic and paid weekly in cash.

    The affidavit also states multiple withdrawals of more than $100,000 were made from Southeastern Provisions bank accounts. On IRS forms, Southeastern Provisions reported only 44 employees to the government. But based on aerial surveillance, 87 vehicles were found parked at the plant, leading authorities to believe the plant was employing 30-40 more undocumented immigrants. Using numbers from the investigation, the government estimated if Southeastern Provisions had properly reported wages to the IRS, they would have an additional $2.5 million payroll taxes from 2013-2016 on top of what they had already paid.

    Besides this information, the government use a confidential informant (referred to as CI-1 in the affidavit), who was hired by Southeastern Provisions. According to CI-1, he never completed any paperwork, such as an I-9 form, nor was he required to show any identification or documentation of lawful status before being hired. The informant said he was told he didn't need a lawful identity to work at the company. He also reported he was paid in cash. Additionally, the production workers were required to work overtime without being paid extra for their overtime hours, according to the informant.

    After the workers were detained, they were taken to a local armory for processing. The individuals who remain detained at the local armory have been taken to an ICE detention facility in Louisiana. Each will appear in Immigration Court, if not already the subject of a prior removal/deportation order. In Immigration Court, the detainees will be able to seek a bond to be posted for their release. There will also be hearings to determine whether there is a legal basis, such as Adjustment of Status, Cancellation of Removal, or asylum, to lawfully remain in the U.S. and obtain a green card.

    The looming question that this raid raises – does this mean ICE raids at employer facilities are back and will be used in worksite enforcement. Only time will tell. I will keep you updated.

    If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  5. Be Prepared for a Notice of Inspection from ICE, They May be at Your Door

    By: Bruce Buchanan, Sebelist Buchanan Law

    As Immigration and Customs Enforcement (ICE) branches out from their concentration of ICE audits of California employers to the heartland of the United States, such as Tennessee, Arkansas, and Texas, employers need to be ready to respond to ICE’s delivery of a Notice of Inspection/subpoena.

    One of the best ways to prepare for an I-9 inspection by ICE is to hire an immigration attorney, who is experienced in worksite enforcement and immigration compliance issues. Even if you currently have an immigration attorney for employment-based visas, there is a good chance that he or she does not handle worksite enforcement, such as ICE inspections. Therefore, if you have an immigration attorney, reach out to him or her and inquire as to whether they are experienced in worksite enforcement matters. If so, great but if not, ask him or her to refer to an experienced immigration compliance/worksite enforcement attorney. If you don’t have an immigration attorney, ask your corporate counsel for assistance in finding one. You don’t want to be doing this after ICE shows up at your facility.

    The next step is for your immigration compliance attorney to conduct or supervise an internal I-9 audit. Through this audit, numerous errors will be found, most of which can be corrected so that if ICE inspects your I-9 forms, the errors will not be considered a substantive error, for which you can be penalized for. And don’t kid yourself, your I-9 forms have lots of errors. In all my years of practice, I don’t recall any employer’s I-9 forms as impeccable although on more than one occasion an employer has stated such before the I-9 audit began.

    Also, don’t be fooled by the fact that all your employees are U.S. citizens. You can still have substantive and technical I-9 errors. Another common comment from employers is I’m in great shape as we use E-Verify. Although E-Verify is excellent in establishing who is authorized to work, it cannot locate substantive or technical errors on the I-9 forms. One proven method to reduce substantive or technical errors on the I-9 forms is using electronic I-9 systems as well as using the “smart” I-9 form, which was introduced by the USCIS in 2016.

    The reason preparedness is so important is because of the short time period ICE gives employers to respond and supply the subpoenaed I-9 forms. The Notice of Inspection/subpoena allows the company just three days to turn over their I-9 forms, along with a laundry list of other documents such as payroll information, tax statements and assorted corporate documents. Usually, your counsel will be able to get an extension of these three days but rarely will ICE extend the date by more than a week. However, even this timeframe is not nearly enough time for a company that was not already prepared for it, especially if the company has a lot of employees or former employees. ICE can and does subpoena I-9 forms of former employees. One helpful hint on former employees’ I-9 forms is they may be purged at certain times but not after the subpoena is delivered.

    Getting an attorney involved as soon as an ICE inspection is launched can help an employer in several ways. As stated above, an attorney may help the company negotiate a few days’ extension in responding to the subpoena. And/or the attorney may be able to get a reduction in the list of requested documents. Most importantly, an attorney can help the employer prepare to respond in a methodical and thoughtful way.

    Being prepared for a Notice of Inspection/subpoena requires a company to have proper procedures in place upon hiring. The best way to have these procedures in place is with an Immigration Compliance Policy. Unless you have retained an immigration compliance/worksite enforcement attorney, it is extremely unlikely you have such a policy. One paragraph in your employee handbook does not equal an Immigration Compliance Policy. Under such a policy, every employee responsible for completing I-9 records on behalf of the company should be trained to do so. To many people, it is hard to tell the difference between a green card and a work authorization document issued to a recipient of DACA or TPS. Yet, one represents permanent work authorization that should never be reverified, and the other requires the employer to reverify the I-9 form upon the document’s expiration.
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