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I-9 E-Verify Immigration Compliance

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  1. OCAHO Reduces Contractor's fine by 40%; by Bruce Buchanan, Siskind Susser

    Office of the Chief Administrative Hearing Officer (OCAHO) has found Four Seasons Earthworks
    Inc. (Four Seasons) violated the Immigration Reform and Control Act (IRCA) but reduced its proposed fine from $15, 361.50 to $9,000.
    In United States v. Four Seasons Earthworks, 10 OCAHO No. 1150 (2012), Four Seasons was charged with 19 violations of IRCA for its failure to ensure the completion of Section 1 and failed to complete Section 2 and 3. Four Seasons, a family-owned building contractor, based in Wilmington, North Carolina, was audited by Immigration and Customs Enforcement (ICE) in November 2009. Interestingly, ICE only requested the I-9s of the 22 current employees and 21 former employees, whose employment ended after January 1, 1999. Normally, ICE goes back at least two years for terminated employees.
    The violations concerned its failure to ensure completion of Section 1 and/or failure to properly complete Section 2 or 3. Essentially, Four Seasons only entered data in List B even though IRCA requires you to complete both List B and C or List A. Four Seasons argued the above violations were technical, not substantive, because the I-9s provided the social security numbers in Section 1 and the employees' personnel files contained social security cards and birth certificates - both List C
    documents. Furthermore, Four Seasons produced some of these documents for ICE after the initial audit.
    OCAHO dismissed Four Season's arguments as contrary to established law, citing 8 C.F.R. section 274a2(b)(3) which states: "the copying or electronic image (of identity documents) does not relieve the employer from the requirement to fully complete section 2 of the form I-9." Furthermore, OCAHO stated that Four Seasons late production of copies of supporting documents does not excuse the company's failure to enter the necessary information on the I-9. It would not even have excused Four Seasons' violations even if timely produced.
    Concerning the fine, the range is from $110 to $1,100 per violations. Thus, based on 19 violations, the range is from $2,090 to $20,900. ICE determined there were 19 violations which was divided by 43 - the total number of employees/former employees, equaling about 44%. According to ICE's grid, a percentage between 40 and 49% equals a base fine of $770 per violation.
    After the base fine is determined, the following five factors must be assessed: 1) the size of the business of the employer, 2) the good faith of the employer, 3) the seriousness of the violation(s), 4) whether or not the individuals involved were unauthorized aliens, and 5) any history of previous violations by the employer.  ICE found a 5% aggravation for the seriousness of the violations but did not increase/decrease the base fine on the other four factors. Thus, $770 + $5% = $808.50.
    Four Seasons argued it should be treated as a small company, and was entitled to a 5% reduction in the base fine. OCAHO agreed based upon its gross receipts of $1.9 million in 2010 and its current workforce consistently of only 22 employees. OCAHO did not concur with Four Seasons' argument that it should be found to have committed serious violations.       
    OCAHO concluded the base fine should be reduced to $500 per violation or a total of $9,500. In so doing, OCAHO found: "Given the downward trend in construction and the subsequent bankruptcy of a separate family-owned company it is reasonably clear that there have been significant financial setbacks for this small company over the last few years. Considering the record as a whole and the statutory factors in particular, the penalties will be adjusted as a matter of discretion to an amount closer to the midrange of permissible penalties.
    This decision continues a trend that companies who contest their ICE fines for substantive I-9 violations will have the amount of their fine substantially reduced.
  2. North Carolina’s E-Verify Law Goes into Effect; by Bruce Buchanan, Siskind Susser, P.C.

    On October 1, 2012, all North Carolina employers with 500 or more employees are required to register for and utilize E-Verify. Following their enrollment in E-Verify, employers in North Carolina must use the online system to verify the employment authorization of all newly hired employees. Smaller employers will be covered as follows: effective January 1, 2013, employers with 100 or more employees will be required to use E-Verify; and effective July 1, 2013, employers with 25 or more employees will be required to use E-Verify to check work authorization for all new hires.
  3. E-Verify Extended Through September 30, 2015; by Bruce Buchanan, Siskind Susser P.C.

    On September 28, 2012, President Barack Obama signed SB 3245, which provides for a three year extension, through September 30, 2015, of E-Verify, the EB-5 Regional Center Program and the Conrad 30 J-1 Waiver program. Congress passed this legislation, which was a mere four pages, on September 13, 2012.
  4. Company’s Response to E-Verify Tentative Non-confirmation is Costly by Bruce Buchanan, Siskind Susser

    Diversified Maintenance Systems LLC (DMS), a Tampa-based provider of janitorial and facilities maintenance services, has agreed to settle a case with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), a part of the Department of Justice, resolving allegations that the company violated the anti-discrimination provision of the Immigration and
    Nationality Act (INA) when it failed to fully reinstate an employee in retaliation for asserting her right to work in the U.S.
    An employee alleged DMS failed to provide her with proper notice and instructions for contesting a tentative non-confirmation in E-Verify.  While the employee immediately visited the Social Security Administration (SSA) after receiving verbal notice of the initial data mismatch and instructions from her supervisor, the employee alleged the supervisor failed to give her the proper E-Verify paperwork which would have enabled the SSA to resolve the mismatch.   As a result, E-Verify provided an erroneous "final non-confirmation" to DMS, stating the employee was not eligible to work in the U.S.   
    Thereafter, DMS terminated the employee, and the employee contacted the E-Verify hotline for
    help.   An E-Verify agent notified DMS that the employee was authorized to work, but the employee's manager refused to reinstate her, allegedly because she contacted E-Verify and asserted her right to work under the anti-discrimination provision of the INA.    
    The INA protects employees from discriminatory practices in the employment eligibility verification process, including E-Verify, and prohibits employers from retaliating against individuals who assert their rights or oppose a practice that is illegal under the provision. 
    Under the settlement agreement, DMS agreed to pay $6,800 in backpay and interest to the employee and a $2,000 civil penalty.  The company also agreed to training by the Justice Department on the anti-discrimination provision, and training by the Department of Homeland Security on proper E-Verify procedures.   
    This settlement is a wonderful example of how employers should obtain immigration counsel. Specifically, someone who is experienced in employment compliance to help them decide whether to implement E-Verify, guide them on its implementation and confer with when dealing with tentative non-confirmations.
     
  5. Company and its Owner Plead Guilty to Cover-up of Unlawful Hiring by Bruce Buchanan, Siskind Susser

    In another instance of Immigration and Customs Enforcement (ICE) cracking down on employers who are hiring undocumented workers, the owner of Wazana Brothers International, which does business as Micro Solutions Enterprises (MSE), agreed to plead guilty to one felony count of false representation of a Social Security number. Yoel Wazana admitted in the plea agreement that he caused two employees to use the Social Security numbers of relatives in order to remain employed after ICE's Homeland Security Investigations (HSI) began an investigation of the company. 
    MSE agreed to plead guilty to one misdemeanor count of continuing employment of unauthorized aliens. MSE admitted hiring approximately 55 unauthorized workers, and then continuing to employ them after the ICE audit had begun. Furthermore, the company admitted it knew, or deliberately avoided knowledge of the fact, that the individuals were not authorized to work in the
    United States.
    Under the terms of the plea agreement, MSE agreed to pay $267,000 in civil and criminal fines. Beyond the monetary sanctions, the plea agreement requires the company to be on probation for three years, during which time it will implement a series of stringent measures to ensure it is complying with the nation's hiring laws. Those steps include retaining an independent compliance monitor to oversee the completion and maintenance of the firm's hiring records, and providing training to employees regarding federal hiring laws.
    The charges against Wazana and his company are the result of an investigation into MSE's hiring practices that was initiated by HSI in 2007. According to court documents, shortly after MSE received notification in April 2007 that HSI planned to audit the company's payroll and hiring records, Wazana directed that about 80 of MSE's most experienced employees - at least 53
    of whom did not have work authorization - be relocated to another manufacturing facility. When investigators requested hiring records from MSE on three separate occasions, the company failed to provide paperwork for those unauthorized workers. After learning of the ICE audit, Wazana conducted meetings with MSE's assembly line workers, instructing them to obtain valid work authorization documents and return with those documents, suggesting that he did not care if the documents were actually theirs.
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