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I-9 E-Verify Immigration Compliance

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  1. Bay Area Restaurants Fear ICE I-9 Audits

    By: Bruce Buchanan, Sebelist Buchanan Law

    Restaurants in the Bay area of California are on pins and needles fearful of Immigration and Customs Enforcement’s (ICE) continued assault on California due to California passing laws viewed by ICE as restricting their ability to find and detain undocumented individuals. As discussed in prior blogs, ICE has been very active in delivering Notices of Inspection (NOI)/subpoenas to California employers.

    In an article in San Francisco Chronicle, https://www.sfchronicle.com/restaura...r-12823400.php, Gwyneth Borden, executive director of the Golden Gate Restaurant Association, was quoted as stating “Everyone is fearing a day that ICE could show up at their doors.”

    When ICE conducts an I-9 inspection/audit, their agents show up at employer locations and serve a subpoena and 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.

    Nick Cobarruvias, co-owner of Son’s Addition, employs roughly 29 people at his restaurant. He said about two-thirds are immigrants. Cobarruvias said one employee recently failed to show up for work for several days. Both he and staff members tried contacting him to no avail. “It turned out he was picked up by ICE. Just wrong place, wrong time,” Cobarruvias said. “This is the new reality we’re dealing with. People talk about it like it’s theoretical, but this is really happening.”


  2. DOJ Settles Immigration-Related Discrimination Claim Against Themesoft Inc.

    By: Bruce Buchanan, Sebelist Buchanan Law

    The Department of Justice, through the Immigrant and Employee Rights Section (IER), has reached a settlement with Themesoft Inc., a Texas-based company that provides consulting and staffing services to technology clients. The settlement resolves the IER’s investigation into whether the company discriminated against a work-authorized immigrant by refusing to allow him to continue in the hiring process, in violation of the Immigration and Nationality Act (INA).

    The investigation, initiated based on a worker’s complaint, revealed Themesoft engaged in citizenship status discrimination against an asylee by refusing to process his application because he was not a lawful permanent resident, U.S. citizen, or H-1B visa holder. Asylees have permanent work authorization, like U.S. citizens, refugees, and lawful permanent residents, so employers are generally prohibited from discriminating against them based on their citizenship status. The investigation also revealed Themesoft requested specific immigration documentation from the worker because of his citizenship or immigration status even though the INA’s anti-discrimination provision prohibits such conduct.

    Under the settlement agreement, Themesoft will pay $12,000 in back pay to the Charging Party and offer him employment; $4,543.25 in civil penalties for the alleged citizenship status discrimination and the unfair documentary practices; post notices informing workers about their rights under the INA’s anti-discrimination provision; train its Human Resources personnel on their legal obligations to not discriminate by viewing a free online IER Employer/HR Representative webinar presentation and reviewing the M-274 Handbook for Employers; review and revise, as necessary, any existing employment policies that relate to nondiscrimination based on traits or characteristics protected by law; for the next three years, provide the most current version of the Form I-9 Lists of Acceptable Documents to individuals in the same manner as it provides them with the Form I-9 to complete; and be subject to departmental monitoring and reporting requirements for three years.
  3. How does ICE Calculate Fines in an I-9 Inspection

    By: Bruce Buchanan, Sebelist Buchanan Law


    As Immigration and Customs Enforcement (ICE) conducts more and more I-9 inspections (the ICE director stated they would be increasing by 400 to 500%), employers need to know how ICE calculates any fines assessed against employers. AILA’s I-9 Verification Committee, through Rick Gump and Eileen Momblanco, recently drafted a fine Practice Pointer, which I encourage AILA members to read. For non-AILA members, this article will discuss the same concepts.

    It begins for an employer when ICE serves a Notice of Inspection (NOI)/subpoena to review the employer’s I-9 forms as well as many other HR-related records. The NOI gives the employer three business days to provide the subpoenaed documents. The ability to receive an extension of time to provide the I-9 forms and other documents seems to vary with what ICE office you are dealing. I have been successful in receiving extensions in almost all NOIs, but I never ask for more than one week and usually only five days. After the ICE auditor reviews the I-9 forms, the employer will receive a series of notices – Notice of Suspect Documents and Notice of Technical and Procedural Failures are the most common notices.

    If substantive paperwork, hiring, or continuing to employ (H/CTE) violations are found, ICE normally issues a Notice of Intent to Fine (NIF), although if the errors are less than 10%, ICE usually only issues a Warning Notice without a penalty. The fine/penalty amount in the NIF is determined by ICE attorneys and special agents in charge. Fines can be challenged by requesting review by an Administrative Law Judge (ALJ) of the Office of Chief Administrative Hearing Officer (OCAHO) within 30 days of receipt of the NIF. If litigated, the ALJ can adjust the fine amount.

    In November 2008, ICE issued a Memorandum, “Revised Administrative Fine Policy Procedures”, which contained a set of matrixes and required ICE to follow specific procedures for calculating paperwork and H/CTE fines. The Policy Procedures state the following to determine the level of fine within each matrix:


    • Use the number of violations of each type (paperwork or H/CTE) as the numerator and the number of total employees as the denominator; and
    • The percentage calculated above would be used to determine the percentage box in the fine matrix to start, and then fines could be adjusted up or down five percent for each of the five factors - business size, good faith, seriousness, employment of unauthorized aliens, and prior history with ICE/INS.


    However, ALJs can consider any factors it deems necessary to calculate an appropriate fine based on the case at hand. Cases with both paperwork and H/CTE violations sometimes produce higher fines for a greater number of paperwork violations compared to fines for a fewer number of H/CTE violations.

    To increase the level of penalties, ICE has begun to create a higher level of fine on each matrix by adding the number of paperwork violations to the number of H/CTE violations as the numerator, which in some cases dramatically increases the level of the fine in each matrix. Here are two examples:


    • If you have 100 employees with 10 substantive paperwork violations and 20 H/CTE violations, you add 10 + 20 = 30 to calculate 30% violations for each matrix. This would lead to a fine of $60,270 using the 2017 matrixes.
    • If you have 100 employees with 10 substantive paperwork violations and 20 H/CTE violations, you add 10/100 = 10% for paperwork and 20/100 = 20% for H/CTE violations for each matrix. This would lead to a fine of $40,560 without any aggravating or mitigating factors applied.


    In other words, instead of taking the number of paperwork violations and dividing them by the
    number of employees, and then calculating the H/CTE violations the same way, ICE adds the
    number of paperwork violations to the number of H/CTE violations when calculating the
    violation percentage from each matrix. This is resulting in a higher fine based on the matrix
    percentage of violations for each of the paperwork and H/CTE violations.

    ICE has defended this calculation method by pointing to language in the 2008 fine policy procedures, “The recommended base fine amount is determined by dividing the number of ‘knowing hire,’ ‘continuing to employ,’ and substantive verification violations by the total number of Forms I-9 presented for inspection to determine a violation percentage.”

    However, as the Practice Pointer states:
    On the next two pages, ICE instructs agents to “divide the number of ‘knowing hire’ and ‘continuing to employ’ violations by the number of employees for whom a Form I-9 should have been prepared to obtain a violation percentage” and to “divide the number of substantive violations by the number of employees for whom a Form I-9 should have been prepared to obtain a violation percentage.” Each instruction is paired with a separate fine matrix and no other ICE issued documentation instructs agents or attorneys to add the violations together. ICE’s I-9 inspection webpage also makes no mention of the double-dipping method of fine calculation.

    In evaluating NIFs, attorneys for employers should ask these questions:
    1. Are the fines calculated within the confines of the statute as updated by DOJ?
    2. What baseline and method did ICE use to calculate the fine in the instant case?
    3. What factors were used to aggravate or reduce the level of the fine?
    4. Were the factors appropriately used?
    5. Did ICE apply the 5% enhancement for employment of unauthorized aliens to only those violations as opposed to across the board?
    6. Did the NIF miscalculate the fines by double-counting violations? And
    7. Did ICE make other errors in its calculations?

    After evaluating these issues and trying to negotiate a settlement, one must assess the propriety of settling with ICE versus challenging the fine with an OCAHO ALJ.

    If you want to know more information on I-9 penalties/fines, 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.
  4. USCIS Launches New Website E-Verify

    By: Bruce Buchanan, Sebelist Buchanan Law



    USCIS has launched a new website, E-Verify.gov. USCIS describes it as the authoritative source for information on electronic employment eligibility verification. E-Verify.gov is for employers, employees and the general public.

    The website provides information about E-Verify and Form I-9, Employment Eligibility Verification, including employee rights and employer responsibilities in the employment verification process. E-Verify.gov allows employers to enroll in E-Verify directly and permits current users to access their accounts. Individuals with myE-Verify accounts can also access their accounts through E-Verify.gov.

    “For the past decade, E-Verify has been the cornerstone of our continued commitment to helping employers maintain a legal workforce,” said USCIS Director L. Francis Cissna. “E-Verify.gov now allows users to better understand and navigate through the employment verification process.”

    Employers can access E-Verify anytime, anywhere directly from a web browser. Nearly all employees are confirmed as work-authorized instantly or within 24 hours. The system has nearly 800,000 enrolled employers, which is still a small percentage of total employers in the United States.

    If you want to know more information on E-Verify, 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.
  5. When does an Employer have Knowledge of Unlawful Immigration Status

    By: Bruce Buchanan, Sebelist Buchanan Law


    In our book, I-9 and E-Verify Handbook (http://www.amazon.com/dp/0997083379), Greg Siskind and I discuss Knowledge of Unlawful Immigration Status. Here are excerpts from Chapter 6 from the book.

    6.1 What if an employer knows an employee is not authorized to be employed even though the Form I-9 was properly completed?

    An employer that knows the employee is not authorized to work, even though everything on the Form I-9 appears valid—is violating the Immigration Reform and Control Act (IRCA) because the employer is considered to have actual knowledge that an employee is not employment eligible. An employer that simply suspects an employee is ineligible to work should be extremely careful before terminating an employee, or even asking for additional documentation, unless the employer has a solid foundation for the belief. Taking an action after merely hearing from an-other employee that a particular employee is unauthorized to be in the United States is a recipe for a discrimination lawsuit because IRCA does not require employers to make inquiries under these circumstances. On the other hand, if an employee actually provides information to the employer regarding his or her immigration status, the employer would be considered to have knowledge. If the employer continues to employ this individual, it is a serious violation.

    6.2 When would an employer be considered to have “constructive knowledge”?

    The U.S. Department of Homeland Security (DHS) regulations hold employers liable not only when they have actual knowledge that an employee is unauthorized to work, but also when knowledge may be inferred through notice of certain facts that would “lead a person, through the exercise of reasonable care, to know about a certain condition.” Code of Federal Regulations, Title 8, section 274a.1(e). This is called “constructive knowledge,” and DHS lists several examples in its rules:

     The employer fails to complete or improperly completes the Form I-9.

     The employer has information that would indicate the alien is not authorized to work, such as a labor certification (this would generally apply only when an employee already was claiming to be a U.S. citizen or permanent resident on the Form I-9).

     The employer acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an un-authorized employee into its workforce.

    This list is not exhaustive, and employers also need to be cognizant of the anti-discrimination rules. In addition, failing to re-verify a Form I-9 requiring reverification usually will be considered constructive knowledge.

    A clearer situation is found when an employer receives a Notice of Suspect Documents (NSD) from ICE that an employee has submitted fraudulent documentation. The courts generally have held that such a notification would provide an employer with constructive knowledge of a problem and that the employer would need to re-verify.

    6.3 What if an employee later presents a different Social Security number from when the Form I-9 was completed?

    Because a person is assigned only one Social Security number (SSN) in his or her lifetime, an employee who comes to an employer with a number different from the one at the time of hire should be viewed with suspicion. The odds are that the employee used a false number to begin work and has somehow been able to obtain a valid SSN later (such as through a green-card application filed independently of the employer).

    The same principle normally applies with an “A” or “Alien number.” An employee should have only one “Alien number.” The number does not change upon renewal of Permanent Resident card or moving from Employment Authorization card to Permanent Resident card. The authors know of only two occasions where an employee legitimately had two “Alien numbers” and that was when the employee failed to disclose the number to ICE or USCIS before starting a new process. Having two different “Alien numbers” is a strong indication of unlawful status or previous unlawful status.

    Employers will, of course, want to speak to employment counsel involving a violation of an employer’s policies regarding making false statements during the hiring process. With respect to IRCA, the employer should inquire regarding the circumstances surrounding obtaining the new number. However, the employer is not required to terminate the employee even if the employee admits making a false statement; and the employer would be able to continue employing the employee if the employer had no knowledge of the employee’s lack of work authorization. In this case, a new Form I-9 should be completed with the old Form I-9 attached with an explanation. The employer should correct the number with the IRS, so taxes are properly withheld.

    However, if the employer has an honesty policy that states one can be terminated for lying on a company document and that policy has been followed, the employee must be terminated.

    6.7 What if an employer receives a DHS notice that there is a problem with a document presented in connection with a Form I-9?

    DHS’s requires an employer to take specific steps in a prescribed timeframe when it receives notification from DHS that a document presented by an alien for employment verification purposes is invalid, or fraudulent, or cannot be authenticated. The main uncertainty surrounds how quickly an employer would need to respond and to what extent.

    An employer that receives this type of notice (known as a Notice of Suspect Documents, or NSD) would not violate the anti-discrimination rules of IRCA if it requests that an employee provide additional documentation. The courts have held that ICE need not pro-vide irrefutable proof that the employee is ineligible to work. It is enough that ICE provides information that arouses suspicion. As for timing, an employer must act within 10 days of ICE’s notice, although it is debatable as to what action the employee must take within 10 days. It may be that the employer must notify the suspect employee, or it may be that the employer must discharge the employee if he or she does not provide any new work authorization or ICE has rejected the new documents. Certainly, it must be reasonable under the circumstances.

    Another type of notice from ICE is called a Notice of Discrepancies. It advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has been unable to determine their work eligibility. The employer should provide the employee with a copy of the notice and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility.
    When an employer follows up with an employee, the question also arises regarding what action must be taken. Clearly, the employer must provide the new documentation to ICE, which will determine the new documentation’s validity. What if the employee provides new, valid documentation that does not include the suspect document? In this case, the employer would have a defense against a later charge of knowingly employing an unauthorized employee.

    6.8 What if an employee tells the employer that another employee is unauthorized?

    The employer should not consider a mere tip from another employee to constitute knowledge that an employee is out of status. An employer acting on such a tip alone could be vulnerable to being found to have violated anti-discrimination laws.

    According to a ICE/ Office of Special Counsel (OSC) December 2015 guidance, “tips concerning an employee’s immigration status may lead to the discovery of an unauthorized employee, tips and leads should not always be presumed to be credible. An employer is cautioned against responding to tips that have no indicia of reliability, such as unsubstantiated, retaliatory, or anonymous tips. Heightened scrutiny of a particular employee’s Form I-9 or the request for additional documentation from the employee based on unreliable tips may be unlawful, particularly if the tip was made based on retaliation, the employee’s national origin, or perceived citizenship status.”

    On the other hand, an April 12, 1999, opinion letter from legacy Immigration and Naturalization Service (INS) general counsel noted that if an employer receives a tip from another employee indicating that an employee is not authorized to be employed, and the employer later receives a Social Security no-match letter, the employer would likely have constructive knowledge based on a “totality of the circumstances.”

    6.9 Is an employer liable if it uses a contractor and knows the contractor’s employees are not authorized to work?

    Yes. DHS regulations state that any person who uses a contract, subcontract, or exchange to obtain the labor or services of a foreign employee in the United States, knowing that the employee is unauthorized to work, should be considered to have hired the employee for purposes of determining if a person has violated IRCA.

    6.10 May an employer be deemed to have constructive knowledge when it failed to complete a Form I-9 for an employee or when the form is completed improperly?

    Yes. In various cases, employers have been held to have had constructive knowledge that an employee was unauthorized to work even if the employer had no direct knowledge of the employee’s employment status. Courts have held that employers are not excused simply because there is a Form I-9, if the form itself was not properly completed. A court would look to the circumstances surrounding the particular form and use a standard of what is reasonable to determine if an employer should have known that an employee was likely not authorized.

    6.11 May an employer be deemed to have constructive knowledge when it fails to re-verify a Form I-9?

    Yes. Courts have found that an employer that fails to re-verify a Form I-9 when such re-verification is required will usually have constructive knowledge that an employee is unauthorized to work. The more complicated question is what to do when the employee presents documentation that does not relate to the expired document presented at the time of hire. ICE and the courts have held that an employer has an obligation to make an inquiry regarding the continuing employment authorization. This would seem to violate the anti-discrimination rules in IRCA that bar employers from specifying which documents an employee may submit. However, Congress addressed this issue in Section 421 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which punishes employers for making inquiries regarding continuing work authorization only when such inquiries are made for the purpose or with the intent of discriminating against an individual.
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