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

It has been reported that this latest wave of I-9 inspection notices to employers brings the total number of ICE I-9 audits to 2,338 for this year.  This exceeds their record-breaking audit total from 2010 of 2,196.  Average audit fines appear to be exceeding $110,000.

I-9 audits today are the key driving force of the Agency’s efforts in determining whether businesses are violating U.S. employment laws by hiring unauthorized workers.

“The inspections will touch on employers of all sizes and in every state in the nation, with an emphasis on businesses related to critical infrastructure and key resources,” ICE spokeswoman Gillian Christensen said in a statement.   Although ICE has not disclosed the names of the companies being targeted, they do include both large and small businesses in some 17 business sectors, including garment, construction, agriculture, food production, fast food chains, hospitality and financial services industries, as well as IT, healthcare, transportation, postal and shipping, commercial nuclear reactors and drinking water and water treatment.

For employers, the audits can lead to both civil and criminal penalties. The possibilities range from fines and being barred from competing for government contracts to criminal charges of knowingly employing illegal workers, evading taxes and engaging in identity theft.

In the past, ICE agents have initiated audits in one region, and companies in the same business were unlikely to face inspection elsewhere. But “businesses can no longer assume an audit is isolated in one location. It’s spreading nationwide,” said Julie Myers, ICE chief during the Bush administration.  Larger employers have been increasingly targeted since the establishment earlier this year of an ICE audit office outside Washington.  It has been reported that several utilities and food production companies in Montgomery, AL have received notices of inspection from ICE, and were surprised because they have been participating in E-Verify.  Participating in E-Verify doesn’t mean you won’t be audited.

The penalties for ignoring the legal requirements of the I-9 process can be quite severe, even in cases of unintentional omissions and uncorrected I-9 mistakes. Civil penalties for such errors may range from $110 to $1,100 for each affected employee. A business with thousands of employees and multiple worksites may face a significant financial burden in noncompliance penalties. The fines may be further increased if the Department of Homeland Security (DHS) determines that an employer knowingly hired unauthorized foreign nationals, and can range from $375 to $16,000 per violation with repeat offenders on the high end.

What’s the solution? One of the most cost-effective and convenient ways to take action is to conduct a preemptive partial (10-20% of your workforce) or full audit to see what’s buried in your I-9 paperwork. Analyze the results and initiate targeted training and institute a standardized policies and process for handling and managing your I-9 function.  This can easily be accomplished both onsite and offsite.  These steps are especially critical for companies that have a large number of employees, multiple locations, several people involved with the I-9 process and a high turnover rate.

Here is a list of our services and solutions and here is our I-9 Employer Resource Center

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About Immigration Solutions

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.

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.

This is the best news we’ve heard in weeks.  As Jack Welch (former CEO of GE) recently stated in a CNN interview with Piers Morgan (to paraphrase)… We must have a compelling mission of innovation through which to filter and shape our decision making and legislative reform.

Compete America,  a coalition dedicated to ensuring that the United States has the highly educated workforce it needs to continue to lead in innovation and job creation, applauded yesterday the House Republican Technology Working Group for committing to review current visa rules that inhibit access to highly educated, innovative foreign workers among its policy priorities for job creation.

Under the section, “Ensure American Access to the Best Workers,” the Working Group committed to “examine current education programs to make sure they are operating efficiently.  We will also examine current visa and immigration laws to make sure we attract and retain the best and brightest minds from around the world.”

The American Council on International Personnel (ACIP) had this to say in their Press Release yesterday:

“…Today we applaud the House Republican Technology Working Group for including among its job creation priorities a commitment to review current education policies and immigration laws to ensure that America has access to the best talent, from America and around the world. In its list of priorities, “A Focus on Technology Policies that Foster Job Creation,” released today, the Working Group states:

Ensure American Access to the Best Workers: We will examine current education programs to make sure they are operating efficiently.  We will also examine current visa and immigration laws to make sure we attract and retain the best and brightest minds from around the world.

The commitment is consistent with several recent calls for reform made by both Democratic and Republican leaders, and is in line with ACIP’s long-held position that improving U.S. STEM education and reforming highly educated employment-based immigration policies to allow access to the world’s best and brightest are both needed for building America’s 21^st century workforce.

We applaud the House Republican Technology Working Group for making a commitment today to review education and visa policies to ensure a strong American workforce, said ACIP Executive Director Lynn Shotwell.  We urge Congress and the Administration to join together and enact bipartisan reform of the high-skilled employment-based immigration system this year.”

US companies have contributed nearly $2 billion in H-1B fees to scholarships and US worker training since 1999.  For a list of companies contributing to education and the future of the American workforce, we link here

For more editorial content on this subject:

CNN:  Fareed Zakaria, How to Innovate

Wall Street Journal

The Washington Post

Forbes

The Watertown Daily Times

Our June 2011 InFOCUS Newsletter is now available.  This month you can read about our update on immigration reform and what’s new in in the practice of immigration law.

Should you wish to become a client of our office, please contact us at 562 612.3996 or drop us an email at info@immigrationsolution.net

Follow us on LinkedIn, Twitter and at our  I-9 Employer Resource Center

It is not a surprise to see where the priorities are in the spending bill making its way through the House of Representatives.  The House Appropriations Committee passed a Bill this week that will go to the floor of the House possibly next week.  We highlight the money trail here:

USCIS:  Approximately 1/3 of the requested funding was approved

1. Fee Reform: The Administration’s fee reform effort would receive no funding.  The Administration requested $207 million for the processing of refugee and asylum applications, for which there is no charge.
2. Immigrant Integration: The Administration requested $19.75 million for immigrant integration programs and for the operations of the Office of Citizenship.  The Committee rejected the request.  In its report on the bill, the Committee noted that it “supports the efforts of the Office of Citizenship to promote civic education through the naturalization process.”  Not, apparently, enough to provide funding for this purpose.

Enforcement

While the Committee couldn’t find any money for immigrant integration, costs concerns were not a factor in enforcement budgets.  Customs and Border Protection got $8.77 billion—$44 million more than the President asked for in his budget, and more than half a billion dollars more than allocated in FY 2011.  Within that amount, border security between ports of entry gets $3.62 billion, $191 million more than last year—enough to bring the Border Patrol up to 21,370 agents.

ICE was allocated $5.5 billion, $25.6 million more than the President requested and $84.8 million more than in 2011.  Secure Communities got $194 million, $10 million more than the President requested.  ICE Detention and Removal operations were awarded $2.75 billion, $26.7 million more than the President asked for, to raise the minimum number of detention bed spaces that ICE must maintain on a daily basis from 33,400 bed spaces to 34,000—and the Committee directs ICE “to intensify its enforcement efforts and fully utilize these resources.”

As part of his enforcement-only agenda, Representative Lamar Smith (R-TX) is expected to introduce a bill that would make the use of the E-Verify electronic work authorization verification system mandatory for all businesses in the U.S.

There is still no sign that Republicans who now control the Judiciary Committee (having jurisdiction over immigration) will attempt to seriously address any legal or illegal immigration reform to fix the broken system.  Despite billions of dollars being spent on immigration enforcement, and enforcement “benchmarks” set in the last round of immigration reform, legislative efforts having been largely met and the  Republicans continue to call for yet more enforcement.  They continue to move the goalpost.

For more information on this subject, we link to, “E-Verify Without Reform Cannot Succeed,” and listen to a recording of a National Immigration Forum briefing for reporters on the E-Verify program.

For more on this as well as the mandatory E-Verify Bill expected in June, we link to the National Immigration Forum’s Policy Update

We are frequently asked this question in our practice and what the differences are, what can and cannot be corrected.  Please refer here for more information on the subject.

Should you have any questions or would like to discuss your employer compliance needs, please contact us:  562 612.3996 … info@immigrationsolution.net

Our I-9 Employer Compliance Website is full of excellent information – take a look around:  www.I-9Audits.com.

Foreign students studying at U.S. universities have traditionally had a year after graduation in which to find a job, allowing them to live and work in the United States. Three years ago, the U.S. Department of Homeland Security (DHS) changed immigration rules to stretch this window of time from 12 to 29 months for students graduating in certain areas of science, technology, engineering, and mathematics.

On May 12, 2011, DHS announced that it was expanding the list of disciplines eligible for the extension. The revised list adds fields such as neuroscience, marine science, environmental science, pharmaceutics and drug design, and education research. It also greatly expands its listings within the agricultural sciences and psychology. The decision follows a yearlong review of requests from businesses and academia to add new fields, says Gillian Christensen, a spokesperson for DHS’s Immigration and Customs Enforcement.

The announcement follows President Obama’s recent remarks in El Paso, Texas, where he reiterated his strong support for new policies that embrace talented students from other countries, who enrich the nation by working in science and technology jobs and fueling innovation in their chosen fields here in the United States, as a part of comprehensive reform.

By expanding the list of STEM degrees to include such fields as Neuroscience, Medical Informatics, Pharmaceutics and Drug Design, Mathematics and Computer Science, the Obama administration is helping to address shortages in certain high tech sectors of talented scientists and technology experts-permitting highly skilled foreign graduates who wish to work in their field of study upon graduation and remain in the USA, to extend their post-graduate work authorization.

Under the OPT program, foreign students who graduate from U.S. colleges and universities are able to remain in the U.S. and receive training through work experience for up to 12 months. Students who graduate with one of the newly-expanded STEM degrees can remain for an additional 17 months on an OPT STEM extension.

We’ve all been waiting to see this and we’re impressed.  It’s easy to understand and navigate with excellent graphics and charts.  I-9 Central includes sections about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization. I-9 Central also includes a discussion of common mistakes to avoid when completing the form, guidance on how to correct errors, and answers to employers’ recent questions about the Form I-9 process.

“I-9 Central is the latest in our ongoing efforts to better serve the 7.5 million employers who use Form I-9 every time they hire an employee,” said USCIS Director Alejandro Mayorkas. “It provides critical information for all employers – whether they hire a single employee or hundreds – in an accessible, intuitive and comprehensive online format.”

We link to I-9 form Customer Support

Take a look around and let us know what you think.

CHICAGO, IL, May 12 (MARKET WIRE) --
In keeping with its vision to advance regulatory excellence worldwide, the National Council of State Boards 
of Nursing (NCSBN(R)) (www.ncsbn.org) announces the signing of a "Memorandum of Understanding" between 
itself and the following organizations: An Bord Altranais; College of Nurses of Ontario; College of 
Registered Nurses of British Columbia; Nursing and Midwifery Board of Australia; Nursing Council of
New Zealand; Nursing & Midwifery Council - United Kingdom; and Singapore Nursing Board on May 5, 2011.

The impetus for this collaboration arose out of an acknowledgement that nursing regulatory bodies across
the world face many of the same challenges; are charged with the similar mission of protecting the 
public's health, safety and welfare; and have a desire to share best practices. The unique relationship 
between these organizations provides the opportunity for them to learn from, share with, and assist each other
with individual and mutual goals. The unique relationship between these organizations provides the 
opportunity for them to learn from, share with, and assist each other with individual and mutual goals.
NCSBN will also take the information gained through this new international relationship back to its 
own member boards of nursing for use in their mission of public protection.