By:  Timothy Sutton, Communications Editor

Wait Wait… Don’t Tell Me! is a comedic quiz program on NPR, testing listener’s knowledge of current events against some of the best and brightest in the news world. While figuring out what’s real news versus what’s made up, the show’s host presents a scenario to the contestant to determine if the scenario is fact or fiction. If you weren’t tuned into C-SPAN, you may have legitimately mistaken the House oversight committee’s interview, of the Secretary of the Department of Homeland Security (DHS) Janet Napolitano, as the latest episode of Wait Wait.

In this episode, members of the Congressional oversight committee rapidly fired questions at Napolitano, cutting short her responses, attempting to validate their “real news,” as something more than “made up.” The result, a trial like inquisition reminiscent of the famous scene between Tom Cruise and Jack Nicholson from A Few Good Men, with Napolitano ceremoniously remarking “you can’t handle the truth!” In reality, with grace and imperturbable resolve, Napolitano slowly roasted over the House Committee’s rotisserie.

Attacks upon the DHS Secretary by Chairman Lamar Smith (R-TX), Sensenbrenner (R-WI), Conyers (D-MI), and many more; indicated summary judgment has been rendered against the DHS for their approach to immigration enforcement, particularly in the areas of: visa overstays, boarder security, and deferred action. The business community should take note; Napolitano’s significant immigration reforms have yet to satisfy Congressional discontent. Looking forward, expect tighter regulation of business immigration under the guise of immigration overhaul.

Here are some DHS immigration reform highlights Napolitano submitted to Congress:

• Current DHS immigration reform focuses resources on repeat immigration law violators
• Numerous improvements were made to welcome business people…staying true to our history as a nation of immigrants
• Deterring Employment of Aliens not authorized to work by:

1. Eliminating high-profile raids and focusing on compliance through criminal prosecution of egregious employer violators, Form I-9 inspections, civil fines, and debarment
2. Since 2009, ICE audited more the 8,079 employers, debarred 726 companies, and imposed $87.9 million in financial sanctions

• Educated the business population through instituting:

1. E-Verify with more than 385,000 participants
2. E-Verify self-check

• Improving Legal Immigration:

1. Streamlining path for EB-5 entrepreneurs and clarifying the EB-2 classification
2. Instituted Entrepreneurs in Residence program and proposed regulatory changes in the Federal Register in April 2012 to minimize delays of family based immigration petitions
3. Reduced processing of benefit requests through Electronic Immigration System of Registration (ELIS)
4. Implemented “Study in the States” initiative to attract international students through a streamlined visa process

• Comprehensive Immigration Reform:

1. Supporting the Supreme Court’s decision on Section 2(B) of S.B. 1070

Napolitano capped off her remarks on immigration stating, “only a nationwide solution will resolve the challenges posed by the current immigration system.”

Despite the Congress clearly conveying their message to DHS, “Wait wait, don’t tell me, you think you’re doing a good job…” Napolitano’s focus on streamlining existing immigration policies is positive news for US businesses. Until the promise of streamlining comes to fruition, removing your business from the auditing radar, enrolling in E-Verify, and becoming Form I-9 compliant remain immigration best practices.

If you can handle the truth about current immigration policies, subscribe to our blog and stay informed by checking out our I-9 Employer Resource Center and join our LinkedIn Group.

By:  Timothy Sutton, Communications Editor

Swiss based Nestle has discovered “numerous” violations of its internal work rules as a result of internal auditing aimed at combatting child labor. The manufacturer of Kit-Kat bars reported that four-fifths of its cocoa comes from unmonitored labor channels. The Fair Labor Association is insisting Nestle implement higher supply chain standards moving forward. The cocoa industry is fraught with child labor issues, with child worker rates reaching upwards of 89% in the Ivory Coast. Unfortunately this far-reaching problem will not be solved overnight, “The complexity of child labor in the cocoa supply chain means solving the problem will take years,” Nestle said.

As a result of Nestle’s voluntary audit, the company has avoided penalties thus far. However, their involvement in child labor comes at a price. The company is now committed to altering supply chain practices and will invest heavily in future monitoring services.

While most American businesses can rest assured they are not supporting the underground child-labor industry, Nestle’s efforts to self-assess and reform should be applauded. Domestic and international companies will benefit greatly from routine internal audits that track workforce compliance. USCIS and ICE encourage employers to frequently perform internal audits of their Form I-9 practices. In fact, records of regular auditing of your workforce may help you avoid hefty civil penalties in the event of an official government audit. The next time you “break off a piece of that Kit-Kat bar,” consider following Nestle’s example of self-auditing and contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

Other resources:

• Our Employer Resource Center:  www.I-9Audits.com
• Our Employer Compliance LinkedIn Group
• Our Compliance Services and Solutions

By:  Timothy Sutton, Communications Editor

In an effort to assist participating employers comply with the user requirements of E-Verify and to help improve participants’ overall use of the program, USCIS issued two self-assessment guides in June. Both guides are substantively similar, but are procedurally designed to assist two sets of users, either web-access or direct access users. Voluntary E-Verify participants will benefit from this recent assistance publication by following the eight-part checklist provided therein.

The self-assessment checklist covers, post-enrollment activities, creation of cases, photo matching, tentative nonconfirmation, DHS referral, SSA referral, final case resolution, and final case closure statements. USCIS touts E-Verify as an easy-to-use online tool, but warns, “Employers may be subject to legal action for some types of E-Verify misuse.” The self-assessment guide highlights below may surprise current E-Verify users who may unwittingly be noncompliant:

Monitored Activities Common Mistakes:

• Duplicate cases for same employee
• Verifying employees hired before 11/7/86
• Immediately terminating employee who receive a tentative nonconfirmation (TNC)
• Failing to create a case by the third day after employee started work for pay
• Creating cases for employees hired before E-Verify participant enrollment

Post-Enrollment Activities: Do web services comply with interface control agreements?

Creation of Cases: Is all personally identifiable information safeguarded at all times, with only minimal information retained?

Photo Matching: Are document photos matched to the photo on E-Verify rather than to the employee?

Tentative Nonconfirmation: Do case closure statements notify DHS if an employee who receives a TNC chooses not to contest is not terminated?

DHS & SSA Referral: Do E-Verify participants and employees both sign the English-language version of the referral letter?

Final Case Resolution: Upon receipt of a “DHS No Show” message, does the employee contact DHS within the required time?

Final Case Closure: Does the user file completed Form I-9 and all attachments in a secured location?

Although the self-assessment is a valuable tool to assist employers with E-Verify compliance, the checklists do not render a company audit proof. For assistance implementing best practices for E-Verify and other immigration related topics contact one of our immigration professionals.

Want to stay informed:?  Check out our I-9 Employer Resource Center and join our LinkedIn Group

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.

By:  Timothy Sutton, Communications Editor

“Homeland Security Investigations is committed to holding businesses and their managers accountable when they knowingly hire an illegal workforce,” –John Kelleghan, Special Agent in charge of HSI Philadelphia.

Homeland Security, the FBI, and ICE did much more than hold GPX/GPX, USA, a seismic surveying company and their field supervisor, Donald Wiggill, “accountable,” by charging the company with a total maximum fine of $10 million, a probation term of five years on each count, and a special assessment totaling $8,000; Wiggill faces an unconscionable indictment of 100 years in prison on all 20 counts, a fine of $5 million, a supervised release term of 60 years, and a special assessment of $2,000. The Texas based company failed to verify the immigration status of nineteen employees and did not prepare the required Form I-9 and supporting documentation concerning the immigrants’ authorization to work in the United States.

John Kelleghan of Homeland Security further justified the Philadelphia HSI decision to levy such harsh punishment for I-9 non-compliance saying, “HSI and our law enforcement partners will continue to ensure that employers follow our nation’s hiring laws, which ultimately protect job opportunities for the nation’s legal workers, and levels the playing field for those businesses that play by the rules.”

The proportionality of the punishment sought for the crime is extremely shocking. Our blog has recently covered the penalties imposed upon, HerbCo, Chipotle, and most recently ABC Tree Professionals, which pale in comparison to the punishment GPX is now facing.

GPX is being treated like a national security threat for mishandling nineteen employees Form I-9s. The difference between thousands of dollars versus millions of dollars in fines, in addition to 100 years of jail time, is the involvement of the FBI and the Homeland Security. GPX is charged with harboring and transporting illegal aliens and conspiracy to commit those offenses as outlined in an indictment by the U.S. Attorney for the Middle District of Pennsylvania, Peter J. Smith. Whether GPX was honestly aware of their employees’ immigration status is still unknown, however proper planning and implementation of I-9 compliance would have saved the company millions in civil penalties and avoided a hundred years of jail time. With the stakes elevated so tremendously high by this multi-departmental crackdown on workforce compliance –  who can afford not to get their legal documents in order?

To protect your business and your employees please contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

By:  Timothy Sutton, Communications Editor

For the Houston based ABC Professional Tree Service, Inc., firing non-compliant workers and implementing E-Verify was too little too late. Even after implementing E-Verify and firing hundreds of workers following an ICE audit in 2008, the Immigration Customs Enforcement agency of the Department of Homeland Security recently announced reaching a $2,000,000 non-prosecution agreement with ABC. Shockingly, the sum was based upon ICE’s estimation of profits ABC earned through illegal labor practices.

After four years of investigation, ICE did not release how the $2,000,000 figure was reached. However, they did release an estimate that up to 30% of the 2,500 ABC employees were illegally employed. In a press release on May 18, 2012, ICE espoused ABC knowingly employed illegal workers after receiving “no-match letters” from the Social Security Administration. Additionally, on March 4, 2010, two years after the initial audit, ICE seized records from the ABC Birmingham office through a federally issued warrant. Undocumented employees in the Alabama office and working in the field were detained.

Typically Form I-9 violations lead to heavy monetary penalties, but in this case ICE chose to cut a non-prosecutorial deal. It is unclear from the information released whether or not the $2,000,000 sum is more or less than ABC would have faced in fines? But more importantly, businesses like ABC who are subject to years of audits and investigations, despite implementing E-Verify and discharging employees, have little bargaining power. Consequently, the best defense against an ICE audit is total compliance. Employers would be wise to hire a professional consultant to train staff, organize existing documentation and manage future non-compliance issues. The Immigration Compliance Group has the experience and resources necessary to protect your business from an ICE audit.  Contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

By:  Timothy Sutton, Communications Editor

Since February of 2011, the U.S. Department of Homeland Security, Immigration and Customs Enforcement, as well as the office of the U.S. Attorney for the District of Columbia, have been conducting investigations into Chipotle Mexican Grill’s compliance with employee work authorization laws and regulations. On May 17, 2012, Chipotle received a subpoena from the U.S. Securities and Exchange Commission, requesting information regarding compliance with employee work authorization requirements, related public statements and other disclosures.

Failing their initial ICE audit exposed Chipotle to the SEC violations under investigation. Even though a year has passed since the company released immigration compliance disclosures to their investors, the current SEC investigation may lead to further fines and federal litigation. In February of 2011, the company filed a Form 8-K with the SEC stating,

“Our business could be adversely affected by increased labor costs or difficulties in finding the right employees for our restaurants.” Unauthorized workers are subject to deportation and may subject us to fines or penalties, and if any of our workers are found to be unauthorized our business may be disrupted as we try to replace lost workers with additional qualified employees. We could also experience adverse publicity arising from immigration-related enforcement activity that negatively impacts our brand and may make it more difficult to hire and keep qualified employees.”

The current SEC investigation has reopened the wound left by the ICE audits Chipotle endured over the past two years.  Following the ICE raids of 2010, Chipotle restaurants in Minnesota were issued a Notice of Suspect Documents identifying a large number of employees who appeared not to be authorized to work in the U.S. Employees who were unable to provide valid work eligibility documents were terminated. In December 2010, DHS requested work authorization documents for employees in the District of Columbia and Virginia. At that time, Chipotle filed a statement with the SEC in a Form 10-K stating:

“We believe our practices with regard to the work authorization of our employees, including the review and retention of work authorization documents, are in compliance with applicable law. However, the termination of large numbers of employees does disrupt our operations and results in a temporary increase in labor costs as we train new employees. It is not possible at this time to determine whether we will incur any fines, penalties or further liabilities in connection with these matters.”

The Department of Homeland Security, ICE, and the SEC’s investigation of Chiptole, sends a strong message to American employers that the U.S. government is relentless in its efforts to penalize employers of illegal aliens. ICE audits open the door to immigration, tax, and labor investigations that can cost employers (companies of all sizes – both private and public) millions in fines. In particular, this is a strong message to publicly held corporations that you must  take care now more than ever to ensure workforce compliance to avoid falling victim to an SEC probe.

As the mountain of immigration compliance trouble casts a shadow over Chipotle’s recent financial successes, further fines, penalties and liabilities levied by the SEC are sure to follow. For more updates on this matter subscribe to our RSS feed and for more information on how to avoid ICE audits and SEC investigations contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

By:  Timothy Sutton, Communications Editor

The Hamilton Project, at the Brookings Institution held a forum on U.S. immigration on May 15, 2012. US Davis Economist, Giovanni Peri, purposed a radical overhaul to the entire immigration system. In short, Peri proposed a national auction system wherein employers bid for employee visas and proceeds of these sales fund local healthcare and education. The auction prices would be set with a reserve to ensure a minimal guaranteed income stream. Uncapped, the market would dictate the number of visas issued annually. This proposal seems to find a common ground between business needs and government regulation, benefiting the low-skilled labor market.

Auctioning low-skilled labor visas should help reduce the population of roughly 11.5 million illegal immigrants. Employers will be able to hire a legal workforce up to the point where auction prices for visas offset low wage savings. At that time, I-9 audits and workplace raids should continue to deter further hiring of illegal immigrants. This larger, stable and legal temporary workforce will help stabilize the economy. Changes are welcomed for companies like 3M that recently experienced a “brain drain.” 3M has been outsourcing science and technology jobs to Asia, citing the instability of the low skilled labor market they rely on to support their laboratories, manufacturing, research and development.

While Peri’s proposals are likely years away from actually being introduced into legislation, public officials like Senator John Cornyn continue to push for business friendly immigration. Senator Cornyn recently introduced legislation that would add 85,000 H-1B temporary visas issued annually to foreign-born engineers, mathematicians, scientists and other high-tech workers. Cornyn reminded the Senate, “We have to remember how this country was built. All of us are sons and daughters of immigrants that showed up here and made our way. We’ve cut off that flow.”

For continued coverage of proposed immigration reform and legislation, as well as the latest developments in immigration politics, subscribe to our blog and immigration and I-9 newsletters here.

Interested in staying current with I-9/E-Verify news and issues?  Check out our group on LinkedIn.

Please see our attached brochure and contact our office to discuss your compliance needs.  Our talented staff can walk you through our customized services and solutions.