Kinro Mfg. a subsidiary of Kinro Inc., which is wholly owned by White Plains, N.Y.-based Drew Industries Inc., has been fined a $25,000 civil penalty and $10,000 in back pay to the injured party for engaging in a pattern/practice of discrimination against work-authorized non-citizens in the employment eligibility verification process.  The company is a manufacturer of components for recreational vehicles and manufactured homes.

Kinro has also agreed to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process, to produce Forms I-9 for inspection and to provide periodic reports to the DOJ for one year.

According to the department’s findings, the company subjected 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 U.S. citizens to show any specific documentation . The charging party, a lawful permanent resident, filed his charge of discrimination after he was required to provide additional proof of his employment eligibility not required by law before he could begin work at the company.

View Press Release

A southern Arizona tomato grower has pled guilty and was sentenced for knowingly hiring and employing illegal immigrants from Mexico, despite the company’s knowledge that these employees were unauthorized to work in the U.S.

Kenneth Ward, HR Director, pled guilty to similar federal charges in 2007 and is awaiting sentencing. In his guilty plea, he alleged that four top company officials, whom he didn’t name, knew of the illegal hiring and that the number of employees illegally hired was more than 1,000.

Eurofresh’s CEO, Johan van den Berg, denied all those allegations in response to questions  on 8/26/11 and said that Ward was fired more than four years ago after the company learned he had been bringing in illegal immigrant employees without higher officials’ knowledge.

The plea agreement said that payment is to compensate for the money Eurofresh earned from the hiring of 17 illegal immigrants from Mexico over the last decade for supervisory jobs. Eurofresh does not agree that the $600,000 is an amount directly related to the violations. Rather, it is a negotiated amount between Eurofresh and the Justice Department. The company will also be required to remain on probation for five years until the judgment is satisfied in full.

Since the illegal hiring was discovered, Eurofresh has implemented tight systems and regular audits to prevent illegal immigrants from obtaining jobs there and is an E-Verify user.

For more on this story.

The highest civil penalty paid through settlement since the enactment of the INA anti-discrimination provisions in 1986 was assessed today against Farmland Foods in the amount of $290,400.

This is a very strong reminder that any request for specific documentation is unlawful if it is made for the purpose or with the intent of discriminating against an individual on the basis of national origin or citizenship status. Employers, however, who make such requests to clarify ambiguity or conflicts in the employee’s presented documents should not be held liable for document abuse.  The employer’s discrimination must be knowing and intentional.

An employer SHOULD NOT:

1. Set different employment eligibility verification standards, or require that different documents be presented by employees, because of national origin and citizenship status.  For example, employers cannot demand that non-U.S. citizens present DHS-issued documents.  Each employee must be allowed to choose the documents that s/he presents from the list of acceptable Form I-9 documents. For example, both citizens and work authorized aliens may produce a driver’s license (List B) and an unrestricted Social Security card (List C) to establish identity and employment eligibility.

2. Request to see employment eligibility verification documents before hire and completion of the Form I-9 because the employee looks or sounds “foreign” or because someone states that s/he is not a U.S. citizen.

3. Refuse to accept a document, or refuse to hire an individual, because a document has a future expiration date.

4. Request during reverification that an employee present a new unexpired employment authorization document (EAD) if s/he presented an EAD during initial verification. For re-verification each employee must be free to choose to present any document either from List A or from List C. Refugees and asylees may possess EADs, but they are authorized to work based by virtue of their immigration status and may present other documents that prove work authorization from List A or List C to show on re-verification, such as an unrestricted Social Security card.

5. Limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law, regulation, executive order, or federal, state, or local government contract. On an individual basis, an employer may legally prefer a U.S. citizen or national over an equally qualified alien to fill a specific position, but the employer may not adopt a blanket policy of always preferring citizens over non-citizens.

6. Refuse to accept documents during the employment eligibility verification procedure that are acceptable documents under the law, that relate to the individual, and that appear on their face to be genuine (also called “document abuse”). An employer cannot be held liable for document abuse unless the employer’s refusal to honor documents is made for the purpose or with the intent of discriminating against an individual on the basis of national origin or citizenship status. For example, an employer should not be held liable if it refuses to honor documents that conflict with statements made by the employee.

7. Engage in intimidation, threats, coercion, or retaliation, including discharge, against an employee who exercises his/her rights under IRCA’s anti-discrimination provision. This protection extends not only to an employee who is the target of discrimination, but also to an employee who may speak up in support of the targeted employee.

Should you have any questions concerning this “balancing act”, please do not hesitate to contact our office for more information.

Immigration Solutions August 2011 newsletter is now available, full of updates and information that you will find extremely useful.  This month we take a look at:

The Department of Labor announced last week that it will be suspending the processing of prevailing wage determinations (PWDs) for most case types,  including PERM labor certifications and H-1B cases – while it complies with a federal court order that requires them to reissue some 4,000 PWDs for the H-2B temporary non-agricultural visa program. The suspension will mean that some employers may be delayed in their ability to commence recruitment on or file PERM labor certification applications.  DOL has not indicated when it will resume issuing non-H-2B PWDs, but because its H-2B workload is considerable, it may not return to full-scale PWD processing for several months.

Though the suspension involves several immigration case types, PERM applications, by far, are the most severely affected due to the time-sensitivity given that the results of an employer’s labor certification recruitment are valid for just 180 days. If a request for a prevailing wage determination is delayed and an employer has commenced the recruitment phase prior to receiving the PWD, an employer’s recruitment could expire, meaning that the entire recruitment process would have to be redone before a PERM application could be filed. The effect on H-1B petitions is far less because employers can use the OFLC Wage Data Center or other independent surveys to determine the prevailing wage for an H-1B position.

DOL’s official timeframe for processing prevailing wage requests had been 60 days, but they had been turning them around in about 30 days.   It appears that the suspension is affecting PWRs filed as early as the beginning of June 2011.

Action Item for Employers: If you require a PERM Labor Certification Application be filed in order to continue employment for your H-1B visa holders who are approaching the 6-year maximum period of stay, you cannot start these cases early enough.  Please discuss strategy and planning with your immigration professional right away, or give our office a call to discuss your case concerns.  We will keep you updated as developments occur.

Thus far in 2011, ten states have enacted legislation with E-Verify provisions – Alabama, Florida (executive order), Georgia, Indiana,  Louisiana, North Carolina, South Carolina, Tennessee, Utah and Virginia. Eighteen states now have an E-Verify requirement for public and/or private employers –  fifteen through legislation and three through  executive orders.  (In 2011, Rhode Island rescinded its 2008 executive order requiring state agencies and contractors to use E-Verify.) One state, Illinois, enacted legislation to limit the use of E-Verify until the database accuracy is improved and also created privacy and anti-discrimination protections. At least two states, Pennsylvania and Tennessee, encouraged its use through providing a safe harbor from state penalties for employers enrolled in E-Verify.

States Requiring E-Verify

USCIS reports that as of December 11, 2010 more than 238,000 employers have registered with the program, with 16 million inquiries in FY2010. In FY2009, there were 8.7 million inquiries, in  FY 2008, 6.6 million, and 3.27 million in FY2007. There are an estimated 7 million employers in the United States and 60 million new hires per year. The 2007 Westat evaluation estimated that 4 percent of newly hired workers are verified using the system.

How well is E-Verify working? A December 2010 GAO report found that USCIS has improved the accuracy of E-Verify, immediately confirming 97.4 percent of 8.2 million new hires in 2009, up from 92 percent in 2007.   The report notes that E-Verify remains vulnerable to identity theft and employer fraud.  Name mismatches (multiple or hyphenated names) can still lead to tentative non-confirmation notices.  GAO recommends that USCIS disseminate information to employees to consistently record names and to develop procedures to help employees correct inaccurate information.  GAO also recommended that USCIS develop reliable cost estimates for E-Verify.  The 81-page report, “Employment Verification:  Federal Agencies Have Taken Steps to Improve E-Verify, but Significant Challenges Remain.”  View the report

E-Verify List of Guidelines for Employers: We’d like to review the E-Verify List of Guidelines for Employers.

Employers participating in E-Verify MUST:

• Follow E-Verify procedures for each newly hired employee while enrolled/participating in E-Verify.
• Notify each job applicant of E-Verify participation.
• Clearly display both the English and Spanish ‘Notice of E-Verify Participation’ and the ‘Right to Work’ posters.
• Complete Form I-9 for each newly hired employee before creating a case in E-Verify. Ensure that Form I-9 ‘List B’ identity documents have a photo (Section 2.1).
• Create a case for each newly hired employee no later than the third business day after he or she starts work for pay.
• Obtain a Social Security number (SSN) from each newly hired employee on Form I-9.
• Provide each employee the opportunity to contest a tentative non-confirmation (TNC).
• Allow each newly hired employee to start and continue working during the E-Verify verification process, even if he or she receives a TNC.
• Ensure that all personally identifiable information is safeguarded.

Employers participating in E-Verify MUST NOT:

• Use E-Verify to pre-screen an applicant for employment.
• Check the employment eligibility of an employee hired before the company signed the E-Verify MOU.
• Take any adverse action against an employee based upon a case result unless E-Verify issues a final non-confirmation.
• Specify or request which Form I-9 documentation a newly hired employee must use.
• Use E-Verify to discriminate against ANY job applicant or new hire on the basis of his or her national origin, citizenship or immigration status.
• Selectively verify the employment eligibility of a newly hired employee.
• Share any user ID and/or password

Upon enrollment, employers are required to clearly display both the English and Spanish ‘Notice of E-Verify Participation’ and ‘Right to Work’ posters.  These should be displayed in the most appropriate location for viewing by potential and current employees. Both notices are found in E-Verify after you log in under ‘View Essential Resources’ (Section 1.2). In addition, E-Verify recommends providing a copy of these posters with job application materials, either online or in hard copy.

We link to the Department of Justice, Office of Special Counsel, for E-Verify Do’s and Don’ts for Employers.

Our recommendations:

We always recommend that you consult with an attorney skilled in employer compliance matters to assist you in the decision making process concerning enrollment in the system and developing a compliance plan so that you can monitor your state’s E-Verify requirements to remain compliant.  Each state now has its own E-Verify requirements and penalties and therefore it’s imperative that you seek expert legal advice.

Should you wish to discuss this article or would like to consult with our firm, please contact us and sign up to receive our I-9 and E-Verify news and updates.  View our services and solutions here.

Our August 2011 InFOCUS immigration newsletter is now available.  We encourage you to sign up to receive our monthly news and Blog posts that report on immigration issues, employer compliance, policy and legislative issues, as well as Department of State and visa updates.

We invite you to continue to visit our website and our Employer Compliance Resource Center for the latest developments on key issues.

A letter was shared today in the Immigration Daily newsletter, www.ilw.com pertaining to how long an employer should wait if an employee cannot resolve   an SSA No-Match issue.

This is a question commonly asked and, although the letter provides guidance relative to the 120 days provided by E-Verify to resolve tentative non-confirmations as representing a reasonable period of time, the last paragraph of the letter states:

“As stated above, OSC cannot comment on whether an employer should terminate an employee who is unable to resolve the no-match within the specified time period. To the extent however, that an employer has such a policy, OSC would advise the employer to treat all employees consistently, regardless of citizenship status or national origin.”

To view the letter.

We are dedicated to assisting our clients develop compliant workforces.  Contact Immigration Solutions us to discuss your compliance needs.  View our services and solutions here.

We have released our July InFOCUS newsletter containing informative I-9 and E-Verify news and updates.

If you’d like to become a client of our office, or to discuss how you can develop an I-9 compliant workforce, please contact us.

A story hit the news last week concerning a dispute between two electronic I-9 software providers where outsourcing I-9 software to a third party vendor was involved.  One of the parties wished to cancel its reseller agreement requesting that all I-9 data be returned to its customers.  In so doing, it was revealed that they would have to pay a rather high fee to obtain their customer’s I-9 data in a usable format.  Additionally, it was revealed that the 3^rd party provider had already been directly soliciting the other vendor’s clients to enter into a new I-9 and E-Verify service agreement.  Unable to resolve their differences, a lawsuit was filed on June 27, 2011, seeking an injunction to require the 3^rd party vendor, USVerify, to return its clients’ I-9 data in a reasonably usable and accessible format and to cease and desist from using or disclosing any confidential client information.

In light of the unraveling of this story, it brings clearly to the forefront the importance of being able to access your I-9 and E-Verify data because the employers who are customers of the vendor who is cancelling the reseller agreement, are unable to access their I-9 data at the present time. So, unless they have saved the data in another format or system, it can be assumed that if they were served with an ICE Notice of Inspection (NOI), they would not be able to comply with the NOI’s strict deadlines.

There are several I-9 software vendors in the marketplace, some good, some not.  This includes stand-alone providers that focus solely on I-9/E-Verify, in addition to “all-in-one” providers that offer electronic I-9 software that integrates with the employer’s personnel management software and employment screening/background check applications.

Apparently many all-in-one systems “outsource” the I-9 and E-Verify service to a third party vendor under a “reseller agreement.”  The reseller agreement governs the terms of use and other vital details regarding accessibility of the employer’s I-9 records. Given the rash of recent I-9 audits throughout the country, it is more important than ever for employers to very closely examine these arrangements to ensure that your best interests are protected.

It is not advisable for an employer to rely strictly on a vendor’s representations concerning their products and system compliance as these representations will not protect or insulate you from liability. Employers must undertake independent due diligence to ensure the system they choose complies with the applicable regulations.

If you are using a background screening provider, applicant tracking system, or all-in-one solution, it is imperative that you perform due diligence to ensure they you will have unrestricted access to your I-9 and E-Verify data, especially in the event the reseller agreement is terminated or if the you wish to terminate the agreement with your vendor.

We would recommend asking the following questions:

• Who owns the I-9 E-Verify data under the terms of the agreement?
• Can the employer request a backup of the electronic I-9 and E-Verify data at no or little cost?
• How often can the employer request such a backup and in what format will it be delivered?
• What happens if the vendor closes shop or decides to assign the data to another provider?

Lastly, we remind you that there are specific regulatory electronic I-9 requirements that affect almost every aspect of a vendor’s system and relationship.  These requirements are often confusing and unclear, and you should be encouraged to discuss these issues with experienced immigration counsel to ensure that your I-9 electronic system is compliant with enforcing agencies in all respects.

The American Immigration Attorneys Association (AILA) published an excellent article on the Minimum Requirements for Electronic Verification.  View article

Contact our office should you have any concerns that you’d like to discuss concerning this issue.