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I-9 E-Verify Immigration Compliance

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  1. Corso’s Issues Statement after ICE Raid

    By: Bruce Buchanan, Sebelist Buchanan



    Corso’s Flower and Garden Center of Sandusky, Ohio and Castalia, Ohio, the target of ICE raids on June 5, 2018, recently issued a statement concerning ICE’s investigation.

    As you may recall, on June 5, approximately 200 ICE agents swarmed Corso’s two plant nurseries and detained approximately 114 workers suspected of being in the country without proper work authorization. The workers were expected to be placed into deportation proceedings and many criminally charged with identity theft and tax evasion.
    Corso’s press release, which was shared on its Facebook page, read in pertinent part:

    Corso’s is fully complying with the government’s investigation. Corso’s regrets the stress and pain the raid had on our employees and their families…. It is our hope that federal authorities will work diligently to ensure minimal disruption to families of our employees as they execute their orders.

    Corso’s prides itself on being a good corporate citizen and has always made it a priority to operate its business with the utmost integrity, both to its employees and to the community. This means that Corso’s does right by the law, just as it does right by its employees and customers. Corso’s therefore demands proper documentation from all those seeking employment at its facilities and also ensures that all employer taxes, are properly paid.

    Just as Corso’s has strived over the past 77 years to be honest and fair in its dealings with its employees, Corso’s expects its employees to be honest with it as well. Corso’s strives to comply with U.S. employment laws and therefore asks its employees and prospective employees for honest and legitimate identification and documentation. If mistakes were made or if anyone used false, fraudulent, or otherwise disingenuous identification documents or other documents to secure employment at Corso’s, the company was not aware of those things.
    Corso’s looks forward to the resolution of this unfortunate situation and in the interim will continue to focus efforts on serving customers as the investigation proceeds.

    In this case, ICE initially served Notices of Inspection weeks ago and had been auditing the 313 I-9 forms supplied by Corso’s. Before the service of the Notices of Inspection, ICE received tips involving Corso’s and began an investigation in October 2017. A triggering event appears to be the arrest and indictment of Martha Buendia-Chavarria, who was charged with operating a document mill. During the ICE audit, according to ICE, they found 123 I-9 forms which were suspicious due to use of duplicate Social Security numbers and identification belonging to other people.

    It will be interesting to see what the result of the raid is as it relates to Corso’s. 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. The Quiet Before the Storm? A Review of 2017 OCAHO I-9 Penalty Decisions

    By: Bruce Buchanan, Sebelist Buchanan Law




    Today, I am re-publishing my annual review of OCAHO decisions, which was originally published by LawLogix on May 17, 2018.

    The Office of Chief Administrative Hearing Officer (OCAHO) was incredibly quiet in calendar year 2017 issuing only 5 substantive decisions against employers in I-9 penalty cases. This was a sudden change from 2016 when there were 16 substantive decisions against employers in I-9 penalty cases. Why the drastic reduction? Did employers stop committing I-9 violations? Did employers stop appealing decisions by Immigration and Customs Enforcement (ICE)? As recent news clearly illustrates, the answer to both questions is a resounding no.

    The real reason for the reduction in cases is actually much simpler and less provocative: turnover of Administrative Law Judges at OCAHO…..

    [I]t’s still worthwhile to review the substantive cases that were issued in 2017, in the hopes that employers can benefit in the future (when cases are once again likely to increase).

    For remainder of article go to https://www.lawlogix.com/the-quiet-b...lty-decisions/.

    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.

    Updated 06-11-2018 at 02:57 PM by BBuchanan

  3. ICE Raids are Back: ICE Raids Ohio Flower and Garden Center

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC



    If there was any feeling that the Bean Station raid was isolated and motivated by the IRS, those feelings are gone with this week’s raids by ICE of Corso’s Flower and Garden Center in Sandusky, Ohio and Castalia, Ohio. This is the second ICE raid in two months with the earlier one occurring at a meat slaughterhouse in Bean Station, Tennessee.

    On Tuesday, June 5, approximately 200 ICE agents swarmed these two plant nurseries and detained approximately 114 workers suspected of being in the country without proper work authorization. The workers were taken to various detention facilities in Michigan and Ohio, where they are expected to be placed into deportation proceedings and many are expected to be criminally charged with identity theft and tax evasion.

    An unknown number of detainees were released for a variety of humanitarian reasons, "including health, or primary care for a minor child", according to ICE spokesman Khaalid Walls.

    One interesting twist is before ICE agents entered the Sandusky facility, an undercover officer entered the store with three boxes of donuts. After a mass of employees gathered for the donuts, ICE agents entered the store.

    So, what happened to Corso’s? Company officials were not arrested during the raids. However, ICE agents, who had a criminal search warrant, carried boxes full of “documentary evidence,” out of Corso’s, according to Steve Francis, special agent in charge of Homeland Security Investigations in Ohio. Francis also stated, “We are attempting to identify what criminal network brought over 100 illegal aliens to Ohio to work.”

    This raid was unlike the previous raid in Bean Station because ICE initially served Notices of Inspection weeks ago and had been auditing the 313 I-9 forms supplied by Corso’s. Before the service of the Notices of Inspection, ICE had been receiving tips into Corso’s Flower and Garden Center and began an investigation in October 2017. A triggering event was the arrest and indictment of Martha Buendia-Chavarria, who was charged with operating a document mill.

    During the ICE audit, according to ICE, they found 123 I-9 forms which were suspicious due to use of duplicate Social Security numbers and identification belonging to other people. Presumably, these identification documents were produced by Ms. Buendia-Chavarria. Thus, when the ICE agents raided the facilities, they had a list of names they had targeted for detention.

    According to a local Latino advocacy group, dozens of the workers’ children were left stranded at day-care centers and with babysitters because their parents had been detained.

    Amazingly, Corso’s business was back up and running Tuesday afternoon. According to its website, the family-owned business includes a greenhouse, flower shop, garden center, landscape department and a wholesale perennial plant division where more than two million plants are grown to supply a seven-state area.

    After these raids, it is clear that employer raids will be a frequent tool of ICE. Every employer should be vigilant in their immigration compliance. I would advise employers to meet with their immigration counsel, or obtain immigration counsel, to conduct an internal I-9 audit and draft or review an immigration compliance policy.

    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.
  4. 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.
  5. 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.
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