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.

For Immediate Distribution

Immigration Solutions Announces Relaunch to Immigration Compliance Group and New Websites to Assist Employers with Business Immigration

Employers concerned about U.S. business immigration issues, as well as I-9 employment eligibility verification and compliance are getting help from new websites announced by Immigration Compliance Group.

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Long Beach, CA, September 29, 2011 – Immigration Compliance Group has announced the launch of its new name and websites to help employers faced with business immigration and compliance issues.

Their websites are located at www.immigrationcompliancegroup.com and www.I-9audits.com, and offer help with business immigration issues, corporate employment verification compliance, I-9 employment eligibility audits and training, as well as help in developing a comprehensive employment authorization and immigration-related compliance program.

Business managers and human resource professionals know the value of degreed, skilled worker foreign nationals, especially in the science, technology, engineering and healthcare occupations.  As the workforce becomes more global in scope, employers are increasingly learning that it is essential to understand and effectively adhere to immigration compliance laws and regulations.

“Employer immigration compliance is becoming more complex because enforcement through investigations and audits by USCIS, ICE, SSA and DOL is increasing.  In order to effectively deal with these issues and avoid the very severe consequences for non-compliance, employers must take the time to develop a strategy and be prepared in advance with an immigration compliance program,” explained Leslie Davis, Managing Director of Immigration Compliance Group.

“Immigration Compliance Group offers customized programs that meet the unique business immigration needs of our clients.  We provide onsite or offsite audits, training, policy development, and ongoing consultation and  compliance news and updates,” she added.

With the demise of immigration reform in Congress, Immigration and Customs Enforcement (ICE) is stepping up enforcement of existing laws prohibiting the employment of illegal workers and fining employers for I-9 violations. These recent developments have made it even more critical that employers maintain a strong immigration compliance profile.

Press Contact:

Leslie Davis | Immigration Compliance Group | 562 612.3996 | info@immigrationcompliancegroup.com

We have heard similar stories such as this over the last few years.  The charges against Taqueria El Balazo stem from a 2008 incident in which U.S. Immigrations and Customs Enforcement (ICE)  agents raided 11 El Balazo restaurants and arrested 63 undocumented workers, drawing the ire of immigration advocates across the Bay Area.

According to the U.S. Attorney’s Office, they later re-hired at least 10 of the illegal employees after receiving written notification from U.S. Immigration and Customs Enforcement and Homeland Security investigators informing them of the employees’ identities. BIG mistake!

Proprietors of the restaurant chain behind Haight Street’s popular Taqueria El Balazo pleaded guilty to a series of violations surrounding immigration, social security, and tax evasion practices.  The owners  told the court they under-reported employee wages to the payroll company; they admitted that, based upon their actions, the amount of employment taxes paid to the Internal Revenue Service were understated, and admitted to hiring employees they knew were not legally allowed to work in this country. According to the plea agreement, between August 2007 and August 2008, they employed more than 100 illegal aliens.

Owners, Marino and Nicole Sandoval. are scheduled to be sentenced December 14^th and could face up to 20 years in prison and a half a million dollars in fines, according to San Ramon Express News. Sandoval’s brother, Francisco Sandoval, who owns and operates the restaurant chain with the couple, pleaded guilty to tax charges last August.

Taqueria El Balazo currently operates nine restaurants throughout the Bay Area in addition to its Haight Street outpost.

For more on this story:  http://www.sanramonexpress.com/news/show_story.php?id=4368

What do restaurant owners need to consider:

• Are you training your employees who are charged with employment eligibility verification?  How thorough are you when it comes to the I-9 process of employment verification?  It’s time to get serious about this.
• Have you been proactive and called for a Form I-9 Audit by a qualified and experienced immigration firm that specializes in this practice area?  We strongly recommend you consider this.
• Are you screening, coaching, training and counseling your employees to ensure compliance with immigration laws?

This is very serious business for all employers and is the major enforcement tool for the economic and political climate we are in at the present time.  The goal on both the state and federal level is to punish egregious employers and convince farmers, restaurant owners, clothing manufacturers, meatpackers and other employers to change their behavior.

Plain and simple, the national debate is heating up over mandatory E-Verify.  Some members of Congress seem intent on pushing the issue without taking into account the harm they will cause for American businesses and workers.  Now is the time to get your house, so to speak, in order.

The Department of Justice (“DOJ”) reported that it had reached a settlement with Brand Energy and Infrastructure Services and its subsidiary, Industrial Services LLC (ISI) on July 21, 2011. The DOJ reports that Industrial Services engaged in a pattern and practice of discrimination while completing Form I-9 on its non-citizen workers requiring specific employment documentation beyond what was required by law.

The investigation was prompted after a work-authorized immigrant lost his job when he could not comply with ISI’s request to provide specific employment documentation beyond what was required by law.   Further investigation revealed that ISI’s Prairieville, LA office required all newly hired non-U.S. citizens to present documents issued by the Department of Homeland Security upon hire.  The company did not require U.S. citizens to present any particular documents.

ISI has agreed to pay $43,560 in civil penalties and $7,200 in back pay, plus interest, to the injured party.   Brand and ISI have also agreed to monitoring provisions, as well as training for their human resources personnel.

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’re turning a blind eye to your compliance issues, the consequences of which today  are severe and expensive – not to mention the bad press that accompanies such an investigation. Employers must accept 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.  Additionally, employers are not to require more documentation than what is itemized on the List of Documents for Form I-9.

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

• Internal compliance & training program

• Polices/procedures safeguard against discrimination incl. training

• Require I-9 process only by those trained

• Secondary review for each I-9

• Annual I-9 audits by external auditing firm or trained person not involved in I-9 process

• Written I-9 policy

• Protocol to respond to tips/information/constructive knowledge

• Maintain copies of documents

• Participation in E-Verify/SSNVS

We are available  to assist you with your compliance  needs.  Please visit our Employer Resource Center and contact us should you wish to discuss our services and solutions.

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

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

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 part 2 in our I-9 podcast series where we discuss:

Podcast-5-4-11.mp3

1)  Correcting the I-9 Form
2)  Storage and Retention
3)  Technical and Substantive Violations and fines
4)  I-9 Best Practices

Please contact us to discuss your I-9 compliance needs.  We have a very talented team who are experts and are ready to assist you.