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

It was announced that the very successful Global Entry Pilot Program designed for expedited  immigration and customs processing for pre-approved, low risk frequent international travelers in some 20 US international airports, as well as pre-flight inspection stations at selected Canadian airports, will now be a permanent CBP program as of March 7, 2012.  CBP will also expand the program to include children under the age of 14, who were previously ineligible to participate.

US citizens who are members of the CBP Global Entry, NEXUS, and SENTRI Trusted Traveler programs are eligible to participate in TSA’s program, as well as legal permanent residents, Mexican citizens, and Dutch citizens who are members of Privium, the Netherlands’ trusted traveler program. Expansion to other countries is anticipated as a part of President Obama’s recent executive order aimed at spurring U.S. tourism.

At airports, program participants proceed to Global Entry kiosks, present their machine-readable passport or U.S. permanent resident card, place their fingertips on the scanner for fingerprint verification, and make a customs declaration. The kiosk issues the traveler a transaction receipt and directs the traveler to baggage claim and the exit.

Benefits of signing up:

• No processing lines
• No paperwork
• Access to expedited entry benefits in other countries
• Available at major U.S. airports
• Reduced wait times

Should you have any questions or wish assistance with the application process please contact our office.

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

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

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

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

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

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

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

USCIS has extended an invitation to join them as they launch their Entrepreneurs in Residence (EIR) initiative with an Information Summit focused on ensuring that the immigration pathways for foreign entrepreneurs are clear, consistent, and better reflect today’s business realities. The engagement will be held February 22, 2012 at 8:30AM – 5:30PM (Pacific Standard Time), in Silicon Valley, CA.

Through panel discussions and breakout sessions, the Summit will give participants the opportunity to share their strategic thinking and business expertise with the agency. The feedback from the Summit will inform the work of the Entrepreneurs in Residence tactical team, which will bring business experts in-house to work alongside USCIS staff to maximize current immigration laws’ potential to attract foreign entrepreneurial talent and to work alongside USCIS staff for a period of approximately 90 days.

The Department of Homeland Security (DHS) this week announced a series of administrative reforms to help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world. These reforms are to take place over a period of time.

Leaders in the private sector launched the Startup America Partnership, an independent alliance of entrepreneurs, corporations, universities, foundations, and other leaders, joining together to fuel innovative, high-growth U.S. start-ups. Within just one year, the Partnership has mobilized to make over $1 billion in business services available to a national network that will serve as many as 100,000 start-ups over the next three years.

For more on this: http://www.whitehouse.gov/economy/business/startup-america

This brochure outlines some excellent Do’s and Don’ts pertaining to how to interact with employees during an ICE audit; however, these suggestions additionally apply to all audit situations such as outside 3rd party audits by attorneys or compliance experts, as well as internal self-audits.

It is recommended that you have an established procedure for interacting with employees whose I-9 forms require correcting; i.e, how to inform them that you are seeking information from them, what to communicate to them, and how much time to allow them to respond.

Should you wish to discuss the particulars of your compliance program, please feel to contact our office for more information.

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Leslie Davis is the Managing Director of Immigration Compliance Group and is an expert in employer compliance matters.  The firm also specializes in US and Canadian business immigration.

The Global Entry program has been extremely successful and enables expedited processing of pre-approved, low-risk, frequent travelers arriving in the USA through some 131 kiosks set up at 20 airports. The Kiosks have been used 1.7 million times, saving CBP officers over 36,450 inspection hours—staff hours that CBP has then re-allocated to expedite regular passenger queues.

The program will now expand to 4 more airports:  Minneapolis, Charlotte, Denver and Phoenix, making the Global Entry program and expedited clearance available in airports that service approximately 97% of international travelers.  For more , and here, too

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

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

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

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

Heightened Enforcement Continues

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

What employers need to know

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

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

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

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

For more, refer to:

1) DOJ Press Release

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

3)  Our list of services and solutions

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About Immigration Compliance Group

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

Five states as of January 1, 2012 require certain employers to use the E-Verify system for employment eligibility verification of newly hired employees.  They are as follows:

Alabama: State contractors are required to e-verify new employees.  Commencing April 1, 2012, all Alabama employers will b e required to use E-Verify.  Business licenses can be suspended up to 60 days for a first violation and permanently revoked for a second violation.

Georgia:  All private employers with 500 employees or more must use E-Verify as of 01/01/2012 for all new hires.  This will expand to on July 1, 2012 for employers with 100-499 employees, and for employers with 11-99 employees as of July 1, 2013.  Contractors can be barred from bidding on public contracts for 12 months for violations. Public employers must submit annual compliance reports.

Louisiana:  All private employers seeking public contracts to provide services to a state or local public entity will be required to attest that they will use E-Verify for their new hires in Louisiana as of January 1, 2012 during the term of the contract, and the same for their subcontractors.  Penalties for violations include: up to $500 fine per worker for a first offense, up to $1,000 for a second and up to $2,500 for a third offense. After the third offense the business license can also be suspended for a minimum of 30 days and no more than 6 months. Employers using E-Verify are presumed to be in good faith and not subject to penalties.

South Carolina: All employers are required to participate in E-Verify as of 01/01/2012.  Presently, employers have had the option to hire only employees that possess or qualify for a South Carolina driver’s license (or other state license with similar strict requirements) instead of using E-Verify, but that option will expire as of 01/01/2012.

Tennessee: All private employers with 500 or more employees must either use E-Verify, or obtain and copy specified documentation of lawful status for all new hires as of January 1, 2012.  those with 200 to 499 employees on or after July 1, 2012; those with 6 to 199 employees, on or after January 1, 2013. Employers with less than 6 employees will not have to use E-verify.

For current information on state E-Verify requirements, we link here

Should you have  any questions pertaining to state E-Verify requirements, please contact our office at info@immigrationcompliancegroup.com or call 562 612.3996.

Here is another example of one of the major blunders made by employers in 2011 which is to require specific work authorization documents (permanent resident cards or employment authorization card) of non-US citizen employees rather than permitting them to choose from the list of acceptable documents on the I-9 form.

The Justice Department announced today that it reached a settlement with BAE Systems Ship Repair Inc., a leading provider of ship repair services, to settle allegations that its subsidiary, BAE Systems Southeast Shipyards Alabama LLC, engaged in a pattern or practice of discrimination by imposing unnecessary and additional document requirements on newly hired permanent residents (green-card holders) when establishing their eligibility to work in the USA by requiring them to present Permanent Resident Cards, a/k/a/ “green-cards,” as a condition of employment.

The investigation was initiated after BAE Southeast Alabama suspended a lawful permanent resident even though he had presented valid documents sufficient under the Immigration and Nationality Act (INA) to establish his work authorization on three separate occasions.

BAE agreed to pay a fine of $53,900. The lawful permanent resident who was suspended was previously reinstated and fully compensated by BAE.  BAE agreed to ensure that the employment eligibility verification policies and procedures of all its subsidiaries comply with the law, to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process, and to produce Forms I-9 for inspection for three years.  We cannot emphasize enough the importance of employers with subsidiary companies and multiple jobsite locations establishing written, uniform policies and procedures concerning employment eligibility compliance matters.  We also recommend that an I-9 Compliance Manager be appointed to oversee adherence to your compliance standard operating procedures for all subsidiary companies at all locations.

The INA requires employers to treat all authorized workers in the same manner during the employment eligibility verification process, regardless of their national origin or citizenship status.  Employees may choose which document(s) they want to present from the list of acceptable documents.  Employers must accept any document from List A or combination of documents (one from List B and one from List C) as long as it the documents reasonably appear on their face to be genuine and to relate to the person presenting them.  To act in any other manner can be an unfair immigration related employment practice in violation of the anti-discrimination provision of the INA.

We frequently are asked:  If an employee writes down an Alien Number or Admission Number when completing Section 1 of the I-9 form, may I ask to see a document with that number?  The answer to this, based upon the above, is “no”.  It is your responsibility to ensure that your employees fully complete Section 1; however, the employee is not required to present a specific document in order to complete this section.  When the employer completes Section 2, you may not ask to see a document with the employee’s Alien Number or Admission Number or otherwise specify which document(s) an employee may present.

Should you wish to communicate with our office regarding audits, training and policy development, please email us at info@immigrationcompliancegroup.com or call 562 612.3996.  Please sign up for our free news and visit our Blog and employer compliance resource center at:  www.I-9Audits.com