Tyson Foods, Inc. is the newest member of U.S. Immigration and Customs Enforcement’s (ICE) nationwide program designed to encourage businesses to collaborate with ICE and use hiring best practices to ensure they are maintaining a lawful workforce. Tyson Foods Senior Vice President and Chief Human Resources Officer Ken Kimbro and ICE Director John Morton signed the IMAGE or “ICE Mutual Agreement between Government and Employers,” agreement during a ceremony at ICE headquarters.

Tyson Foods, Inc., which employs almost 100,000 people at locations throughout the United States, is the first major food company to become a full member of ICE’s IMAGE program.

For those of you who are not familiar with the IMAGE program — it’s voluntary and allows businesses to partner with ICE as part of their efforts to maintain an authorized workforce and protect themselves from the use of fraudulent identity documents by current or prospective employees. This program compliments the ICE  worksite enforcement strategy, which focuses on holding employers accountable who knowingly hire unauthorized workers to minimize operating costs and boost profits.

“ICE’s collaboration with Tyson Foods illustrates this administration’s commitment to working with industry to encourage a culture of compliance with U.S. employment laws,” said Morton. “Tyson Foods is setting the gold standard for Fortune 500 companies everywhere, and ICE is proud to be partnering with the company in this significant effort to protect our nation’s lawful workforce.”

“We believe our participation in IMAGE confirms Tyson uses best hiring practices to maintain a lawful workforce,” Kimbro said. “We use all available tools provided by the U.S. government to verify the documents of the people we hire. We’ve also gone beyond government tools, spending millions of dollars over the years on such things as training, computer systems and help from outside consultants to make sure we’re employing people who are authorized to work in our country.”

To become certified, Tyson was subject to an I-9 audit and other checks by ICE. The company met other IMAGE requirements with programs it already has in place. For example:

• The company conducts regular self-assessments or internal audits of its hiring activities. The company also uses an independent, outside company to conduct its own audits of the company’s hiring practices.

• Tyson voluntarily participates in the online government employment verification program known as E-Verify and has since 1998. The company also voluntarily uses the ‘Social Security Number Verification Service.’

• Tyson trains all of its employment managers on the hiring process, proper completion of the Form I-9 and on document examination and fraud detection.

All IMAGE members must participate in the Department of Homeland Security (DHS) E-Verify employment eligibility verification program. Through this program, employers can verify that newly hired employees are eligible to work in the United States.

Upon enrollment in and commitment to the IMAGE Best Employment Practices, program participants are deemed “IMAGE certified,” a distinction DHS and ICE believe will become an industry standard. IMAGE also provides to all employers free training on the Form I-9, fraudulent document detection, and building a solid immigration compliance model.

The Announcement of a New Compliance Inspection Center to support Worksite Enforcement and Expedite Form I-9 Audits

Note that during today’s signing ceremony, Director Morton also announced the creation of an employment compliance inspection center in Crystal City, Va. This center will be home to 15 auditors who will support ICE’s worksite enforcement strategy by helping agency field offices around the country expedite Form I-9 audits of businesses selected for inspection by ICE. ICE considers Form I-9 audits as now being one of the most powerful tools the federal government has to ensure that businesses are complying with U.S. employment laws. From fiscal year 2009 to date, ICE has initiated Form I-9 inspections against 3,769 businesses across the nation.

Our January 2011 newsletter with I-9 and E-Verify updates and US and Canadian immigration news is now available.

If you haven’t had a look at our I-9 Employer Resource Center, please take a minute to do so, fill out the Survey and send it along to us:  www.I-9Audits.com

Further to our series on site visits for the purposes of administrative, benefit and compliance reviews – we’ll look closer at FDNS areas of oversight…

What does FDNS Do?

FDNS officers resolve background check information and other concerns that surface during the processing of immigration benefit applications and petitions.  Resolution often requires communication with law enforcement or intelligence agencies to make sure that the information is relevant to the applicant or petitioner at hand and, if so, whether the information would have an impact on eligibility for the benefit.  

FDNS officers also perform checks of USCIS databases and public information, as well as other administrative inquiries, to verify information provided on, and in support of, applications and petitions.  Administrative inquiries may include:

•  Performance of fraud assessments – FDNS officers engage in fraud assessments (including Benefit Fraud and Compliance Assessments) to determine the types and volumes of fraud in certain immigration benefits programs;
• Compliance Reviews – Systematic reviews of certain types of applications or petitions to ensure the integrity of the immigration benefits system, and
• Targeted site visits – Inquiries conducted in cases where fraud is suspected.

FDNS uses the Fraud Detection and National Security Data System (FDNS-DS) to identify fraud and track potential patterns. 

USCIS has formed a partnership with ICE, in which FDNS pursues administrative inquiries into most application and petition fraud, while ICE conducts criminal investigations into major fraud conspiracies. 

Additional FDNS Functions

FDNS also conducts Benefit Fraud and Compliance Assessments to identify the types and volumes of fraud and develop mitigation strategies to deter and disrupt fraud.

What is the ASVVP and what does it do?

In July 2009, FDNS implemented the Administrative Site Visit and Verification Program (ASVVP) to conduct unannounced site inspections to verify information contained in certain visa petitions.  USCIS provides petitioners and their representatives of record (if any) an opportunity to review and address the information before denying or revoking an approved petition based on information obtained during a site inspection.

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Immigration Solutions always welcomes your feedback.  If you are interested in becoming a client of our office, please contact us 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, consulting on proper I-9 (Employment Eligibility Verification) best practices, auditing, training, and guiding our clients in achieving compliant immigration policies and procedures.  

Visit our new I-9 Employer Resource center here

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.

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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

We reference below what’s new with E-Verify for those of our readers who are enrolled in the system.

E-Verify Has Expanded Photo Matching!

E-Verify has launched a new U.S. Passport photo matching capability. Employers using E-Verify can now view photos to help confirm the validity of identity documents. Available documents include:

U.S. Passports and Passport Cards

• Permanent Resident Cards (Green Cards)
• Employment Authorization Documents

Visit here for more information about Photo Matching.

Did You Hear About the I E-Verify Seal?

Employers who use E-Verify can now prominently display the official I E-Verify™ seal at their workplace—on bulletin boards, doors or windows. E-Verify enrollees who would like a seal can send a request to uscis.verlogo@dhs.gov.

Designated Agents Get a New Name

The name “E-Verify Employer Agent” has replaced “Designated Agent” to refer to businesses that use E-Verify to confirm the employment eligibility of another company’s employees.

Puerto Rico Birth Certificate Guidance

On July 1, 2010, the Vital Statistics Office of the Commonwealth of Puerto Rico began issuing new, more secure, certified copies of birth certificates to U.S. citizens born in Puerto Rico. After Oct. 30, 2010, all certified copies of birth certificates issued prior to July 1, 2010, became invalid. This new law does not affect the U.S. citizenship status of individuals born in Puerto Rico. It only affects the validity of certified copies of Puerto Rico birth certificates. See the USCIS Update for more information.

New on the E-Verify Website

Updated Manuals are now available

The latest E-Verify guidance can be easily downloaded or viewed online. E-Verify User Manuals, Quick Reference and Supplemental Guides for Employers, Federal Contractors, and E-Verify Employer Agents (formally Designated Agents) were all updated in September and are available on the Publications web page.

How Well is E-Verify Performing?

E-Verify recently updated the Statistics and Reports page on the web site. The updated statistics are based on E-Verify cases in Fiscal Year 2009 (October 2008 through September 2009).

History and Milestones

Check out the history of E-Verify—from the original legislation (1986 Immigration Reform and Control Act) to present-day major milestones. Visit the updated History and Milestones web page for more information.

E-Verify Outreach

E-Verify Offers Free Webinars!  Go to the E-Verify website and click on Sign Up for a Webinar for a complete schedule.

E-Verify Overview

• E-Verify for Existing Users
• E-Verify for Federal Contractors
• Form I-9, Employment Eligibility Verification

E-Verify gives live presentations and workshops, and participates in conferences and exhibits. If you would like a speaker for an event or conference, please e-mail us at E-Verify@dhs.gov or call 1-888-464-4218.

E-Verify in the Community

• Small, Minority, Women and Veterans Business Owners
  San Antonio, Texas                December 8, 2010
• 29th Annual Government Contract Management Conference
  Arlington, Virginia                    December 9-10, 2010
• The Agriculture Employer Forum
  Provo, Utah                             December 15, 2010
• The West Valley Chamber of Commerce
  Salt Lake City, Utah                December 16, 2010
• Human Resource Council of the Manufacturers Association of Central New York
  Syracuse, New York               December 21, 2010

Here’s the link to the new E-Verify Newsletter

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.”

It is common knowledge that the U.S. government has been performing widespread investigations and audits of employers cracking down on the employment of undocumented workers.  Immigration and Customs Enforcement (“ICE”) recently reported record-breaking figures citing the highest deportation numbers and the most employer audits in our nation’s history.

Because of this, employer compliance is becoming more complex and enforcement activities are increasing at a record rate. The days of thinking that immigration enforcement is only targeting industries that employ a diverse workforce, such as health care, hospitality, restaurant, garment and the construction business, are long gone. Every employer must be aware of immigration laws as they relate to the processing and management of their I-9 forms and other compliance programs.  Many audits have resulted in fines for well known and respectable employers, large organizations and those that employ foreign workers, as well as small businesses that unintentionally filled out I-9 forms incorrectly.  Document mistakes – missing signatures, dates, over-documentation problems on I-9’s, have resulted in fines from $110 to $1,100 per mistake.

A recent examples of an I-9 document violation is a Colorado restaurant franchise that was fined $32K after an ICE inspection – not for hiring any illegal workers, but for I-9 document errors.

Chipotle Restaurant chain in Minnesota has recently been in the news for hiring illegal employees.  Pursuant to an ICE I-9 audit, Chipotle was forced to terminate some 50 workers.  There appears to be widespread I-9 restaurant investigations taking place in Minnesota.  Other restaurant chains in the area such as McDonald’s and Sizzler are concerned and have begun to proactively look into E-verify, the Internet-based system operated by USCIS in partnership with the Social Security Administration (SSA) that is free to employers and available in all 50 states.

The key to I-9 compliance for most organizations starts with a thorough self-examination of existing paper I-9’s, E-Verify submissions (if applicable), standard operating procedures, and past practices.   It is recommended that you consult with a licensed immigration or employment attorney who is knowledgeable in the practice of  employer compliance, specifically I-9 audits, training and policy development that can possibly save you thousands of dollars in fines and penalties.

Visit our new I-9 Employer Resource Center for helpful information and for our services and solutions.

USCIS has posted an Executive Summary of a listening session it hosted on November 2, 2010 regarding the Form I-9. The summary presents stakeholder comments, suggestions and concerns for how to improve the form itself and the overall I-9 process. There were many worthwhile suggestions that we hope USCIS will strongly consider.

In this climate of excessive worksite enforcement, we note that there was particular emphasis on USCIS providing better, more clear I-9 employer tools and support. Employers were also confused as to how to correct the I-9 form and who corrects what (which is covered in audits and training performed by qualified attorneys skilled in the area of employer compliance).

Should you wish to discuss your compliance concerns and issues, please contact our office. We also have an excellent employer compliance resource center that you can access at www.I-9Audits.com.

Employers can no longer afford to think that because they don’t hire foreign nationals, they don’t have any I-9 issues or need to comply with I-9 immigration regulations. The I-9 form is required documentation for all US citizens and non-citizens …every single employee must fill out an I-9 Form.

In our employer compliance audit practice, we find that every employer has I-9 violations, from minor clerical errors and unintentional mistakes, to document discrimination issues due to lack of training on I-9 regulations and document requirements.

Immigration attorneys, HR professionals, auditing firms and other professionals, if skilled in the practice area of employer compliance audits, could qualify as a viable vendor in handling I-9 audits, training and policy development.

There are a lot of do and don’t lists, blog postings, podcasts, free seminars and more on this topic which is why you should most particularly pay close attention as to whether or not the provider has a broad understanding of employer immigration compliance law and policy.  Discuss with them their previous and current experience, can they answer your questions, what services do they provide, what solutions are they proposing to suit your specific needs, and what type of follow-up consultation do they provide post-I-9 project completion.

Immigration Solutions regularly represents clients from all industries in developing effective I-9 policies and compliance programs. We assist our clients proactively in establishing and maintaining effective corporate policies and procedures, before one of the five government agencies involved with enforcement knocks on your door.

The Justice Department announced on November 10th that it has reached a settlement agreement with Hoover Inc., a leading manufacturer of vacuum and carpet cleaners with facilities in Ohio and Texas, to resolve allegations that Hoover engaged in a pattern or practice of employment discrimination by imposing unnecessary and discriminatory hurdles in the I-9 process upon lawful permanent residents.

According to the department’s findings, Hoover required all permanent residents who presented a permanent resident card (green card) for I-9 purposes to produce a new green card when theirs expired. In contrast, Hoover’s U.S. citizen workers were not required to present new documents. Like U.S. citizens, permanent residents are always work authorized, regardless of the expiration of their documentation. The Immigration and Nationality Act (INA) prohibits employers from treating permanent residents differently than U.S. citizens in the I-9 process.

Under the terms of the settlement, Hoover has agreed to pay $10,200 in civil penalties. Hoover will also train its human resources personnel about employers’ nondiscrimination responsibilities in the I-9 process, and it will provide periodic reports to the department for one year.  Here’s the Press Release

This is one of several recent settlements brought by the DOJ against employers that engage in document abuse.  This occurs when employers treat employees differently based on national origin or citizenship status during the I-9 process.

What does this ruling mean for employers?

Although some I-551 Permanent Resident Cards have an expiration date, employment authorization continues and there is no need to reverify this document upon expiration.  An expiration date on the Form I–551 reflects only that the card must be renewed, not that the bearer’s work authorization has expired,  8 C.F.R.§ 274a.12(a)(1). Further Question 39 on Pg. 36 of the M-274 Handbook states:  You may not re-verify an expired U.S. passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired.

Here are some examples of prohibited practices that fall under document abuse:

1) Setting different employment eligibility verification standards or requiring different documents based on national origin or citizenship status. One example would be requiring non-U.S. citizens to present DHS-issued documents like “green cards”

2)  Requesting to see employment eligibility verification documents before hire and completion of the Form I-9 because an employee appears foreign or the employee indicates that he or she is not a U.S. citizen.

3)  Refusing to accept a document or hire an individual because an acceptable document has a future expiration date.

4)  Limiting jobs to U.S. citizens unless a job is limited to citizens by law.

5)  Asking to see a document with an employee’s alien or admission number when completing section 1 of Form I-9.

6)  Asking a lawful permanent resident to re-verify employment eligibility because the person’s “green card” has expired.

Should you have any questions, or know that your I-9’s have problems, be smart and proactive and contact an experienced professional in this field who knows the law and can assist you.

We have a terrific I-9 Resource Center for Employers and are available to design a cost-effective audit and training program to suit your particular needs.