One of the most important questions in the mind of both employer and employee is:  What if information about the employee is wrong – can they fix inaccurate information about themselves in E-Verify?

If E-Verify is unable to automatically verify an individual’s status in order to authorize employment, a Status Verifier will manually review the information and conduct searches of other Federal government databases and, where necessary, will update any underlying information contained within the various DHS databases queried.  After a result is returned on an employment authorization query, E-Verify provides two methods of information correction and redress for employees.  If an employee receives a Tentative Non Confirmation, or TNC, they may correct their information through the Social Security Administration (SSA) or DHS.

After the verification process is complete, individuals have the opportunity to access and correct their information through the Freedom of Information Act (FOIA) or Privacy Act (PA) process.

We link to more E-Verify Privacy FAQs and our I-9 Employer Resource Center

Immigration Compliance Group specializes in business immigration and employer compliance matters related to audits, training and policy development.

The OSC has provided a valuable resource in sharing their letter responses to various employment eligibility verification compliance inquiries from stakeholders. The topics include: Non-Discrimination Practices, Pre-Employment Inquiries, Form I-9  Document Abuse, SS No-Match Letters, Dishonesty/Falsification Issues, using acceptable language for job postings, and much more.

Here are a few citations:

Re:  Question Concerning Re-Verifying Work Authorization when Discrepancies with SS are Discovered: “An employer is only under a duty to investigate further if it knows or has knowledge that would lead a reasonable person to believe that an individual is not authorized to work in the United States.  There are many possible reasons for why an employee’s name and Social Security number may not match.  Therefore, employers should not draw conclusions about an employee’s work authorization status based solely on information indicating that the employee’s name and Social Security number cannot be found in a system of records-whether the records are directly managed by the Social Security Administration or any other private or public entity. Furthermore, the mere receipt of a no-match letter or other no-match notice does not, standing alone, constitute ‘constructive knowledge’ on the part of an employer that the referenced employee is not work authorized. Only the Department of Homeland Security (DHS) is legally authorized to conclusively determine an individual’s authorization to work.  OSC also cautions employers against providing an unreasonably short period of time to clear up a Social Security no-match…” It it strongly recommended that you consult with a qualified attorney in employment-related immigration law before jumping to any conclusions that might possibly escalate into a very unpleasant scenario for all parties concerned.

Question re Modifying the List of I-9 Acceptable Documents:  “Document abuse occurs when an employer either demands that a worker produce more or different documents than those identified in the Form 1-9 process, or refuses to honor documents tendered that on their face reasonably appear to be genuine, based on national origin or citizenship status.  To the extent that an employee either inadvertently or mistakenly indicates an incorrect immigration status in Section 1 of the Form 1-9, the limitation of documents in Section 2 may prevent that employee from presenting valid documents) acceptable for 1-9 purposes. Similarly, if the list excludes one or more documents that an employee of a particular status may possess, the limitation of documents may also prevent that employee from presenting his or her valid documents) acceptable for 1-9 purposes.”  We caution you to discuss issues such as this with experienced counsel in employment-related immigration matters before action is taken.

We trust that you will find this information useful as it relates to the enforcement of the anti-discrimination provision of the INA. Please check out a list of our compliance  services and solutions. Please be reminded that we invite you to contact our office with your employment-related immigration matters (I-9 audits, training, policy development and more).

About the OSC:  The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provision (§ 274B) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b.  his federal law prohibits: 1) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee, 2) national origin discrimination in hiring, firing, or recruitment or referral for a fee, 3) document abuse (unfair documentary practices during the employment eligibility verification, Form I-9, process, and 4) retaliation or intimidation.

In a transcript released today of ICE Director John Morton’s testimony before the House Committee on Appropriations, Subcommittee on Homeland Security Hearing on The President’s Fiscal Year 2013 budget request for ICE, the message was clear….ICE intends to keep the pressure on employers with a continued focus on I-9 audits this year, as stated below in his statement concerning worksite enforcement:

“We are focused on smart and effective enforcement of our immigration laws, including making sure that employers have the tools they need to maintain a legal workforce and face penalties if they knowingly violate the law.

Employment opportunities remain a primary motivation for aliens seeking illegal entry into the United States. By focusing on employers that are willing to hire illegal workers, we can eliminate the incentive that leads illegal aliens to violate our nation’s immigration laws. Since January 2009, ICE has audited more than 6,468 employers suspected of hiring illegal labor, debarred 521 companies and individuals, and imposed more than $76.4 million in financial sanctions. This focus will continue this coming fiscal year.

We have also established the ICE Mutual Agreement between Government and Employers program (IMAGE) — designed to promote voluntary compliance, educate employers about best practices and help companies train their employees to comply with the nation’s immigration-related employment laws. Last year, ICE entered into IMAGE agreements with well-known companies, including Chick-fil-A, Smoothie King, Best Western, Toyota, Tysons Food, and Kelly Services, among others. These companies agree to use E-Verify, conduct self-audits, and submit to an ICE audit. In FY 2013, ICE will continue to expand IMAGE outreach nationwide and provide regional and local IMAGE training conferences to increase voluntary compliance among key employers.”

This information should come as no surprise to our readership, who are very well informed.  We would, however, like to remind you that a good faith effort is the primary consideration by ICE when determining final penalties in their worksite audits and investigations. To establish a good faith effort, have an outside audit performed by an experienced professional to determine what problems you really have; correct your paperwork, get everyone properly trained; create a written SOP statement to get everyone on the same page and enlisted in the process of maintaining a compliant workforce; enrolling in E-Verify is also recommended.

We invite you to contact our firm regarding any compliance questions/issues that you have, 562 612.3996, or by email, info@immigrationcompliancegroup.com.  Check out our Employer Resource Center at www.I-9Audits.com, and our list of services and solutions.

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.

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.

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.

OSC is conducting a free, live webinar series on Worksite Discrimination. If you’re a worker or worker advocate, they have a monthly worker/advocate track webinar. Employers/HR professionals are invited to join their monthly  OSC Employer Training webinar.  The webinars are conducted live from OSC’s headquarters in Washington, DC.   You might want to check this out.

Here is a link to the OSC Powerpoint used in today’s Employer Worksite Discrimination Webinar.  It was a very informative and well done presentation.

Should you wish to discuss how best to implement policies and procedures that will enhance your compliance program, we’d be glad to hear from you:  info@immigrationcompliancegroup.com or 562 612.3996.

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.

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.