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I-9 E-Verify Immigration Compliance

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  1. 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.
  2. 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.
  3. What is Legal Workforce Act (H.R. 3711)?

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Congressman Lamar Smith (R-TX) has introduced the Legal Workforce Act (H.R. 3711), which proposes numerous changes to current law, including requiring every employer in the U.S. to use E-Verify or an electronic employment eligibility verification system.

    Here is a summary of the bill’s key provisions:

    • Mandatory employer participation in the E-Verify phased in over a two-year period based on the size of the employer;
    • Conditional job offers, based on passing E-Verify, which is contrary to current law, which prohibits use of E-Verify until a job offer is accepted;
    • Within 6 months of the bill’s enactment, these current workforce employees would have to have their employment eligibility reverified: employees who require a federal security clearance; workers assigned to a federal contract; and federal, state, and local government employee;
    • Beginning 30 days after the bill is enacted, an employer would be allowed to voluntarily use E-Verify to reverify the employment eligibility of any current employee, if the employer reverified all individuals at the same geographic location or employed within the same job category;
    • Employers would also have to use E-Verify, according to the phase-in timeline for employers based on their size, for workers with expiring work authorization;
    • Many documents, that are currently acceptable, would no longer be acceptable for proving employment eligibility;
    • Employers would be relieved of liability for any employment action taken with respect to a worker if the employer had verified the worker’s identity and employment eligibility and relied on information provided by E-Verify in good faith;
    • Would substantially increase penalties for employers who knowingly hired or employed unauthorized workers and who failed to use E-Verify or knowingly submitted false information to E-Verify, but fines for knowingly hiring or employing an unauthorized worker could be waived if the employer established that it acted in good faith;
    • Would preempt states and localities from passing employer sanctions and employment eligibility verification laws; but, it would allow states to use business licensing and similar laws to penalize employers for not using E-Verify. It would also allow a state, at its own cost, to enforce the provisions of the Legal Workforce Act if it followed the federal regulations, rules, and guidance implementing the act.


    I will keep you apprised of any actions taken toward passage of the Legal Workforce Act though it is highly unlikely that this bill will pass the U.S. Senate.
  4. IER Settles Immigration-Related Retaliation Claim Against InMotion Software

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Immigrant and Employee Rights Section (IER) of the Department of Justice has reached a settlement with InMotion Software LLC (InMotion), a software developer and recruiter in Texas, resolving their investigation into whether the company violated the Immigration and Nationality Act’s (INA) anti-discrimination provision.

    Based on its investigation, the IER concluded InMotion retaliated against a work-authorized job applicant (Charging Party) after she protested InMotion’s requirement that she provides a Permanent Resident Card (green card) even though she had a valid employment authorization card issued by the USCIS. After the Charging Party complained that InMotion’s request constituted discrimination under the INA, InMotion removed her from its pool of candidates available for job placement. The INA’s anti-discrimination provision prohibits employers from retaliating against or intimidating workers because they have opposed employer conduct that may violate that provision or have participated in the IER’s activities to enforce it.

    Under the settlement agreement, InMotion will pay $3621, the maximum civil penalty for an instance of retaliation, to the U.S. government, remove any references to the investigation or settlement from the Charging Party’s personnel file, post notices informing workers about their rights under the INA’s anti-discrimination provision, provide all newly hired employees with a Lists of Acceptable Documents to provide with the I-9 form, train its staff, and be subject to departmental monitoring and reporting requirements for one year.

    Companies need to be aware of the laws relating to retaliation if an employee files an anti-discrimination claim or alleges such discrimination. For the answers to these issues 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.
  5. 9th Court of Appeals Agrees with OCAHO Decision

    By Bruce Buchanan, Sebelist Buchanan Law

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    In a rare Court of Appeals decision involving Form I-9 penalties, the Ninth Circuit Court of Appeals (covers California, Oregon, Washington, Nevada, Alaska, Idaho, Montana, and Hawaii) substantially agreed with a decision by the Office of Chief Administration Hearing Officer (OCAHO). See DLS Precision Fab LLC v. ICE (9th Cir. August 2017).

    In the underlying decision, OCAHO found DLS to have committed 504 violations related to their I-9 forms and assessed a penalty of $305,050. Of the 504 violations, 489 concerned substantive or paperwork violations while 15 concerned employees who DLS knowingly employed without work authorization. DLS was able to reduce the penalties to $305,050 from $495,250, which Immigration and Customs Enforcement (ICE) sought.

    On appeal to the 9th Circuit, DLS prevailed on one issue, thereby reducing the violations from 504 to 503. In the appeal, DLS argued its paperwork or substantive violations should be viewed under the “good faith defense” because it “made a good faith effort to comply with the Immigration and Nationality Act (INA) by hiring a HR director, who exhibited bad faith by neglecting his duty to keep DLS compliant.” The Ninth Circuit was not persuaded by DLS’s argument because the HR director was acting as DLS’s agent; thus, “his failure to perform his responsibility may properly be imputed to DLS.” Moreover, DLS’s argument essentially requests the Ninth Circuit to rewrite the statute, something that is not with the court’s authority.

    The Court also affirmed OCAHO’s rejection of DLS’s statute of limitations defense. Concerning the numerous paperwork violations, the Court found such a violation occurs “until it is corrected, or until the employer no longer is required to retain the I-9 form.” There is a five-year statute of limitations, which applies the above test. In applying this test, the Ninth Circuit found one violation was beyond the five-year statute of limitations.

    Finally, DLS asserted OCAHO failed to take into account its inability to pay defense. The Court agreed with DLS but pointed out OCAHO was not required to consider an inability to pay; thus, there was no error.

    This court’s decision reinforces my mantra in previous articles – Form I-9 errors can have costly consequences; thus, all employers should conduct internal I-9 audits under the supervision of counsel who is well-versed in immigration compliance. For more information on how companies can protect themselves, you may want to read by new book, The I-9 and E-Verify Handbook, available from Amazon at: https://www.amazon.com/I-9-E-Verify-...dp/0997083379/.
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