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I-9 E-Verify Immigration Compliance

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  1. Pre-Population: Ever-Changing Positions from Immigration-Related Agencies

    By: Bruce Buchanan, Sebelist Buchanan Law

    The immigration-related agencies’ positions on the pre-population of data in Section 1 of the I-9 form is everchanging. At about the time of our publication of the book, The I-9 and E-Verify Handbook, Bruce Buchanan and Greg Siskind, 2d ed. (2017), the USCIS altered its position again.

    The USCIS added the following in I-9 Central, Section 1, Questions & Answers:

    Question: Can Section 1 of Form I-9 be auto-populated by an electronic system that collects information during the on-boarding process for a new hire if the employee is required to verify that the information is correct and can make corrections or add information if necessary?

    Answer: DHS regulations require that the employee completes Section 1 of Form I-9. Employers can offer employees electronic tools to facilitate the Section 1 completion process, as long as this regulatory requirement and the regulatory requirements for the electronic generation of Form I-9 continue to be met.

    This answer is contrary to the position that USCIS articulated in the E-Verify newsletter, November 2016, which the book quoted as follows:

    USCIS stated Section 1 of Form I-9 could not be pre-populated. Pre-population involves the electronic inclusion of data about the employee in Section 1 by Form I-9 software programs without the employee having to write the information in Section 1.

    See Chapter 2, Question 2.12, p. 23-24.

    Immigration and Customs Enforcement (ICE) and OSC (now renamed the Immigrant and Employee Rights Section (IER) of the U.S. Department of Justice) have not changed their positions which were discussed on p. 24 of The I-9 and E-Verify Handbook. Thus, ICE holds no official position on the pre-population of Section 1 by electronic Form I-9 software programs. This is a change in past policy in which ICE stated pre-population could not be done by employers. On the other hand, in August 2013, the OSC stated that it discouraged the practice of pre-population because “it increases the likelihood of including inaccurate or outdated information.”

    I invite anybody who has the book - The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379, to alert me of any substantive changes that have been made in employer immigration compliance since the publication of the book. As we know, immigration law is everchanging and I want to keep the book up to date. I would like to thank Dave Fowler of Worksite Compliance Services for pointing out the change related to pre-population.
  2. ICE Continues its Inspections of California Employers

    By: Bruce Buchanan, Sebelist Buchanan Law

    As I have discussed in a recent blog entry (http://blogs.ilw.com/entry.php?10373...ilent-Raids%94), Immigration and Customs Enforcement (ICE) is seemingly targeting California employers for inspections of their I-9 forms. In the past week, Bee Sweet Citrus in Fowler, California and about seven other Fresco area employers have received ICE visits for the purposes of subpoenaing their I-9 forms and other paperwork. In previous weeks, ICE targeted 77 employers in the San Francisco Bay Area and Sacramento.

    ICE spokesman, James Schwab, said the work site enforcement actions are nothing new and remain a priority of Homeland Security Investigations, a part of ICE, to ensure employers are in compliance with the law. However, this statement seems contradictory to ICE acting Director Homan’s statement that ICE was increasing their inspections by 400 to 500%.

    As many of my readers know, once an employer receives a Notice of Inspection/subpoena, it has 3 days to produce its I-9 forms to ICE for their inspection. In the inspection (also referred as an audit), ICE reviews the I-9 forms to determine whether all employees are legally authorized to work and whether there are substantive paperwork violations on the I-9 forms. If undocumented workers are employed, ICE may return to the employer and detain the undocumented workers. Alternatively, ICE may issue a Notice of Suspect Documents to the employer stating which employees do not have valid work authorization. If after the employer gives its employees an opportunity to provide valid documentation (“newer and better documentation”), the employees fail to provide such, the employer must discharge those employees. If the employer is knowingly employing undocumented workers, it faces penalties of up to $4473 per employee for first offenses. Additionally, substantive paperwork violations on I-9 forms are penalized at $224 to $2236 per I-9 form.

    At Bee Sweet Citrus, at least 40 workers quit after ICE delivered the NOI/subpoena, seemingly because they knew they were undocumented and were afraid of being detained by ICE. Jim Marderosion, president of Bee Sweet Citrus, said his workers were aware the ICE agents were coming and that was enough for some employees not to return to work. It’s unclear how the workers knew of the inspection as normally ICE does not provide advance notice.

    Marderosian said “One woman who has worked for me for nearly 20 years came up to me, gave me a hug and told me that she had to leave; she couldn’t take a chance.” Marderosian also stated “What good does it do to make these workers lose their jobs. They will have to find work somewhere. Some way or another they are going to have to feed their families.” This story was first reported by Robert Rodriguez of The Tribune, http://www.sanluisobispo.com.

    To learn more about employer immigration compliance and steps you can take to prevent I-9 violations and hiring undocumented workers, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, which is available at http://www.amazon.com/dp/0997083379.
  3. Cost of Immigration Violations Continue to Rise

    By: Bruce Buchanan, Sebelist Buchanan Law

    Effective January 20, 2018, the civil penalties for a variety of immigration-related violations increased dues to an adjustment for inflation. Below is a chart setting forth the old and new amounts:

    Type of Violation Old Amounts New Amounts
    I-9 substantive violation $220 - $2191 $224 - $2236
    Knowingly employing undocumented worker $548 - $4384 $559 - $4473
    Unfair Documentary Practice $181 - $1811 $185 - $1848
    Immigration-Related Discrimination $452 - $3621 $461 - $3695

    These increases are another reason to conduct an internal audit of your I-9 forms. Through such, an employer can remedy or mitigate many violations before Immigration and Customs Enforcement (ICE) or the Immigrations and Employees Rights Section (IER) discovers them. To learn more about employer immigration compliance and steps you can take to prevent I-9 violations and hiring undocumented workers, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, which is available at http://www.amazon.com/dp/0997083379.
  4. ICE Targeting California for More “Silent Raids”

    By: Bruce Buchanan, Sebelist Buchanan Law


    On the heels of Immigration and Customs Enforcement’s (ICE) worksite enforcement actions/inspections against 97 7-Eleven convenience stores, ICE announced it has conducted I-9 inspections of 77 employers in the San Francisco and Sacramento areas. ICE did not identify any of the businesses its agents visited in the Bay Area and the Sacramento region. However, just the fact that ICE served subpoenas on so many employers demanding their I-9 forms and then announced it to the media, demonstrates ICE is trying to put the fear of government action in the minds of every employer, especially in California.

    When ICE conducts an I-9 inspection, their agents show up at employer locations and serve a subpoena and Notice of Inspection (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.

    According to James Schwab, a spokesman for ICE, their operation is part of a strategy that is “focused on protecting jobs for U.S. citizens and others who are lawfully employed, eliminating unfair competitive advantages for companies that hire an illegal workforce, and strengthening public safety and national security.”

    It is interesting that ICE chose California for these actions as ICE and the Trump administration are involved in an assault on California due to their recent legislation declaring California as a sanctuary state. Thomas D. Homan, acting director of ICE, has criticized California for state and local efforts to protect undocumented immigrants and limit law enforcement’s ability to cooperate with immigration officials. Homan recently stated “We’ve got to take these sanctuary cities on. We’ve got to take them to court, and we’ve got to start charging some of these politicians with crimes.”

    California recently enacted legislation requiring employers notify their workers of such an ICE audit and provide them with the results. The law also mandates that employers ask ICE to obtain a judicial warrant in some situations though not for NOIs. California Attorney General Xavier Becerra recently held a press conference where he warned California employers of the consequences of violating this legislation. Thus, many California employers are perplexed as to how to be in abeyance of both federal and state immigration laws.

    Angelo Paparelli, a prominent immigration attorney with Seyfarth Shaw, stated “Serving 77 notices of inspection on different employers in the last three days within a single area of responsibility, in this case, San Francisco, appears unprecedented.”

    After the businesses comply with the subpoena/NOI, ICE auditors will carefully review the I-9 forms to determine whether undocumented workers are employed at the business and whether the I-9 forms have substantive errors, which could cost $224 to $2236 per I-9 form. If undocumented workers are employed, ICE may return to the employer and detain the undocumented workers. Alternatively, ICE may issue a Notice of Suspect Documents to the employer stating which employees do not have valid work authorization. If after the employer gives its employees an opportunity to provide valid documentation (“newer and better documentation”), the employees fail to provide such, the employer must discharge those employees or face fines of up to $4473 per employee.

    I will keep you apprised on further developments of these “silent raids” and the 7-Eleven ones. If you are concerned about your I-9 forms and the legal status of your employees, I urge you to retain an immigration attorney trained in worksite enforcement, who can spearhead an internal I-9 audit.

    If you want a full discussion of internal I-9 audits and other important immigration compliance issues, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, which is available at http://www.amazon.com/dp/0997083379.
  5. ICE Announces its Three-prong Approach to Worksite Enforcement

    By Bruce Buchanan, Sebelist Buchanan Law

    On the heels of Immigration and Customs Enforcement’s “silent raids” on almost 100 7-Eleven convenience stores and the resolution of a worksite enforcement case against Asplundh Tree Experts Co., which paid a record $95 million in fines and forfeitures, Immigration and Customs Enforcement (ICE) announced a three-prong approach to conduct worksite enforcement. In doing so, ICE stated this ensures employees are legally authorized to work in the United States for employers, from small start-up operations to the largest corporations.

    This strategy involves a three-prong approach to worksite enforcement: immigration compliance, through Form I-9 inspections, civil fines and referrals for debarment; enforcement, through the arrest of employers, knowingly employing undocumented workers, and the arrest of unauthorized workers for violation of laws associated with working without authorization; and outreach, through the IMAGE program, to instill a culture of compliance and accountability.

    “Homeland Security Investigations (HSI) prioritizes violators who abuse and exploit their workers, aid in the smuggling or trafficking of their alien workforce into the United States, create false identity documents or facilitate document fraud, or create an entire business model using an unauthorized workforce,” said HSI Acting Executive Associate Director Derek Benner. “Further priority is given to looking closely at those companies or industries that are deemed national security or critical infrastructure interests.” ICE also stated an effective worksite enforcement strategy must address both employers who knowingly hire illegal workers, as well as the workers themselves.

    ICE’s statement highlighted the recent resolution of a case against Asplundh Tree Experts Co., one of the largest privately-held companies in the United States. This case revealed a scheme to unlawfully employ undocumented workers, 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. The company pleaded guilty and was ordered to pay a monetary forfeiture judgment in the amount of $80 million – the largest judgment ever handed down in a worksite enforcement investigation. They are also required to abide by an administrative compliance agreement. Pursuant to a separate civil settlement agreement, Asplundh will pay an additional $15 million to satisfy civil claims arising out of their failure to comply with immigration law, bringing the total cost of this illegal scheme to $95 million.

    To learn more about employer immigration compliance and steps you can take to prevent I-9 violations and hiring undocumented workers, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, which is available at http://www.amazon.com/dp/0997083379.
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