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I-9 E-Verify Immigration Compliance


  1. OCHAO Refuses to Lower Penalties for Staffing Company

    By Bruce Buchanan, Siskind Susser

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    In United States v. Employer Solutions Staffing Group II, LLC, 11 OCAHO no. 1242 (2015), Office of Chief Administrative Hearing Officer (OCAHO) refused to lower ICE’s proposed penalties of $227,000, which was based on 292 violations at a baseline penalty of $935 per violation.

    The main issue in the case was the method used by ESSG, a staffing company, to complete the I-9 forms. ESSG had employees employed throughout the U.S. To complete the I-9 form, the employee filled out Section 1 and an ESSG staffing recruiter or hiring agent reviewed Section 2 document(s) presented by the employee. However, instead of completing Section 2, the ESSG representative forwarded the I-9 form and a copy of the document(s) via mail or courier to its home office in Minnesota. At that point, the payroll administrator reviewed copies of the documents, completed Section 2, and signed as the certifying officer.

    Agency Law Principles Rejected
    ESSG’s attorney asserted the rules of agency permitted the above procedure for completing the I-9 forms because “general agency law attributes the principal’s knowledge to the agent, and the agent’s knowledge to the principal.” OCAHO rejected this “creative” defense because the procedure does not comply with the requirements of the employment eligibility verification system.

    Proper Procedure for Completion of I-9 Forms
    As OCAHO stated, “The I-9 form does not state that the certifier examined copies of the employee’s documents, it says the certifier examined the documents presented by the above named employee. It is simply impossible, moreover, for a payroll administrator in Edina Minnesota to determine whether a document reasonably relates to an individual when the administrator never saw” the original documents.

    Take Away
    It is important for the certifier to personally review the originals of the documents. An employer should not email, mail, or fax copies of the documents to another company official to review and certify. This concept is especially important to remember where an employer has multiple facilities and retains the originals at its corporate headquarters.
  2. OSC Warns Employers Not to Discriminate Against Salvadorans with TPS in New Video

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) released an educational video reminding employers that Salvadorans with Temporary Protected Status (TPS) may continue working beyond the March 9, 2015, expiration date of their employment authorization documents.

    The video explains the Department of Homeland Security automatically extended the validity of employment authorization documents for Salvadorans with TPS for an additional six months to September 9, 2015. Employers should obtain the Federal Register notice of the extension and attach it to the employee’s existing I-9 form.

    Requesting additional work-authorization documents from these employees may violate the anti-discrimination provision of the Immigration and Nationality Act. This provision prohibits employers from making additional and unauthorized documentary demands because of an employee’s citizenship status, immigration status or national origin when verifying or re-verifying an employee’s employment eligibility.

    TPS is a temporary immigration benefit that allows qualified individuals from designated countries who are in the United States to stay and obtain employment authorization documents to work legally in the United States for a limited period of time. A foreign country is designated for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, such as on-going armed conflict, environmental disasters or other extraordinary and temporary conditions in the designated country.

    The newly released video may be viewed here.

  3. Nebraska Becomes 5th State to Join RIDE

    By Bruce E. Buchanan, Siskind Susser
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    Effective February 1, 2015, Nebraska became the fifth state to join the Records and Information from DMVs for E-Verify, or RIDE. Nebraska joins Mississippi, Florida, Idaho and Iowa in RIDE, which links E-Verify with state departments of motor vehicles and state public safety offices. RIDE allows E-Verify to validate the authenticity of driver’s licenses and state identification cards that employees present as identity documents for the I-9 form. RIDE is intended to help to reduce document fraud and boost the accuracy of employment eligibility verification by E-Verify.
  4. OCAHO Slashes Company’s Alleged I-9 Violations

    By Bruce E. Buchanan, Siskind Susser

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    OCAHO surprised a lot of people this month when it dismissed 337 out of 381 alleged I-9 violations in U.S. v. Foothill Packing. In doing so, Immigration and Customs Enforcement’s (ICE) proposed penalties were reduced by $149,000.

    Foothill is a fruit and vegetable packing company with an office in Somerton, Arizona. In March 2012, ICE served the company with a Notice of Inspection and subpoena. It is undisputed that the original auditor for the inspection only requested the I-9 forms without documentation. A later ICE auditor testified he requested supporting documentation. Interestingly, neither party produced the subpoena to OCAHO.

    Foothill primarily hired its employees through the H-2A nonimmigrant temporary agricultural visa program and obtained the employees’ Mexican passports, which included their I-94 and H-2A visa. Foothill management repeatedly offered these documents to ICE auditors, but ICE refused them. At the end of the investigation, ICE cited Foothill with 337 violations for failing to record the pertinent foreign passport information in Section 2 of the I-9 forms or present copies of the passports.

    If Foothill had provided the I-94s and H-2A visas, ICE said these violations would have been treated as technical violations. However, ICE noted that copying these documents still did not relieve Foothill from its responsibility to fully complete the I-9 forms. Foothill asserted that, according to the Virtue Memorandum, the “failure to enter the foreign passport information is a technical violation if a copy of the document is presented at inspection”. OCAHO found that the Virtue Memorandum actually states the omission of a document number or expiration date in Section 2 is a technical violation, if a legible copy of the document is retained and presented. Despite this finding by OCAHO, it determined Foothill should not be found in violation for these I-9s because of the ICE auditor’s statements that supporting documentation was not needed.

    OCAHO further found that Foothill made “diligent efforts at the outset of the investigation to provide copies of the Mexican passports” and cannot be liable for failure to present documents that the government refused to accept. 337 of the alleged violations were dismissed.

    Knowingly Employing an Undocumented Worker

    On a separate issue, OCAHO found Foothill knowingly employed an unauthorized worker based upon the fact the employee was hired in June 2010 but presented an employment authorization card which expired on August 5, 2003. Because Foothill chose to accept an expired document without making further inquiry, the company had actual, or at least, constructive knowledge of the employee’s unauthorized status. OCAHO increased ICE’s proposed penalty of $375 to $2,200 (which is still below the maximum of $3,200 for a first offense).

    Calculation of Fines

    As to the remaining alleged violations, OCAHO found Foothill committed 44 substantive violations, ICE sought a penalty of $440 per violation which OCAHO found to be in the midrange of permissible penalties. Thus, OCAHO assessed a penalty of $19,360 for the 44 substantive violations. Together with the $2,200 penalty for knowingly hiring one unauthorized worker, Foothill’s total penalty came to $21,560.

    The Takeaway

    This case provides a unique example where an employer was able to seize on ICE auditors’ directions to substantially reduce its liability. It highlights the importance of compliance attorneys discussing with their client any conversations they may have had with ICE when the subpoena was served.

    A copy of the OCAHO decision is available here.
    Cite as United States v. Foothill Packing, Inc., 11 OCAHO no. 1240 (2015).
  5. OSC Settles Immigration Claim Against USSI for $182,000

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), within the Justice Department, has reached a settlement with U.S. Service Industries (USSI), a janitorial company operating in Florida, Maryland, Virginia and Washington, D.C.

    The settlement resolves allegations that USSI required non-U.S. citizens to present more or different types of documents as a condition of employment, while U.S. citizens were allowed to present their choice of documentation. The anti-discrimination provision of the Immigration and Nationality Act (INA) prohibits employers from placing additional documentary burdens on workers during the employment eligibility verification process based on their citizenship status. The INA also prohibits employers from specifying documents that employees must present during the employment eligibility verification process.

    Under the settlement agreement, USSI will pay $132,000 in civil penalties to the United States; establish a $50,000 back pay fund to compensate any workers who may have lost wages; revise its employment eligibility verification policies; undergo training on the anti-discrimination provision of the INA for the next three years; and be subject to monitoring of its employment eligibility verification practices for two years.

    Acting Assistant Attorney General for the Civil Rights Division, Ms. Vanita Gupta, took this opportunity to remind employers that they “cannot create unlawful discriminatory obstacles for immigrants”, and large employers should “review their employment eligibility verification practices at all of their offices to make sure they are in compliance with the law.”

    A copy of the USSI settlement agreement can be viewed here.
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