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I-9 E-Verify Immigration Compliance

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  1. Difference Between ICE Raid and ICE Audit

    By: Bruce Buchanan, Sebelist Buchanan Law



    In 2018, Immigration and Customs Enforcement (ICE) raids have returned to workplaces after being dormant for the past 10 years. ICE audits/inspections have been regularly taking place for the past 10 years though they are increasing at an accelerated rate in 2017-2018 under the Trump Administration. So, what’s the difference between an ICE raid (also called a targeted enforcement operation) and an ICE audit/inspection:

    An ICE raid is like it sounds – ICE, or actually a part of ICE called Homeland Security Investigations (HSI), shows up at the employer’s premises without warning – hoping to catch employers and employees off guard. Raids often occur after an ongoing investigation shows a number of undocumented workers are employed there, often with the knowledge and/or assistance of the employer. HSI may receive tips of this unlawful activity by the employer.

    When ICE arrives at the employer’s premises, its agents surround the building and usually have aerial presence. Then ICE agents enter the business with a criminal search warrant. The search warrant will have a detailed description of what and where agents are going to search and what they may seize. This list may include: payroll; I-9 forms and any supporting documents; bank records; Social Security Administration documents; IRS Form 940 and 940 employment tax documents; and other financial or employee records. The employer should immediately contact its immigration legal counsel.

    Employers are not required to answer ICE questions during a worksite raid. If, during a worksite raid, ICE discovers unauthorized workers at the site, they may arrest and detain them. At the end of a raid, ICE agents should leave an inventory of the property they seized and a list of employees arrested.

    A recent example of an ICE raid and how it occurred is the April 2018 raid at Southeastern Provision, a meat-processing plant in Bean Station, Tennessee. The investigation began when the employer’s bank inquired of company officials why it was making very large cash withdrawals every week. The employer official said it was for payroll and its workforce was Hispanic. After the bank provided this information, the IRS subpoenaed the company’s bank records, which confirmed these large cash withdrawals. Later, a confidential informant was sent to Southeastern Provisions and hired without filling out an I-9 form. Based upon this evidence and other evidence gathered in the investigation, HSI and the IRS raided the employer’s facility and detained about 100 employees.

    In ICE audit is friendlier but can lead to damaging results. In this situation, HSI serves a Notice of Inspection (NOI)/subpoena on the employer, requesting all I-9 forms with supporting documentation as well as many other documents. Normally, the visit to the employer’s premises is unannounced, like an ICE raid. But there the similarities cease. Usually two agents will serve the NOI/subpoena on the employer and demand production of records within three business days or a little longer, such as within seven business days. HIS agent will ask if the employer wishes to waive the three days. Under no circumstances should an employer waive the three days. Upon receiving an NOI, the employer should contact its immigration legal counsel or hire one if the employer does not have one.

    Other records that will normally be subpoenaed include: copy of payroll, list of current employees, list of former employees for past one to three years; Social Security Administration documents; IRS Form 940 and 940 employment tax documents; business licenses; and list of companies who were contracted work.

    The ICE agents have the right to receive and inspect the originals of the I-9 forms. The employer should copy all documents turned over to ICE. Once the employer provides the documents, an ICE auditor inspects the I-9 forms to determine whether they comply with the law. The ICE auditor is checking for substantive violations, such as incomplete or missing forms, and technical violations, which an employer will be given 10 days to remedy.

    It is clear that employer raids and ICE audits will be frequent tools 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.
  2. ICE Raids Continue with Raids at Fresh Mark in Ohio

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC



    In the third raid in the past two and a half months and the largest to date, Immigration and Customs Enforcement (ICE), on June 19, 2018, raided Fresh Mark, a large meat supplier. As many as 100 agents from ICE and Customs and Border Protection (CBP), descended upon Fresh Mark’s four facilities in Salem, Massillon and Canton, Ohio. This was the largest ICE raid in over 10 years.

    Although ICE raided four of Fresh Mark’s facilities with federal criminal search warrants, only the Salem facility was the site of arrests. The detained 146 workers are suspected of using stolen/fraudulent identification to gain employment and/or reentry into the United States after deportation.

    Steve Francis, special agent in charge of ICE's Homeland Security Investigations Michigan/Ohio unit, said the raid was the result of more than a year-long investigation into Fresh Mark and its employees, and whether the company knowingly hired and harbored undocumented workers. "It's important that companies know not to willingly participate in the hiring of illegal aliens," said Francis.

    According to Francis, some of the workers who were arrested were taken to detention centers in Michigan and Ohio, while others may be deported immediately. ICE said those who are detained will await removal proceedings. Other workers could potentially be released on humanitarian grounds and given a Notice to Appear (NTA) at an immigration court.

    Fresh Mark, a family-owned company, which employs more than 1,000 employees, sells meat products, such as bacon, deli ham, lunch meats and sausages to restaurants, delis, grocers and stadiums nationwide. The company said it participates in E-Verify, a federal program to ensure employees have proper documentation and conducts an annual internal audit of its I-9 forms. It should be noted if an employee engages in identity theft, E-Verify may not be able to detect the theft and will issue work-authorized verification.

    This raid is further evidence that ICE is dramatically increasing their enforcement actions through raids and ICE audits of employee’s I-9 forms. Furthermore, ICE is now arresting/detaining employees at the raids/audits. In December 2017, ICE's acting director Tom Homan said, "We're not just talking about arresting the aliens at these work sites, we are also talking about employers who knowingly hire people who are unauthorized to work." So far this year, ICE has arrested more than 600 workers that it alleges were working without proper authorization. That number far exceeds the 172 arrests made in 2017, according to ICE.

    To date in FY 2018, there have been 2,282 ICE audits of employers’ I-9 forms. 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 September 30, 2018. If so, that would be almost a 400% increase from fiscal year 2017 and the highest number of ICE audits ever. 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.

    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. Though it should be noted, Fresh Mark said it conducts annual I-9 audits.

    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.
  3. 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

  4. 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.
  5. 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.
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