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I-9 E-Verify Immigration Compliance

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  1. How to Get Ready for ICE Audit? (part 1)

    By Bruce Buchanan, Sebelist Buchanan Law

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    As I stated in my blog entry on October 19, 2017, Tom Homan, Acting Director of Immigration and Customs Enforcement (ICE), announced an increase of I-9 Inspections/Audits "by four to five times." What can employers do to decrease their vulnerability to significant penalties if one is audited? There are two things to do which go hand in hand – implement an immigration compliance policy and conduct an internal I-9 audit. This blog will focus on drafting and implementing an immigration compliance policy. Part 2 will focus on conducting an internal I-9 audit.

    As an immigration attorney who represents lots of companies in immigration compliance matters, one of the first questions I ask a new client is whether they have a written immigration compliance policy. Unfortunately, a vast majority of the companies say no or point to one paragraph in their employee manual.

    Why should a company have an immigration compliance policy? There are many reasons but one of the most important is to identify the person in charge of immigration compliance. It’s amazing how often that simple question is met with uncertainty. As we all know, if someone does not take ownership over a policy that policy will flounder.

    Here are other items that should be in an immigration compliance policy:
    1. Determine whether copies of documents should be retained;
    2. Determine whether the company should use E-Verify;
    3. Determine if the company is required by state or federal law to use E-Verify or FAR E-Verify;
    4. Zero tolerance policy for employment of individuals who cannot comply with work authorization rules;
    5. Timing and procedures for regular internal I-9 audits to be conducted;
    6. Rules on which management has access to I-9 records;
    7. How often is training required for employer representatives, who are completing I-9 forms;
    8. Define the required retention policy of I-9 forms – 1 year from employee’s termination or 3 years from original hire, whichever is longer;
    9. Rules for working with outside contractors;
    10. Re-verification procedures for employees with Employment Authorization documents;
    11. Set protocols for interacting with government officials if ICE or another federal agency shows up at worksite; and
    12. Policy on no discrimination of applicants/employees based on their lawful immigration status – citizenship, permanent resident, etc. or national origin.

    For more information on implementing an immigration compliance policy and how to conduct an internal I-9 audit in advance of an ICE inspection, 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. Massachusetts restaurateur sentenced for multiple fraud schemes

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC


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    A restaurant owner, Hazrat Khalid Khan, was sentenced to 30 months in prison and one year of supervised release in federal court in Boston for committing tax and insurance fraud involving 11 Boston-area restaurants, and for committing visa and immigration fraud. Also, he will be subject to deportation proceedings upon completion of his sentence. Khan was ordered to pay restitution of $2,343,155 to the Internal Revenue Service (IRS) and $27,863 to two insurance companies he defrauded. The sentencing follows a multiagency investigation, which included Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI).

    In April 2017, Khan pleaded guilty to conspiring to defraud the IRS, failing to collect and pay over taxes, committing mail fraud, making false statements on a naturalization application, and committing visa fraud.

    Khan was the partial owner of 11 fried chicken takeout restaurants in greater Boston. As part of a tax fraud scheme that ran for years, Khan and his co-conspirators – generally the managers of these restaurants – defrauded the government and avoided paying payroll and income taxes owed by the stores. They paid their employees in cash and provided tax preparers with false information about the restaurants’ payroll and income, thereby causing the tax preparers to file false tax returns.

    Khan repeatedly made false statements to obtain immigration benefits. Specifically, on two occasions – first in connection with obtaining legal permanent resident status and again when applying to naturalize as a U.S. citizen – Khan falsely denied that he had previously been arrested or convicted of a crime, when in fact, Khan had been previously convicted in federal court of alien smuggling.

    This is an example of how criminal law and immigration law can work hand in hand. For more information on criminal violations in immigration law and many 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.
  3. ICE Increasing its ICE Inspections by 4 to 5 times Current Level

    By: Bruce Buchanan, Sebelist Buchanan Law
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    In a speech to the Heritage Foundation on October 17, Tom Homan, Acting Director of Immigration and Customs Enforcement (ICE) said he has instructed Homeland Security Investigations (HSI), the investigative unit of ICE which conducts I-9 Inspections/Audits, to increase "by four to five times" worksite enforcement actions in 2018.

    Homan also stated, "We've already increased the number of inspections in worksite operations, you will see that significantly increase this next fiscal year." Homan said HSI’s goal is to remove the "magnet" drawing people to enter the US illegally.

    Homan’s statement was not unexpected given the Trump Administration’s increased enforcement of other aspects of immigration enforcement. Although earlier in 2017, ICE stated it had not increased the number of I-9 Inspections/Audits from the last year of the Obama Administration, it was just a matter of time before increases occurred. I have been warning employers and employer associations of the strong likelihood of increased I-9 Inspections/Audits.

    When worksite enforcement actions (I-9 Inspections/Audits) increase by four to five times, we could see over 6,500 I-9 Inspections/Audits per fiscal year. This would be more than double the number that the Obama Administration conducted in any year.

    Additionally, in marked contrast to earlier I-9 Inspections/Audits, Homan said "We're going to detain and remove the illegal alien workers" as “that is our job.” Furthermore, Homan stated ICE is going to strongly prosecute employers who knowingly hire illegal immigrant workers, in addition to deporting their undocumented workers.

    Over the past 10 years, when ICE has found undocumented workers at an employer’s worksites through analysis of employer’s I-9 forms, it would issue a Notice of Suspect Documents to the employer. It then instructed the employer to notify these workers and give them the opportunity to provide “newer and better documents” to prove their work authorization. If workers did not do so, ICE instructed employers to terminate those employees or face penalties for knowingly employing undocumented workers. However, ICE never went to the worksites to detain those workers who did not have valid work authorization. Interestingly, many undocumented workers thought ICE would detain them so they quit when their employer stated ICE said their documents did not establish work authorization.

    This increased step of detaining undocumented workers at an employer’s worksites had been anticipated due to the fact it is an easy method to vastly increase individuals for deportation. It will be interesting to see at what point ICE raids the employer to detain workers on the Notice of Suspect Documents – at the time of its issuance or after the employees have attempted to provide new documentation.

    For a review of ICE Inspections and how to conduct an internal I-9 audit in advance of an ICE inspection as well as other employer immigration compliance issues, 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.
  4. 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.
  5. 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.
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