ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


中文移民日报




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
© 1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

I-9 E-Verify Immigration Compliance

description

  1. Has the Trump Administration Revived ICE Raids?

    By: Bruce Buchanan, Sebelist Buchanan Law


    Immigration and Customs Enforcement (ICE), in conjunction with the IRS and the Tennessee Highway Patrol, raided Southeastern Provisions, a slaughterhouse near Morristown, Tennessee on April 5, 2018. The raid was pursuant to a criminal search warrant issued by a Federal judge in Eastern District of Tennessee earlier in the week.

    In so doing, ICE/Homeland Security Investigations (HSI) initially detained 97 workers, who were transported to a local armory. Of the 97 detained, 86 were put into ICE detention, 10 were arrested on federal criminal charges, and one was arrested on state charges. Later, 32 individuals were released from ICE custody due to a review of their biometrics, which established legal status or were released on their recognizance due to being a single parent with children at home.

    Additionally, the government seized lots of records and documents related to the company’s finances and payroll. After a review of these records and documents, it is expected the federal government will charge Southeastern Provisions with knowingly employing undocumented workers and various tax fraud offenses.

    This raid is very unusual in that ICE has not conducted any such large raids since August 2008, when it raided Howard Industries in Laurel, Mississippi. For the past 10 years, ICE has executed many so-called “silent raids” through the delivery of a Notice of Inspection (NOI)/subpoena. As an example, in January 2018, ICE appeared at 98 of 7-Eleven convenience stores nationwide to deliver NOIs. However, these were not raids pursuant to federal criminal search warrant.

    ICE released a statement about the Southeastern Provisions “operation” which stated HSI encountered “individuals who are determined to be subject to removal, will be administratively arrested and placed in removal proceedings."

    One of my initial questions was why the IRS was involved in the raid. A 26-page affidavit from an IRS Special Agent filed in federal court to obtain a criminal search warrant gives insight as to what led to the IRS’s involvement in the raid. It was due to probable cause to believe the company violated federal law by filing false tax returns, willfully failing to collect federal employment taxes, and evading the assessment and payment of other federal employment taxes.

    According to the affidavit, federal authorities were originally tipped off by bank employees about large cash withdrawals from Citizens Bank in Morristown made by management/owners of Southeastern Provisions. When bank employees questioned the transactions, the affidavit said they were told the cash was used for payroll. Investigators say $25 million in cash was withdrawn from the bank accounts beginning in 2008. Thereafter, for an unknown reason, bank officials toured the slaughterhouse in December 2016 and they were told by management that most of their employees were Hispanic and paid weekly in cash.

    The affidavit also states multiple withdrawals of more than $100,000 were made from Southeastern Provisions bank accounts. On IRS forms, Southeastern Provisions reported only 44 employees to the government. But based on aerial surveillance, 87 vehicles were found parked at the plant, leading authorities to believe the plant was employing 30-40 more undocumented immigrants. Using numbers from the investigation, the government estimated if Southeastern Provisions had properly reported wages to the IRS, they would have an additional $2.5 million payroll taxes from 2013-2016 on top of what they had already paid.

    Besides this information, the government use a confidential informant (referred to as CI-1 in the affidavit), who was hired by Southeastern Provisions. According to CI-1, he never completed any paperwork, such as an I-9 form, nor was he required to show any identification or documentation of lawful status before being hired. The informant said he was told he didn't need a lawful identity to work at the company. He also reported he was paid in cash. Additionally, the production workers were required to work overtime without being paid extra for their overtime hours, according to the informant.

    After the workers were detained, they were taken to a local armory for processing. The individuals who remain detained at the local armory have been taken to an ICE detention facility in Louisiana. Each will appear in Immigration Court, if not already the subject of a prior removal/deportation order. In Immigration Court, the detainees will be able to seek a bond to be posted for their release. There will also be hearings to determine whether there is a legal basis, such as Adjustment of Status, Cancellation of Removal, or asylum, to lawfully remain in the U.S. and obtain a green card.

    The looming question that this raid raises – does this mean ICE raids at employer facilities are back and will be used in worksite enforcement. Only time will tell. I will keep you updated.

    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. Requirements of Form I-9 recordkeeping

    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 Form I-9 recordkeeping. Here is Chapter 4 from the book.

    4.1 What are the Form I-9 recordkeeping requirements?

    Employers must keep Forms I-9 for all current employees, though the forms of certain terminated employees may be destroyed. In the case of an audit from a government agency, the forms must be produced for inspection. The forms may be retained in either paper or electronic format as well as in microfilm or microfiche format.

    4.2 When can a Form I-9 be destroyed?

    For terminated employees (the date employment ceased or ceased in the United States for employees transferred abroad), the form must be retained for at least three years from the date of hire or for at least one year after the termination date, whichever comes later.

    Employers should note two dates when an employee is terminated. The first is the date three years from the date of the employee’s date of hire. The second is the date one year from the termination date. The later date is the date until which the Form I-9 must be retained.

    There is a different rule for recruiters or referrers for a fee. Those entities are required to maintain Forms I-9 for only a three-year period from the date of hire, regardless of whether the employee has been terminated.

    In addition to establishing a reminder system to re-verify Forms I-9, employers should establish a tickler system to destroy forms no longer required to be retained.

    4.3 Should recordkeeping be centralized at a company?

    Keeping records in one location is generally advisable because it is easier to conduct internal audits to ensure the employer is complying with the rules of the Immigration Reform and Control Act (IRCA), and also to more easily prepare for a government inspection, given that having the forms at one location will allow more time for review. However, there may be situations in which keeping the records at each location is more convenient or practical.

    The forms themselves can be kept onsite or at an offsite storage facility as long as the employer is able to produce the documentation within three days of an audit request from a federal agency.

    4.4 Does an employer need to keep copies of the documents presented by the employee?

    No, retaining copies of the supporting documents is voluntary except in certain circumstances where using E-Verify. Under E-Verify, if an employee presents a Permanent Resident Card, Employment Authorization Document or U.S. passport or passport card as the verification document, the employer must make a copy of that document and keep it on file with Form I-9.

    Employers can retain copies of documents and must keep the copies with the specific Form I-9. Although retaining copies of documents may leave an unnecessary paper trail for government inspectors, maintaining documentation could provide a good faith defense for an employer that needs to show it had reason to believe an employee was authorized even if the paperwork was not properly completed. Retaining copies of documents also makes it easier for an employer to conduct internal audits to ensure compliance; this allows the attorney or other auditor to see what documents were actually provided to the Human Resources representative responsible for completion of the Form I-9. Furthermore, if copies are retained and some data are missing in Lists A, B, or C, such as the issuing authority or expiration date, it is only a technical error, not a substantive one.

    Whatever a company decides, however, it is important that the policy be consistently applied and to remember that simply having copies of the documents does not relieve the employer of responsibility for fully completing Section 2 of the Form I-9.

    Consistency is paramount. Employers should keep all the documents or keep none of them because keeping copies for only certain employees could open the employer up to charges of discrimination.
    In Tennessee, for those employers with less than 50 employees, an employer must copy and maintain a certain designated document (such as an unexpired U.S. passport, permanent resident card, Employment Authorization Document, birth certificate, certificate of naturalization, or state-issued driver’s license or identification) unless the employer uses E-Verify. Of course, E-Verify has its own rules on what documents must be retained. If the employer in Tennessee has 50 or more employees, it must utilize E-Verify, as of January 1, 2017.

    In Louisiana, employers must retain an employee’s picture identification and a copy of a U.S. birth certificate, certificate of naturalization, certificate of U.S. citizenship, or a Form I-94 with an employment-authorized stamp for all employees, unless the employer uses E-Verify.

    4.5 Can a Form I-9 completed on paper be stored in another format?

    Yes. In addition to paper, Forms I-9 may be retained in an electronic, microfilm, or microfiche format. The U.S. Department of Homeland Security (DHS) suggests the following with respect to microfilm or microfiche:


    • Use film stock that will last the entire retention period (which could exceed 20 years for some businesses).
    • Use equipment that allows for a high degree of readability and that can be copied onto paper.
    • For microfilms, place the index at the beginning or end of the series; and for microfiche, place the index on the last microfiche.


    4.6 Should the Form I-9 records be kept with the personnel records?

    Keeping Form I-9 records with personnel records is generally a bad idea. First, it could compromise the privacy of employees by allowing government inspectors to review items that are completely unrelated to the Form I-9. Employers that want to prevent this would have to manually go through the personnel records and pull the Form I-9 paperwork, some-thing that could cost valuable time as the employer prepares for the government inspection. Keeping the Forms I-9 separate will make it easier to conduct internal audits to ensure compliance with the Immigration Reform and Control Act (IRCA) and to re-verify forms as needed.
  3. 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.
  4. E-Verify Modernization Temporarily Postponed

    By: Bruce Buchanan, Sebelist Buchanan Law, PLLC

    The E-Verify modernization launch has been postponed from March 23, 2018 to a later date still to be determined. New system enhancements will feature improvements to photo matching, reduced Tentative non-confirmations and easier and faster creation of cases.

    The following are some of the highlights of upcoming E-Verify enhancements:


    1. Streamline the Tentative non-confirmation (TNC) process so that cases are sent to SSA and DHS simultaneously. If both agencies issue a TNC, then a dual TNC will be issued instead of two separate ones. The employee will be given a combined SSA and DHS Further action notice.
    2. Provide real-time feedback on errors.
    3. Prevent user in a Pending Termination status from submitting new cases.
    4. Streamline the E-Verify case creation process by removing unnecessary pages and steps in a case.
    5. Alert users earlier in the case creation process when a case is created, and duplicate is found. Users enter limited information and then the system checks for duplicate cases. If one or more duplicate cases are found, the user will be notified.
    6. Allow users to enter multiple names in the “Other Last Names” field so E-Verify can check all names entered in the field. If the employee doesn’t provide other last names, the user will have to check a box indicating that no other last names were provided on the employee’s Form I-9 to continue the case.
    7. Change the “Hire Date” to the employee’s first day of employment.
    8. Make the photo-matching process more compatible with smartphones and tablets.
    9. Created an, “Are You Sure?” alert that is personalized to the user and only shows fields that may have triggered a TNC rather than showing all fields.
    10. Require users to enter reason why employee is working after receiving a Final Non-confirmation (FNC).

    If you want to know more about E-Verify and I-9 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. When does an Employer Need to Re-Verify?

    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 reverification. Here is an excerpt from the book.

    3.1 What are the Form I-9 re-verification requirements?

    If an employee is not a U.S. citizen, lawful permanent resident, or noncitizen national, he or she is likely working based on a status with a defined end date. For these employees, the employer must note the expiration date of their documents on the Form I-9 and then must pull the employee’s Form I-9 before the expiration date and re-verify that the employee’s status has been extended. Employers should establish a reliable tickler system to prompt re-verification. Aside from complying with the re-verification rule, this system will also ensure that an employer that needs to extend a work visa for an employee will not forget to take care of this critical task (something that is, unfortunately, neglected by many employers and can result in an employee falling out of legal status). Green cards and passports with expiration dates do not need to be re-verified.

    3.2 What if the re-verification section of the form has been completed from a prior re-verification?

    In this case, an employer can complete and sign Section 3 of a new Form I-9. The employer should put the employee’s name in Section 1 and retain the new form with the original.

    3.3 Can an employee present a Social Security card to show employment authorization at re-verification when he or she had presented an expiring Employment Authorization Document or Form I-94 at the time of hire?

    Yes, an employee may present a Social Security card to show employment authorization at re-verification as long as the Social Security card is not restricted with a statement such as “not valid for employment,” “valid for work only with DHS [U.S. Department of Homeland Security] authorization” or “valid for work only with INS [Immigration and Naturalization Service] authorization.” If the Social Security card has this language, it is not a valid List C document. This type of Social Security card must be accompanied by an Employment Authorization Document (EAD) to be valid. Employers may not specify which documents an employee may present either at the time of hire or at the time of re-verification. An employee may have become a lawful permanent resident or otherwise received employment-authorized status allowing the employee to obtain a Social Security card, absent the sponsorship of the employer, so the employer should not assume the employee is unauthorized.

    3.4 What if a new Form I-9 comes out between the date the initial Form I-9 is completed and the time of re-verification?

    If a new Form I-9 has been released between the date of hire and the date of re-verification, the employer should complete Section 3 of the new version of the Form I-9 and accept only documentation of employment eligibility from the Lists of Acceptable Documents in the Form I-9 instructions. However, the U.S. Department of Homeland Security (DHS) will accept use of Section 3 on the existing completed Form I-9 if it has not been previously completed for prior re-verification.

    3.5 Do past employees resuming work with a company need to complete a new Form I-9?

    Returning employees often do not need to complete a new Form I-9, but if that is not done, the employer needs to re-verify the employee’s work authorization in Section 3 of the Form I-9, if the formerly listed work authorization has expired. If a new version of the Form I-9 has come out since the last time the Form I-9 was completed, the employer may complete a new form or use Section 3 of the existing completed Form I-9. And if the form has been completed in Section 3 from a previous re-verification, the employer should complete Section 3 of a new Form I-9.
    For an employee to be considered a “rehire,” the employer must be re-hiring the employee within three years of the initial hiring date of the employee, and the employee’s previous grant of work authorization must not have expired. Employers must:
    1. record the rehiring date;
    2. if the formerly listed work authorization has expired, write the document title, number, and expiration date of any eligible document presented by the employee;
    3. sign and date Section 3; and
    4. if the re-verification is recorded on a new Form I-9, write the employee’s name in Section 1.

    Of course, it may be easier just to complete a new Form I-9, and an employer can certainly opt for this. Note that the rules on returning employees also apply to cases of recruiting or referring an individual.

    3.6 What if a rehired employee is rehired after a new version of the Form I-9 is released?

    If the Form I-9 has been modified since the form was completed on the date of hire, the employer may complete Section 3 of the existing completed Form I-9 or Section 3 of the new form and attach the old form. The employee should provide documentation of continued employment authorization from the current Lists of Acceptable Documents provided in the Form I-9 instructions.

    3.7 What if an employee changes his or her name?

    An employee’s name change should be recorded by the employer in Section 3, although it is not mandatory to complete Section 3 for a name change. If an employee requests such, it is a best practice for the employer to request a document reflecting the name change, such as a marriage certificate or divorce decree.
    Reverification is often misunderstood by HR. Thus, it is important to know how to re-verify. It’s also important to know when not to re-verify. This is covered elsewhere in the book. The most important point on when not to re-verify is this – do not reverify after a permanent resident card, passport or driver’s license expires.
Page 2 of 78 FirstFirst 12341252 ... LastLast
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: