We have heard many recent reports that ICE will step up the pressure on its I-9 Field Agents to surpass the number of I-9 audits they performed in 2011, and that they will be looking at various industries such as employers in critical food, energy, and infrastructure industries. In June 2011, ICE did not specify which businesses would be specifically targeted, but did say that immigration agents would focus on seventeen sectors including agriculture, financial services, nuclear reactors, water treatment, and health care.

It has been recently reported by the Farm Employer’s Labor Service (FELS) that the  EVP of NCAE (National Council of Agricultural Employers) was informed by credible sources that ICE field agents will once again focus their I-9 audit investigations on high-profile agriculture and restaurant employers to surpass their 2,496  I-9 audits and 3,291 work site enforcement cases conducted in 2011.  More specifically, they are again (no surprise) targeting high-profile/maximum press coverage employers, the biggest farms and restaurants, and employers who were previously audited and/or had issues with DOL or DHS in the past –  who can now expect to be be revisited in 2012.

With good faith effort being one of the most important rules applied in ICE enforcement audits and investigations, it is recommend that all employers get their ‘houses in order’ as it relates to I-9 employment verification eligibility compliance.  We would strongly suggest that you put your emphasis on  retaining an outside expert to perform a thorough I-9 audit of your active and inactive I-9 forms to really get a handle on problems and reoccurring issues buried in your I-9 forms.  This step alone can save you hundreds of thousands of dollars, as well as the potential of losing employees and recruitment and re-training costs.  Then get your staff trained and don’t let anyone not properly trained be involved with hands-on I-9 functions.  Next, establish a written compliance statement outlining the SOP that your company will follow — a plan that makes sense for your business……then implement it, and be diligent in your efforts to create and maintain  a compliant workforce showing a good faith effort to comply with I-9 regulations to the best of your knowledge and ability.  Lastly, avail yourself of reliable information from skilled professionals that report on compliance issues – subscribe to a newsletter and a blog so that you can stay ahead of the game.  You should check out our free information – both blog and newsletters.

We invite you to contact our firm to discuss your compliance issues, info@immigrationcompliancegroup.com or call 562 612.3996.

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Immigration Compliance Group focuses its practice on corporate employment verification compliance and US and Canadian inbound business immigration.   Our team has a depth of experience in providing uniquely tailored services and solutions to assist clients in developing comprehensive employment authorization and immigration-related compliance.  We conduct onsite and offsite  I-9 audits for companies of all sizes, design training curriculum to assure that staff is knowledgeable concerning the  management of their I-9 program, and we assist with policy development so that our clients have a plan and strategy that assures their compliance in a manner that makes sense for their business and evidences their good faith in establishing a compliant workforce.

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

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

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

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

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

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

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

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

Heightened Enforcement Continues

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

What employers need to know

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

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

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

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

For more, refer to:

1) DOJ Press Release

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

3)  Our list of services and solutions

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About Immigration Compliance Group

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

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

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

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

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

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

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

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

Hello:

Headed into a new year, this is a good time to give thought to what as an HR professional you’d like to see implemented at your place of employment where compliance issues are concerned.

Take a minute and go through our survey.  Or, if you prefer, email us and let us know what your top 3 compliance projects or concerns are for 2012 – info@immigrationcompliance group.com

We’d like to hear from you.

We recommend that every employer read this brochure very carefully. As it clearly states, the: “OSC vigorously investigates and prosecutes such claims of discrimination.  Employers found to be engaging in discriminatory activity may be required to pay civil penalties and any appropriate back pay to injured parties.”

The case examples provided with accompanying fines mentioned in the brochure are excellent studies for HR professionals that deal with I-9s on a daily basis. We highly recommend that you print this out and add it to your M-274 Employer Handbook.  Make sure that all HR representatives, HR and hiring managers involved with the I-9 process has a copy of this brochure.

Should you have any questions, please feel free to contact our office at:  info@immigrationcompliancegroup.com, or by phone 562 612.3996.

Here is a selection of some of our more recent and popular blog posts:

I-9 Form Compliance:  What’s Hidden in your Paperwork

I-9 News:  ICE Inspection I-9 Overview

I-9 Audit Case Study:  Ketchikan Drywall Services

Important Electronic Vendor Guidance

What are Technical and Substantive Violations?

Employer Fined for Discrimination

SSA No-Match Letters:  OSC’s Position on Employer Action

I-9 Penalties:  Highest Civil Penalty Assessed Since Enactment of Anti-Discrimination Provisions

Gov. Brown Signs Bill Prohibiting E-Verify for Local Governments in CA

E-Verify Self Check Releases in 16 More States and is also in Spanish

Ketchikan Drywall Services (KDS), a drywall and framing company in Washington, was found to have committed 225 separate I-9 violations for which they were fined  $173,250 ($770/each) discovered during an ICE I-9 audit.

ICE subpoenaed employees’ I-9s and supporting documentation dating back 3+ years.  KDS initially provided approximately 454 I-9 forms with ‘some’ supporting documentation.  More than a year later, KDS provided another 81 I-9 forms, totaling 535.

ICE issued a NOI (Notice of Intent) to fine 271 I-9 form violations for a fine of $286,000.  KDS disputed the fine, the case went before OCAHO (Office of the Chief Administrative Law Hearing Officer) who rigidly found no reason at the time to reduce the fine.

With over 250 violations, there were obviously a number of issues, such as:

1)      Were employees recalled from layoff or rehired?  The company hired a lot of seasonal employees.  If you are recalling from layoff, there is no need for a new I-9 form.  If you’re rehiring, then Section 3 needs to be filled out (if rehired within 3 years), or a new I-9 form.

2)      Whether supporting documentation was sufficient when the I-9 has none of the information filled out in Section 2?  The Administrative Law Judge stated that the supporting documentation could only be reviewed if there was human error in transcribing information onto the I-9 form.

3)      Whether late production of a permanent resident card alleviates a substantive violation for no status box being checked when the Section 1 was originally filled out; and whether certain recorded information in Section 1 can alleviate a substantive violation for failing to check a status box or more than one status box?  There were a number of issues with employees who failed to check a status box for citizen, permanent resident, or authorized to work or who failed to write in any information.  The fact that the employer later presented LPR cards, was of no value – it was still considered a substantive violation.  If the citizen box was checked with permanent resident or authorized to work, it was considered a substantive violation because the checked boxes are contrary to each other.

There were a number of other violations such as:

4)     Failure to sign the form

5)      Failure to list any or all the necessary information in List A, B or C

6)      Acceptance of improper documentation

Overall, there were 271 I-9 forms with substantive violations out of 535 presented I-9s –  50% of the I-9s, $110 to $935 per violation.  They got hit with a fine at the top of the range, $935.  ICE indicated that they could be fined $286K.

In the end, the ALJ (Administrative Law Judge) found that ICE proved 225 substantive violations in the 535 I-9 forms for a 42% violation rate, which equated to a base fine of $770 per I-9, or $173,250.

This case represents a prime example of what we see in our I-9 audit practice whether you have a diverse workforce or not, clerical errors and oversights play a huge part in the process and they equate to technical and substantive errors – an exceedingly expensive outcome for something that can be averted with the development of a compliance program that works for your business, with regular audits and training.

We link to the Final Decision and Order

Check out our group on LinkedIn, I-9 Smart Solutions for Employers.

For Immediate Distribution

ICE announces record breaking 375% increase since 2008 in I-9 Form Audits – $36.6M this year in fines and forfeitures.

Long Beach, CA, October 17, 2011.  Employers must be proactive regarding worksite compliance matters.  Immigration-related employment regulations are complicated.  The truth is, it’s difficult for employers to keep up with the ever-changing world of employment laws and compliance issues. Even if you have a fully staffed human resources department, many critical compliance issues can go overlooked, such as formal training, audits and executive oversight that end up getting bumped for more pressing needs.

If you keep putting off a Form I-9 audit, you could most certainly find yourself in the middle of a complex investigation or lawsuit that will take center stage very quickly, that could have been avoided with some basic preventive maintenance.

“Our clients tell us that they award our bids and proposals because we have a process that we walk them through that is strategically planned and implemented, easily understood and efficient – from getting prepared for an outside audit, followed by targeted training and policy review and development that ensures the establishment of a successful compliance program. Continued education and information is available through our extensive outreach via monthly newsletters, client alerts, blog and social media.  Our suite of services and solutions are comprehensively packaged to bring sustainable results to our clients,” explained Leslie Davis, Managing Director of Immigration Compliance Group.

Immigration Compliance Group assists their clients with developing and implementing comprehensive tools, processes and standard operating procedures that enable them to remain committed to ongoing employment verification compliance.  “The reality is that the odds of encountering a Form I-9 audit have skyrocketed because of a pervasive business enforcement climate,” she added.  Now is the time to assess your weaknesses and minimize your liability.

Press Contact, Leslie Davis

Email:  info@immigrationcompliancegroup.com

www.immigrationcompliancegroup.com and www.I-9Audits.com

562 612.3996

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Immigration Compliance Group focuses its practice on corporate employment verification compliance and US and Canadian inbound business immigration. Our team has a depth of experience in providing uniquely tailored services and solutions to assist clients in developing comprehensive employment authorization and immigration-related compliance. We conduct onsite and offsite partial and full I-9 audits for companies of all sizes, design training curriculum to assure that staff is knowledgeable concerning the management of their I-9 program, and we assist with policy development so that our clients have a plan and strategy that assures their compliance in a manner that makes sense for their business and evidences their good faith effort in establishing a compliant workforce.

Most employers think that because they have never filed an immigration case for a foreign worker, that they do not need to worry about their I-9’s or immigration laws. This type of thinking in today’s enforcement climate, is indeed risky business.

You may be at risk… What most employers do not understand is that employment verification requirements are governed by the Immigration Reform and Control Act of 1986 (“IRCA”). The provisions of the law hold every employer in the USA responsible for verifying the identity and work authorization status of the employees that they hire. The means by which this is done is the I-9 Employment Eligibility Verification Form that every employee must fill out no later than the first day of work for pay – this includes both US citizens and non-citizens.  We link to more information here