It’s common knowledge that the U.S. government has been performing widespread investigations and audits of employers to crack down on employment of undocumented non-citizens. 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, and states:

“Since January 2009, ICE has audited more than 3,200 employers suspected of hiring illegal labor, debarred 225 companies and individuals, and imposed approximately $50 million in financial sanctions-more than the total amount of audits and debarments than during the entire previous administration.”

Because of this, employer compliance is becoming more complex and enforcement activities are increasing at record pace. The days of thinking that immigration enforcement is only targeting industries that employ a diverse workforce, such as healthcare, hospitality, restaurants, 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 have a trained staff for those charged with the responsibility of managing I-9’s.  Many audits have resulted in fines for well known and respected employers,  for those that employ foreign workers, as well as businesses, both large and small, 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.

Recent examples of I-9 violations and penalties involve:

1. A Colorado restaurant franchise who was fined $32K after an ICE inspection – not for hiring any illegal workers, but for I-9 document errors.
2. The clothing giant, Abercrombie & Fitch was recently fined over $1 Million when an I-9 audit revealed multiple technology errors with the electronic I-9 system they were using, shedding light on the fact that employers are not only responsible for the people that  they hire, but also for the internal systems that they choose to use to verify the eligibility of their workforce.
3. The Department of Justice recently settled with Catholic Healthcare West, the 8th largest  hospital provider in the nation, on discrimination against work-authorized individuals.  CHW agreed  to pay $257,000 in civil penalties, the largest amount ever paid to resolve such allegations.  This settlement sends a strong message to all employers how important it is to have a staff properly trained on I-9 regulations and on all sections of the form.  All workers who are authorized to work in the USA have the right to look for a job without encountering discrimination because of their immigration status or national origin”, said Thomas E. Prerez, Asst. Attorney General for the Justice Department’s Civil Rights Division.

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. While there are many checklists and do-it-yourself guides and Podcasts available on the Internet and elsewhere, consulting a licensed immigration or employment lawyer who is familiar with I-9 and E-Verify compliance issues can save employers hours of research, provide a solution tailored to the organization and save the employer thousands of dollars in fines and penalties.

Visit our new I-9 Employer Resource Center and contact our office.  We work  proactively with our clients to provide comprehensive, and cost-efficient assistance in developing and maintaining best practices necessary to assure compliance with USCIS and Department of Labor regulations.

FedEx Corp. will pay the state of Montana a $2.3 million settlement over misclassification of FedEx Ground drivers as independent contractors, Montana Attorney General Steve Bullock announced Oct. 21.

The settlement follows a yearlong investigation by Montana that found FedEx Ground drivers are employees, not independent contractors, and that FedEx owed unemployment taxes, penalties and interest, according to the attorney general’s office.

Montana will reimburse drivers $1.1 million for unemployment insurance coverage that was paid by them. The remaining $1.2 million will go to the state’s general fund.

FedEx did not admit wrongdoing in the settlement.

“As a result of the investigation, FedEx will change its business practices in Montana,” according to the attorney general’s office. FedEx Ground will “implement a new pickup and delivery model in Montana,” the office reported.

What does this mean for employers? Although you are not required to fill out I-9 forms for independent contractors or their employees, you must not knowingly use contract labor to circumvent the law against hiring unauthorized aliens.

Should you have any questions regarding this or require any other type of employer compliance consultation, please contact us.   Please take a look at our new I-9 Employer Resource Center.

LONG BEACH, CA, October 22, 2010. Immigration Solutions, a leading full service consulting, immigration, and employer compliance organization, announces its new I-9 Employer Resource Center that is uniquely designed to assist businesses in developing and maintaining compliant employment practices.

Reputable industry leaders are being audited, as employer compliance becomes more complex and enforcement (investigations and audits) increase. In order to effectively deal with these issues and avoid the very severe consequences of fines and penalties for non-compliance, employers must take the time to develop a strategy and be prepared in advance with a Compliance Program.

Many companies struggle with determining who to turn to for their I-9 compliance needs. Immigration Solutions approaches its Employer Compliance practice with the same exceptional service level clients have experienced from their other practice areas. Their talented and experienced team offers onsite or offsite in-depth I-9 audits, compliance training, assistance with the development of training manuals and compliance policies and procedures, and on-call consulting services. They additionally assist their clients in responding to government Notices of Inspection and audit requests.

With pricing that is cost-efficient and tailored to the needs of their clients, Immigration Solutions is positioned to offer high touch services and solutions to their clients at affordable prices.

Websites: www.I-9Audits.com
www.immigrationsolution.net

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About Immigration Solutions

Immigration Solutions provides US and Canadian immigration services to individuals and employers throughout the USA and abroad. They specialize in business immigration and have a depth of experience in the IT, health care, arts & entertainment, and sports industries, amongst others. Their services include complex business visas for investors, multinational managers, skilled professionals and outstanding individuals in science, business, education, athletics and entertainment. They additionally provide employer compliance consulting services on proper I-9 (Employment Eligibility Verification) auditing, training, and work with their clients to develop compliant immigration policies and procedures. They offer these services, as well, to government contractors and advise on FAR E-Verify enrollment and compliance issues.

We are seeing with  increasing frequency, particularly in the hospitality, restaurant and contracting industries, the collaboration between the Department of Labor’s Wage and Hour Division (WHD) and ICE concerning the recent rash of I-9 audits and work site investigations.  We think this is for a myriad of reasons:

1)      Not meeting employee minimum wage requirements

2)      Non-conformance with H-2B temporary labor certification regulations

3)      Mis-classifying workers as independent contractors

4)      Hiring undocumented workers

5)      I-9 document violations; and

6)      A high volume of uncontested E-Verify Non-confirmations

In September a meeting took place between immigration attorneys and representatives from the USCIS Verification Division to discuss updates with E-Verify.  It was discussed that The Office of Special Counsel and E-Verify have signed an MOU to share information  between the two agencies, enabling the OSC to increase its role in the enforcement of E-Verify policies, specifically related to discrimination and employer use of the E-Verify system.

E-Verify is particularly monitoring employers that are suspected of misusing the system for pre-screening purposes or who appear to be providing data that is inconsistent with the size of their business and their usage of the E-Verify system.

If you’re an employer and you receive a Notice of Inspection (NOI) or a Subpoena, it is highly advisable that you contact an attorney that specializes in employer compliance issues before you provide any documentation whatsoever to ICE agents, DHS, or DOL.

For more information on E-Verify, we link to the Quick Reference Guide for E-Verify Employer Agents and to the E-Verify menu on the USCIS website.

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Immigration Solutions provides US and global visa services to individuals and employers throughout the USA and abroad.  We specialize in business immigration and have a depth of experience in the IT, health care, arts & entertainment, and sports industries, amongst others.  Our services include complex business visas for investors, multinational managers, skilled professionals and outstanding individuals in science, business, education, athletics and entertainment.  We additionally provide employer compliance consulting services on proper I-9 (Employment Eligibility Verification) 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.

USCIS has updated and revised the E-Verify manuals for both Employers and Federal Contractors.

The new manuals reflect recent changes to the E-Verify website and offer additional guidance and clarification. Employers or their agents who use E-Verify, federal contractors who have the Federal Acquisition Regulation (FAR) E-Verify clause in their contracts, and employers considering using E-Verify should become familiar with the new manuals.

Note that there are some new FAQ’s with detailed instructions for FAR contractors that have the FAR E-Verify clause in their contracts.  Also, note that web service developers have until December 2010 to add the required functionality from the June 2010 E-Verify redesign.

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We find in our I-9 audit practice that  most employers have problems with their I-9 documentation and that if discovered by ICE during an audit, would cost them thousands of dollars in fines.  We also find that most employees charged with handling I-9’s have never received any formal training.  If you are aware that your I-9’s have problems, we urge you to not ignore it.  Please take a look at our services and solutions.  Our talented and knowledgeable compliance team can discuss the following with you:

• Full onsite or offsite I-9 audit with analysis and report of most common and prevalent issues and instructions as to how to correct your I-9 forms
• A partial onsite or offsite I-9 Audit with analysis and report of most common and prevalent issues and instructions as to how to correct your I-9 forms
• I-9 Compliance Training on the laws that govern I-9 processing and management with specific training on most common and prevalent issues
• A training program that will teach you how to perform your own I-9 Audit
• The drafting and implementation of an I-9 Policy and Procedure Manual

You can contact our office here.

This is becoming serious business for human resource professionals, particularly if you know that you have paperwork violations buried in your I-9’s…AND….you’ve had turnover with the staff that are charged with handling I-9’s …and lastly, none of your staff has ever received formal I-9 compliance training.

Our compliance team can plan and structure a project to your needs that will ease the uncertainty of going through a partial or full audit of your I-9 employee population.  We ask all our clients and readership to strongly consider consulting with us, if you haven’t already, to discuss the management of your employee verification program, policy and procedures.  Please see today’s announcement from ICE.

In April 2009, Secretary Napolitano announced changes to ICE’s worksite enforcement strategy – which reduced the need for large-scale immigration enforcement actions where employees were arrested and instead focused on finding evidence to criminally charge employers and to increase the use of tools like I-9 audits, fines and debarment.

• This year, ICE criminally charged a record-breaking 180 owners, employers, managers and/or supervisors – up from 135 in FY 2008 and 114 in FY 2009.
• ICE conducted more than 2,200 I-9 audits – up from more than 1,400 in FY 2009.
• Since January 2009, ICE has imposed approximately $50 million in financial sanctions.
• ICE debarred 97 business and 49 individuals in FY 2010, up from 30 and 53, respectively, in FY 2009

Here’s an associated announcement from Secretary Napolitano.

We would urge you to be proactive in this area and put the matter of a “pre-audit”  I-9 audit on your agenda, or request training from us as to how to conduct your own internal audit.

Senate Dems Robert Menendez (NJ) and Patrick Leahy (VT) introduced the CIR Act of 2010 that proposes major  overhaul to the immigration system, making changes in employment and family-based programs with enhancements to I-9 (employment eligibility verification) employer obligations.  Most feel that this will not be the avenue by which CIR is accomplished, but that many of its ideas, including those int the CIR ASAP Bill that was introduced by Luis Gutierrez (D/IL) and the REPAIR proposal introduced by Senators Schumer (D-NY) and Lindsey Graham (R-SC) earlier this year, will all be considered when Congress decides to get serious about tackling immigration reform and actually start debating the issues.

The Bill does propose the creation of an Immigration Commission that would have authority to recommend yearly NIV and IV numerical limits.

The Bill proposes changes to the H-1B program by requiring employers to post the job opening on a new DOL website.  Employer with 50 or more employees would be prohibited from petitioning for additional H-1B workers if their workforce was comprised of more than 50% H-1B and L-1 workers, excluding those who are the beneficiaries of a pending or approved labor certification or employer-based immigrant petition.  Additionally, employers would be prohibited from placing H-1B workers at a 3rd party site, unless the worker was primarily supervised and controlled by the petitioner/employer.

DOL would be charged with additional authority to review LCA’s for fraud or misrepresentation and would have up to 14 days to certify an LCA (makes one wonder if we’d ever get a case out the door!)  with additional authority to investigate complaints against H-1B employers and to conduct employer H-1B compliance audits.  This is yet another reminder to employers to make sure that their Public Access Files are in order and that they are working with immigration attorneys who provide them with PAF files and overall compliance guidance and training.

Proposed changes to the L-1 Program would include requiring employers to offer L-1 employees insurance and other benefits on the same basis as that offered to US workers.  Increasing restrictions would be imposed on “new office” L-1 petitions and would require DHS to submit a report to Congress on L-1Blanket use.  On the positive side, the bill wold provide some relief for small employers seeking L-1A status for foreign nationals.  It would forbid adjudicators from using the small size of an L-1 employer as a negative factor in executive or managerial eligibility for L-1A status, but would increase DHS authority to investigate complaints against L-1 employers and impose new penalties upon employers who violate L-1 regs.

*** (Relief for Registered Nurses) *** — The Bill proposes to create a new H-2C temporary, nonimmigrant visa for occupations for which there is a shortage of American labor.  The initial H-2C visa would be valid for three years and renewed for three more years. With some exceptions, an H-2C visa could be revoked if the visa holder has been unemployed for more than 60 days.  After 4 years, an H-2C non-immigrant may file an application for adjustment of status, provided that he/she has been continuously employed, establishes progress toward civics and English proficiency, meets all criminal and other background checks and pays additional fines and fees.

There is a proposal to include a new H-1C program for lesser-skilled workers with job offers from US employers, and the creation of a premium processing program for administrative appeals of employment-based immigrant petition denials.

Relief for Undocumented Immigrants: Creates a provisional legal status, Lawful Prospective Immigrant (LPI), for undocumented immigrants who are present in the U.S. as of September 30, 2010, register with the government, have never committed a serious crime, and are otherwise admissible to the United States.  LPI status will be initially valid for four years, with the possibility of extensions.  LPI status confers work and travel authorization.  After six years in LPI/LPID status, an applicant may apply to become a lawful permanent resident, provided he or she continues to meet all eligibility requirements, including renewed biometrics and background and security checks, and also establishes basic citizenship and English skills, payment of all taxes, and compliance with Selective Service registration.

Employment-based Immigrant Petitions: The bill would recapture unused employment and family-based visa numbers from 1992 to 2007, and implement for future years  that unusued immigrant visa numbers roll over each fiscal year including the base amount of 140,000 –  plus numbers from 1992-2007 – and any unusued numbers from the previous year.  Those with approved visa petitions who are subject to wait times would be eligible to apply for AOS upon payment of an additional $500 filing fee and would be entitled to 3-year EADs and travel documents.  Those with pending immigrant visa petitions would be eligible to apply for AOS at the discretion of DHS.

We link to a complete summary of the CIR Reform Act from Immigration Policy Center.

Immigration Solutions will continue to update and report on any and all CIR issues as they arise.

The Meg Whitman scenario playing out in the news the last few days, is a good opportunity to address this issue and just how exactly the SSA No-Match Letter process works.

If the combination of name and SSN on a Form W-2 can not be matched to an SSA record, SSA is unable to attribute the earnings to a worker’s record. There are a number of reasons why reported information may not agree with our records, such as typographical errors, unreported name changes, inaccurate or incomplete employer records or misuse of an SSN.

What is a No-Match Letter?

After SSA processes the wage reports submitted by the employers, they attempt to resolve items that cannot be matched by sending letters to employees, employers and self-employed individuals to inform them when a reported name or SSN does not match SSA’s records. These letters are referred to as “no-match” letters and their purpose is to obtain corrected information to help SSA identify the individual to whom the earnings belong so that the earnings can be posted to the individual’s earnings record.

No-match letters fall under two categories:

• Employer No Match Letters — These letters may also be referred to as Employer Correction Request or Educational Correspondence (EDCOR) letters; and

• No Match Letters sent to workers whose earnings could not be credited to SSA’s records are referred to as Decentralized Correspondence or DECOR letters.

SSA began sending no-match letters to workers in 1979 and to employers in 1994.

Who gets a No-Match Letter?

When SSA processes wage reports, it notifies every worker whose name and SSN could not be matched to SSA’s records. This letter is sent to the address on the worker’s Form W-2. If there is no address or an address is not found in the Postal Service database of valid addresses, this letter is sent to the employer. The new DHS regulation does not address these letters.

Employer Notices (EDCOR)

Approximately two weeks after the release of the worker letters, SSA sends employer no-match letters. Currently, these are sent to any employer who reported more than 10 no-matches that represented more than 0.5% of the W-2s submitted by that employer.

The Employer notice advises of the no-matches and asks for corrected information.

Employer notices can list up to 500 SSNs (no names) that could not be matched (the employer can contact SSA for a full list if there are more than 500 errors). The employer is asked to prepare Forms W-2c (Corrected Wage and Tax Statement) for each of the SSNs listed in the Employer notice that the employer is able to correct.

If you are enrolled in E-Verify and receive a TNC

When a Tentative Non-Confirmation (TNC) is issued, the employer must notify the employee of the TNC and give the employee the opportunity to contest that finding.  If the employee chooses to contest the SSA TNC, he or she has eight business days to visit an SSA office with the required documents to initiate the process to prove identity and support the correction of the SSA record. Until the TNC is resolved, even if it takes longer than eight days, the employee must be allowed to keep working and cannot be fired or have any other employment-related action taken against him or her because of the TNC.  If the employee fails to contact SSA within the eight day contest period, the employee is considered a no show and a final non-confirmation is issued by E-Verify.  At this point, the employer should discuss this situation with their immigration attorney and seriously consider terminating employment.  A recent electronic business process enhancement, EV-STAR, allows SSA to use the E-Verify system to inform the employer of the case resolution once the employee visits SSA and resolves the issue.

For employees who successfully resolve a TNC, correcting SSA records is a useful result of the E-Verify process, helping individuals identify and resolve problems with their Social Security records. The work done to update records to resolve an E-Verify mismatch would need to be done at the time the individual applies for Social Security benefits.

Here is a sample of the E-Verify Referral Notice to the Employer when there is an SSS No-Match.  For more information on this topic, we link to our website where we have our employer compliance resource center and list of services and solutions for employers.

Fines Based Upon Inadequate Electronic I-9 System used to Track Worker Eligibility

Abercrombie & Fitch has been fined $1,047,110 in a settlement reached today with U.S. Immigration and Customs Enforcement ((ICE) for numerous technology-related deficiences in the company’s electronic I-9 system.

Referencing the ICE Press Release, the settlement is the result of a November 2008 Form I-9 inspection of Abercrombie & Fitch’s retail stores in Michigan.  The company was fully cooperative during the investigation and no instances of the knowing hire of unauthorized aliens were discovered. Since the initial inspection, Abercrombie & Fitch has taken measures to revise its I-9 Electronic Compliance Program, and has begun to implement new procedures to prevent future violations of federal immigration laws.

“Employers are responsible not only for the people they hire but also for the internal systems they choose to utilize to manage their employment process and those systems must result in effective compliance,” said Brian M. Moskowitz, special agent in charge of ICE HSI for Ohio and Michigan.  “We are pleased to see Abercrombie working diligently to complete the implementation of an effective compliance system; however, we know that there are other companies who are not doing so. This settlement should serve as a warning to other companies that may not yet take the employment verification process seriously or provide it the attention it warrants.”

With the above being said — this is a definite attention getter!  There’s alot of I-9 software on the market.  Some we’re familiar with – and others we are not.  Electronic I-9 software must adhere to certain recordkeeping standards and technical safeguards in order to ensure that the underlying I-9s are accurate, authentic and trustworthy.  Systems must retain the same sequence of data elements on the paper I-9.

The main point here is to recognize that your I-9 system is a compliance system which must serve a unique  compliance function.  Yes, we know that you want the fancy tools and flagging systems, but the essential fundamentals are critical. We like the following questions provided by LawLogix’ electronic I-9 team:

1. Will the vendor provide third party independent evaluation of the system (preferably by an attorney with deep I-9 experience)?
2. What type of guarantees does the vendor provide in the contract (e.g., indemnification for gross negligence)?
3. Is the vendor able to provide 5 similarly situated client references that use the same I-9 system?  This is an important one and will speak directly to how well the vendor is supporting their product, releasing  updates, responding to constant changes in I-9 policy and procedure.  You should ask the references whether or not they have been subjected to an ICE audit using the vendor’s system and how quickly the vendor was able to respond to ICE demands.

Conducting your due diligence goes without saying – don’t believe all the hype re bundled in legal services.  LawLogix, who we are familiar with and highly recommend, state that there is no “one size that fits all”.  Careful planning is required and discussion with trusted immigration counsel advisable prior to any decisions being made.

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If you’d like to schedule a time to discuss your I-9s, whether that be a randomly selected or full audit, staff training or working with you to establish a set pf policies and procedures around handling your I-9 compliance, we offer solutions and services both onsite or offsite by our talented and trained legal compliance team.  Give us  a call.  562 612.3996 – www.employer-compliance.com

1) Prevailing Wage Determinations:   The Department of Labor (DOL) advised today that a prevailing wage determination (PWD) obtained for an H-1B case can be used for a PERM case (and vice versa) if it is still valid and for the same job opportunity.  The announcement was made in the AILA/DOL Stakeholder Telephone Conference of 6/22/10 that can be viewed on the AILA website.  This will be extremely useful and will eliminate the long wait time in obtaining a PWD for DOL National for a PERM case when all information in re the job and its requirements remain identical.

2)  Current H-1B Cap Count as of 6/18/2010:  22,900 cases have been received under the general H-1B cap.  9,700 cases have been received against the advanced US degree cap of 20,000.

3)  CBP Releases Port of Entry Contact information:   http://www.cbp.gov/xp/cgov/toolbox/contacts/ports/

4)  iCERT now posts PERM Processing Times: http://icert.doleta.gov/#fragment-2

5)  Life Along the Mexico-US Border Photo Essay:  http://www.washingtonpost.com/wp-srv/world/interactives/mexicoborder/

6)  DHS Releases Fact Sheet on  Southwest Border “Next Steps”

7)  E-Verify no longer voluntary for Utah Employers:

We will cover these topics and many more in greater detail in our free July newsletter.  If you haven’t signed up to receive it, you can do so here