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By Bruce Buchanan, Siskind Susser
The Monitoring and Compliance (M&C) Branch of U.S. Citizenship and Immigration Services (USCIS) is tasked with monitoring the employers who use E-Verify. In recent years, the number of compliance actions or referrals that M&C has sent to enforcement agencies has dramatically increased. When an employer is alleged to have misused the E-Verify system, M&C either refers that information to the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices and/or the U.S. Immigration and Customs Enforcement (ICE), or conducts its own “compliance actions”.
Below is a chart of M&C compliance activities for the period of FY2011 through FY2014:
As you can see, the number of referrals made to the OSC and/or ICE have increased over ten-fold from 86 to 909. Compliance actions which include emails, telephone calls, desk reviews and site visits by M&C more than doubled from 42,072 to 86,934.
A desk review is conducted by the M&C Branch if a standard review of a company’s E-Verify usage indicates it may be experiencing difficulties with the system. Companies selected for a desk review provide M&C Branch with E-Verify employment-related documents, such as copies of TNC notices, referral letters, and procedures for processing I-9 forms and E-Verify cases. M&C Branch reviews and analyzes these documents and then advises the employer on how to correct any problems.
A site visit can occur when the M&C Branch contacts an E-Verify participant if its records show a participant appears to be experiencing issues when using E-Verify. During a site visit, M&C Branch provides compliance assistance by discussing its observations with the participant. It also advises on how to properly follow E-Verify procedures.
These statistics are enough to give any employer pause as to whether they want to utilize E-Verify, if they are in a state where E-Verify is not required or they are not a federal contractor already obligated to use FAR E-Verify.
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 04-30-2015 at 12:46 PM by BBuchanan
By Bruce Buchanan, Siskind Susser
A federal employment lawsuit filed in Pennsylvania last week has turned up an unusual set of allegations of immigration compliance violations. The Plaintiff, a terminated employee, states in her complaint that she began working for Environmental Stoneworks in 2005 and took on Human Resources duties including the verification of employees’ work eligibility. She alleges that her superiors began pressuring her “intensively” to certify I-9 forms for employees without physically seeing the required documentation; and that an office manager told her to “get creative to get this done” because new employees needed to be on the job site immediately.
Creativity in the employment verification process, according to the Plaintiff, entailed reviewing copies of eligibility documents on a cell phone and executing I-9 forms outside the presence of employees. Rather than get in touch with her creative side, the Plaintiff states in her complaint that she alerted her superiors it would be illegal to sign I-9 forms without “physically reviewing” eligibility documents in the presence of employees.
Regardless of the reason for Plaintiff’s termination, she was correct in her belief that signing I-9 forms without physically reviewing employment eligibility documents would be illegal.
The Office of Chief Administrative Hearing Officer (OCAHO) recently provided some insight on this same issue when it stated:
“The I-9 form does not state that the certifier examined copies of the employee’s documents, it says the certifier examined the documents presented by the above named employee. It is simply impossible for a [certifier] to determine whether a document reasonably relates to an individual when the [certifier] never saw” the original documents. See United States v. Employer Solutions Staffing Group II, LLC, 11 OCAHO no. 1242 (2015). I covered this decision in a previous blog post.
It is important for a company’s certifier to personally review the originals of the employment eligibility documents. An employer should not email, mail, or fax copies of the documents to another company official to review and certify. This concept is especially important to remember where an employer has multiple facilities and retains the originals at its corporate headquarters.
More about the Miranda v. Environmental Materials, LLC, 3:15-cv-00568 (M.D. Pa.) case can be found here.
Updated 03-27-2015 at 01:56 PM by BBuchanan
By Bruce Buchanan, Siskind Susser
On December 29, 2014, the owner of a Washington, D.C. area pool service company was sentenced to prison for knowingly hiring unauthorized workers. In addition to prison time, he was ordered to pay a fine of $36,000, forfeit $42,262, perform 80 hours of community service, and serve 60 days of home confinement along with 18 months of probation.
According to his plea agreement with the U.S. Attorney’s office, Raymond Vincent was the owner of RSV Pools which provided lifeguards and pool maintenance services in the Washington, D.C. metro area. From January 2009 through June 2013, the company hired at least 12 unauthorized workers. Vincent approved the employment of each worker and knew that at least three of them were not legally authorized to work. Another nine employees were legally authorized for employment when they were hired, but their work status expired and they continued working with RSV Pools with Vincent’s knowledge.
Vincent also approved the payment of four unauthorized workers in cash “so that they did not appear on RSV’s books”, and permitted at least three of the unauthorized workers to rent a company apartment in 2012 and 2013, further profiting from their rent payments.
In a separate but related case, a former employee of RSV Pools, Milen Radomirski, was sentenced in July 2014 to two years in prison for visa fraud and ordered to forfeit $100,000. Radomirski worked for the company from 2003 to 2013, recruiting international workers for RSV Pools to sponsor to work in the U.S. on H-2B visas and other temporary visas. Radomirski submitted applications for approximately 789 H-2B visas from 2006 to 2011, and fraudulently obtained over 100 visas. Radomirski admitted that he charged visa beneficiaries money in exchange for including them on petitions for H-2B visas, and knew that many of the visa beneficiaries would only work for RSV Pools a short time, or not at all, before working for other companies.
As part of Vincent’s plea agreement, neither he nor RSV Pools can apply for visas or work permits for any foreign workers for a period of three years.
A copy of the press release from ICE HSI can be found here.
Updated 01-12-2015 at 04:09 PM by BBuchanan
By Bruce Buchanan, Siskind Susser
On October 20, 2014, the owner of two Chinese restaurants in Kansas and Missouri pleaded guilty to conspiring to employ and harbor undocumented workers. At sentencing, he faces up to 10 years in federal prison and a fine of up to $250,000. As part of a plea agreement, he admitted to employing at least 12 undocumented workers, paying them in cash and providing them housing.
The investigation was led by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) and resulted in the arrest of more than a dozen suspects including operators, managers, and employees connected with Wei’s Super Buffet in Olathe, KS and Wei’s Super Buffet No. 2 in Kansas City, MO.
ICE found six undocumented immigrants at an apartment leased by one of the restaurant owner’s family members. Five other defendants were found guilty at trial of harboring undocumented workers, and participating in a wider conspiracy to obtain motor vehicle registrations, license plates, and titles for undocumented immigrants.
Hiring of unauthorized workers is a violation of the Immigration and Nationality Act (INA § 274A), which involves the failure of an employer to verify the employment eligibility of any person hired after November 6, 1986, by using the Form I-9.
A copy of the press release from ICE can be found here.
United States v. Wei Liu, et al., No. 13-20114-KHV (D. Kan.)
On January 30, 2014, federal agents arrested the owners of two employment agencies in Houston and charged them with recruiting and placing undocumented immigrants at restaurant jobs around the country, among other federal crimes. If convicted, each defendant faces up to 10 years just on the immigration conspiracy charge.
The raids on Hong Li Job Agency and the Tai Shan Employment Agency were part of a wider undercover investigation by U.S. Immigration and Customs Enforcement (ICE) that led to the arrest of 30 other suspects including operators and managers connected with Chinese restaurants in Arkansas, Colorado, Kansas, Louisiana, Oklahoma, Maine, Texas and elsewhere who are believed to have knowingly employed and exploited undocumented workers.
Hiring of unauthorized workers is a violation of section 274A of the Immigration and Nationality Act (INA), which involves the failure of an employer to verify the employment eligibility of any person hired after November 6, 1986, by using the Form I-9.
The workers, primarily from Mexico and Central America, were allegedly charged a fee of $300 to $480 for job placement which was deducted from their first month's pay. Once hired, they would work 12-hour shifts and 6 days per week at the restaurants, but were not paid overtime or allowed to keep their tips or gratuities. Workers were paid a set amount of $1,000 to $2,000 a month for putting in 72-hours of work per week. The restaurant operators paid less than the minimum wage, paid in cash to avoid employment taxes, and did not provide the workers with health insurance, vacation or sick time, ICE officials said.
Copies of both indictments are available here and here .
Restaurants specifically identified in the indictments are:
China Cafe - Brownwood, TX;
Asian City - Nacogdoches, TX;
China Star - Bastrop, LA;
Super Taste China Buffet - Port Allen, LA;
New China Buffet and Grill - Abbeville, LA;
Grand Buffet - Nederland, TX;
King Buffet - Port Arthur, TX;
Asian Garden - San Marcos, TX;
Buffet City Asian Cuisine - Rockwall, TX;
Weng's Buffet City Asian Cuisine - Rockwall, TX;
Dragon Buffet and Sushi - Sanger, TX
Updated 02-04-2014 at 06:38 PM by BBuchanan