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I-9 E-Verify Immigration Compliance


  1. 570 Georgia Government Agencies face Penalties under Immigration Law; by Bruce Buchanan, Siskind Susser

    In September 2012, the Georgia Audits and Accounts Department sent a list of 570 government
    agencies to the Department of Community Affairs, saying they have not filed annual E-Verify reports and those not complying with the law could be cut off from certain state funding - including state community development block grants-until they file their reports with state auditors.
    Under Georgia's law requiring use of E-Verify by government agencies and private employers, government employers with two or more employees file annual reports certifying they and their public works contractors are using E-Verify. Some government agencies might have no or one employees and would therefore be exempt under the law.
    The state's list included four counties outside the Atlanta area, more than 130 cities across the state, including Atlanta-area cities of East Point, Lilburn and Norcross, and more than 400 other government entities, including hospital, housing and development authorities. Lilburn officials said they were using E-Verify as required by law and would send the state reports that certify this. East Point and Norcross officials said they were looking into the matter.
    Previously, on June 25, 2012, state auditors sent a letter warning nearly 1,200 government agencies
    that they were not complying with the law and the Immigration Enforcement Review Board could sanction them, including fines up to $5,000 for officials who "knowingly" violate the law.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
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