By:   Timothy Sutton, Communications Editor

State legislatures in Kansas recently voted down a bill that would mandate all employers utilize the E-verify employment verification system. The federal government currently encourages employer’s voluntary participation in E-verify under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Although there are numerous benefits to participating in E-verify, blanket mandates burden all businesses regardless of size and resources. Legislatures across the country are proposing these mandates in an attempt to target employers who wish to remain “willfully blind” to their employees immigration status. The Kansas bill proposed excluding contractors who did not participate in E-verify from bidding on government contracts valued at $50,000 and above. When the bill failed by a vote of 84-35 businesses across the state heaved a temporary sigh of relief. Kansas will likely see this bill return in the near future, as the main deterrent for passing the bill was a lack of time and resources to adjust the state budget that takes effect on July 1, 2012.

Employers should be aware that although the federal government controls immigration laws, states are currently placing additional restrictions on employers adding additional layers of compliance measures aimed at reducing illegal immigrant populations. Controversial immigration laws passed by the state of Alabama, which mandate employer’s participation in E-verify, have sparked lawsuits by the Obama administration. Various industries are hit hard by such mandates including the agricultural industry.

Numerous farmers have prepared for a significant reduction in available labor by planting crops that can utilize machines to perform the work in place of immigrant laborers. H.B. 87, which recently passed in the state of Georgia, requires that all public employers and private employers utilize E-verify in advance of securing business licenses and permits. While these mandates appear to keep employers “honest,” in their hiring practices, they come at both an economic and social cost. Businesses bear the economic burden of compliance while minority populations pay the social cost of increased racial discrimination.

Mandates create an additional layer of workplace compliance that many small businesses lack the manpower and training to adhere to. Additionally, workplace verification screening without proper guidance by attorneys or employment specialists may lead to an increase in discriminatory employment practices. In light of the growing trend of state laws mandating E-verify participation, employers are encouraged to seek trained professionals for training and education on compliance with the law. For more information contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

By Timothy Sutton, Communications Editor | Immigration Compliance Group

 Amendments to The Racketeer Influenced and Corrupt Organization Act (RICO) in 1996 expose businesses to civil liability for knowingly hiring illegal workers. RICO was originally enacted to protect businesses from the influence of the mafia by allowing private enforcement of sanctions against violators of racketeering laws. Today, if a business employs illegal workers both (1) private individuals who are directly and adversely affected by loss or depression of wages due to employment of illegal workers and (2) businesses who are proximately harmed by a direct competitors employment of illegal workers may seek monetary sanctions including attorney’s fees under RICO. Simply, if you are employing illegal workers, your legally employed workers and your direct competitors may sue you for racketeering.

In Trollinger v. Tyson Foods, Inc., legally authorized workers filed a civil RICO class action against Tyson claiming the company and its recruiters had violated the INA by entering into an illegal hiring scheme to pay illegal aliens lower wages to increase profits. The workers claimed that their own wages had been depressed by Tyson’s immigration violations. Tyson prevailed after six long years of civil litigation because the plaintiff’s failed to establish a sufficient causation of their lost wages by Tyson’s hiring of illegal workers. However, this case set out the framework for employees to bring a lawsuit against their employer for hiring illegal workers under RICO.

Because the government holds private businesses accountable for enforcing immigration laws through I-9 compliance, E-verify and various Federal statutes, workplace compliance is essential to protecting your business. Businesses, not illegal workers are held accountable for fraudulent documents, misrepresentations of citizenship, and discriminatory hiring practices.

As “gatekeepers,” of immigration enforcement, employers have a de-facto duty to prevent illegal immigrants from securing employment. To ensure that your business is prepared for RICO lawsuits, ICE audits, and OSC hiring discrimination claims, contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

Our Employer Resource Center is very informative – check it out.

We had the ICE IMAGE Training and Forum in Los Angeles last week on May 3rd where they explained the benefits of the IMAGE Program and followed up with releasing all the Powerpoint Presentations through email after the event.  They have made some excellent information available to the public on their website; namely:

1. An HSI I-9 Presentation
2. An IMAGE HSI Presentation
3. OSC IMAGE Event Presentation
4. Self Check User Presentation
5. E-Verify Presentation

We felt that their perspective on the above topics was critical information to  be shared and analyzed alongside your other resources.  They can be accessed here.

Please know that we are available to assist you with your compliance program and offer practical and sustainable services and solutions to assist you in establishing a compliant workforce.

By:  Timothy Sutton, Communications Editor

Like many successful restaurant managers, I worked my way up from the bottom of the employee food chain. That meant with each promotion from bus boy to manager, I was trained by other employees on how to do my job. By the time I became a General Manager, I erroneously believed that being a good manager meant being able to follow established procedures. I soon discovered that this was actually a recipe for disaster.

Auditioning a new waiter is a common practice in the restaurant industry. This entails observing an applicant voluntarily interacting with customers, taking orders, serving food and working with other employees. Typically, the audition ends with a free meal in exchange for the waiter’s time and parking validation if the restaurant is generous. Throughout the industry, restaurateurs believe that this practice limits their liability because the applicant has not yet become an employee in “volunteering,” their time to audition for the job.

However, the M-274 Handbook For Employers instructions on completing form I-9 (Employment Eligibility Form) classifies this practice of meals and parking reimbursement as remuneration: anything of value given in exchange of labor or services, including food or lodging. Because restaurant managers typically train one another on hiring practices, there is a perpetual false belief that auditioning waiters is a healthy hiring practice. According to the M-274, the work done in exchange for the value of a meal exposes restaurants to form I-9 non-compliance fines. Essentially, the audition becomes Day One of employment, which requires I-9 forms to be completed and retained.

If the applicant is not hired, both Section 1 and 2 of the I-9 form must be completed that same-day in order to comply with rules regarding employees retained for three-days or less. Without the proper knowledge and training on these I-9 compliance issues, managers expose their companies to thousands of dollars in fines by auditioning waiters. A successful manager goes beyond following the established procedures by having the foresight to seek professional guidance to ensure that company employment practices are in accordance with the law.

For fresh insight into how your business’s employment practices can become a recipe for success contact our office at info@immigrationcompliancegroup.com or call 562 612.3996.

Please refer to our informative Employer Resource Center for more, and here for a list of our services and solutions.

By:  Timothy Sutton, Communications Editor

HerbCo International Owner Ted Andrews, Vice President David Lykin and General Manager Debra Howard will appear in Court on May 1, 2012, charged with re-hiring nearly two dozen of the 86 workers fired after an I-9 audit by the Immigration and Customs Enforcement agency back in February of 2011. A HerbCo employee tipped off authorities about the scheme to pay these 20 illegal workers roughly $40,000 in cash, despite being fired for non-conforming I-9 forms and failing to pass E-verify background checks.

During an ICE Audit of 334 I-9 forms, it was found that 214 employees had presented fraudulent documents.  All the employees listed in the social security “no-match letter” who were still employed, 86 of them, were terminated.

Under federal law, an employer is required to verify the identity and work authorization of every employee hired. However, there are limitations on how an employer can legally seek additional verification of documents they suspect to be fraudulent.

The HerbCo executives are expected to receive a year of probation for guilty pleas to their criminal charges. Prosecutors are seeking an additional $1M in fines from HerbCo, sending an obvious message to employers that hire illegal workers.

The US Attorney’s office stated the following regarding the amount of the fine, “Within the worksite universe of either the United States or the State of Washington, the defendants’ conduct appears unremarkable only because of the sheer numbers of other culpable employers who have not been prosecuted for similar conduct. Of 20 million illegal aliens residing in the United States and 230,000 in the State of Washington, 86 were employed at Herbco on April 15, 2011.”

For more information about how to safeguard your business from a costly I-9 audit, contact our firm at info@immigrationcompliancegroup.com or call 562 612.3996.

We  link to more on this, and here also.

One of the most important questions in the mind of both employer and employee is:  What if information about the employee is wrong – can they fix inaccurate information about themselves in E-Verify?

If E-Verify is unable to automatically verify an individual’s status in order to authorize employment, a Status Verifier will manually review the information and conduct searches of other Federal government databases and, where necessary, will update any underlying information contained within the various DHS databases queried.  After a result is returned on an employment authorization query, E-Verify provides two methods of information correction and redress for employees.  If an employee receives a Tentative Non Confirmation, or TNC, they may correct their information through the Social Security Administration (SSA) or DHS.

After the verification process is complete, individuals have the opportunity to access and correct their information through the Freedom of Information Act (FOIA) or Privacy Act (PA) process.

We link to more E-Verify Privacy FAQs and our I-9 Employer Resource Center

Immigration Compliance Group specializes in business immigration and employer compliance matters related to audits, training and policy development.

The OSC has provided a valuable resource in sharing their letter responses to various employment eligibility verification compliance inquiries from stakeholders. The topics include: Non-Discrimination Practices, Pre-Employment Inquiries, Form I-9  Document Abuse, SS No-Match Letters, Dishonesty/Falsification Issues, using acceptable language for job postings, and much more.

Here are a few citations:

Re:  Question Concerning Re-Verifying Work Authorization when Discrepancies with SS are Discovered: “An employer is only under a duty to investigate further if it knows or has knowledge that would lead a reasonable person to believe that an individual is not authorized to work in the United States.  There are many possible reasons for why an employee’s name and Social Security number may not match.  Therefore, employers should not draw conclusions about an employee’s work authorization status based solely on information indicating that the employee’s name and Social Security number cannot be found in a system of records-whether the records are directly managed by the Social Security Administration or any other private or public entity. Furthermore, the mere receipt of a no-match letter or other no-match notice does not, standing alone, constitute ‘constructive knowledge’ on the part of an employer that the referenced employee is not work authorized. Only the Department of Homeland Security (DHS) is legally authorized to conclusively determine an individual’s authorization to work.  OSC also cautions employers against providing an unreasonably short period of time to clear up a Social Security no-match…” It it strongly recommended that you consult with a qualified attorney in employment-related immigration law before jumping to any conclusions that might possibly escalate into a very unpleasant scenario for all parties concerned.

Question re Modifying the List of I-9 Acceptable Documents:  “Document abuse occurs when an employer either demands that a worker produce more or different documents than those identified in the Form 1-9 process, or refuses to honor documents tendered that on their face reasonably appear to be genuine, based on national origin or citizenship status.  To the extent that an employee either inadvertently or mistakenly indicates an incorrect immigration status in Section 1 of the Form 1-9, the limitation of documents in Section 2 may prevent that employee from presenting valid documents) acceptable for 1-9 purposes. Similarly, if the list excludes one or more documents that an employee of a particular status may possess, the limitation of documents may also prevent that employee from presenting his or her valid documents) acceptable for 1-9 purposes.”  We caution you to discuss issues such as this with experienced counsel in employment-related immigration matters before action is taken.

We trust that you will find this information useful as it relates to the enforcement of the anti-discrimination provision of the INA. Please check out a list of our compliance  services and solutions. Please be reminded that we invite you to contact our office with your employment-related immigration matters (I-9 audits, training, policy development and more).

About the OSC:  The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provision (§ 274B) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b.  his federal law prohibits: 1) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee, 2) national origin discrimination in hiring, firing, or recruitment or referral for a fee, 3) document abuse (unfair documentary practices during the employment eligibility verification, Form I-9, process, and 4) retaliation or intimidation.

In a transcript released today of ICE Director John Morton’s testimony before the House Committee on Appropriations, Subcommittee on Homeland Security Hearing on The President’s Fiscal Year 2013 budget request for ICE, the message was clear….ICE intends to keep the pressure on employers with a continued focus on I-9 audits this year, as stated below in his statement concerning worksite enforcement:

“We are focused on smart and effective enforcement of our immigration laws, including making sure that employers have the tools they need to maintain a legal workforce and face penalties if they knowingly violate the law.

Employment opportunities remain a primary motivation for aliens seeking illegal entry into the United States. By focusing on employers that are willing to hire illegal workers, we can eliminate the incentive that leads illegal aliens to violate our nation’s immigration laws. Since January 2009, ICE has audited more than 6,468 employers suspected of hiring illegal labor, debarred 521 companies and individuals, and imposed more than $76.4 million in financial sanctions. This focus will continue this coming fiscal year.

We have also established the ICE Mutual Agreement between Government and Employers program (IMAGE) — designed to promote voluntary compliance, educate employers about best practices and help companies train their employees to comply with the nation’s immigration-related employment laws. Last year, ICE entered into IMAGE agreements with well-known companies, including Chick-fil-A, Smoothie King, Best Western, Toyota, Tysons Food, and Kelly Services, among others. These companies agree to use E-Verify, conduct self-audits, and submit to an ICE audit. In FY 2013, ICE will continue to expand IMAGE outreach nationwide and provide regional and local IMAGE training conferences to increase voluntary compliance among key employers.”

This information should come as no surprise to our readership, who are very well informed.  We would, however, like to remind you that a good faith effort is the primary consideration by ICE when determining final penalties in their worksite audits and investigations. To establish a good faith effort, have an outside audit performed by an experienced professional to determine what problems you really have; correct your paperwork, get everyone properly trained; create a written SOP statement to get everyone on the same page and enlisted in the process of maintaining a compliant workforce; enrolling in E-Verify is also recommended.

We invite you to contact our firm regarding any compliance questions/issues that you have, 562 612.3996, or by email, info@immigrationcompliancegroup.com.  Check out our Employer Resource Center at www.I-9Audits.com, and our list of services and solutions.

We have heard many recent reports that ICE will step up the pressure on its I-9 Field Agents to surpass the number of I-9 audits they performed in 2011, and that they will be looking at various industries such as employers in critical food, energy, and infrastructure industries. In June 2011, ICE did not specify which businesses would be specifically targeted, but did say that immigration agents would focus on seventeen sectors including agriculture, financial services, nuclear reactors, water treatment, and health care.

It has been recently reported by the Farm Employer’s Labor Service (FELS) that the  EVP of NCAE (National Council of Agricultural Employers) was informed by credible sources that ICE field agents will once again focus their I-9 audit investigations on high-profile agriculture and restaurant employers to surpass their 2,496  I-9 audits and 3,291 work site enforcement cases conducted in 2011.  More specifically, they are again (no surprise) targeting high-profile/maximum press coverage employers, the biggest farms and restaurants, and employers who were previously audited and/or had issues with DOL or DHS in the past –  who can now expect to be be revisited in 2012.

With good faith effort being one of the most important rules applied in ICE enforcement audits and investigations, it is recommend that all employers get their ‘houses in order’ as it relates to I-9 employment verification eligibility compliance.  We would strongly suggest that you put your emphasis on  retaining an outside expert to perform a thorough I-9 audit of your active and inactive I-9 forms to really get a handle on problems and reoccurring issues buried in your I-9 forms.  This step alone can save you hundreds of thousands of dollars, as well as the potential of losing employees and recruitment and re-training costs.  Then get your staff trained and don’t let anyone not properly trained be involved with hands-on I-9 functions.  Next, establish a written compliance statement outlining the SOP that your company will follow — a plan that makes sense for your business……then implement it, and be diligent in your efforts to create and maintain  a compliant workforce showing a good faith effort to comply with I-9 regulations to the best of your knowledge and ability.  Lastly, avail yourself of reliable information from skilled professionals that report on compliance issues – subscribe to a newsletter and a blog so that you can stay ahead of the game.  You should check out our free information – both blog and newsletters.

We invite you to contact our firm to discuss your compliance issues, info@immigrationcompliancegroup.com or call 562 612.3996.

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Immigration Compliance Group focuses its practice on corporate employment verification compliance and US and Canadian inbound business immigration.   Our team has a depth of experience in providing uniquely tailored services and solutions to assist clients in developing comprehensive employment authorization and immigration-related compliance.  We conduct onsite and offsite  I-9 audits for companies of all sizes, design training curriculum to assure that staff is knowledgeable concerning the  management of their I-9 program, and we assist with policy development so that our clients have a plan and strategy that assures their compliance in a manner that makes sense for their business and evidences their good faith in establishing a compliant workforce.

1. Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work,  and in hiring and firing.

2. Accept documentation presented by an employee if it establishes identity and employment eligibility; is included in the list of acceptable documents; and reasonably appears to be genuine and to relate to the person.

3. Accept documents that appear to be genuine. You are not expected to be a document expert, and establishing the authenticity of a document is not your responsibility.

4. Avoid “citizen-only” or “permanent resident-only” hiring policies unless required by law, regulation or government contract. In most cases, it is illegal to require job applicants to be U.S. citizens or have a particular immigration status.

5. Give out the same job information over the telephone to all callers, and use the same application form for all applicants.

6. Base all decisions about firing on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of your employees.

7. Complete the I-9 Form and keep it on file for at least 3 years from the date of employment or for 1 year after the employee leaves the job, whichever is later. This means that you must keep I-9s on file for all current employees. You must also make the forms available to government inspectors upon request.

8. On the I-9 Form, verify that you have seen documents establishing identity and work authorization for all employees hired after November 6, 1986, including U.S. citizens.

9. Remember that many work authorization documents (I-9 Form lists A and C) must be renewed. On the expiration date, you must reverify employment authorization and record the new evidence of continued work authorization on the I-9 Form. You must accept any valid document your employee chooses to present, whether or not it is the same document provided initially. Individuals may present an unrestricted Social Security card to establish continuing employment eligibility.

Note:
• Permanent resident cards should not be reverified
• Identity documents should not be reverified

10. Be aware that U.S. citizenship, or nationality,belongs not only to persons born in the United States but also to all individuals born to a U.S. citizen, and those born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of Northern Mariana Islands, American Samoa, and Swains Island. Citizenship is granted to legal immigrants after they complete the naturalization process.

Please feel free to contact our office to discuss any compliance questions that you might have.

Resources:

Employer Resource Center

Office of Special Counsel for Immigration-Related Unfair Employment Practices

OSC:  FAQs

Types of Immigration related Unfair Employment Practices Discrimination