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.

Five states as of January 1, 2012 require certain employers to use the E-Verify system for employment eligibility verification of newly hired employees.  They are as follows:

Alabama: State contractors are required to e-verify new employees.  Commencing April 1, 2012, all Alabama employers will b e required to use E-Verify.  Business licenses can be suspended up to 60 days for a first violation and permanently revoked for a second violation.

Georgia:  All private employers with 500 employees or more must use E-Verify as of 01/01/2012 for all new hires.  This will expand to on July 1, 2012 for employers with 100-499 employees, and for employers with 11-99 employees as of July 1, 2013.  Contractors can be barred from bidding on public contracts for 12 months for violations. Public employers must submit annual compliance reports.

Louisiana:  All private employers seeking public contracts to provide services to a state or local public entity will be required to attest that they will use E-Verify for their new hires in Louisiana as of January 1, 2012 during the term of the contract, and the same for their subcontractors.  Penalties for violations include: up to $500 fine per worker for a first offense, up to $1,000 for a second and up to $2,500 for a third offense. After the third offense the business license can also be suspended for a minimum of 30 days and no more than 6 months. Employers using E-Verify are presumed to be in good faith and not subject to penalties.

South Carolina: All employers are required to participate in E-Verify as of 01/01/2012.  Presently, employers have had the option to hire only employees that possess or qualify for a South Carolina driver’s license (or other state license with similar strict requirements) instead of using E-Verify, but that option will expire as of 01/01/2012.

Tennessee: All private employers with 500 or more employees must either use E-Verify, or obtain and copy specified documentation of lawful status for all new hires as of January 1, 2012.  those with 200 to 499 employees on or after July 1, 2012; those with 6 to 199 employees, on or after January 1, 2013. Employers with less than 6 employees will not have to use E-verify.

For current information on state E-Verify requirements, we link here

Should you have  any questions pertaining to state E-Verify requirements, please contact our office at info@immigrationcompliancegroup.com or call 562 612.3996.

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.

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.

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

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

I-9 News:  ICE Inspection I-9 Overview

I-9 Audit Case Study:  Ketchikan Drywall Services

Important Electronic Vendor Guidance

What are Technical and Substantive Violations?

Employer Fined for Discrimination

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

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

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

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

Do you need an I-9 Audit?

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

YOU MAY BE AT RISK.

What most employers do not understand is that employment verification requirements are governed by the Immigration Reform and Control Act of 1986 (“IRCA”). The provisions of the law hold every employer in the USA responsible for verifying the identity and work authorization status of the employees that they hire. The means by which this is done is the I-9 Employment Eligibility Verification Form that every employee must fill out on the day of hire or earlier (both citizen and non-citizen).  Employers are being fined for clerical and technical mistakes and violations on their I-9 forms, whether an employee is a US citizen or non-citizen  – it makes no difference.

Penalties and Fines

The penalties for ignoring the legal requirements of the I-9 process can be quite severe, even in cases of unintentional omissions and uncorrected I-9 mistakes. Civil penalties for such errors may range from $110 to $1,100 for each affected employee.  A business with thousands of employees and multiple worksites may face a significant financial burden in noncompliance penalties.  The fines may be further increased if the Department of Homeland Security (DHS) determines that an employer knowingly hired unauthorized foreign nationals, and can range from $375 to $16,000 per violation with repeat offenders on the high end. Employers and their representatives convicted of having engaged in a pattern or practice of knowingly hiring unauthorized foreign nationals, may also face criminal charges and fines of up to $3,000 per employee and/or six months’ imprisonment.  Other federal criminal statutes may provide higher penalties in certain fraud cases.

“FINES CAN RANGE FROM $375 UP TO A MAXIMUM OF $16,000 PER VIOLATION”

Employers and individuals who commit citizenship status or national origin discrimination may be ordered to pay civil fines and attorneys’ fees. The penalties range from $375 to $3,200 for the first offense for each individual discriminated against; from $3,200 to $6,500 for the second offense; and for subsequent offenses, not less than $4,300 up to $16,000 per violation for each affected person.

How We Can Help?

Our I-9 audits can help employers:

• Become aware of the reoccurring mistakes and violations contained in their I-9 population and correct the I-9 form before the government intercedes
• Provide a confidential “Risk Assessment Report” on your overall Form I-9 program and make proactive recommendations for compliant I-9 processing and management
• Develop reasonable I-9 policies and procedures that make sense for your business

Internal training on all Form I-9 requirements and procedures including but not limited to:

• I-9 laws and regulations
• How to complete and correct the Form I-9
• Required Documents and Examination
• Re-verification of the Form I-9
• Discrimination and Penalties
• What to do if ICE comes knocking?
• Best Practices for Employer Compliance – and more

Don’t wait! Call (562) 612-3996

Or fill out the form here if you’re interested in an I-9 audit for your business or wish to inquire about other compliance services and solutions that we offer.

The initial launch of E-Verify Self Check was in March of this year. Self Check provides a free Internet portal through which individuals in the USA can check their own employment eligibility status before formally seeking employment.

Today, USCIS announced Self Check is now available in Spanish and accessible to residents in 16 additional states: California, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, Ohio, South Carolina, Texas, Utah and Washington.

From this page you can navigate to the Spanish language version, Director Mayorkas’ Press Conference and an Interactive Preview and Presentation in both English and Spanish.

We have a group on LinkedIn – check us out!

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.