This rule implements as an inflation adjustment fines for employing unauthorized workers for Form I-9 paperwork violations, and for immigration-related discrimination. These new fines increase the penalties from 35% to 96% depending on the nature and severity of the violation.

We encourage you to review your policies, procedures and your Form I-9 inventory.  Remember, the key to defending any employment related investigation is to evidence that there is and has been a consistent pattern of responsible, good faith effort on the part of the employer in establishing a compliant workforce.

Refer here for the details.

Plain and simple, failing to comply with IRCA’s I-9 rules have, and are continuing at a rapid rate, to result in significant fines, loss of access to government contracts, an onslaught of negative publicity, business closure, criminal penalties and even imprisonment.  Here are a few examples of recently settled cases in August 2015:

1) Creating discriminatory barriers for immigrants who have permission to work in the United States, $165 civil penalty with $50K in back pay:
http://www.justice.gov/opa/pr/justice-department-settles-discrimination-claim-against-louisiana-crane-construction

2) Requiring non-U.S. citizens, but not similarly-situated U.S. citizens, to present specific documentary proof of their immigration status to verify their employment eligibility, $200K civil penalty: http://www.justice.gov/opa/pr/justice-department-settles-immigration-related-discrimination-claim-against-nebraska-based

3) City of Eugene, OR improperly restricted law enforcement positions to U.S. citizens at the time of hire, even though no law, regulation, executive order or government contract authorized such a restriction. must pay a civil penalty, train its employees about the anti-discrimination provision of the INA and be subject to monitoring by the Justice Department for a period of three years!
http://www.justice.gov/opa/pr/justice-department-settles-citizenship-discrimination-claim-against-city-eugene-oregon

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Immigration Compliance Group provides US inbound immigration services to individuals and employers throughout the USA and abroad. We specialize in business immigration and have a depth of experience in the IT, healthcare, arts, entertainment and sports industries, amongst others. Our services include complex business visas for investors, multinational managers, skilled professionals, outstanding individuals of high achievement (O-1, P visas, EB-1 and EB-2 Exceptional Ability cases) and PERM Labor Certification.  We additionally provide employer compliance consulting services on proper I-9 (Employment Eligibility Verification) management, auditing, training, and work with our clients to develop a culture of immigration compliance. Our door is open for new clients — we extend a 20% discount on the first case with our firm.  Contact us at info@immigationcompliancegroup.com or call 562 612.3996.

While DHS/ICE continues to issue Notices of Intent to Fine (NOFs) at an unprecedented rate for Form I-9 related infractions, this is yet another reminder that you can choose to pay the fine or you can contest the fine and file for a  hearing (within 30 days of receipt of the NOF) before an Administrative Law Judge (ALJ) who handles cases related to employer sanctions, document fraud and unfair immigration-related employment practices.  OCAHO has more than proven that they are willing to reassess and lower fees in just about every case in recent months.

Note that many employer sanctions cases never proceed to the hearing stage because either the parties reach a settlement with the approval of the ALJ, or the ALJ resolves a case through a prehearing ruling.

We recommend that your first step in the process be to retain experienced representation that specializes in the practice area of employer compliance to guide you step by step through the process – don’t attempt to go this alone. The next step is to understand the process that has been summarized very efficiently in the recent Fact Sheet that we refer to here

Should you have any questions or wish to become a client of our office, please contact us or refer to our services & solutions page.

For electronic I-9 users, questions have swirled around what exactly are you required  to  produce within 72-hours in the event of a government audit, and what standards will ICE use to evaluate I-9 software?

Do you print out all your I-9 forms?  Will ICE agents conduct the audit on your I-9 electronic system without printouts?  Will your system pass the ICE test?  For the answers to these questions, employers have been entirely at the mercy of the particular ICE agent conducting the audit investigation.

On July 22, 2010, the Department of Homeland Security (DHS) published a final rule relating to signatures and storage of electronic Form I-9’s that went into effect August 23, 2010 (see our previous post).  However,  we have all been waiting on regulations concerning this very topic, particularly in light of the huge uptick in ICE I-9 audits in the last few years creating a very uncertain climate for employers, as well as recent changes to E-Verify, and concerns over very severe consequences for non-compliance.

The new Memorandum provides guidance to Homeland Security Investigative (HSI) Agents and field offices, effective August 23, 2012, concerning how to evaluate electronically generated and stored I-9 records during an audit and the minimum standards for electronic audit trail requirements for use in establishing civil fines.

Let’s summarize what ICE agents will expect from employers who are using an electronic I-9 system at the onset of an investigative audit:

1)      Audit Trails:  Whenever an electronic I-9 form is created, completed, updated,  modified, altered or corrected – a  secure and permanent record must be created (audit trail) that establishes the date accessed, who accessed it and what action was taken.

2)      Software Provider Information:  Upon service of an NOI (Notice of Inspection), special agents or auditors will request the name of the software  product being utilized and any internal business practices and protocols related to the generation of, use of, storage of, security of and inspection and quality assurance programs for the electronically generated I-9 Form.

3)      Indexing System:  The employer will also be asked to provide the indexing system identifying how the electronic information contained in the I-9 form is linked to each employee and documentation of the system used to capture the electronic signature, including the identity and attestation of the individual electronically signing  the form.

4)      Auditors will Request at least one printed, completed I-9 form to ensure compliance with the regulation.  Your system should permit you to download a PDF version of the I-9 form that syncs up with the required information on the actual fields of the I-9 form.

5)      Lastly, auditors will request access to the system for a demonstration of the generation of an electronic I-9 form.

Once it’s determined by the agents that the audit trails are in compliance, the auditors will be referring to the flow chart attached to the Memorandum (see link at the end of the post) and audit trail that illustrates the minimum acceptable standards (know that the auditors can request to see additional system data and documentation) of electronically generated I-9 forms.

We recommend that you discuss this Memorandum very specifically with your HR department, your I-9 electronic vendor to ensure that they comply with the regulations, and that you update  your standard  operating procedures to reflect  compliance with these new regulations.  We link to the Memorandum here

Please refer to our list of compliance services and solutions as well as our Employer Resource Center at www.I-9Audits.com  If you are a member of LinkedIn, you might wish to check out our I-9/E-Verify: Smart Solutions for Employers group.

Should you wish to consult with us, email info@immigrationcompliancegroup.com or call to speak with one of our immigration professionals 562 612.3996.

The OSC announced today that they had reached an agreement with a janitorial and facilities management company in Florida that was fined for mishandling the TNC process with the employee.  The employer was fined $8800 (back pay and civil penalties) and had to agree to training by the Justice Department on the anti-discrimination provision and training by the Department of Homeland Security on proper E-Verify procedures.

It is imperative that you follow appropriate TNC procedures and supply your employees with the required documentation so that they can resolve TNC issues.  Sit down with them, show them the information that you input into E-Verify and make sure that it’s accurate.  Provide them with the appropriate  TNC notice and  SSA or DHS referral letter.  Here is an excellent training video that we recommend you use as a tool in your organization.

Check out our employer resource center here:  www.I-9Audits.com and our services and solutions here:  www-employer-compliance.com.   Stay informed and sign up to receive our information.

By:  Timothy Sutton, Communications Editor

The biggest  names in banking, Goldman Sachs, JP Morgan, Wells Fargo, Bank of America, Lehman Brothers, MF Global, Countrywide, and Chase have been subject to financial misconduct investigations for imprudently squandering hundreds of millions of dollars. Last week the Justice Department made the unfortunate announcement that Goldman Sachs would not be charged for its infamous trades.  Yet over the past few years, despite the devastating impact hedging bad debt has done to our economy, virtually no criminal or civil penalties have ensued. Economists and legal analysts have a range of theories attempting to explain how crimes of “greed” go virtually unpunished; one plausible explanation is we are all to blame: investors, bankers, consumers, government and regulators all contribute to the degradation of our banking system. The SEC has become somewhat of a paper tiger launching costly and intricate investigations resulting in piles of reports that ultimately assign no guilt.

Conversely, ICE investigations almost invariably result in hefty civil and even criminal fines. Deportation raids and I-9 audits are typically swift and allow few of the procedural processes that SEC, Department of Treasury, or Department of Labor investigations require. Over the past few years, there have been record numbers in both deportations and employer sanctions issued by ICE and the USCIS. Unlike greed, failure to maintain a lawful workforce endures the cold chill of ICE.

Shockingly, the public reaction to the financial crisis has been fractured and highly politicized. Remember the Tea Party and Occupy movements? Alternatively, punishing companies employing immigrant workers has found a stronghold in national politics. While it is unjustifiable to violate any law of the United States, it is alarming that those who protest against the corruption of financial institutions are considered extremists, but those who protest against hiring immigrants are nationalists? It is possible that the simpler the crime the harsher the time explains this phenomenon. Americans don’t understand how billions of dollars could disappear from the banks they entrusted their life-savings to; but can easily conceptualize how an immigrant workforce may under-cut “American” employment.

As business owners, violating simple duties like Form I-9 compliance and employment verification through E-Verify may result in the most damaging penalties. There are no congressional investigations, lengthy judicial proceedings, or public sentiment to lessen the blow of an ICE audit. In light of our current social political environment it would be a prudent investment to seek the advice of immigration professionals to proactively prepare for an immigration audit. For more information contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

By: Timothy Sutton, Communications Editor

One of my favorite television shows is Undercover Boss. If you’re unfamiliar with the show, the premise is: a CEO/President takes on a disguise to go undercover within their own business to find ways to (1) become more successful and (2) reward hardworking employees. Obviously, there is an essential element of Hollywood magic that prevents most of us from going “undercover” within our own business; but the lessons learned from this show are no less valuable.

Every episode begins with a slightly troubled, but optimistic executive. They instruct their trusted board of directors that they will be resigning from the company to go undercover as an employee over a week’s time in various lower levels of the company, entry-level to management. The goal is to see their business from a fresh perspective. A series of uncomfortable and often illegal encounters ensue where CEOs face discrimination, harassment and even get fired by their own employees. At the end of the hour-long television program, CEOs reward key employees and have “new and improved tools” to develop successful business practices.

There is a better way for your business to experience the same fresh perspective without shaving your head and slapping on a boar’s hair mustache; it’s called an audit. Yes the feared “audit” is most commonly associated with frightful agencies like the IRS and ICE. Yet, Undercover Boss is simply Hollywood’s version of a voluntary audit. In order to become more successful, discovering discrimination, harassment, and wrongful termination within your own business is necessary. The alphabet agencies (ICE, IRS, DOJ, DOL) insist that companies perform annual audits to comply with a multitude of legal formalities. Not only will audits improve business efficiencies and reveal valuable employees, but it will also save your company thousands of dollars for failing a government ICE initiated audit.

The Immigration Compliance Group has years of auditing and consulting experience and a touch of Hollywood magic! Before you invest in your own set of wigs and costumes, contact one of our immigration professionals to discuss I-9 compliance and workforce related issues. Discover how audit prevention and a fresh set of eyes can improve your business.  Contact us for support in planning and implementing legally sound solutions to protect your company’s future:  562 612.3996 | info@immigrationcompliancegroup.com.

Link up with us in our group, I-9/E-Verify:  Smart Solutions for Employers and stay informed:   http://www.linkedin.com/groups?about=&gid=4137860

By:  Timothy Sutton, Communications Editor

In the USDOJ published decision United States v. Four Seasons Earthworks, ICE made it clear that with respect to form I-9 compliance, late is not any better than never. Four Seasons failed to pass an ICE audit that found incomplete form I-9 List A and List C information. The company asserted they obtained every employee’s social security number and maintained supporting documents (like military IDs and birth certificates) necessary to verify employment eligibility. ICE’s response was terse, “Late production nevertheless does not absolve the respondent from liability.”

Securing qualified employees can be stressful. Once a worthy recruit is hired, employers may be anxious to have the new-hire begin working even before they secure the required documentation to complete the I-9 form. Improper documentation constitutes a violation under the INA. In it’s investigation of Four Seasons Earthworks, the ICE Forensic Auditor calculated penalties based upon the following formula:

 Number of Violations divided by the total number of current & former employees up to inspection date = % of base fine

Additionally, 5% increases for bad-faith or serious violations are tacked on to penalties. The number of undocumented workers, the size of a business, and previous violations are also considerations that increase penalties.

Thankfully, an employer’s good faith attempt to comply with obligations can influence a penalty reduction. ICE views hiring violations on a continuum, recognizing violations vary in severity. If your company finds itself in a similar situation with employees who are not properly documented, hiring immigration compliance professionals may greatly reduce your chances of incurring audit-initiated penalties. Contact us for support in planning and implementing legally sound solutions to protect your company’s future:  562 612.3996 | info@immigrationcompliancegroup.com.

It has been recently reported that ICE is launching another round of worksite investigations, but this time, returning to employers that have already been through a federal investigative audit in the last three years.  We’ve not seen this before. Approximately 500 employers are being re-visited by ICE Special Agents to confirm that non-compliant activity identified during prior audits has been resolved.

Employers must make sure they are hiring only people who can work legally in the U.S. Businesses that previously have received warning letters or administrative fines may now be the subject of yet more fines if ICE Special Agents determine that  the employer continues to make the same mistakes.

Bear in mind, that several Federal agencies have the authority to review your I-9 forms, these agencies consist of ICE, The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) and the DOL, Wage and Hour Division.  Each of these agencies investigate violations in the I-9 process, and we strongly advise that employers need to be prepared for a visit from any one of them.

ICE has recently announced their enforcement related statistics in the area of I-9 compliance for 2011, as follows:

• 2,496 I-9 audits were conducted
• 3,291 worksite enforcement cases were initiated
• Criminally arrested 221 employers
• Issued 385 Final Orders for $10.4+ million in fines; and
• Debarred 115 individuals and 97 businesses

These enforcement statistics should indeed be troubling to employers, particularly given that  they don’t reflect the number of ICE notices (such as the Notice of Discrepancies or Notice of Suspect Documents) that are sent to employers, who are otherwise compliant, but may have accepted fraudulent documents or whose employees may have purchased the identity of a US citizen for work authorization purposes, despite your best efforts.  As a result of this, employers across the country have had to terminate thousands of employees and incur the expense of hiring and training new employees.

ICE expects to audit some 3,000 employers in 2012.  We recommend that you hire experts in the field to conduct either a partial or full audit, depending upon your circumstances, train personnel who are charged with the processing of your I-9 forms, and develop a written policy statement that reflects your goals for remaining compliant.

The Justice Department has reached a settlement agreement with University of California San Diego Medical Center for $115,000 (one of the higher civil penalties we’ve seen) for a complaint filed on Dec. 6, 2011, alleging that the medical center failed to comply with proper I-9 Form employment eligibility verification processes for non-citizens who are authorized to work in the United States.

Specifically, the DOJ’s complaint alleged that UCSD medical center engaged in a pattern of subjecting newly hired non-U.S. citizens to excessive demands for documents issued by the Department of Homeland Security in order to verify their employment eligibility, but did not require the same of US citizens. The Immigration and Nationality Act’s (INA) anti-discrimination provision prohibits employers from placing unfair documentary burdens on work-authorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin. Clearly put, it is illegal to discriminate against work authorized individuals.  You simply cannot specify which documents are to be presented.  This is considered document abuse.

The medical center has taken appropriate action to ensure compliance with INA’s anti-discrimination provision and has received Department of Homeland Security/U.S. Immigration & Customs Enforcement (ICE) training on the proper use of work authorization documents.  They have also agreed to work with the DOJ to ensure compliance with proper I-9 processes across all University of California campuses, medical centers and facilities.

Under the terms of the settlement agreement, the medical center agrees to implement new employment eligibility verification policies and procedures that treat all employees equally regardless of citizenship status. In addition, the medical center has agreed to pay a civil penalty of $115,000, conduct supplemental training of its human resources personnel on their responsibilities to avoid discrimination in the employment eligibility verification process and work with the department to ensure compliance with proper employment eligibility verification processes across all University of California campuses, medical centers and facilities.

Heightened Enforcement Continues

During the past few years, we have seen unprecedented enforcement and legislative activity relating to Form I-9 and E-Verify worksite compliance.  Since fiscal year 2009, ICE has audited more than 6,000 employers, debarred 441 companies and individuals, and imposed more than $76 million in financial sanctions.  We have also seen an unprecedented increase in the number of enforcement actions brought about by the Department of Justice (DOJ) for discrimination in the I-9 process.  The Office of Special Counsel (OSC) has robustly prosecuted claims of discrimination in the I-9 process resulting in fines and penalties against employers, as well as back pay to injured parties.

What employers need to know

You just cannot presume that the employees charged with  managing your I-9 program are compliant with the law and adhering to anti-discrimination rules and regulations.  If you are not training your employees, then you are turning a blind eye to establishing a compliant workforce, the consequences of which today are severe and expensive – not to mention the bad press that accompanies such an investigation.

Employers cannot request specific documents (such as a green card), reject documents that reasonably appear to be genuine and relate to the employee presenting them, request that employees produce more documents than are required or treat groups of applicants differently when completing the I-9 form. You must examine ANY acceptable document from List A that appears to be genuine and that relates to the worker, or a combination List B plus a List C document, regardless of whether or not

Let’s re-visit ICE’s list of best practices that include the following as a reminder to employers:

• Use E-Verify,
• Use the Social Security Number Verification Service (SSNVS) for wage reporting purposes
• Establish a written hiring and employment eligibility verification policy.
• Establish an internal compliance and training program related to the hiring and employment verification process
• Require the I-9 process to be conducted only by individuals who have received appropriate training and include a secondary review as part of each employee’s verification to minimize the potential for a single individual to subvert the process.
• Arrange for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in theI-9 process.
• Establish a protocol for responding to letters or other information received from federal and state government agencies indicating that there is a discrepancy between the agency’s information and the information provided by the employer, such as SSA “No-Match” letters
• Establish and maintain appropriate policies, practices and safeguards to ensure that authorized workers are not treated differently with respect to hiring, firing, or recruitment or referral for a fee or during the Form I-9, E-Verify or SSNVS processes because of citizenship status or national origin.
• Maintain copies of any documents accepted as proof of identity and/or employment authorization for all new hires.

For more, refer to:

1) DOJ Press Release

2) DOJ Press Release on one of the largest settlements against a major healthcare system

3)  Our list of services and solutions

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About Immigration Compliance Group

For those of you who may be first time readers, Immigration solutions provides US and Canadian business immigration services to employers and individuals and additionally provides a full range of I-9 employment eligibility compliance services for employers that require I-9 audits, training, and compliance policy development.