As 2012 winds down, with year-end planning sessions and budget meetings for 2013, how would you rate your company’s employment eligibility compliance program, as it stands right now?  We are not in the bubble bursting business, but we’ve yet to see a compliance program that doesn’t need some upgrading and refinement – no one’s is perfect.

According to new data from ICE, since 2007, employer I-9 audits have increased from 250 to more than 3,000 in 2012.  From fiscal years 2009 to 2012, the total amount of fines grew to nearly $13 million from $1 million.  Statistics released by ICE in July 2012 stated that overall, $87.9 Million in fines have been imposed on employers for violations. The number of company managers arrested has increased to 238.  Widespread employer audits will continue to increase this year.  Plain and simple, failing to comply with IRCA’s I-9 rules will continue at a rapid rate, resulting in significant fines, loss of access to government contracts, an onslaught of negative publicity, business closure, criminal penalties and imprisonment.

With all the advice, blogs and articles written about the most complicated 1-page form on the planet, there are some basics – a simple formula that, if implemented, followed and maintained, will greatly enhance your level of I-9 compliance and reflect your company’s genuine desire to get its compliance house in order.  This is what we recommend:

• Invest in a comprehensive I-9 audit by a knowledgeable attorney or professional who actually practices in this area of the law.  Don’t engage in a self-audit without participating in a thorough training program first.  This will cause more harm than good; it’s like the blind leading the blind.
• Following the audit and the review of your report of findings, get trained before the correction process begins.  Who should be trained?  All those who have hands-on exposure to the I-9 process at all of your organization’s locations…and all those who supervise the process and staff.  Make training and reading the M-274 Employer Manual absolute requirements for those assigned to I-9 processing and management.
• Establish a written Compliance Policy.  This does not need to be a huge undertaking, but should reflect your company policy concerning the steps you’ve taken to assure a compliant workforce and a culture of compliance at your organization.  It will be your road map and reflects that you take compliance seriously.  ICE will request this document, amongst many others, should they ever come knocking on your door.
• Appoint a Compliance Guru – one who has a senior level of knowledge, who will monitor your internal compliance program, review your I-9 forms every few months for accuracy and completeness, provide updates and arrange for refresher training on a yearly basis.
• Consult with a trusted professional in the field when questions or challenges arise – don’t guess.

Remember, the key to defending any employment related investigation is to evidence that there is and has been a consistent pattern of responsible, good faith effort on the part of the employer in establishing a compliant workforce.  Stay informed, subscribe to our Blog, newsletter, and join in the conversation on our LinkedIn Group I-9/E-Verify: Smart Solutions for Employers.  Check out our compliance services and solutions here, and make a concerted effort this year to increase your level of compliance by following the above formula.

As follows:

•Georgia: Companies employing more than 10 persons must register for E-Verify by July 1, 2012.
•North Carolina: Companies employing more than 100 persons must be registered for and using the E-Verify system on January 1, 2013.
•Pennsylvania: State contractors and sub-contractors must register for E-Verify beginning January 1, 2013 – but only if the project is greater than $25,000.
•Tennessee: Companies employing more than 5 persons must register and begin using E-Verify by January 1st.

Businesses within the above 4 states will need to collect an employee’s Social Security number and E-Verify all candidates before employing.

For more on E-Verify by state, we link here, compliments of LawLogix (www.lawlogix.com).

The National Immigration Law Center released this week FAQ’s concerning worksite rights for DACA employees.  The information is very helpful for those who are applying for DACA and for those who have been granted deferred action under the DACA Program.  There is also some excellent guidance for employers concerning the I-9 form for DACA new and existing employees, social security cards, employment verification letters, and more.  We also link to a previous blog post with updated FAQ information on the USCIS website.

Please be aware that this is ‘general’ information only.  We always recommend that you seek guidance from a skilled immigration attorney or professional who is familiar with DACA and employer compliance issues.  As always, we are available to work with you on your casework and to assist employers with employment eligibility verification issues.  Please contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996 and visit our I-9 Employer Resource Center.

USCIS released I-9 instructions to employers today regarding how to fill out the I-9 form for new and existing DACA employees.  There have been many questions and speculations  concerning how to handle the Form I-9 with existing employees; thus, this guidance is certainly welcomed.  We would advise you to print out the instructions and keep them for reference and attach them to either your I-9 reverifications or your new I-9 forms (whichever is appropriate based upon the instructions) for existing DACA employees.

Please note also that the DACA website has been updated with new FAQ’s, instructions offered in various languages and Filing Tips.

To review, the DACA initiative offers a two year grant of reprieve from deportation as well as work authorization for unauthorized immigrants who were under the age of 31 as of June 15, 2012 and who can demonstrate that they meet the following criteria:

• Entered the United States before the age of 16
• Have continuously resided in the United States since June 15, 2007 and up to
the present time, and were physically present on June 15, 2012 and at the time
of application
• Are currently in school, have graduated from high school or earned a GED, or
are honorably discharged veterans of the US armed forces (including the Coast
Guard)
• Have not been convicted of a felony, significant misdemeanor, or three or more
misdemeanors; or otherwise pose a threat to public safety or national security
• Entered the country illegally or overstayed their visa prior to June 15, 2012.

You might wish to refer to our previous blog post on DACA and sign up to receive our free newsletters, blog posts and I-9 information and updates.

For electronic I-9 users, questions have swirled around what exactly are you required  to  produce within 72-hours in the event of a government audit, and what standards will ICE use to evaluate I-9 software?

Do you print out all your I-9 forms?  Will ICE agents conduct the audit on your I-9 electronic system without printouts?  Will your system pass the ICE test?  For the answers to these questions, employers have been entirely at the mercy of the particular ICE agent conducting the audit investigation.

On July 22, 2010, the Department of Homeland Security (DHS) published a final rule relating to signatures and storage of electronic Form I-9’s that went into effect August 23, 2010 (see our previous post).  However,  we have all been waiting on regulations concerning this very topic, particularly in light of the huge uptick in ICE I-9 audits in the last few years creating a very uncertain climate for employers, as well as recent changes to E-Verify, and concerns over very severe consequences for non-compliance.

The new Memorandum provides guidance to Homeland Security Investigative (HSI) Agents and field offices, effective August 23, 2012, concerning how to evaluate electronically generated and stored I-9 records during an audit and the minimum standards for electronic audit trail requirements for use in establishing civil fines.

Let’s summarize what ICE agents will expect from employers who are using an electronic I-9 system at the onset of an investigative audit:

1)      Audit Trails:  Whenever an electronic I-9 form is created, completed, updated,  modified, altered or corrected – a  secure and permanent record must be created (audit trail) that establishes the date accessed, who accessed it and what action was taken.

2)      Software Provider Information:  Upon service of an NOI (Notice of Inspection), special agents or auditors will request the name of the software  product being utilized and any internal business practices and protocols related to the generation of, use of, storage of, security of and inspection and quality assurance programs for the electronically generated I-9 Form.

3)      Indexing System:  The employer will also be asked to provide the indexing system identifying how the electronic information contained in the I-9 form is linked to each employee and documentation of the system used to capture the electronic signature, including the identity and attestation of the individual electronically signing  the form.

4)      Auditors will Request at least one printed, completed I-9 form to ensure compliance with the regulation.  Your system should permit you to download a PDF version of the I-9 form that syncs up with the required information on the actual fields of the I-9 form.

5)      Lastly, auditors will request access to the system for a demonstration of the generation of an electronic I-9 form.

Once it’s determined by the agents that the audit trails are in compliance, the auditors will be referring to the flow chart attached to the Memorandum (see link at the end of the post) and audit trail that illustrates the minimum acceptable standards (know that the auditors can request to see additional system data and documentation) of electronically generated I-9 forms.

We recommend that you discuss this Memorandum very specifically with your HR department, your I-9 electronic vendor to ensure that they comply with the regulations, and that you update  your standard  operating procedures to reflect  compliance with these new regulations.  We link to the Memorandum here

Please refer to our list of compliance services and solutions as well as our Employer Resource Center at www.I-9Audits.com  If you are a member of LinkedIn, you might wish to check out our I-9/E-Verify: Smart Solutions for Employers group.

Should you wish to consult with us, email info@immigrationcompliancegroup.com or call to speak with one of our immigration professionals 562 612.3996.

The OSC announced today that they had reached an agreement with a janitorial and facilities management company in Florida that was fined for mishandling the TNC process with the employee.  The employer was fined $8800 (back pay and civil penalties) and had to agree to training by the Justice Department on the anti-discrimination provision and training by the Department of Homeland Security on proper E-Verify procedures.

It is imperative that you follow appropriate TNC procedures and supply your employees with the required documentation so that they can resolve TNC issues.  Sit down with them, show them the information that you input into E-Verify and make sure that it’s accurate.  Provide them with the appropriate  TNC notice and  SSA or DHS referral letter.  Here is an excellent training video that we recommend you use as a tool in your organization.

Check out our employer resource center here:  www.I-9Audits.com and our services and solutions here:  www-employer-compliance.com.   Stay informed and sign up to receive our information.

On Sept. 16, 2012, E-Verify provided several enhancements to improve your experience with the program. We particularly like these new features:

• For Corporate Administrators: A new Web-based tutorial replaces the live webinar training required of new Corporate Administrators. The tutorial also serves as a resource for existing Corporate Administrators. To access the E-Verify Tutorial for Corporate Administrators, select the ‘Take Tutorial’ link under My Resources in the left-hand navigation menu.

•  A new E-Verify User Manual for Corporate Administrators is now available from the ‘View User Manual’ link under My Resources in the left-hand navigation menu.

•  They have also come up with a process for HR’s who must record the foreign passport and I-94 arrival-departure card (that can now take up to 45 days to access) in E-Verify

Should you wish to sign up for USCIS’ free E-Verify training, they have several monthly sessions.  You can access their training schedule here.

By the way, the program is now compatible with Firefox, Chrome and Safari.

This employer really crossed the line in continuing to employ unauthorized workers AFTER an ICE audit of their I-9 records commenced, and failed to produce I-9 records for them on 3 previous occasions while transferring them to other jobsite locations.

Here’s the story….  The charges against the owner and Production Manager, Yoel A. Wazana, Wazana Brothers International, Inc., based in Van Nuys, CA, doing business under the name Micro Solutions Enterprises (MSE), are the result of an investigation into MSE’s hiring practices that was initiated by HSI in 2007. According to court documents, shortly after MSE received notification in April 2007 that HSI planned to audit the company’s payroll and hiring records, Wazana directed that about 80 of MSE’s most experienced employees – at least 53 of whom did not have work authorization – be relocated to another manufacturing facility. When investigators requested hiring records from MSE on three separate occasions, the company failed to provide paperwork for those unauthorized workers. The plea agreements filed in this case also describe how, after learning of the ICE audit, Wazana conducted meetings with MSE’s assembly line workers, instructing them to obtain valid work authorization documents and return with those documents, suggesting that he did not care if the documents were actually theirs.

In February 2008, HSI special agents executed a search warrant at MSE’s Van Nuys plant. During the enforcement operation, special agents arrested eight current and former company workers on criminal charges and another 130 employees on administrative immigration violations.  The felony charge of false representation of a Social Security number carries a maximum penalty of five years in prison and a $250,000 fine.

MSE has agreed to plead guilty to one misdemeanor count of continuing employment of unauthorized aliens. In a plea agreement filed last month, the firm admits hiring approximately 55 unauthorized workers, and then continuing to employ them after the ICE audit had begun. The company admits that it knew, or deliberately avoided knowledge of the fact, that the individuals were not authorized to work in the United States.

The company’s plea agreement represents a global settlement of criminal and civil charges against the firm. Under the terms of the plea agreement negotiated by ICE and the United States Attorney’s Office, MSE agreed to pay approximately $267,000 in civil and criminal fines.

Beyond the monetary sanctions, the plea agreement calls for the company to be on probation for three years, during which time it will implement a series of stringent measures to ensure it is complying with the nation’s hiring laws. Those steps include retaining an independent compliance monitor (this is the first time we’ve heard of an ‘independent compliance monitor’ being mentioned) to oversee the completion and maintenance of the firm’s hiring records, and providing training to employees regarding federal hiring laws. The plea agreement takes into account the company’s willingness to take responsibility for its prior criminal conduct and to implement a rigorous program to ensure full compliance with federal hiring laws in the future.

In 2009, HSI implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. Under this strategy, HSI is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. In the last year, HSI has levied a record number of civil and criminal penalties against employers who violate immigration laws.

An employer’s blatant disregard for employment-related immigration law has been proven time and time again in our blog reporting of these cases to be an expensive, painful, reputation damaging and unnecessary path.  Call our office to establish a compliant workforce, 562 612.3996.

The Department of Homeland Security issued an update today that the Department of Homeland Security (DHS) is working to resolve this issue and will have a fix on September 14, 2012.

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Without any advance notice, the CBP has made changes that affect the I-9 form by no longer issuing paper I-94 cards and no longer stamping I-20 forms for F and M student visas, or form DS-2019 Certificate of Eligibility for Exchange Visitors and Foreign Students, affecting both J and F visa holders.

Customs and Border Protection is in the process of automating traveler arrival records (I-94 cards) to streamline passenger processing. The current processing time for entering foreign visitors’ travel information into the I-94 database is 30 days or more. This does not affect the majority of foreign travelers visiting for business or leisure and will not affect any visitor’s record of departure.  But it will greatly influence how you document Section 2 of the I-9 form for the nonimmigrant employee that produces a List A foreign passport with an I-94 entry card.

PLEASE NOTE: With the newly proposed 2-page I-9 form, no guidance has as yet been provided regarding the I-94 card as an acceptable List A document in concert with a foreign passport. We will keep you posted concerning these changes as soon as we receive new guidance. In the meantime, we recommend that you print out this information and attach it to any new employee’s I-9 form who would normally produce an I-94 record (but doesn’t have one and is waiting to access an electronic version) along with a foreign passport as a List A document.

CBP has suggested the following:  Nomiggrants may need to prove their legal-visitor status within the first 30-45 days of their U.S. stay to:

Employers;
Motor vehicle registration or drivers’ licensing agencies;
The Social Security Administration;
U.S. Citizenship and Immigration Services; or
Universities and schools.

If during this timeframe, visitors need to provide evidence of legal status they should include the following:

Unexpired foreign passport; and
Country of Citizenship
CBP Arrival/Departure Record, Form I-94 (if issued)

Contact CBP for more information or with questions.

Tel: (877) CBP-5511
TTD: (866) 880-6582

If a state benefit granting agency rejects an unstamped Form I-20/DS-2019, applicants may make an appointment with USCIS online through InfoPass and take their Form I-20/DS-2019 to their local USCIS office to be stamped. ( InfoPass ) This transitional step will end on Nov. 21, 2012.

International students and scholars who encounter issues with their state or federal benefit applications should continue to contact the Immigration and Customs Enforcement Student and Exchange Visitor Program (SEVP) at (703) 603-3400 or SEVP@dhs.gov.

Please feel free to contact our office should you have questions concerning these changes, 562 612.3996 or email info@immigrationcompliancegroup.com