For those of you who might rather listen to our news than read it, we are releasing a podcast of a previous Blog post on the topic of the I-9 Revised Employer Handbook that was released by USCIS last month that provides additional guidance on many of the most frequently asked questions that we see in our employer compliance practice.  Have a listen and please take our Survey.   For a list of our compliance services and solutions we link here.

Following through on a campaign promise, Florida Governor Rick Scott signed four executive orders minutes after being sworn in, including one that requires all state agencies to use E-Verify, making it the first state to mandate E-Verify participation in 2011.  Florida joins a list of 13 other states that have mandatory E-Verify laws or executive orders in place.

According to a press release  from the governor’s office:

Executive Order No. 11-02 requires state agencies to use the E-Verify system to verify employment eligibility of state employees and contractors.

• All state agencies under the direction of the Governor must use the E-Verify system to check employment eligibility of their current and prospective employees.
• Requires state agencies under the direction of the Governor to include in all state contracts a requirement that contractors utilize the E-Verify system to verify the employment eligibility of:
  • all persons employed during the contract term by the contractor to perform employment duties within Florida; and
  • all persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract with the state agency…

The Florida State Legislature, which convenes next week, is also expected to consider an Arizona-style immigration enforcement bill that would also require all employers in the state to use E-Verify. The bills are being drafted by Rep. Bill Snyder and Sen. Mike Bennett.  This is fast approaching the Arizona question again… Can the state trump the federal government on immigration requirements?

It is worth noting that, Rhode Island’s Governor, Lincoln Chafee, rescinded Rhode Island Executive Order 08-01 that required the state as well as contractors and vendors doing business with Rhode Island to register and use E-Verify for all new hires. Chafee called the use of E-Verify a “divisive issue.”

So, what does this mean going forward for Florida’s State Agencies and employers, in general? 

Prior to enrolling in E-Verify, you must undergo comprehensive I-9 training by skilled immigration counsel that maintains an active employer compliance practice so that your designated E-verify employees have a solid grounding in the law as it relates to the I-9 form and today’s complex issues concerning employment eligibility verification.  The most well intentioned employees make mistakes and, if you’re like most employers, 30-50% of your I-9 forms may have issues that put you at risk. Half of the companies audited by Immigration and Customs Enforcement (ICE) get fined $110,000 or more.

Employers must recognize that this can mean civil and criminal liability to both themselves and their employers for charging untrained and inexperienced employees with the employment verification process.

You’re probably thinking …this could never happen to me and my company…we’ve reviewed our I-9 forms, done a self-audit and put policies in place for the management of our employment verification program.  This thinking is understandable; however, untrained HR managers and assistants that try to correct or minimize their mistakes to save their jobs can lead to charges of document falsification, perjury and tampering. 

Plainly put, this complicated one-page, poorly designed I-9 form has a 70-page government instruction manual!  Performing a self-audit, with an untrained staff, can likely increase the possibility for penalties and fines.

Please have a look at our I-9 Employer Resource Center:  www.I-9Audits.com , contact our office to discuss your concerns and sign up to receive our news and information.

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

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.

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.

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.