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I-9 E-Verify Immigration Compliance

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  1. Senate's Immigration Reform Bill, Mandatory E-Verify and Increased Penalties for I-9 Form Violations; by Bruce Buchanan, Siskind Susser

    The "Border Security, Economic Opportunity, and Immigration Modernization Act" (SB 744) passed the Senate by a vote of 68 to 32 on June 27, 2013.  If it became law, how would this bill affect employers through E-Verify and penalties for I-9 form violations.
    All employers would be required to utilize E-Verify, although the system would be gradually implemented. Within 90 days after the Act's enactment, federal agencies and federal contractors would be required to utilize E-Verify. One year after the Department of Homeland Security (DHS) publishes its implementing regulations, it may require employers involved in the country's "critical infrastructure" to use E-Verify. All other employers would be required to use E-Verify based on this schedule after publication of the regulations: (a) 2 years - employers with more than 5000 employees; (b) 3 years - employers with more than 500 workers; (c) 4 years - all other employers, including agricultural employers; and (d) 5 years - Indian tribes.  Moreover, an employer, who has been found to have violated the Act through the hiring of undocumented workers, may be required to implement E-Verify at an earlier date even if it is not scheduled to do so.
    The penalties for immigration violations will greatly increase. The civil penalties for "knowingly hiring" unauthorized workers will increase from $375 - $3200 to $3,500 - $7,500 for each unauthorized alien, for the first offense; from $3,200 - $6,500 to $5,000 - $15,000 - second offense; and $4,300 - $16,000 to $10,000 - $25,000 - third or more offenses. Substantive or uncorrected technical violations will result in an increase of civil fines from $110 - $1100 for first offense/per violation to $500 - $2,000; from $550 - $1100 to $1000 - $4000 - second offense; and
    $1,100 to $2,000 - $8,000 - third or more offenses.
    Employers, who hire undocumented workers after their mandatory enrollment date in E-Verify, but fail to verify the employee in E-Verify, will be presumed to have knowingly hired an unauthorized worker.  The verification of a worker's authorization through E-Verify is evidence of an employer's good faith and is grounds to avoid liability, if an individual is later determined to be undocumented.  
    The Senate bill adds additional time and appeals after receipt of a tentative non-confirmation (TNC). Individuals who wish to appeal a TNC will have 10 business days to contact the DHS or SSA.
    Thereafter, the agency will normally have 10 business days to resolve the matter. The Senate bill adds an additional procedure to appeal a non-confirmation by filing an administrative appeal, then to an Administrative Law Judge and to the Circuit Court of Appeals. Currently, there is not any such procedure.  Employers would have a three-day grace period to re-verify existing workers upon expiration of the workers' employment authorization.  Currently, there is no grace period.
     
  2. USCIS Will be Using Employee E-Mail Address in Case of TNC; Bruce Buchanan, Siskind Susser

    USCIS has just announced if an employee voluntarily provides his or her email address on the I-9 Form, E-Verify will notify the employee of a Tentative Non-confirmation (TNC) at the same time it notifies the employer. Currently, if there is a record mismatch that needs to be resolved before the employee can be confirmed as work authorized, a TNC is issued to the employer, who must then contact the affected employee.  
    This enhancement to E-Verify is made possible by a recent revision recent to I-9 Form, which now allows employees to voluntarily provide their email address. Employers are still required to notify all employees when there is a mismatch of information and a TNC is received. 
    In addition to providing the initial notice of a TNC, E-Verify will send reminder emails to employees if no action to resolve the TNC has occurred within four days of a decision to contest and to notify them about the possible need to update a Social Security or Department of Homeland Security record.
  3. Georgia's E-Verify Law Expands to Cover Small Employers on July 1; By Bruce Buchanan, Siskind Susser

    Georgia's E-Verify law, the Illegal Immigration and Enforcement Act (IIEA), will begin to cover employers with more than 10 employees on July 1, 2013. Thus, these small employers will be required to use E-Verify to check the employment authorization of newly-hired employees.
    The law initially covered Georgia employers, with 500 or more employees, effective January 1, 2012. On July 1, 2012, it started to cover Georgia employers, with 100 or more employees. Private employers with 10 or less employees are exempt.
    The Georgia law also requires contractors or subcontractors, even with 10 or fewer employees, who contract with a state agency to utilize E-Verify to verify the work eligibility of all new employees.  All contracts between a state agency and contractor must include this requirement, as well as those contracts between the contractor and a subcontractor.  If a contractor or subcontractor fails to comply with the IIEA, it is grounds to reject a bid on state and local public projects in Georgia.  When submitting a bid for a state or local public projects, a signed, notarized affidavit, attesting
    to the contractor's registration with and use of E-Verify, must accompany the bid package.
  4. Nortn Carolina's E-Verify Law Expands July 1; Will it Expand More?; by Bruce Buchanan, Siskind Susser

    North Carolina's E-Verify law, which was effective in part on October 1, 2011  for employers that employ 500 or more employees, is expanding on  July 1, 2013, to cover employers that employ 25 or more employees. Additionally, the North Carolina legislature is considering several additions to the existing E-Verify legislation. Specifically, contractors and their subcontractors entering into a contract with a local government would be required to use E-Verify and an employer would not be penalized if it relied upon an employee's valid restricted drivers permit or valid restricted ID as part of its obligation to submit newly-hired employee data to E-Verify. This is an interesting situation given that Congress is currently debating an Immigration Reform bill, which would make E-Verify mandatory for all employers in the next four years. Thus, most legislatures have not been passing additional E-Verify legislation.
  5. OCAHO Shows No Mercy to Modern Disposal; by Bruce Buchanan, Siskind Susser

    After litigating before Office of Chief Administrative Hearing Officer (OCAHO), Modern Disposal, Inc., a New York company, was unable to receive any reduction of the $33,275 penalty.   Modern Disposal employed 168 workers at the time of the NOI in November 2009.
    ICE alleged Modern Disposal failed to timely prepare I-9 forms for 55 current employees. The company conceded they were not completed until after receipt of the NOI.
    ICE set the baseline penalty at $605 per violation, based upon a 34% substantive error rate. ICE aggravated the penalty by 5% based on the size of the company - it "failed to use its personnel and financial resources to comply with the law" and lack of good faith by not timely completing the I-9 forms. However, it mitigated the penalty by 5% based on lack of seriousness and lack of any unauthorized workers. Thus, the aggravating and mitigating factors cancelled each other out.
    The company argued ICE did not explain its rationale for $605 per violation. OCAHO found the penalty per violation was based upon ICE's matrix of the percent of substantive errors. A 34% error rate equals a penalty of $605 per violation. However, OCAHO failed to fully explore factors such as employer's overall revenues, profitability, and amount of the payroll.  
    In an unusual situation, OCAHO rejected ICE's attempt at leniency. Specifically, it rejected ICE's assertion that the company failed to use its personnel and financial resources to comply with IRCA, citing OCAHO decisions dating back to 1996 with the same holding. OCAHO also rejected the finding of lack of good faith, citing a 1990 OCAHO decision that found tardy completion of I-9 forms was not "necessarily an indication of bad faith." OCAHO also rejected ICE's mitigation on the lack of seriousness, stating "failure to prepare an I-9 in a timely fashion is . . . . always a serious violation because an employee could potentially be unauthorized for employment." In this case, the delays were between 3 and 10 years. 
    OCAHO concluded the penalties assessed were well within the statutory parameters; therefore, it upheld them. In so doing, OCAHO noted Modern Disposal characterized the penalties as "inappropriate and excessive" but failed to provide any evidence to support their position. Thus, an important point, if you are going to argue the penalties are excessive, explain why.
     
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