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I-9 E-Verify Immigration Compliance

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  1. Federal Judge Rules For and Against DOJ in Lawsuit Against California

    By: Bruce Buchanan, Sebelist Buchanan Law



    On July 5, 2018, Federal District Court Judge John Mendez of the Eastern District of California, struck down provisions of AB 450, the Immigrant Worker Protection Act (IWPA), that restricted employers from allowing Immigration and Customs Enforcement (ICE) agents to access nonpublic parts of a workplace without a warrant and re-verifying employee work authorization. However, the Judge upheld AB 450's requirement that employers notify employees within 72 hours of I-9 inspections that have been conducted.

    As you may recall from prior blog entries, AB 450 (IWPA) states California-based employers:


    • Are prohibited from voluntarily granting immigration enforcement agents access to any non-public areas of a worksite unless the agents present a judicial warrant;
    • Are prohibited from voluntarily allowing ICE agents to access, review, or obtain any employee records unless the agents present a Notice of Inspection (NOI) of Forms I-9, an administrative or judicial subpoena, or a judicial warrant requiring compliance;
    • Are prohibited from reverifying the employment eligibility of any current employee unless required by federal law;
    • Are required, if served with an I-9 NOI, to give notice in writing within 72 hours to each current employee at the worksite and any authorized labor union that an I-9 inspection has begun; and
    • Must notify any affected employee or authorized union representative within 72 hours of receiving any subsequent I-9 related federal notices, such as Notice of Suspect Documents.


    In March 2018, the Department of Justice (DOJ) sued California alleging AB 450 and two other new state laws designed to protect certain undocumented immigrants are unconstitutional. "The provisions of state law at issue have the purpose and effect of making it more difficult for federal immigration officers to carry out their responsibilities in California," Justice Department lawyers argue in the suit, further calling the laws an "obstacle to the United States' enforcement of the immigration laws and discriminating against federal immigration enforcement."

    Judge Mendez ruled against a preliminary injunction on the AB 450 Notice requirements because they are not preempted by federal authority over immigration. However, the Judge preliminarily enjoined California authorities from:


    • fining employers or otherwise enforcing the bans on reverifying the employment eligibility of current employees;
    • voluntarily giving immigration enforcement agents access to nonpublic areas of the worksite; or
    • allowing them to access, review, or obtain employee records.


    In doing so, Judge Mendez requested the President and Congress to act and stated:
    This Court has gone to great lengths to explain the legal grounds for its opinion. This Order hopefully will not be viewed through a political lens and this Court expresses no views on the soundness of the policies or statutes involved in this lawsuit. There is no place for politics in our judicial system and this one opinion will neither define nor solve the complicated immigration issues currently facing our Nation.

    Accordingly, this Court joins the ever-growing chorus of Federal Judges in urging our elected officials to set aside the partisan and polarizing politics dominating the current immigration debate and work in a cooperative and bi-partisan fashion toward drafting and passing legislation that addresses this critical political issue. Our Nation deserves it. Our Constitution demands it.

    I will keep you informed of further developments in this litigation.
  2. ICE delivers more than 5,200 audit notices in 2018

    By: Bruce Buchanan, Sebelist Buchanan Law



    As discussed last week in my blog, Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) were out in force during the week of July 16 delivering Notice of Inspection (NOI)/audit notices. Well now we know the numbers - HSI served 2,738 NOIs and made 32 arrests in a one-week period. This is a massive operation and over 10 times as big as ICE’s operation in California earlier this year.

    ICE announced I-9 audit notices were served to more than 5,200 businesses around the United States since January 2018. During the first phase of the operation, January 29 to March 30, 2018, HSI served 2,540 NOIs and made 61 arrests. Thus, at the present rate, ICE-HSI will reach over 8,500 NOIs for the 2018 calendar year. This is over 5,000 audits more than the highest previous amount of about 3,100 in 2013.

    HSI is currently carrying out its commitment to increase the number of I-9 audits in an effort to create a culture of compliance among employers, according to Derek N. Benner, Acting Executive Associate Director for HSI. HSI’s worksite enforcement strategy focuses on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance with the law. HSI’s worksite enforcement investigators help combat worker exploitation, illegal wages, child labor and other illegal practices.

    Failure to follow the law can result in criminal and civil penalties. In FY17, businesses were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines, including one company whose financial penalties represented the largest payment ever levied in an immigration case.

    In FY 2018, to date, HSI opened 6,093 worksite investigations and made 675 criminal and 984 administrative worksite-related arrests, respectively. In fiscal year 2017, HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement.

    Will your company be the next target? My advice is to be prepared through an internal I-9 Audit. An immigration attorney familiar with I-9 forms and worksite enforcement is the perfect person to assist you in an internal I-9 audit.

    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. ICE Sweeps Through South

    By: Bruce Buchanan, Sebelist Buchanan Law

    During the week of July 16, 2018, Immigration and Customs Enforcement (ICE) through Homeland Security Investigations (HSI), swept across at least three states, Tennessee, Georgia and Arkansas, delivering Notices of Inspection (NOI). According to an ICE official, HSI delivered 43 NOIs/subpoenas in Arkansas, 40 in West Tennessee, and an unknown number in Georgia.

    Earlier in the year, ICE had concentrated on California in worksite enforcement. It was anticipated that ICE would go east with NOIs although it was unknown which states would be hit in these waves of NOIs.

    Best advice for anyone who receives an NOI – retain an immigration attorney familiar with I-9 forms and worksite enforcement. Failure to obtain experienced legal counsel could be of great detriment to that employer.

    Will your company be next? My advice is be prepared through an internal I-9 Audit. An immigration attorney familiar with I-9 forms and worksite enforcement is the perfect person to assist you in an internal I-9 audit.

    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. 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.
  5. 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.
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