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I-9 E-Verify Immigration Compliance

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  1. OSC & ICE Publish Guidance to Employers on Internal I-9 audits

    By Bruce Buchanan, Siskind Susser
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    The Department of Justice’s Office of Special Counsel (OSC) and the U.S. Immigration and Customs Enforcement (ICE) have issued a six-page joint Guidance for Employers Conducting Internal Form I-9 Audits. In a later blog, I will discuss more of the specifics of the guidance.

    To ensure that these internal audits are conducted properly and do not discriminate against employees, ICE and OSC have collaborated to issue formal guidance on the topic. According to Principal Deputy Assistant Attorney General Vanita Gupta, head of the Civil Rights Division, “without clear and effective guidelines, internal audits can create barriers to employment for work-authorized individuals.”

    The joint guidance was developed by the two agencies with significant input from the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, the U.S. Citizenship and Immigration Services, the Department of Labor, the National Labor Relations Board, the Equal Employment Opportunity Commission and stakeholders around the country. This guidance is part of the six-month action plan of the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws.

    Among other things, the guidance provides employers with information regarding the scope and purpose of audits; considerations before conducting internal audits; details regarding how to correct errors, omissions or other deficiencies found on Forms I-9 and how to cure deficiencies related to E-Verify queries; and guidance regarding the anti-discrimination mandate.

    Updated 12-15-2015 at 10:41 AM by BBuchanan

  2. OSC Issues TAL where Advise on Discrimination

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a Technical Assistance Letter (TAL) on October 23, 2015 advising that where the employer has doubts about the validity of the documentation found in an internal I-9 audit and requests the employees in question for further documentation, this is likely not discrimination.

    In this case, an attorney requested guidance on how to advise an employer-client following an internal audit of the client's I-9 forms. In the proposed situation, the attorney seeks guidance on what steps the employer-client should take with respect to Permanent Resident Cards that the Employer doubt the veracity of. The attorney proposes to advise the employer-client to meet with the employees whose documentation the Employer believes is doubtful and request the employees to present different documentation. The question raised by this scenario is whether this is discrimination because the affected employees share the same national origin.

    To prevent discrimination in violation of the anti-discrimination provision, an employer, hopefully under the guidance of an immigration attorney, conducting an internal I-9 audit should conduct the audit in a consistent manner and should not treat employees differently based on citizenship status or national origin. The OSC stated an example of discrimination is when an employer bases its selection of which I-9 forms to review on employees' citizenship status or national origin. In addition, the OSC stated employers should apply the same level of scrutiny to Form I-9 documentation and not apply different levels of scrutiny based on citizenship status or national origin.

    If, after following these principles during an audit, the OSC concluded an employer identifies documentation that does not reasonably appear to be genuine or relate to the employee and requests that the employee present alternative documentation, the request for alternative documentation is unlikely to violate the anti-discrimination provision. The OSC stated the employer may state that the particular document called into question by the internal audit may not be used again for I-9 purposes. According to the OSC, if the employer requests alternative documentation, the employer should not request specific documents. The employee should be permitted to present his choice of other documents, as long as they are acceptable for employment eligibility verification purposes.

    Although the OSC’s TALs do not carry the weight of a Judge’s decision, they do indicate the OSC’s thinking on a particular matter. These TALs can be valuable resources in advising clients on issues of discrimination.
  3. Horse Breeder Finishes “In the Money” with OCAHO

    By Bruce Buchanan, Siskind Susser

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    Making this the third decision involving horse racing stables in the last year, an OCAHO Administrative Law Judge (ALJ) reduced a breeder-employer’s penalties by about 50% to $35,900 in United States v. McPeek Racing Stables, 11 OCAHO no. 1249 (2015).

    McPeek Racing Stables trains thoroughbred race horses in New York, Kentucky and Florida and is owned by Kenneth McPeek, a horse trainer. On September 23, 2011, Immigration and Customs Enforcement (ICE) served a Notice of Inspection (NOI) on McPeek Racing Stables, which eventually led to a Notice of Intent to Fine. Count I of the complaint alleged McPeek Racing Stables failed to prepare I-9 forms for 62 employees. Count II alleged the company failed to ensure that 37 employees properly completed Section 1 of their I-9 forms, or it failed to properly complete Sections 2 or 3 of the I-9 forms.

    ICE initially set the baseline penalty at $770 per violation because McPeek Racing Stables had a 40-49% error rate on their I-9 forms. ICE mitigated the penalties by 5% for each of these factors – small business, no unauthorized workers present, a lack of history of previous violations and a lack of bad faith. However, it aggravated the penalties by 5% due to the seriousness of the violations. Thus, ICE sought a penalty of $654.50 per violation for a total of $64,795.50 in penalties.

    McPeek Racing Stables conceded liability for the 99 Form I-9 violations but disagreed with the amount of the penalties. It asserted the proposed penalties would force the company to close, and noted that the proposed penalties were more than 25% of McPeek’s 2013 income. However, McPeek offered only one tax return to support this argument. McPeek Racing Stables also argued that it had implemented I-9 Compliance Policy and Procedures in good faith, and that the horse racing industry is “transient”, which leads to a high staff turnover.

    OCAHO stated that the failure to prepare an I-9 form is the most serious violation, and the failure to insure proper completion of Section 1 and to properly prepare Section 2 are also very serious violations. However, apart from the seriousness of the violations, all other factors were in favor of McPeek Racing Stables. OCAHO declined to find inability to pay the penalties as a viable defense because McPeek Racing Stables has substantial assets.

    OCAHO held that “given the transient nature of the industry, and in light of the general public policy of leniency toward small entities”, the penalties should be lowered to $400 each for the 62 violations in Count I and $300 each for the 37 violations in Count II. The total penalties assessed by OCAHO are $35,900.

    The Takeaway

    Perhaps if McPeek had implemented an I-9 Compliance Policy before ICE served it with an NOI, the company could have avoided much of its liability. This case is another great example for the need for employers to have an I-9 Compliance Policy and to periodically self-audit to help detect missing I-9 forms and locate errors on existing forms.

    A copy of the decision is available here. Cite as: U.S. v. McPeek Racing Stables, 11 OCAHO no. 1249 (2015).

    ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .

    Updated 05-07-2015 at 10:28 AM by BBuchanan

  4. OCAHO Rejects Most of Dentist’s Defenses

    By Bruce Buchanan, Siskind Susser

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    In the last decision of 2014 from the Office of the Chief Administrative Hearing Officer (OCAHO), the administrative law judge held that Dr. Robert Schaus, a dentist, was liable for failing to timely prepare and/or present I-9 forms for 10 employees at his dental office. The ALJ reduced his penalty from $10,030 to $5,400.

    Dr. Schaus’s dental practice is located in Clarence, New York, where it operates as a sole proprietorship. After Immigration and Customs Enforcement (ICE) served Schaus with a Notice of Inspection (NOI), he provided a list identifying the hire dates for eight current employees, and the hire and termination dates for three former employees, along with six I-9 forms and other requested documentation. Schaus identified two employees as working on an “as needed” basis and one employee who had been terminated when she joined the Army Reserves several years before.

    Schaus argued that he did not need to retain the I-9 forms of current employees, who had worked greater than three years. OCAHO rejected this defense as it is fundamentally “wrong as a matter of law”. An employer must always retain the I-9 forms of current employees, including those employees who are working on an as-needed basis.

    OCAHO dismissed one allegation related to the employee who had been terminated on September 20, 2010, when she joined the Army Reserves. Although the employee’s name was listed in quarterly reports for two years, no wages were reported in any of those quarters. Since the employee only was employed for five months, the duty to retain her I-9 form ended three years from her date of hire or April 19, 2013, four days before the NOI was issued.

    Schaus also asserted that certain I-9s contained only technical violations -- the omission of a date in Section 2 of the I-9 forms. If so, Schaus would get the opportunity to cure within ten days’ notice from the government. However, the violations concerned the failure to promptly prepare the I-9 forms, which is a substantive violation. Thus, OCAHO rejected this defense. In doing so, it stated a violation is not cured by a belated (after the NOI was served) or partial completion of the I-9 forms.

    In assessing the penalties for the paperwork violations, ICE set a baseline penalty of $935 for each of the employees hired before September 29, 1999, and $850 for each of the employees hired after September 29, 1999. ICE mitigated the penalty by five percent for each violation, based on the small size of Schaus’ business, and the absence of unauthorized workers. However, ICE aggravated the penalty by five percent for each violation, based on the business’s alleged bad faith in backdating the I-9s it presented and the seriousness of the violations. OCAHO agreed with the mitigation and aggravation of the penalties, except it determined the evidence did not support a finding of bad faith.

    OCAHO reduced the penalty from $10,030 to $5,400 because it should be closer to the “midrange” of permissible penalties and more in line with those imposed on other small family businesses with similar violations. For the six violations involving failure to timely prepare I-9 forms, the penalty was set at $500 per violation. For the four violations involving the failure to present I-9s, the penalty was set at $600 per violation.

    A copy of the OCAHO decision is available here.
    Cite as U.S. v. Dr. Robert Schaus, D.D.S., 11 OCAHO no. 1239 (2014).

    Updated 01-16-2015 at 09:54 AM by BBuchanan

  5. Speedy Gonzalez Subject to Fines for Immigration Violations

    By Bruce Buchanan, Siskind Susser

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    In U.S. v. Speedy Gonzalez Construction, Inc., the Office of the Chief Administrative Hearing Officer (OCAHO) faced several interesting issues in determining the potential liability of the company. Speedy Gonzalez is a husband-and-wife-owned construction company, located in Glendale, Arizona. After Speedy Gonzalez provided its I-9 forms to Immigration and Customs Enforcement (ICE), it was served with two Notices of Suspect Documents identifying 83 individuals who appeared to be unauthorized for employment.

    ICE’s complaint alleged the company failed to prepare and/or present I-9 forms for 101 employees and failed to ensure the proper completion of Section 1 and/or failed to complete Section 2 or 3 of the I-9 forms. There was not a material factual dispute on most of the issues in the Complaint.

    For the nine employees who the company failed to ensure proper completion of Section 1 of the I-9 form, the errors involved:

    - failure of the employee to sign the I-9 form
    ;
    - failure of the employee to check a status box; and
    - failure to record a permanent resident’s alien number.

    Speedy Gonzalez raised a number of defenses to assert there were material disputes of fact. One defense was that some former employees worked fewer than three days or never worked for the company. Another defense used by the company was that its use of the E-Verify system for some of those individuals constituted “good faith compliance” and “is equivalent to the examination certification in Section 2.”

    In determining whether the failure to complete the I-9 form is excusable based on an employee’s failure to continue employment for more than three days, “the expectations of the parties with respect to the duration of employment, as well as the specific facts and circumstances surrounding the hire, must be evaluated on a case by case basis.”

    The facts demonstrated some of these employees may have worked less than three days but their days of employment were spread over four to six days. Thus, OCAHO found these employees were on the payroll for at least three days after hire – meaning the company had an obligation to obtain completed I-9 forms.

    However, Speedy Gonzalez prevailed on its claim that four employees were never on its payroll because the Arizona Unemployment Tax and Wage Reports did not reflect any wages paid to these four individuals.

    OCAHO rejected the construction company’s defense that its use of E-Verify was equivalent to Section 2 certification. The E-Verify Memorandum of Understanding specifically states the “employer understands that participation in E-Verify does not exempt the employer from the responsibility to complete, retain and make available for inspection Forms I-9 that relate to its employees.” Thus, the company’s use of E-Verify does not excuse its failure to properly complete Section 2 of the I-9 forms and present the forms for inspection.

    Speedy Gonzalez was successful in arguing that the husband-and-wife owners did not have to complete I-9 forms. OCAHO has held owners with substantial control over the company do not have to complete an I-9 form. Unfortunately, ICE tends to ignore this case law and continues to allege violations for the failure of owners to prepare I-9 forms.

    Lastly, Speedy Gonzalez attempted another defense – arguing that it “recreated” some of the I-9 forms after the NOI when the original I-9 forms were missing. However, it was unsuccessful because OCAHO held the company failed to present “a scintilla of evidence that the original forms ever actually existed.”

    OCAHO did not assess any penalties at this time; rather, it ordered ICE to file its penalty request and Speedy Gonzalez to respond to the proposed penalty.

    A copy of the OCAHO decision is available here.
    Cite as U.S. v. Speedy Gonzalez Construction, Inc., 11 OCAHO no. 1228 (2014)

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    Updated 11-12-2014 at 10:09 AM by BBuchanan

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