A letter was shared today in the Immigration Daily newsletter, www.ilw.com pertaining to how long an employer should wait if an employee cannot resolve   an SSA No-Match issue.

This is a question commonly asked and, although the letter provides guidance relative to the 120 days provided by E-Verify to resolve tentative non-confirmations as representing a reasonable period of time, the last paragraph of the letter states:

“As stated above, OSC cannot comment on whether an employer should terminate an employee who is unable to resolve the no-match within the specified time period. To the extent however, that an employer has such a policy, OSC would advise the employer to treat all employees consistently, regardless of citizenship status or national origin.”

To view the letter.

We are dedicated to assisting our clients develop compliant workforces.  Contact Immigration Solutions us to discuss your compliance needs.  View our services and solutions here.

A story hit the news last week concerning a dispute between two electronic I-9 software providers where outsourcing I-9 software to a third party vendor was involved.  One of the parties wished to cancel its reseller agreement requesting that all I-9 data be returned to its customers.  In so doing, it was revealed that they would have to pay a rather high fee to obtain their customer’s I-9 data in a usable format.  Additionally, it was revealed that the 3^rd party provider had already been directly soliciting the other vendor’s clients to enter into a new I-9 and E-Verify service agreement.  Unable to resolve their differences, a lawsuit was filed on June 27, 2011, seeking an injunction to require the 3^rd party vendor, USVerify, to return its clients’ I-9 data in a reasonably usable and accessible format and to cease and desist from using or disclosing any confidential client information.

In light of the unraveling of this story, it brings clearly to the forefront the importance of being able to access your I-9 and E-Verify data because the employers who are customers of the vendor who is cancelling the reseller agreement, are unable to access their I-9 data at the present time. So, unless they have saved the data in another format or system, it can be assumed that if they were served with an ICE Notice of Inspection (NOI), they would not be able to comply with the NOI’s strict deadlines.

There are several I-9 software vendors in the marketplace, some good, some not.  This includes stand-alone providers that focus solely on I-9/E-Verify, in addition to “all-in-one” providers that offer electronic I-9 software that integrates with the employer’s personnel management software and employment screening/background check applications.

Apparently many all-in-one systems “outsource” the I-9 and E-Verify service to a third party vendor under a “reseller agreement.”  The reseller agreement governs the terms of use and other vital details regarding accessibility of the employer’s I-9 records. Given the rash of recent I-9 audits throughout the country, it is more important than ever for employers to very closely examine these arrangements to ensure that your best interests are protected.

It is not advisable for an employer to rely strictly on a vendor’s representations concerning their products and system compliance as these representations will not protect or insulate you from liability. Employers must undertake independent due diligence to ensure the system they choose complies with the applicable regulations.

If you are using a background screening provider, applicant tracking system, or all-in-one solution, it is imperative that you perform due diligence to ensure they you will have unrestricted access to your I-9 and E-Verify data, especially in the event the reseller agreement is terminated or if the you wish to terminate the agreement with your vendor.

We would recommend asking the following questions:

• Who owns the I-9 E-Verify data under the terms of the agreement?
• Can the employer request a backup of the electronic I-9 and E-Verify data at no or little cost?
• How often can the employer request such a backup and in what format will it be delivered?
• What happens if the vendor closes shop or decides to assign the data to another provider?

Lastly, we remind you that there are specific regulatory electronic I-9 requirements that affect almost every aspect of a vendor’s system and relationship.  These requirements are often confusing and unclear, and you should be encouraged to discuss these issues with experienced immigration counsel to ensure that your I-9 electronic system is compliant with enforcing agencies in all respects.

The American Immigration Attorneys Association (AILA) published an excellent article on the Minimum Requirements for Electronic Verification.  View article

Contact our office should you have any concerns that you’d like to discuss concerning this issue.

With a 2nd wave this year of Notices of Inspection (NOI’s) sent to employers across the country, and I-9 administrative audits being ICE’s driving force in determining whether an employer is adhering to employment laws –  it is a costly mistake for employers to presume that they can fly under ICE’s radar.  An ICE investigation can be triggered at any time by SSA No-Match letters, a tip from a disgruntled employee, a terminated employee, a customer, a competitor, or other “concerned citizens.”

With the above being said, we thought this would be a good time to review exactly what takes place when an employer is served with an NOI – starting with immediately contacting an attorney that specializes in employer compliance matters. Not all immigration or corporate attorneys do…so do your homework, or just call us.

Employers are allowed by law 3 days notice to respond by producing the I-9 records and other requested information.

The administrative inspection process is initiated by the service of a Notice of Inspection (NOI) upon an employer compelling the production of Forms I-9. Often, ICE will request the employer provide supporting documentation (an invasive Document Subpoena), which may include requests for a copy of your I-9 Compliance Policy, Employee Roster, copies of Payroll Summaries, I-9 forms for current and terminated employees, Quarterly Wage and Hour Reports, SSA Mismatch correspondence,   E-Verify and/or SSNVS documents, Articles of Incorporation, and business licenses.

ICE agents or auditors then conduct an inspection of the Forms I-9 for compliance. When technical or procedural violations are found, pursuant to regulations at INA §274A(b)(6)(B) (8 U.S.C. § 1324a(b)(6)(B)), an employer is given ten (10) business days to make corrections. An employer may receive a monetary fine for all substantive and uncorrected technical violations. Employers determined to have knowingly hired or continued to employ unauthorized workers will be required to cease the unlawful activity, may be fined, and in certain situations may be prosecuted criminally. Additionally, an employer found to have knowingly hired or continued to employ unauthorized workers may be subject to debarment by ICE, meaning that the employer will be prevented from participating in future federal contracts and from receiving other government benefits.

Monetary penalties for knowingly hiring and continuing to employ violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end. Penalties for substantive violations, which includes failing to produce a Form I-9, range from $110 to $1,100 per violation. In determining penalty amounts, ICE considers the size of the business, good faith effort to comply, seriousness of violations, whether the violation involved unauthorized workers, and history of previous violations, amongst other factors.

ICE will notify the audited party, in writing, of the results of the inspection once completed. The following are the most common notices:

Notice of Inspection Results – also known as a “compliance letters,” used to notify a business that they were found to be in compliance.

Notice of Suspect Documents – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has determined that the employee is unauthorized to work and advises the employer of the possible criminal and civil penalties for continuing to employ this individual. ICE provides the employer and employee an opportunity to present additional documentation to demonstrate work authorization if they believe the finding is in error.

Notice of Discrepancies – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has been unable to determine their work eligibility. The employer should provide the employee with a copy of the notice, and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility.

Notice of Technical or Procedural Failures – identifies technical violations identified during the audit and gives the employer 10 business days to correct the forms. After 10 business days, uncorrected technical and procedural failures will become substantive violations.

Warning Notice – issued in circumstances where substantive verification violations were identified but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer.

Notice of Intent to Fine (NIF) – may be issued for substantive, uncorrected technical, knowingly hire and continuing to employ violations.

We’d like to close with emphasizing the importance of creating an I-9 compliance policy that is integrated with your overall personnel policy.  A comprehensive written policy will help establish guidelines for all employees to follow, will establish good-faith efforts towards compliance, and potentially could mitigate penalties.  A company should also designate an overall I-9 compliance administrator. To ensure consistency, designate one person who is charged with centralized oversight, management, and training of the company’s compliance program.  To provide guidance to hiring managers about I-9 procedures, managers should know who must complete Form I-9; when and how to conduct verification; what permissibly may be asked prior to the actual hiring; what limits may be placed on hiring of certain individuals; what, how, and for how long I-9 records should be maintained.

.. We link to an inspection process chart that is a good illustration of the various steps in the NOI process

.. We also link to a copy of an ICE NOI and a Document Subpoena

.. For a list of I-9 Technical and Substantive Violations

We work with our clients to create compliant workforces, and now is the time to be proactive if you absolutely know that you have problems with your I-9 forms; and, by the way, most employers do.  We encourage you to be proactive and take action now before you pay the high price of being put in a position where your options have considerably diminished.

We are happy to hear from you and are very flexible with our package of compliance services and solutions.  Our talented team is read to assist you with whatever you’d like to accomplish with your compliance program.  Visit our I-9 Resource Center here

In our June Newsletter we cover what’s new in employer compliance:  New I-9 Employer Handbook, new Q&A for I-9 and E-Verify, the new E-Verify RIDE interface and other information to assist you with staying current and developing a compliant workforce.

For more information regarding our services, please contact our office, 562 612.3996 or via email at info@immigrationsolution.net.

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

Podcast-5-4-11.mp3

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

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

Yesterday, USCIS made the announcement that  a final rule was released that reflects changes made to the I-9 Form process over 2 years ago by DHS.  The changes were rolled out in April 2009 which included, amongst other changes, no longer accepting expired documents for identity and employment authorization.

Two years out from this ruling, there is still much confusion concerning the world’s most complicated 1-page form!  We hope that when USCIS does finally release the new website “I-9 Central,” that is will truly do what they are claiming it will – and that it to provide employers with additional clear & concise guidance and tools to become I-9 compliant.  In the meantime, we link to the FAQs regarding the final rule here, and link to additional I-9 employer resources here.

The employer will receive a SSA TNC when the:

1. Name, SS# or date of birth is incorrect in SSA records
2. Name change was not reported to SSA
3. Citizenship or immigration status was not updated with SSA
4. SS record contains another type of error

The employer will receive a DHS TNC when the:

1. Name, A# and/or I-94 number are incorrect in DHS records
2. Information was not updated in the employee’s DHS records
3. Citizenship or immigration status changed
4. Record contains another type of error
5. ID photograph differs from the photograph in DHS records

• The employer informs the employee and prints and reviews the TNC
• The employee chooses to “contest” or “not contest” the TNC
• Refer the employee to the appropriate agency if the TNC is contested
• The employee has 8 Federal Government workdays from the date of referral to visit or call the appropriate agency to resolve the discrepancy.
• Employee continues to work while the case is being resolved
• Once resolved, they should inform the employer
• With both a SSA TNC and a DHS TNC, a response is electronically sent to the employer through the system.  The employer should check E-Verify periodically for the response

TNC Case Resolution

• The employer will receive one of three results:

Employment Authorized |  Final Non-confirmation  |  Review/Update Employee Data then Resubmit

At least two dozen employees were arrested March 4th after deputies raided four Pei Wei restaurants and its corporate headquarters in Scottsdale.  Maricopa County Sheriff Joe Arpaio had warrants for 120 employees who were suspected of identity theft.

Just how bad can it get?  Unfortunately pretty bad.  At the corporate headquarters, boxes of documents and computer databases were seized.  Arpaio said the investigation began in June 2010 after the sheriff’s office received a tip that several employees were illegal immigrants.  The investigation showed that most of the victims whose identities may have been stolen live out of state; eight of them are children under the age of 12 and four of them are dead.

Arpaio stated, “That’s one thing that makes this operation unusual. People apparently are fed up with the ID theft problem and the problems ID theft causes and are willing to help law enforcement to ensure the successful prosecution of this kind of crime.”

Pei Wei Asian Diners are operated by publicly held P.F. Chang’s China Bistro Inc   P.F. Chang’s operates about 170 Pei Wei locations nationwide and more than 200 P.F. Chang’s China Bistros.

It is estimated that a Pei Wei restaurant can generate up to $2 mil/year in sales.  The prolonged closure of a number of locations is costing the company a significant amount of money and the media coverage is tremendously damaging including a loss of prestige and community standing.

The case at hand teaches a lesson about the E-Verify program, in that using E-Verify doesn’t insulate an employer against penalties and doesn’t provide a safe harbor against worksite enforcement. This is a wake-up call to anyone who thinks E-Verify is an effective remedy to stop identity fraud.  E-Verify doesn’t have the proper protections and safeguards in place for detecting it.

Secondly, if you own and operate a chain of restaurants, it’s time to be proactive and get your I-9’s in order and secure the services of a 3^rd party audit team who are skilled in handling employer compliance issues.  You must carefully review your systems and procedures around I-9 processing and management at all of your locations, particularly if you are a multi-site employer – including corporate headquarters.

For more on this story.

Bloomberg News on 1/27/2011 released the findings of its report on a proposal to require every U.S. employer to use E-Verify to confirm the legal status of all new hires.  The report  revealed that businesses with less than 500 employees would undoubtedly bear the greatest burden, spending about $2.6 billion a year to use the government’s “free” web-based program, compared with less than $100 million for the 4% that used it in 2010.

A study conducted in December 2010 by Westat that was commissioned by the government as part of a multi-year evaluation of the E-Verify program represents the result of their 2009 findings of a nationwide survey of 511 respondents that encompassed nonusers (companies that have never signed a Memorandum of Understanding) to participate in E-Verify, focus groups of nonusers, surveys of users, and interviews with employees that received TNC’s (Tentative Non-Confirmations).

The primary finding of the survey and the principal barrier to participation in E-Verify appears to be a lack of awareness of the Program. Among the case study participants, 63 percent were not familiar with E-Verify. Case study participants were often positive about the characteristics of E-Verify, and among the 101 who answered a question concerning their future plans, 23 percent definitely planned to participate in E-Verify in the future (while 32 percent would not participate unless mandated to do so).

For those employers who have heard of E-Verify, the information often came from professional associations, media outlets and government materials or publications.

The other primary reasons for not participating were not perceiving a benefit from participating, and thinking it would be too costly or time-consuming to participate.  The perception of burden is based in part on employers’ negative experiences with other government Internet-based programs (such as the Social Security Administration/Business Services Online Website).

Large employers were much more likely to be familiar with E-Verify than small employers. A majority of large employers in the case study (56 percent) were familiar with E-Verify, compared with 29 percent of medium-sized employers and 17 percent of small employers.

The case study participants supported many program changes to E-Verify, with the most popular including the increased use of technology to identify fraudulent documents and to verify identity, allowing a formal appeal by an employer and/or employee of a final case finding, and allowing verification of job applicants before a job decision is made.

Some participants who decided not to use the program did so because they did not perceive any benefit in using it compared to the cost, the manpower, training and the logistics required to use the program.  Others were not using it because they felt that it was a government priority rather than a business priority.  Some felt that it wasn’t their responsibility to control illegal immigration and that it should be the government’s responsibility.

One insightful response came from a business owner who stated, “Hold me, personally, and my company harmless from any loopholes in the system that become exploited by the undocumented population . . . bottom line . . . I don’t want to make the 5 o’clock news by complying with a broken system.”

In summary, E-Verify is not perfect – it doesn’t identify identity theft issues, but it is immigration compliance best practice and should carefully be considered and the pro’s and con’s discussed with an immigration attorney that is informed and specializes in employer compliance issues prior to enrollment.

We link to the Westat Study here.  More on E-Verify Strengths and Weaknesses

We link to our I-9 Employer Compliance Resource Center here.

February 16, 2011, Brett Dreyer, Chief of the Worksite Enforcement, Unit of Homeland Security Investigations, verified on 2/16/2011 that ICE continues to focus its investigations both on businesses that were brought to their attention by tips and leads, and on those that work in areas of national security and critical infrastructure. Mr. Dreyer further confirmed: “The agency continues to be interested in egregious employers as they tend to break other laws in addition to immigration…including paying employees under the table, avoiding taxes and ignoring employee protections. The inspections will touch on employers of all sizes and in every state in the nation — no one industry is being targeted nor is any one industry immune from scrutiny.”

Confirmation has been publicized that NOI’s were indeed served throughout the USA on February 17^th.  The audits are expected to be completed within the next 2-3 months. We link here for more on this story.

This is a good time to review what you should do if you are served with a Notice of Inspection (NOI):

• Immediately contact Immigration Solutions and company management
• Employers are allowed by law 3 days notice to respond by producing the I-9 records of their active as well as terminated employees within a particular period of time

The NOI will be most probably be accompanied by a very invasive Document Subpoena that might ask for all of some of the below items:  

• A copy of your I-9 Policy and Procedures Statement or Manual
• I-9 forms for current employees hired after 11/6/1986
• I-9 forms for terminated employees within the required retention period
• Complete employee lists of current and terminated employees
• Quarterly Wage and hour reports
• Payroll Summaries
• SSA Mismatch correspondence
• E-Verify and/or SSNVS documents
• Business information such as:  Employer ID number, owner’s SSN/address, business license, etc.

We work with our clients to create compliant workforces, and now is the time to be proactive if you absolutely know that you have problems with your I-9 forms; and, by the way, most employers do.  We encourage you to be proactive and take action now before you pay the high price of being put in a position where your options have diminished.

We are happy to hear from you and are very flexible with our package of compliance services and solutions.  Our talented team is read to assist you with whatever you’d like to accomplish with your compliance programs.  Visit our I-9 Resource Center here.