There have been reports for some months now that the USCIS California Service Center has enforced new interpretation concerning the way it views H-1B requirements for job location changes, when duties and all other employment terms remain the same.

Previously, according to a 2003 legacy INS memo, a simple change in job location did not require that a new petition be filed with USCIS.  The employer was required to analyze prevailing wage for the new location, file and obtain a new certified Labor Condition Application (LCA) with the Department of Labor prior to the employee moving to the new location, post the LCA at the new work site according to DOL regulations, make sure wage and hour obligations were met, but did not have to file an amended petition with USCIS.

Under the CSC’s new and controversial interpretation, changes in job location alone do require amended petitions. In fact, employers are reporting site audits and revocation of H-1B petitions when USCIS inspectors could not find the H-1B worker at the work site listed in the petition. At this point, no other USCIS service center has followed this radical reinterpretation of the law – just the CSC.

Long-standing guidance still indicates that no amended petition should be required when only job location changes. However, to avoid adverse consequences – at least, until the CSC revisits its controversial new interpretation – employers should proceed with caution and work with a competent immigration professional whenever an H-1B worker’s job location changes, in order to determine whether any amended filings are required. Employers need to be careful to reveal all possible jobsite locations for each H-1B worker at the front end of case processing.

USCIS headquarters has the H-1B amendment issue under consideration and has indicated that they may issue additional guidance regarding this matter. In the meantime, please be advised that for cases under the jurisdiction of the CA Service Center for H-1B workers whose jobsite locations have changed, an amended petition prior to any geographic relocation is now required.

Should you wish to become a client of our office, please contact one of our immigration professionals at info@immigrationcompliancegroup.com, or call 562 612.3996.

With a 2nd wave this year of Notices of Inspection (NOI’s) sent to employers across the country, and I-9 administrative audits being ICE’s driving force in determining whether an employer is adhering to employment laws –  it is a costly mistake for employers to presume that they can fly under ICE’s radar.  An ICE investigation can be triggered at any time by SSA No-Match letters, a tip from a disgruntled employee, a terminated employee, a customer, a competitor, or other “concerned citizens.”

With the above being said, we thought this would be a good time to review exactly what takes place when an employer is served with an NOI – starting with immediately contacting an attorney that specializes in employer compliance matters. Not all immigration or corporate attorneys do…so do your homework, or just call us.

Employers are allowed by law 3 days notice to respond by producing the I-9 records and other requested information.

The administrative inspection process is initiated by the service of a Notice of Inspection (NOI) upon an employer compelling the production of Forms I-9. Often, ICE will request the employer provide supporting documentation (an invasive Document Subpoena), which may include requests for a copy of your I-9 Compliance Policy, Employee Roster, copies of Payroll Summaries, I-9 forms for current and terminated employees, Quarterly Wage and Hour Reports, SSA Mismatch correspondence,   E-Verify and/or SSNVS documents, Articles of Incorporation, and business licenses.

ICE agents or auditors then conduct an inspection of the Forms I-9 for compliance. When technical or procedural violations are found, pursuant to regulations at INA §274A(b)(6)(B) (8 U.S.C. § 1324a(b)(6)(B)), an employer is given ten (10) business days to make corrections. An employer may receive a monetary fine for all substantive and uncorrected technical violations. Employers determined to have knowingly hired or continued to employ unauthorized workers will be required to cease the unlawful activity, may be fined, and in certain situations may be prosecuted criminally. Additionally, an employer found to have knowingly hired or continued to employ unauthorized workers may be subject to debarment by ICE, meaning that the employer will be prevented from participating in future federal contracts and from receiving other government benefits.

Monetary penalties for knowingly hiring and continuing to employ violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end. Penalties for substantive violations, which includes failing to produce a Form I-9, range from $110 to $1,100 per violation. In determining penalty amounts, ICE considers the size of the business, good faith effort to comply, seriousness of violations, whether the violation involved unauthorized workers, and history of previous violations, amongst other factors.

ICE will notify the audited party, in writing, of the results of the inspection once completed. The following are the most common notices:

Notice of Inspection Results – also known as a “compliance letters,” used to notify a business that they were found to be in compliance.

Notice of Suspect Documents – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has determined that the employee is unauthorized to work and advises the employer of the possible criminal and civil penalties for continuing to employ this individual. ICE provides the employer and employee an opportunity to present additional documentation to demonstrate work authorization if they believe the finding is in error.

Notice of Discrepancies – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has been unable to determine their work eligibility. The employer should provide the employee with a copy of the notice, and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility.

Notice of Technical or Procedural Failures – identifies technical violations identified during the audit and gives the employer 10 business days to correct the forms. After 10 business days, uncorrected technical and procedural failures will become substantive violations.

Warning Notice – issued in circumstances where substantive verification violations were identified but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer.

Notice of Intent to Fine (NIF) – may be issued for substantive, uncorrected technical, knowingly hire and continuing to employ violations.

We’d like to close with emphasizing the importance of creating an I-9 compliance policy that is integrated with your overall personnel policy.  A comprehensive written policy will help establish guidelines for all employees to follow, will establish good-faith efforts towards compliance, and potentially could mitigate penalties.  A company should also designate an overall I-9 compliance administrator. To ensure consistency, designate one person who is charged with centralized oversight, management, and training of the company’s compliance program.  To provide guidance to hiring managers about I-9 procedures, managers should know who must complete Form I-9; when and how to conduct verification; what permissibly may be asked prior to the actual hiring; what limits may be placed on hiring of certain individuals; what, how, and for how long I-9 records should be maintained.

.. We link to an inspection process chart that is a good illustration of the various steps in the NOI process

.. We also link to a copy of an ICE NOI and a Document Subpoena

.. For a list of I-9 Technical and Substantive Violations

We work with our clients to create compliant workforces, and now is the time to be proactive if you absolutely know that you have problems with your I-9 forms; and, by the way, most employers do.  We encourage you to be proactive and take action now before you pay the high price of being put in a position where your options have considerably diminished.

We are happy to hear from you and are very flexible with our package of compliance services and solutions.  Our talented team is read to assist you with whatever you’d like to accomplish with your compliance program.  Visit our I-9 Resource Center here

In our June Newsletter we cover what’s new in employer compliance:  New I-9 Employer Handbook, new Q&A for I-9 and E-Verify, the new E-Verify RIDE interface and other information to assist you with staying current and developing a compliant workforce.

For more information regarding our services, please contact our office, 562 612.3996 or via email at info@immigrationsolution.net.

ICE and HSI worksite enforcement activities strike again – this time it’s temp agencies!

In an ICE Press Release today, it was announced that during an ICE and HSI investigation, it was found that a 2-location temp agency was knowingly supplying undocumented unskilled and skilled warehouse and janitorial workers to their clients as a part of their labor pool.

Clinton Roy Perkins, the owner of Can Do It Inc. in Bensenville, IL, was sentenced on February 16th to 18 months in prison, to be followed by three years of supervised release, for knowingly hiring illegal aliens at the staffing companies. He pleaded guilty in September 2010. On Feb. 25th, U.S. District Judge Joan B. Gottschall also ordered the forfeiture of $465,178 in proceeds obtained as a result of the criminal activity.

Perkins admitted to knowingly hiring more than 10 illegal aliens from Mexico between October 2006 and October 2007.  Perkins did not require the workers to provide documents establishing their immigration status or lawful right to work in the United States.

Perkins and his son-in-law, Chrispher Reindl, paid the illegal workers’ wages in cash; did not deduct payroll taxes or other withholdings. Perkins and Reindl directed low-level supervisory employees to transport illegal workers back and forth between locations near the aliens’ residences in Chicago and work sites in the suburbs. Both also provided bogus six-digit numbers – purporting to be the last six digits of the aliens’ Social Security numbers – to a company, knowing that their workers were in the country illegally and did not possess valid Social Security numbers.

In a quote from special agent in charge of ICE HSI in Chicago:  “We will hold employers accountable for their actions.  Mr. Perkins knowingly hired an illegal workforce and circumvented our nation’s immigration laws for financial gain. The goal of our enforcement efforts is two-fold – reduce the demand for illegal employment and protect job opportunities for the nation’s lawful workforce.”

ICE was assisted in the investigation by the U.S. Department of Labor’s Office of Inspector General in Chicago. Assistant U.S. Attorneys Christopher R. McFadden and Daniel May, Northern District of Illinois, prosecuted the case.

February 16, 2011, Brett Dreyer, Chief of the Worksite Enforcement, Unit of Homeland Security Investigations, verified on 2/16/2011 that ICE continues to focus its investigations both on businesses that were brought to their attention by tips and leads, and on those that work in areas of national security and critical infrastructure. Mr. Dreyer further confirmed: “The agency continues to be interested in egregious employers as they tend to break other laws in addition to immigration…including paying employees under the table, avoiding taxes and ignoring employee protections. The inspections will touch on employers of all sizes and in every state in the nation — no one industry is being targeted nor is any one industry immune from scrutiny.”

Confirmation has been publicized that NOI’s were indeed served throughout the USA on February 17^th.  The audits are expected to be completed within the next 2-3 months. We link here for more on this story.

This is a good time to review what you should do if you are served with a Notice of Inspection (NOI):

• Immediately contact Immigration Solutions and company management
• Employers are allowed by law 3 days notice to respond by producing the I-9 records of their active as well as terminated employees within a particular period of time

The NOI will be most probably be accompanied by a very invasive Document Subpoena that might ask for all of some of the below items:  

• A copy of your I-9 Policy and Procedures Statement or Manual
• I-9 forms for current employees hired after 11/6/1986
• I-9 forms for terminated employees within the required retention period
• Complete employee lists of current and terminated employees
• Quarterly Wage and hour reports
• Payroll Summaries
• SSA Mismatch correspondence
• E-Verify and/or SSNVS documents
• Business information such as:  Employer ID number, owner’s SSN/address, business license, etc.

We work with our clients to create compliant workforces, and now is the time to be proactive if you absolutely know that you have problems with your I-9 forms; and, by the way, most employers do.  We encourage you to be proactive and take action now before you pay the high price of being put in a position where your options have diminished.

We are happy to hear from you and are very flexible with our package of compliance services and solutions.  Our talented team is read to assist you with whatever you’d like to accomplish with your compliance programs.  Visit our I-9 Resource Center here.

Last week the House subcommittee on immigration policy and enforcement held their first hearing on “ICE Worksite Enforcement – Up to the Job?” The major agenda item was whether or not Immigration and Customs Enforcement (ICE) was adequately enforcing worksite immigration laws.  The Republican members called upon ;their usual sources to diminish the Obama administration’s enforcement efforts, even though Deputy Director of ICE, Kumar Kibble stated quite clearly that ICE has achieved record numbers of investigations, audits, fines, and deportations by citing the below  statistics.  Frankly, after listening to the majority members, one can’t help but wonder if any amount of enforcement would be sufficient to meet their expectations.

Under the Obama administration, ICE has moved  away from raids, and stepped  up the pace of auditing businesses who may be suspect to employing undocumented workers.  However, the emphasis today is more on employers who hire immigrants and not just arresting undocumented immigrants who are working in the factories, the hotels, restaurants and construction businesses.  The vehicle being used to police the workforce is the auditing of I-9 forms,  levying fines and utilizing employer verification tools such as E-Verify and the Ice Mutual Agreement Between the Government and Employers Program.

The Deputy Director cited the following statistics as evidence of the success of ICE’s worksite enforcement: for FY 2010:

• A record 2,746 worksite enforcement investigations, more than doubling the 1,191 cases initiated in FY 2008.
• ICE criminally arrested 196 employers for worksite related violation, surpassing the previous high of 135 in FY 2008.
• ICE also issued a record 2,196 notices of inspection to employers, surpassing the prior year’s record of 1,444 and more than quadrupling the 503 inspections in 2008.
• ICE issued 237 final orders – documents requiring employers to cease violation the law and directing them to pay fines – totaling $6,956,026, compared to the 18 issued for $675,209 in FY 2008.
• The total of $6,956,026 last year represents the most final orders issued since the creation of ICE in 2003.
• In addition worksite investigations resulted in a record $36,611,320 in judicial fines, forfeitures, and restitutions.
• Finally ice brought a new level of integrity to the contracting process by debarring a record 97 businesses and 49 individuals preventing unscrupulous companies from engaging in future business with the government.

The glaring facts that came out of the hearing are that no matter whether it’s worksite raids or company audits with deportations of undocumented aliens, the current state of how foreign born workers are processed into the country is no longer working.  The conversation that we all should be having is the comprehensive reform of how workers are brought into the USA.  We can only hope that the GOP and the Democrats can have civil and reasonable debate that results in meaningful change.  Let’s see what happens.

USCIS released a revised January 5, 2011 version of the I-9 Employer Handbook today.  Our office received an emailed  Press Release from USCIS Director Alejandro N. Mayorkas announcing the release of the Handbook that is published in cooperation with the Department of Homeland Security partners. Director Mayorkas states:

“By law, U.S. employers must verify the identity and employment authorization for every worker they hire after November 6, 1986, regardless of the employee’s immigration status. To comply with the law, employers must complete Form I-9, Employment Eligibility Verification. The Handbook for Employers is a guide for employers in the Form I-9 process.

It has been revised and updated with new information about applicable regulations, including new regulations about electronic storage and retention of Forms I-9; it clarifies how to process an employee with a complicated immigration status; and, it addresses public comments and frequently asked questions. We thank the many stakeholders who have provided comments on the Form I-9 process and the Handbook since the Handbook was last revised (Rev. 7/31/2009).

Some of the many improvements, new sections, and tools included in The Handbook for Employers are:

• New visual aids for completing Form I-9
• Examples of new relevant USCIS documents
• Expanded guidance on lawful permanent residents, refugees and asylees, individuals in Temporary Protected Status (TPS), and exchange visitors and foreign students
• Expanded guidance on the processing of employees in or porting to H1-B status and H2-A status; and
• Expanded guidance on extensions of stay for employees with temporary employment authorization.

The Handbook for Employers now also includes information for employers in the Commonwealth of the Northern Mariana Islands (CNMI) who must verify their employees’ employment authorization on Form I-9 CNMI. It also highlights information about documents CNMI employers may accept from their employees.

We are pleased to release this revised and updated handbook. We are hopeful it will serve as a useful guide for employers complying with the Form I-9 process.”

::::::::::::::::::::::::::::

Should you have questions following the reading and review of the new Handbook, please contact our compliance team at Immigration Solutions.  Should you require compliance services and solutions, our talented team is ready to assist you.

Over the last year, employers have continued to experience unannounced site visits by U.S. Citizenship and Immigration Services’ Office of Fraud Detection and National Security (FDNS), and it is expected that site visits will increase in 2011.  FDNS conducts site inspections to verify the information that employers provide in their immigration petitions. Most recently, site visits have focused on approved H-1B, L-1 and some O-1 petitions. Some employers have reported receiving multiple site visits pertaining to separate petitions and foreign workers.

In this series, we will address questions and inquiries that we have received pertaining to USCIS site visits.  If your company is contacted by an FDNS officer, you should call your designated Immigration Solutions professional immediately to discuss options, including the possibility of having counsel present during a site visit.

1)  Why is USCIS making employer site visits?   Site visits are conducted as part of a Benefits Fraud Assessment (BFA). BFAs are initiatives that review specific immigration programs – such as the H-1B or L-1 program – to determine the incidence of fraud in that particular program. A BFA typically lasts for several months. During this time, USCIS will randomly select a large number of petitions or applications for benefits in the particular category being assessed. These cases are assigned to FDNS officers, who visit the premises of sponsoring employers to verify the existence of the employer, the validity of the information the employer has provided in an immigration petition, and whether sponsored foreign nationals are working in compliance with the terms of their admission to the United States.

In addition to verifying the validity of data contained in an immigration petition, FDNS officers use information collected during site visits to help USCIS develop a fraud detection database. FDNS officers gather information to build profiles of the types of companies that have records of good faith use of immigration programs and records of immigration compliance, and also to identify factors that could indicate fraud. 

2)  Does USCIS give advance notice of a site visit?   Not necessarily. In most cases, officers from the FDNS unit will arrive at the worksite unannounced, though occasionally an officer may call the company to inform it of an impending visit.

3)  Can your attorney be present during the site visit?  You can ask to have counsel present during the site visit, especially because your attorney has submitted a Form G-28 notice of appearance of attorney, confirming that the company has legal representation in connection with each petition it files.  FDNS officers will not typically reschedule a site visit to accommodate the presence of an attorney, but may agree to allow counsel to be present by phone. In the alternative, you may contact your Immigration Solutions with questions during a site visit. If the officer is resistant, you should explain that having the company’s immigration counsel present or available by phone will help the employer respond fully and accurately to the officer’s questions and requests for information.

::::::::::::::::::::::::::::::::::

As always, we welcome your feedback. If you are interested in becoming an Immigration Solutions client, please call our office at 562 612.3996 and request a consultation. We handle a broad range of business related immigration matters and have an active employer compliance practice and consult on proper I-9 (Employment Eligibility Verification) best practices, auditing, training, and work with our clients to develop compliant immigration policies and procedures.  We offer these services, as well, to government contractors and advise on FAR E-Verify enrollment and compliance issues.  Visit our new I-9 Employer Resource center here

Dec. 13, 2010:  US Attorney Thomas E. Delahanty II of the District of Main, announced that George Valvanis pled guilty to one count of engaging in a pattern or practice of recruiting or hiring illegal aliens unauthorized to work in the United States, and to one count of using a false attestation in an immigration document. The case was investigated by ICE and  Homeland Security Investigations (HSI).

According to court records, Valvanis managed several Dunkin’ Donuts stores located in the Portland area. Between 2001 and 2009, he knowingly employed 18 illegal aliens to work in his stores. Valvanis faces a maximum prison term of five years on the false attestation charge and six months on the alien hiring charge.

Dunkin’ Donuts Manager, in conspiracy, knew that the employees were unauthorized to work in the U.S, and falsely attested on the I-9 that they had examined the documents presented, and the documents appeared to be genuine and that the employees were eligible to work in the U.S

“ICE HSI will hold employers who knowingly hire an illegal workforce accountable for their actions,” said Bruce M. Foucart, special agent in charge of ICE HSI in Boston. Foucart oversees ICE HSI throughout New England. “Our office will continue to investigate and find employers who flout our laws and hire illegal labor, in order to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. ICE HSI will use enforcement tools, civil and criminal, when appropriate to bring about compliance.”

As USCIS continues its H-1B enforcement efforts, the Department of Labor announced last week its latest case – a computer consulting company in New Jersey – that was fined $638,449 in back wages and interest and $126,778 in civil penalties.  The company was also barred form using the H-1B program for one year.  DOL additionally reported in its announcement that their investigations since 2005 have resulted in $5.6 million in back wages and $300,000 in civil monetary penalties in New Jersey alone.

The most common violations include:

1. Failing to pay the required wage on the H-1B petition
2. Failing to post the Internal Job Posting Notice of the filing of a labor condition application at every worksite where H-1B workers are employed, and
3. Failing to pay nonimmigrant workers the required wage for all non-productive time caused by conditions related to employment.  This includes lack of assigned work between projects and non-employment because of a lack of a permit or license or studying for a license exam.

Immigration Solutions provides comprehensive assistance to our clients in developing and maintaining best practices necessary to assure compliance with USCIS and Department of Labor regulations.  We have extensive knowledge of the H-1B and LCA regulations and provide our clients with the tools necessary to run a successful H-1B program, including the preparation of Public Access Files and the set-up and maintenance of LCA tracking systems.