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I-9 E-Verify Immigration Compliance

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  1. 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.
  2. 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.
  3. 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.
  4. 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.
     
  5. OCAHO Reduces Penalities by 80% for Subway Restaurants; by Bruce Buchanan, Siskind Susser

    The Office of the Chief Administrative Hearing Officer (OCAHO) recently issued two decisions involving Subway restaurants in North Carolina - Siwan & Sons d/b/a Subway, #35029 & #23095, and Siwan & Brothers, Inc. d/b/a Subway, #37616.   In these two cases, Immigration and Customs Enforcement (ICE) sought penalties of $82,280 and $49,368, respectively. In both cases, OCAHO drastically reduced the penalties - by about 8o%. This result is similar to the result in 2010 when OCAHO decided another case involving a Subway franchisee in North Carolina. (Word to North Carolina Subway franchisees - carefully review your current I-9 forms or better yet have an immigration compliance attorney conduct an audit.)
    In December 2009, ICE served each company with a Notice of Inspection (NOI) requesting the I-9 forms of current employees and former employees in the past two years. Although the companies produced 88 Form I-9s and 52 Form I-9s, respectively, they only had less than 10 employees at each facility. ICE charged Subway, #'s 35029 and 23095, with 65 violations, involving failing to complete the I-9 forms in the required three-day period and backdating the I-9 forms, and eight violations of failure to present the I-9 forms of former employees. In Subway, # 37616, ICE charged the company failing to complete 45 employees' I-9 forms in a timely manner, backdating the I-9 forms, failing to produce the I-9 forms of three current or former employees and/or failing to complete Section 2 or 3.  
    ICE found each company's I-9 forms had over 80% error rate; thus, the baseline fine per violation was set at $935. As for the five factors, ICE argued the companies were not entitled to the 5% mitigating factor of being a small employer even though they had few current employees because Subway franchise owners had the benefit of corporate human resources training, including I-9 compliance. Rather, it treated the size of the employers as a neutral factor. Moreover, it aggravated the fines by 5% each for lack of good faith - backdating the I-9 forms and seriousness of the violations.
    The franchisee owner conceded the I-9 forms produced by the companies appeared to have been backdated. He explained he copied the employees' original I-9 forms onto new I-9 forms when the USCIS introduced a new version in 2009 because he thought all of the employees' I-9 forms had to
    be on the new version. Thereafter, he apparently destroyed the original I-9 forms. (Never destroy an I-9 form of a current or former employee unless it can be legally purged.) The owner blamed his error on his limited knowledge of English.  OCAHO accepted the franchisee's explanation concerning the appearance of backdating the I-9 forms and refused to find this was evidence of lack of good faith.
    The Subway franchisee also argued IT was a small employer, that the size of the franchisor was irrelevant; thus, they should receive the 5% mitigation. OCAHO agreed, as it has previously held, the size of the franchisor is not relevant to the determination as to the size of the franchisee.
    Furthermore, Subway asserted the penalties were unjust and would force the closing of the businesses.  OCAHO essentially agreed in finding "the penalties were excessive in light of the record as a whole", especially since the requested penalties were "so near the maximum possible as to appear out of proportion to the size and resources" of the small family restaurant operations. OCAHO cited prior case law that proportionality is critical to setting penalties and the penalties cannot be "unduly punitive." Therefore, OCAHO reduced the penalties to $200 per violation, thereby reducing the penalties to $15,800 and $9600, respectively.
    Employers, especially smaller employers, continue to receive favorable results through litigation at OCAHO.


     

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