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I-9 E-Verify Immigration Compliance

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  1. OSC Discourages Pre-Population of Section 1 of I-9; by Bruce Buchanan, Siskind Susser

    One of the hotter I-9 compliance questions these days is whether an employer may pre-populate the data in Section 1 and then have the employee sign and date it. Office of Special Counsel (OSC) has weighed in on the issue through a Technical Assistance letter, dated August 20, 2013. OSC stated it discouraged the practice because it "increases the likelihood of including inaccurate or outdated information. . . . (which) may lead an employer to reject documents presented or demand specific documents for Section 2 purposes." It added this was particularly true if the employee did not get an opportunity to review the information. However, if the employee is still attesting to the information, through their signature, it seems they would have the opportunity to review the information. So, employers should beware of OSC's view of pre-population. On the other hand, ICE has given several inconsistent verbal statements on the matter. In my opinion, to be on the safe side do not pre-populate.
  2. Employer Prevails in Document Abuse Case; by Bruce Buchanan, Siskind Susser

    OCAHO recently held an employer did not engage in document abuse against the charging party. See Guth v. Kaiser Permanente Hawaii, 10 OCAHO no. 1190 (2013). The employee, Guth, stated on his I-9 form that he was a U.S. citizen; however, he was actually a lawful permanent resident (LPR). Kaiser began verifying all current employees when it received a federal contract and opted to do so under FAR E-Verify. When Kaiser submitted Guth’s information listing him as a U.S.citizen, it received a tentative non-confirmation due to the discrepancy between listing himself as a U.S. citizen and actually being a LPR. Thereafter, Guth was referred to Social Security Administration which issued a final non-confirmation. After Guth admitted he was a LPR, Kaiser still tried to help him and spoke to Department of Homeland Security, who advised to close the case and start a new E-Verify request with the LPR information. But Guth presented a LPR card in someone else’s name; thus, it could not be submitted to E-Verify. Subsequently, Kaiser terminated Guth due to final non-confirmation. Guth’s assertion that there was an “E-Verify error” was incorrect as it was Guth’s error in identifying himself as a U.S. citizen when he was a LPR. Furthermore, Kaiser’s request for more documentation was an attempt to assist Guth after he incorrectly identified himself as a U.S. citizen. Thus, OCAHO did not find Kaiser committed any document abuse. This was a nice victory for employers as clearly Kaiser correctly followed the E-Verify procedures and the employee was just looking for someone to blame for his error.
  3. Manager pleads guilty re: undocumented workers; Bruce Buchanan, Siskind Susser

    Thomas Gard, a manager of Hallmark Industrial Services Inc., pled guilty in federal district court in August 2013 to harboring 42 undocumented workers, who were engaged in cleanup work on an oil spill in Kalamazoo, Michigan. Previously, the owner of Hallmark Industrial, Philip Hallmark, had pleaded guilty to similar crimes. According to Gard’s guilty plea, Hallmark Industrial was contracted by Garner Environmental to clean up a ruptured pipeline that resulted in an oil spill in Kalamazoo. Hallmark Industrial knowingly employed undocumented workers to clean up the oil spill, and fraudulently completed work authorization forms on their behalf. As a part of the conspiracy, the undocumented workers were housed in hotels, provided meals and transported to and from the worksite while they worked to clean the oil spill. Gard admitted he conspired with Hallmark to transport the undocumented workers back from Michigan after a now former U.S. Congressman accused Hallmark Industrial of hiring undocumented workers to clean up the Kalamazoo oil spill. To further the employment of the undocumented workers, Hallmark and Gard paid the undocumented workers in cash. The investigation also revealed the undocumented workers received less than what the contractor paid the company. Both Hallmark and Gard face a maximum of 10 years in federal prison and a possible $250,000 fine.This criminal case is just another of numerous instances of managers and/or owners receiving criminal penalties due to immigration-related violations of the law.
  4. Document Abuse Costly to Forever 21 and SOS Employment Group; Bruce Buchanan, Siskind

    Two employers, Forever 21 and SOS Employment Group, have been fined by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) for document abuse - where an employer requires an individual to present certain documents during the I-9 process. Forever 21 refused to accept an Employment Authorization Document (EAD) and told the employee to present a permanent resident card when completing the I-9 form. Thereafter, Forever 21, forbid the individual, who was employment-authorized as an applicant for permanent residence, to work. SOS Employment Group mistakenly rejected an unrestricted Social Security card and valid driver’s license of an individual with refugee status. Pursuant to the settlement agreements, Forever 21 and SOS Employment Group agreed to pay $1,705.50 and $9,157.50 in back pay to the respective charging parties and $280 and $1200, respectively, in civil penalties to the U.S., and receive training on the anti-discrimination provision. Too often employers want to dictate what documents a new hire can provide in the I-9 process. As these settlements reflect, such mistakes are costly. These situations can be avoided if employers are properly trained by immigration compliance attorneys.
  5. Can General Contractor Ask Subcontractor's Employees to Produce I-9 Original Document

    I am frequently asked whether a general contractor can order the subcontractor to produce its employees' I-9 forms and supporting documentation. In an Advisory opinion, the Office of Special Counsel (OSC) answered a similar question - can a general contractor require a subcontractor's employees to produce original I-9 verification documents before commencing work on the jobsite? OSC advised this could present a number of problems for the general contractor and/or the subcontractor. Specifically, OSC stated this practice may lead to an allegation that employees are being discriminated against due to their citizenship or immigration status, if they are barred from employment, and/or the practice is discriminatory in violation of the anti-discrimination provision of the INA. In a nutshell, there is very little good that can be gained by these practices. Instead, general contractors may consider requiring its subcontractors to certify they have followed the law and obtained I-9 forms which reflect all of its employees have authorization to work.

    Updated 08-27-2013 at 12:31 PM by BBuchanan

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