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I-9 E-Verify Immigration Compliance

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  1. What is Unfair Documentary Practices?

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In yesterday’s blog, http://blogs.ilw.com/entry.php?10251...ocessing-Plant, I discussed Washington Potato Company reaching a settlement agreement with the Immigrant and Employee Rights Section (IER) of the Justice Department related to its unfair documentary practices of requesting work-authorized non-U.S. citizens to present specific documents to confirm their status, while not subjecting U.S. citizens to such requests.

    In today’s blog, I will discuss more about unfair documentary practices. Unfair documentary practices was formerly referred to as document abuse. It refers to discriminatory practices related to the verification of employment eligibility in the Form I-9 process. Employers that treat individuals differently based on national origin or citizenship commit unfair documentary practices when they engage in one of four types of activity: 1) Improperly requesting that employees produce more documentation than is required to show identity and employment authorization; 2) Improperly asking employees to produce a particular document to show identity or employment eligibility; 3) Improperly rejecting documents that appear to be genuine and be-longing to the employee; and 4) Improperly treating groups of applicants differently (for example, based on looking or sounding foreign) when they complete Forms I-9.

    The following are examples of prohibited practices when they are based on an employee’s “national origin’ or “citizenship or immigration status”:


    • Setting different employment eligibility verification standards or requiring different documents based on national origin or citizen-ship status;
    • Requesting to see employment eligibility verification documents before hire and completing the Form I-9 because an employee appears foreign or the employee indicates that he or she is not a U.S. citizen;
    • Refusing to accept a document or to hire an individual because an acceptable document has a future expiration date;
    • Limiting jobs to U.S. citizens, unless a job is limited to citizens by law or regulation;
    • Asking to see a document with an employee’s “Alien” or “Admission number” when completing Section 1 of Form I-9; and
    • Asking a lawful permanent resident to re-verify employment eligibility because the person’s green card has expired.


    For more information on avoiding unfair documentary practices 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.
  2. IER Settles Immigration-Related Discrimination Claim for $100,00 Against Vegetable Processing Plant

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Immigrant and Employee Rights Section (IER) of the Justice Department has reached a settlement agreement with Washington Potato Company of Pasco, Washington, which will cost the employer $100,000. The agreement resolves the IER’s investigation into whether Washington Potato discriminated against work-authorized immigrants in violation of the Immigration and Nationality Act (INA).

    The investigation revealed that Washington Potato routinely requested work-authorized non-U.S. citizens present specific documents to confirm their status, such as Permanent Resident Cards or Employment Authorization Documents while verifying their authorization to work at the plant. However, they did not subject U.S. citizens to such requests. The anti-discrimination provision of the INA prohibits employers from subjecting employees to different or unnecessary documentary demands based on the employees’ citizenship, immigration status, or national origin. This is commonly referred to as document abuse or unfair documentary practices.

    This is the second settlement agreement in 2017 between the IER and Washington Potato as a May 2017 settlement resolved similar discriminatory conduct by Washington Potato at another facility in Pasco, Washington. See blog entry of May 22, 2017 - Fruit and Vegetable Processor Agrees to Pay $225,000 to Settle Discrimination Lawsuit. http://blogs.ilw.com/entry.php?9904-...nation-Lawsuit.

    Under the settlement, Washington Potato will pay a civil penalty of $100,000 to the United States, train its staff by viewing an IER webinar presentation and USCIS webinar on E-Verify for Existing Users, review and revise any existing employment policies that relate to the employment eligibility verification process so that they prohibit discrimination on the basis of citizenship, immigration status, or national origin, post notices informing workers about their rights under the INA’s antidiscrimination provision, and be subject to departmental monitoring and reporting requirements for 30 months.

    The allegation of having different standards for U.S. citizens than non-U.S. citizens is a fairly common error by employers. However, with training by an immigration attorney, well-versed in employer compliance, these errors can easily be avoided. For more information on this issue and many others 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 Planning Worksite Enforcement Operation against National Food Service Chain

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Immigration and Customs Enforcement (ICE) is planning to conduct a major worksite enforcement operation against an unknown national food service chain in the next few weeks, according to an internal ICE document reviewed by Betsy Woodruff of The Daily Beast.

    It is unknown whether this action will be a raid or other type of ICE operation. If it is a raid, it will be a sign that the Trump Administration is returning to raids on employers. The last major raid occurred at Howard Industries in Laurel, Mississippi in August 2008. After the Laurel raid at the end of President George W. Bush’s term, ICE stopped conducting raids, presumably due to the high cost and the difficulty in conducting a surprise raid.

    According to an anonymous ICE official (he was not permitted to discuss impending operations on the record) that The Daily Beast spoke to, the current plan is focused on employers across the nation, who are “harboring illegal aliens,” by illegally paying below the minimum wage.

    ICE’s planned action is not unexpected given the Trump Administration’s increased enforcement of other aspects of immigration enforcement. Recently, Tom Homan, Acting Director of Immigration and Customs Enforcement (ICE) said he has instructed Homeland Security Investigations (HSI), the investigative unit of ICE, 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."

    Additionally, in marked contrast to previous administrations’ worksite enforcement operations, 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. The anonymous ICE official said undocumented workers who cooperate with the agency could potentially be eligible for U visas, which provides non-immigrant visas to remain in the United States to victims of crimes, who cooperate in an investigation and testify at a trial, if necessary, against their employers.

    Even if this major raid occurs, is this just as a show of force on this occasion for the sake of publicity or a full swing back to numerous ICE raids on employers? Only time will tell.

    For a review of ICE’s criminal actions against employers 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. How to Get Ready for an ICE Audit? (part 2)

    By: Bruce Buchanan, Sebelist Buchanan Law
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    As previously stated, 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. On November 13, 2017, I discussed implementing an immigration compliance policy This blog will focus on conducting an internal I-9 audit.

    An internal I-9 audit (also called a self-audit) is the best prevention tool to avoid costly penalties if ICE conducts an inspection of your I-9 forms pursuant to a Notice of Inspection/subpoena. An internal I-9 audit is not required by law but is highly recommended. However, unless such an audit is conducted by, or under the close supervision of, an immigration compliance attorney, an employer may do more damage than good. A classic example of doing more damage is finding errors on the I-9 forms, completing new I-9 forms, and destroying the existing I-9 forms.

    An employer should conduct internal I-9 audits yearly or less frequently, depending on size of company and number of employees hired each year. An employer may choose to audit the I-9 forms of all current employees, all current employees and former employees for the last two years, or a sample of I-9 forms selected based on neutral and non-discriminatory criteria. If a subset of I-9 forms is audited, the employer should consider carefully how it chooses I-9 forms to be audited to avoid discriminatory or retaliatory audits. Thus, one should not audit only those employees with permanent resident cards or foreign-sounding last names.

    If errors are found on I-9 forms, they should be corrected by the employee for Section 1 errors and the employer for Sections 2 and 3 errors. For corrections in Section 2, it should be the employer’s representative who originally reviewed documents and signed the certification. If that person is no longer employed, it is usually best to complete a new I-9 form. However, if it is a minor error, such as failure to include an expiration date in List A or List B where the document is attached to the I-9 form or the employer’s address is missing, another HR representative can make the correction.

    If an I-9 form is missing data, such as the title of a document or expiration date, one may add that information in a different color pen, initial, and date the correction. If information is put in the wrong list, i.e., Social Security card in List B and driver’s license in List C, draw arrow in different color pen to correct list, and initial, and date the correction.

    To correct multiple errors on an I-9 form, a new I-9 form may be completed and attached to the old form. Or if entire sections of the I-9 form were left blank, one may complete just that section and attach it to the old I-9 form. In making corrections or attaching a new I-9 form, always include a note concerning the reason changes were made to the existing I-9 form or a new I-9 form was completed. It is sufficient to state the errors were located in an internal I-9 audit.

    Other helpful ideas to implement in an internal I-9 audit are:
    1. Establish a re-verification tickler system to ensure I-9 forms are checked in a timely manner;
    2. Establish a backup system to ensure timely compliance with I-9 form rules when a human resource professional is out of the office;
    3. Segregate I-9 forms from other personnel records;
    4. Consider using an electronic Form I-9 product to automate the collection of information, to reduce errors, speed up the production of information in the case of a government audit, and ensure timely re-verification of I-9 forms.

    For more information on 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.
  5. 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.
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