By:  Timothy Sutton, Communications Editor

Today, recruiters, human resource managers, and small business owners utilize the Internet to recruit new employees. Online recruiting is cheap, efficient, and reaches a much broader audience than traditional forms of media. While there are numerous advantages to employing a professional staffing agency to locate prospective employees through the Internet, many employers choose to self-publish want ads through popular websites like monster.com or craiglist.org. Self-publishing online job posting gives the employer complete control over when, where, and how long a post will be visible to the public. Ultimately, do-it-yourself recruiting can be personally tailored to suit a particular employer’s needs.

But recruiters beware. The Internet is much more sophisticated than a virtual corkboard. Keywords and phrases in your job listings can be tracked and monitored by government software, then stored in databases. Recently, the Civil Rights Division of the Office of Special Counsel (OSC) released a Best Practices notice for online job posting. Whether this notice foreshadows future litigation over civil rights violations in hiring practices is yet to be determined; regardless, the message is clear, employers need to exercise caution when recruiting online because the OSC is monitoring online want ads.

Immigration laws prohibit the use of discriminatory language regarding U.S. Citizenship, lawful permanent residence, citizenship status, or national origin unless required by law, regulation or executive order. Curiously, the OSC notice was released shortly after a handful of states attempted to curtail the rights of Deferred Action Childhood Arrival qualifiers to obtain state identification (see our previous post here). There is no data revealing any increase in discriminatory language found in online job postings, but a simple keyword search on either monster.com or craigslist.org reveals numerous non-compliant ads. For instance, if the word “citizen” is entered into Craigslist, ads for dishwashers, personal assistants, security guards, and caregivers pop up. Each ad contains some version of the following discriminatory language that the OSC notice clearly forbids pursuant to the Immigration and Nationality Act at § 1324b that prohibits discrimination based on the citizenship status or national origin in the hiring, firing unfair document practices (“document abuse”) during employment eligibility verification process, and retaliation:

•  “Only U.S. Citizens”
• “Citizenship requirement”*
• “Only U.S. Citizens or Green Card Holders”
• “H-1Bs Only”
• “Must have a U.S. Passport”
• “Must have a green card”

One explanation presented by the OSC for the common use of such language is the misinterpretation of federal employment laws. Employers are not limited to the recruitment of U.S. citizens. In fact, we recently published an article on the proper method of verifying the legal employment status of refugee/asylees. Due to the complexity of adhering to the legal requirements of recruiting, hiring, and employing individuals in today’s diverse workplace, employers should seek the professional guidance of an attorney. The cost savings and convenience of self-publishing job postings are heavily outweighed by the potential financial penalties and negative publicity of losing an anti-discrimination lawsuit.

Our office has the experience and successful track record necessary to protect the interests of your enterprise.  For more information, contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

By:  Timothy Sutton, Communications Editor

The biggest  names in banking, Goldman Sachs, JP Morgan, Wells Fargo, Bank of America, Lehman Brothers, MF Global, Countrywide, and Chase have been subject to financial misconduct investigations for imprudently squandering hundreds of millions of dollars. Last week the Justice Department made the unfortunate announcement that Goldman Sachs would not be charged for its infamous trades.  Yet over the past few years, despite the devastating impact hedging bad debt has done to our economy, virtually no criminal or civil penalties have ensued. Economists and legal analysts have a range of theories attempting to explain how crimes of “greed” go virtually unpunished; one plausible explanation is we are all to blame: investors, bankers, consumers, government and regulators all contribute to the degradation of our banking system. The SEC has become somewhat of a paper tiger launching costly and intricate investigations resulting in piles of reports that ultimately assign no guilt.

Conversely, ICE investigations almost invariably result in hefty civil and even criminal fines. Deportation raids and I-9 audits are typically swift and allow few of the procedural processes that SEC, Department of Treasury, or Department of Labor investigations require. Over the past few years, there have been record numbers in both deportations and employer sanctions issued by ICE and the USCIS. Unlike greed, failure to maintain a lawful workforce endures the cold chill of ICE.

Shockingly, the public reaction to the financial crisis has been fractured and highly politicized. Remember the Tea Party and Occupy movements? Alternatively, punishing companies employing immigrant workers has found a stronghold in national politics. While it is unjustifiable to violate any law of the United States, it is alarming that those who protest against the corruption of financial institutions are considered extremists, but those who protest against hiring immigrants are nationalists? It is possible that the simpler the crime the harsher the time explains this phenomenon. Americans don’t understand how billions of dollars could disappear from the banks they entrusted their life-savings to; but can easily conceptualize how an immigrant workforce may under-cut “American” employment.

As business owners, violating simple duties like Form I-9 compliance and employment verification through E-Verify may result in the most damaging penalties. There are no congressional investigations, lengthy judicial proceedings, or public sentiment to lessen the blow of an ICE audit. In light of our current social political environment it would be a prudent investment to seek the advice of immigration professionals to proactively prepare for an immigration audit. For more information contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

By:  Timothy Sutton, Communications Editor

Shortly after ICE began their Form I-9 audit of the San Antonio based sushi chain, Sushi Zushi, an exodus of employees forced the company into a weeklong-statewide shutdown. After an internal announcement by Sushi Zushi management to employees of the routine audit, a wave of scared employees did not return to their jobs on Friday Morning.  A public statement was issued by Sushi Zushi’s public relations spokesperson; Judy McCarter detailing the company’s decision:

STATEMENT FROM SUSHI ZUSHI, Friday, July 27, 2012

Sushi Zushi has temporarily suspended its operations and closed its restaurants in San Antonio, Austin and the DFW Metroplex. We plan to resume operations as soon as possible.

The decision to close the restaurants was made at Sushi Zushi today by executive management due to an unanticipated internal reaction to news of a routine I-9 audit. Several vital employees have chosen not to report to work. This has affected our ability to provide our expected level of service to guests. CEO Alfonso Tomita is returning from travels outside the country.

Sushi Zushi’s policy is to comply with all federal, state and local laws and regulations. And Sushi Zushi has made its best efforts to comply with I-9 requirements always done appropriate due diligence on all its staff. Sushi Zushi is working with legal counsel to respond to the government’s audit.

We wish to be clear – there was no raid by the government on our operations. Nor has any employee  been detained by the government or terminated by the company. Sushi Zushi is responding to a routine I-9 audit. We apologize in advance for the inconvenience and appreciate the patience of our loyal guests while we work through this issue.

Company management immediately posted want ad’s on Craigslist and Facebook. Their customers posted their concerns across social media, including accusations of mismanagement that surfaced on reddit.com. In the midst of this audit meltdown, an employee announced via facebook that he was promoted from delivery driver to sushi chef. With the company’s reputation spinning out of control, their facebook page had posts of former kitchen employees who remarked, “The food won’t be the same without us,” while other employees joked with friends that they had a week-off work to “fill out their I-9 forms.”

Before ICE issues a dollar of fines or fees, Sushi Zushi will suffer hundreds of thousands in loses and devastating harm to their reputation. Sushi Zushi employees fled because they were not educated on the differences between an I-9 audit and deportation raids. Clearly, today’s ICE audits are shaping up to be equally as effective in deterring unlawful employment as raids of the past. To prevent your company from becoming the next Sushi Zushi, contact our immigration professionals for their expert knowledge on Form I-9 compliance, and sign up to receive our information and visit our Employer Resource Center:  www.I-9Audits.com

   By:  Timothy Sutton, ICG Communications Editor

High unemployment across the country may be contributing to the shift in focus by numerous State and Federal agencies toward eradicating the underground economy. This term is used in the insurance industry to refer to unlicensed, untaxed, and uninsured employers or contractors. In immigration circles, the illegal workforce is the common term used to represent undocumented workers who like workers in the underground economy, represent the unlawful economic advantage unscrupulous employers have over law-abiding businesses. In response to these illegal employment practices, the government is on a crusade to incentivize the legal employment of American workers.

This July, California’s Department of Insurance spearheaded a multi-agency task force similar to undertakings of ICE, DHS, OSC, and SEC. Detectives from the California Department of Insurance (CDI), the Contractors State License Board (CSLB), Employment Development Department (EDD), and County District Attorneys’ offices effectively created their own “Avengers” partnership to make an 11 county sweep across California, resulting in 104 enforcement actions.

US businesses are not strangers to regulatory enforcement. Arguably, complicated regulations on tax, insurance, employment and immigration laws deter the success of small to mid-sized American companies trying to expand into today’s global marketplace. Large corporations avail themselves of depressed wages and lenient international labor regulations by outsourcing labor to under-developed nations. Government regulatory and enforcement agencies like ICE have no jurisdiction to punish large corporations that exploit workers overseas. Consequently, “Avengers,” like the California task force against the underground economy, mostly impact local and domestic companies, often to their demise.

Competing against global-economic influences on a long-term basis in any industry requires strict scrutiny of company hiring policies, employment practices, and compliance with a complex myriad of tax, insurance, and immigration laws. If your business employs a domestic workforce, large or small, contact us to learn more about workforce compliance and subscribe to our blog  for the latest immigration news and updates.

By:  Timothy Sutton, Communications Editor

Wait Wait… Don’t Tell Me! is a comedic quiz program on NPR, testing listener’s knowledge of current events against some of the best and brightest in the news world. While figuring out what’s real news versus what’s made up, the show’s host presents a scenario to the contestant to determine if the scenario is fact or fiction. If you weren’t tuned into C-SPAN, you may have legitimately mistaken the House oversight committee’s interview, of the Secretary of the Department of Homeland Security (DHS) Janet Napolitano, as the latest episode of Wait Wait.

In this episode, members of the Congressional oversight committee rapidly fired questions at Napolitano, cutting short her responses, attempting to validate their “real news,” as something more than “made up.” The result, a trial like inquisition reminiscent of the famous scene between Tom Cruise and Jack Nicholson from A Few Good Men, with Napolitano ceremoniously remarking “you can’t handle the truth!” In reality, with grace and imperturbable resolve, Napolitano slowly roasted over the House Committee’s rotisserie.

Attacks upon the DHS Secretary by Chairman Lamar Smith (R-TX), Sensenbrenner (R-WI), Conyers (D-MI), and many more; indicated summary judgment has been rendered against the DHS for their approach to immigration enforcement, particularly in the areas of: visa overstays, boarder security, and deferred action. The business community should take note; Napolitano’s significant immigration reforms have yet to satisfy Congressional discontent. Looking forward, expect tighter regulation of business immigration under the guise of immigration overhaul.

Here are some DHS immigration reform highlights Napolitano submitted to Congress:

• Current DHS immigration reform focuses resources on repeat immigration law violators
• Numerous improvements were made to welcome business people…staying true to our history as a nation of immigrants
• Deterring Employment of Aliens not authorized to work by:

1. Eliminating high-profile raids and focusing on compliance through criminal prosecution of egregious employer violators, Form I-9 inspections, civil fines, and debarment
2. Since 2009, ICE audited more the 8,079 employers, debarred 726 companies, and imposed $87.9 million in financial sanctions

• Educated the business population through instituting:

1. E-Verify with more than 385,000 participants
2. E-Verify self-check

• Improving Legal Immigration:

1. Streamlining path for EB-5 entrepreneurs and clarifying the EB-2 classification
2. Instituted Entrepreneurs in Residence program and proposed regulatory changes in the Federal Register in April 2012 to minimize delays of family based immigration petitions
3. Reduced processing of benefit requests through Electronic Immigration System of Registration (ELIS)
4. Implemented “Study in the States” initiative to attract international students through a streamlined visa process

• Comprehensive Immigration Reform:

1. Supporting the Supreme Court’s decision on Section 2(B) of S.B. 1070

Napolitano capped off her remarks on immigration stating, “only a nationwide solution will resolve the challenges posed by the current immigration system.”

Despite the Congress clearly conveying their message to DHS, “Wait wait, don’t tell me, you think you’re doing a good job…” Napolitano’s focus on streamlining existing immigration policies is positive news for US businesses. Until the promise of streamlining comes to fruition, removing your business from the auditing radar, enrolling in E-Verify, and becoming Form I-9 compliant remain immigration best practices.

If you can handle the truth about current immigration policies, subscribe to our blog and stay informed by checking out our I-9 Employer Resource Center and join our LinkedIn Group.

By:  Timothy Sutton, Communications Editor

Swiss based Nestle has discovered “numerous” violations of its internal work rules as a result of internal auditing aimed at combatting child labor. The manufacturer of Kit-Kat bars reported that four-fifths of its cocoa comes from unmonitored labor channels. The Fair Labor Association is insisting Nestle implement higher supply chain standards moving forward. The cocoa industry is fraught with child labor issues, with child worker rates reaching upwards of 89% in the Ivory Coast. Unfortunately this far-reaching problem will not be solved overnight, “The complexity of child labor in the cocoa supply chain means solving the problem will take years,” Nestle said.

As a result of Nestle’s voluntary audit, the company has avoided penalties thus far. However, their involvement in child labor comes at a price. The company is now committed to altering supply chain practices and will invest heavily in future monitoring services.

While most American businesses can rest assured they are not supporting the underground child-labor industry, Nestle’s efforts to self-assess and reform should be applauded. Domestic and international companies will benefit greatly from routine internal audits that track workforce compliance. USCIS and ICE encourage employers to frequently perform internal audits of their Form I-9 practices. In fact, records of regular auditing of your workforce may help you avoid hefty civil penalties in the event of an official government audit. The next time you “break off a piece of that Kit-Kat bar,” consider following Nestle’s example of self-auditing and contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

Other resources:

• Our Employer Resource Center:  www.I-9Audits.com
• Our Employer Compliance LinkedIn Group
• Our Compliance Services and Solutions

By:  Timothy Sutton, Communications Editor

In an effort to assist participating employers comply with the user requirements of E-Verify and to help improve participants’ overall use of the program, USCIS issued two self-assessment guides in June. Both guides are substantively similar, but are procedurally designed to assist two sets of users, either web-access or direct access users. Voluntary E-Verify participants will benefit from this recent assistance publication by following the eight-part checklist provided therein.

The self-assessment checklist covers, post-enrollment activities, creation of cases, photo matching, tentative nonconfirmation, DHS referral, SSA referral, final case resolution, and final case closure statements. USCIS touts E-Verify as an easy-to-use online tool, but warns, “Employers may be subject to legal action for some types of E-Verify misuse.” The self-assessment guide highlights below may surprise current E-Verify users who may unwittingly be noncompliant:

Monitored Activities Common Mistakes:

• Duplicate cases for same employee
• Verifying employees hired before 11/7/86
• Immediately terminating employee who receive a tentative nonconfirmation (TNC)
• Failing to create a case by the third day after employee started work for pay
• Creating cases for employees hired before E-Verify participant enrollment

Post-Enrollment Activities: Do web services comply with interface control agreements?

Creation of Cases: Is all personally identifiable information safeguarded at all times, with only minimal information retained?

Photo Matching: Are document photos matched to the photo on E-Verify rather than to the employee?

Tentative Nonconfirmation: Do case closure statements notify DHS if an employee who receives a TNC chooses not to contest is not terminated?

DHS & SSA Referral: Do E-Verify participants and employees both sign the English-language version of the referral letter?

Final Case Resolution: Upon receipt of a “DHS No Show” message, does the employee contact DHS within the required time?

Final Case Closure: Does the user file completed Form I-9 and all attachments in a secured location?

Although the self-assessment is a valuable tool to assist employers with E-Verify compliance, the checklists do not render a company audit proof. For assistance implementing best practices for E-Verify and other immigration related topics contact one of our immigration professionals.

Want to stay informed:?  Check out our I-9 Employer Resource Center and join our LinkedIn Group

By: Timothy Sutton, Communications Editor

One of my favorite television shows is Undercover Boss. If you’re unfamiliar with the show, the premise is: a CEO/President takes on a disguise to go undercover within their own business to find ways to (1) become more successful and (2) reward hardworking employees. Obviously, there is an essential element of Hollywood magic that prevents most of us from going “undercover” within our own business; but the lessons learned from this show are no less valuable.

Every episode begins with a slightly troubled, but optimistic executive. They instruct their trusted board of directors that they will be resigning from the company to go undercover as an employee over a week’s time in various lower levels of the company, entry-level to management. The goal is to see their business from a fresh perspective. A series of uncomfortable and often illegal encounters ensue where CEOs face discrimination, harassment and even get fired by their own employees. At the end of the hour-long television program, CEOs reward key employees and have “new and improved tools” to develop successful business practices.

There is a better way for your business to experience the same fresh perspective without shaving your head and slapping on a boar’s hair mustache; it’s called an audit. Yes the feared “audit” is most commonly associated with frightful agencies like the IRS and ICE. Yet, Undercover Boss is simply Hollywood’s version of a voluntary audit. In order to become more successful, discovering discrimination, harassment, and wrongful termination within your own business is necessary. The alphabet agencies (ICE, IRS, DOJ, DOL) insist that companies perform annual audits to comply with a multitude of legal formalities. Not only will audits improve business efficiencies and reveal valuable employees, but it will also save your company thousands of dollars for failing a government ICE initiated audit.

The Immigration Compliance Group has years of auditing and consulting experience and a touch of Hollywood magic! Before you invest in your own set of wigs and costumes, contact one of our immigration professionals to discuss I-9 compliance and workforce related issues. Discover how audit prevention and a fresh set of eyes can improve your business.  Contact us for support in planning and implementing legally sound solutions to protect your company’s future:  562 612.3996 | info@immigrationcompliancegroup.com.

Link up with us in our group, I-9/E-Verify:  Smart Solutions for Employers and stay informed:   http://www.linkedin.com/groups?about=&gid=4137860

By:  Timothy Sutton, Communications Editor

In the USDOJ published decision United States v. Four Seasons Earthworks, ICE made it clear that with respect to form I-9 compliance, late is not any better than never. Four Seasons failed to pass an ICE audit that found incomplete form I-9 List A and List C information. The company asserted they obtained every employee’s social security number and maintained supporting documents (like military IDs and birth certificates) necessary to verify employment eligibility. ICE’s response was terse, “Late production nevertheless does not absolve the respondent from liability.”

Securing qualified employees can be stressful. Once a worthy recruit is hired, employers may be anxious to have the new-hire begin working even before they secure the required documentation to complete the I-9 form. Improper documentation constitutes a violation under the INA. In it’s investigation of Four Seasons Earthworks, the ICE Forensic Auditor calculated penalties based upon the following formula:

 Number of Violations divided by the total number of current & former employees up to inspection date = % of base fine

Additionally, 5% increases for bad-faith or serious violations are tacked on to penalties. The number of undocumented workers, the size of a business, and previous violations are also considerations that increase penalties.

Thankfully, an employer’s good faith attempt to comply with obligations can influence a penalty reduction. ICE views hiring violations on a continuum, recognizing violations vary in severity. If your company finds itself in a similar situation with employees who are not properly documented, hiring immigration compliance professionals may greatly reduce your chances of incurring audit-initiated penalties. Contact us for support in planning and implementing legally sound solutions to protect your company’s future:  562 612.3996 | info@immigrationcompliancegroup.com.

By:  Timothy Sutton, Communications Editor

“Homeland Security Investigations is committed to holding businesses and their managers accountable when they knowingly hire an illegal workforce,” –John Kelleghan, Special Agent in charge of HSI Philadelphia.

Homeland Security, the FBI, and ICE did much more than hold GPX/GPX, USA, a seismic surveying company and their field supervisor, Donald Wiggill, “accountable,” by charging the company with a total maximum fine of $10 million, a probation term of five years on each count, and a special assessment totaling $8,000; Wiggill faces an unconscionable indictment of 100 years in prison on all 20 counts, a fine of $5 million, a supervised release term of 60 years, and a special assessment of $2,000. The Texas based company failed to verify the immigration status of nineteen employees and did not prepare the required Form I-9 and supporting documentation concerning the immigrants’ authorization to work in the United States.

John Kelleghan of Homeland Security further justified the Philadelphia HSI decision to levy such harsh punishment for I-9 non-compliance saying, “HSI and our law enforcement partners will continue to ensure that employers follow our nation’s hiring laws, which ultimately protect job opportunities for the nation’s legal workers, and levels the playing field for those businesses that play by the rules.”

The proportionality of the punishment sought for the crime is extremely shocking. Our blog has recently covered the penalties imposed upon, HerbCo, Chipotle, and most recently ABC Tree Professionals, which pale in comparison to the punishment GPX is now facing.

GPX is being treated like a national security threat for mishandling nineteen employees Form I-9s. The difference between thousands of dollars versus millions of dollars in fines, in addition to 100 years of jail time, is the involvement of the FBI and the Homeland Security. GPX is charged with harboring and transporting illegal aliens and conspiracy to commit those offenses as outlined in an indictment by the U.S. Attorney for the Middle District of Pennsylvania, Peter J. Smith. Whether GPX was honestly aware of their employees’ immigration status is still unknown, however proper planning and implementation of I-9 compliance would have saved the company millions in civil penalties and avoided a hundred years of jail time. With the stakes elevated so tremendously high by this multi-departmental crackdown on workforce compliance –  who can afford not to get their legal documents in order?

To protect your business and your employees please contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.