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I-9 E-Verify Immigration Compliance

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  1. ICE’s I-9 Audits Will Increase by 400% in Fiscal Year 2018

    By: Bruce Buchanan, Sebelist Buchanan Law



    As I have discussed numerous times in this blog, Immigration and Customs Enforcement (ICE), under the Trump administration, has significantly increased I-9 inspections/audits of employers to verify that their employees are authorized to work in the country and determine whether substantive paperwork violations have occurred. Now, we have statistics which substantiate the heightened activity of ICE in worksite enforcement.

    Between October 1, 2017, the beginning of fiscal year 2018, and May 4, 2018, there have been 2,282 ICE audits of employers’ I-9 forms while in the prior fiscal year, October 2016 and September 2017, there were 1,360 audits. Derek Benner, head of ICE's Homeland Security Investigations unit, said another nationwide wave of audits, like the ICE audits of 7-Eleven in January 2018, planned this summer, would push the total number of audits to "well over" 5,000 by the end of the fiscal year, September 30, 2018. If so, that would be almost a 400% increase from fiscal year 2017 and highest number of ICE audits ever. ICE audits, as we know them today, started in George W. Bush’s administration. ICE audits previously peaked at 3,127 in 2013.

    According to Brenner, ICE has developed a plan to conduct as many as 15,000 I-9 audits a year if it can receive appropriate funding and support from other areas of the Trump administration. The plan calls for creation of an Employer Compliance Inspection Center to perform employer audits at a single location instead of at regional offices around the country. Benner said that putting up to 250 auditors in one center with the right technology and a team of attorneys to quickly levy fines would enable his agency to audit between 10,000 and 15,000 companies annually.

    Benner stated one of the goals of this proposal is to create a "reasonable expectation" among employers that they will be audited. "This is kind of our vision of creating this culture of compliance," he said. "I think it's a game-changer."

    The plan also proposes changing the manner of delivery of the ICE Notice of Inspection (NOI) from in person to email or certified mail. Furthermore, after an initial review, by electronically scanning the I-9 forms for suspicious activity, the most egregious cases will be sent to regional offices for more in-depth investigation.

    Benner said the agency will focus both on criminal cases against employers as well deporting employees who in the country illegally. The statistics show there were 594 employers arrested on criminal work-related immigration charges from October 1 to May 4, up from 139 during the previous fiscal year.

    The deportation numbers will certainly increase due to this worksite enforcement as ICE has begun to detain employees listed on the Notice of Suspect Documents. Prior administrations did not detain undocumented workers on the Notice of Suspect Documents which lead many undocumented workers to quit one employer and find work down the road with another employer. As Brenner and many other immigration officials have stated, hiring undocumented workers creates unfair advantages for companies, encourages people to come to the U.S. illegally, results in document and identity fraud, exposes workers to potentially dangerous conditions without proper equipment, and leads to failure to pay overtime pay.

    If the heightened I-9 audits by ICE frightens you, as it should, be prepared and conduct an internal I-9 audit under the direction or control of an experienced immigration attorney with expertise in worksite enforcement. 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.
  2. 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.
  3. OCAHO Reduces Penalties for Two Related Companies

    By: Bruce Buchanan, Sebelist Buchanan Law

    In a calendar year with few decisions, Office of Chief Administration Hearing Officer (OCAHO) issued its last one in U.S. v. Integrity Concrete/American Concrete, 13 OCAHO no. 1307 (2017). In this decision, OCAHO substantially reduced the penalties assessed against Integrity Concrete, Inc. and American Concrete, Inc., which essentially acted as joint employers. This decision only involves the amount of the penalties as Respondents agreed to the liability.

    Factual Scenario for Integity

    Integrity, located in San Diego, CA, was served with a Notice of Inspection (NOI) in January 2015. Thereafter, ICE served Notice of Suspect Documents on Integrity listing eight employees whose I-9 forms could not be verified as authorized to work. Integrity responded none of the eight employees were employed anymore.

    About seven months later, Integrity was served with a Notice of Intent to Fine (NIF), which charged the company with the failing to timely prepare I-9 forms for five employees, failing to ensure that three employees properly completed Section 1 of their I-9 forms, and failing to properly complete Section 2 or 3 of the I-9 forms for 16 employees. ICE assessed a fine of $24,684 based upon a baseline penalty of $935 and 5% enhancement for lack of good faith and seriousness of the violations.

    In Integrity’s answer, it challenged the penalties asserting it was a small employer, numbering 28 employees, which should account for a 5% statutory reduction in the penalty, bad faith should not have been found, and the penalties assessed would place an undue hardship on the company.

    Factual Scenario for American

    American, also located in San Diego, CA, was served with a Notice of Inspection (NOI) in January 2015. Later, American was also served with a Notice of Suspect Documents listing four employees whose I-9 forms could not be verified as authorized to work. American responded none of these employees were employed at its company. ICE assessed a fine of $24,684 based upon a baseline penalty of $935 and a 5% enhancement for lack of good faith and seriousness of the violations.

    ICE also served a separate NIF on American alleging it failed to timely prepare I-9 forms for 10 employees. ICE proposed a fine of $5,390 based on a baseline penalty of $440 plus 5% enhancements for lack of good faith, seriousness of the violations, and employment of three undocumented workers. American filed an Answer asserting it should have received 5% mitigation for each of these factors: small size of its workforce (48 employees), good faith, and the non-statutory factor of leniency toward small businesses.

    OCAHO’s Decision

    The first factor discussed was whether Integrity and American should receive 5% mitigation for being a small employer. ICE asserted the fact that both employers had small workforces, 48 and 28 employees, was inappropriate for determining whether they were small employers. ICE argued it should focus on gross sales and gross assets. The Administrative Law Judge (ALJ) for OCAHO disagreed and applied appropriate caselaw to find both to meet the definition of small employers; thus, they were entitled to the statutory 5% mitigating factor.

    Next the ALJ focused on whether Integrity and/or American should be assessed 5% enhancement for bad faith or 5% mitigation for good faith. ICE asserted three reasons for a finding of bad faith: Integrity backdated one I-9 form; both companies did not complete I-9 forms for some employees until after the NOIs issued; and their failure to present evidence that they utilize E-Verify.

    Although backdating alone is insufficient to support a finding of bad faith, the ALJ found several factors supported a finding of bad faith. However, the ALJ noted the use or non-use of E-Verify is not a factor which should be reviewed in determining good faith/bad faith.

    Concerning the employment of undocumented workers as an enhancement factor, the ALJ stated ICE failed to provide any evidence of their undocumented status. Rather, their enhancement was based on inclusion in the Notice of Suspect Documents. As the ALJ correctly pointed out, an allegation of undocumented status, which is essentially what placement on a Notice of Suspect Documents means, is not sufficient to prove undocumented status. Thus, no enhancement was added for this factor.

    Another issue involving Integrity was whether it established an inability to pay/hardship. The ALJ did not find such, despite a loss of over $600,000, because Integrity paid approximately $500,000 in salaries and benefits – much of which was paid to its shareholders.

    In determining the amount of the penalties, the ALJ was disturbed by the fact that $935 was the baseline penalty for Integrity while only $440 was the baseline penalty for American. Although the ALJ correctly noted the difference in the percentage of errors on the I-9 forms was the basis of the different baseline penalty, he found the companies should be assessed at approximately the same dollar amount and compliance rate alone is insufficient to justify wide variation. Thus, the ALJ assessed $400 baseline penalty for substantive paperwork violations and $500 for failure to prepare I-9 forms.

    Based on this analysis, Integrity was found to have committed five violations for failing to prepare and/or present I-9 forms. Each of these violations will be assessed at $500, with the enhancement factor for seriousness of the violations and mitigation factor for the small size of the business cancelling each other. Accordingly, Integrity is liable for $2,525 under Count I. Under Counts II and III, Integrity was liable for substantive violations for failure to properly complete three I-9 forms and 19 substantive paperwork violations, all assessed at $400 each. Therefore, Integrity is liable for $11,325.

    American was found liable for 11 substantive violations for failing to prepare and/or present I-9 forms. Each of these violations will be assessed at $500, which includes the $500 base fine, with the enhancement factor for seriousness of the violations and mitigation factor for the small size of the business cancelling each other. Accordingly, American is assessed a total civil penalty of $5,500.

    Conclusion

    OCAHO may have slowed down on adjudication of cases but they will be back to speed once they get their allotment of ALJs. In the meantime, now is a great time to conduct an internal I-9 audit under the supervision of an experienced immigration compliance attorney. To find out more about internal I-9 audits as well as other employer immigration compliance issues, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.
  4. ICE to Increase Worksite Immigration Enforcement Actions in Tennessee

    By: Bruce Buchanan, Sebelist Buchanan Law

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    Immigration and Customs Enforcement (ICE), through Homeland Security Investigations (HSI), plans to increase worksite immigration enforcement actions across Tennessee in 2018, according to Robert Hammer, an assistant special agent in charge of HSI in Nashville, Tennessee. As previously reported, Thomas D. Homan, acting director of U.S. Immigration and Customs Enforcement, has stated there will be 4 to 5 times increase in worksite enforcement actions, usually referred to as inspections, in 2018. See http://blogs.ilw.com/entry.php?10186...-Current-Level.

    Hammer made this statement after the indictment of 20 undocumented workers for using fake IDs to work in a sensitive air cargo area at Memphis International Airport.

    http://blogs.ilw.com/entry.php?10292...mented-Workers. Hammer also stated worksite immigration investigations will likely focus on "critical infrastructure," such as airports, defense contractors, food distribution and other businesses that have an impact on the general safety and welfare of the community. The emphasis on critical infrastructure is because the agency is making it one of its priorities.

    Although the Obama Administration greatly increased worksite immigration enforcement actions from 2009 through 2014, it curtailed these operations in the last two years of its administration. The Trump Administration’s increase will more than double the highest number of worksite immigration enforcement actions under the Obama Administration. Increased enforcement could have a big impact on companies and industries that use immigrant labor, especially in those states which do not require the use of E-Verify.

    If an employer receives a Notice of Inspection from ICE, its I-9 forms may show the employment of undocumented workers and the employer may have knowingly hired unauthorized workers, which is against the law. Alternatively, an employer may not have knowingly hired unauthorized workers but still those undocumented workers must be discharged (unless they quit) or the employer will be fined.

    If you want a full discussion of the possible criminal and civil sanctions against employers for violating immigration laws, I recommend you read my book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379. There are chapters dedicated to civil penalties and criminal sanctions for violating immigration laws.
  5. ICE’s Inspection Costs Bakery 800 Employees in its Workforce

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    As I have discussing in this blog, Immigration and Customs Enforcement (ICE) is ramping up it worksite enforcement activities. Recently, after ICE issued a Notice of Inspection (NOI) and Notice of Suspect Documents to an unnamed staffing company for Cloverhill Bakery of Chicago, Illinois, approximately 800 employees were terminated or quit due to being undocumented workers.

    Cloverhill Bakery, a part of the Swiss-based international company, Aryzta AG, lost about 35% of its workforce due to the staffing company’s employees being undocumented. As one can imagine, losing 35% of your workforce has made it difficult to meet production of products for its customers, fast-food chains and supermarkets.

    Although press reports referred to ICE’s action as a raid, it was not such; rather it was an inspection of the staffing company’s employees’ I-9 forms. The inspection of the I-9 forms is accomplished by the delivery of a NOI/subpoena by ICE agents.

    The NOI was issued earlier in 2017 and caused one of the largest groups of employees to lose their jobs due to lack of work authorization in 2017. Since the NOI occurred earlier this year, ICE did not take any actions to detain the 800 undocumented workers. Recently, ICE announced that it planned to detain undocumented workers found at employers’ facilities.

    If you are worried that your company is going to be the next ICE target, I recommend you get prepared now. The best way is to have an immigration attorney, well-versed in I-9 forms and worksite enforcement, conduct an internal I-9 audit. Alternatively, if you want to get a better understanding of immigration compliance for employers, I recommend you 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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