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.

By:  Timothy Sutton, Communications Editor

For the Houston based ABC Professional Tree Service, Inc., firing non-compliant workers and implementing E-Verify was too little too late. Even after implementing E-Verify and firing hundreds of workers following an ICE audit in 2008, the Immigration Customs Enforcement agency of the Department of Homeland Security recently announced reaching a $2,000,000 non-prosecution agreement with ABC. Shockingly, the sum was based upon ICE’s estimation of profits ABC earned through illegal labor practices.

After four years of investigation, ICE did not release how the $2,000,000 figure was reached. However, they did release an estimate that up to 30% of the 2,500 ABC employees were illegally employed. In a press release on May 18, 2012, ICE espoused ABC knowingly employed illegal workers after receiving “no-match letters” from the Social Security Administration. Additionally, on March 4, 2010, two years after the initial audit, ICE seized records from the ABC Birmingham office through a federally issued warrant. Undocumented employees in the Alabama office and working in the field were detained.

Typically Form I-9 violations lead to heavy monetary penalties, but in this case ICE chose to cut a non-prosecutorial deal. It is unclear from the information released whether or not the $2,000,000 sum is more or less than ABC would have faced in fines? But more importantly, businesses like ABC who are subject to years of audits and investigations, despite implementing E-Verify and discharging employees, have little bargaining power. Consequently, the best defense against an ICE audit is total compliance. Employers would be wise to hire a professional consultant to train staff, organize existing documentation and manage future non-compliance issues. The Immigration Compliance Group has the experience and resources necessary to protect your business from an ICE audit.  Contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

Please see our attached brochure and contact our office to discuss your compliance needs.  Our talented staff can walk you through our customized services and solutions.

By:   Timothy Sutton, Communications Editor

State legislatures in Kansas recently voted down a bill that would mandate all employers utilize the E-verify employment verification system. The federal government currently encourages employer’s voluntary participation in E-verify under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Although there are numerous benefits to participating in E-verify, blanket mandates burden all businesses regardless of size and resources. Legislatures across the country are proposing these mandates in an attempt to target employers who wish to remain “willfully blind” to their employees immigration status. The Kansas bill proposed excluding contractors who did not participate in E-verify from bidding on government contracts valued at $50,000 and above. When the bill failed by a vote of 84-35 businesses across the state heaved a temporary sigh of relief. Kansas will likely see this bill return in the near future, as the main deterrent for passing the bill was a lack of time and resources to adjust the state budget that takes effect on July 1, 2012.

Employers should be aware that although the federal government controls immigration laws, states are currently placing additional restrictions on employers adding additional layers of compliance measures aimed at reducing illegal immigrant populations. Controversial immigration laws passed by the state of Alabama, which mandate employer’s participation in E-verify, have sparked lawsuits by the Obama administration. Various industries are hit hard by such mandates including the agricultural industry.

Numerous farmers have prepared for a significant reduction in available labor by planting crops that can utilize machines to perform the work in place of immigrant laborers. H.B. 87, which recently passed in the state of Georgia, requires that all public employers and private employers utilize E-verify in advance of securing business licenses and permits. While these mandates appear to keep employers “honest,” in their hiring practices, they come at both an economic and social cost. Businesses bear the economic burden of compliance while minority populations pay the social cost of increased racial discrimination.

Mandates create an additional layer of workplace compliance that many small businesses lack the manpower and training to adhere to. Additionally, workplace verification screening without proper guidance by attorneys or employment specialists may lead to an increase in discriminatory employment practices. In light of the growing trend of state laws mandating E-verify participation, employers are encouraged to seek trained professionals for training and education on compliance with the law. For more information contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

By Timothy Sutton, Communications Editor | Immigration Compliance Group

 Amendments to The Racketeer Influenced and Corrupt Organization Act (RICO) in 1996 expose businesses to civil liability for knowingly hiring illegal workers. RICO was originally enacted to protect businesses from the influence of the mafia by allowing private enforcement of sanctions against violators of racketeering laws. Today, if a business employs illegal workers both (1) private individuals who are directly and adversely affected by loss or depression of wages due to employment of illegal workers and (2) businesses who are proximately harmed by a direct competitors employment of illegal workers may seek monetary sanctions including attorney’s fees under RICO. Simply, if you are employing illegal workers, your legally employed workers and your direct competitors may sue you for racketeering.

In Trollinger v. Tyson Foods, Inc., legally authorized workers filed a civil RICO class action against Tyson claiming the company and its recruiters had violated the INA by entering into an illegal hiring scheme to pay illegal aliens lower wages to increase profits. The workers claimed that their own wages had been depressed by Tyson’s immigration violations. Tyson prevailed after six long years of civil litigation because the plaintiff’s failed to establish a sufficient causation of their lost wages by Tyson’s hiring of illegal workers. However, this case set out the framework for employees to bring a lawsuit against their employer for hiring illegal workers under RICO.

Because the government holds private businesses accountable for enforcing immigration laws through I-9 compliance, E-verify and various Federal statutes, workplace compliance is essential to protecting your business. Businesses, not illegal workers are held accountable for fraudulent documents, misrepresentations of citizenship, and discriminatory hiring practices.

As “gatekeepers,” of immigration enforcement, employers have a de-facto duty to prevent illegal immigrants from securing employment. To ensure that your business is prepared for RICO lawsuits, ICE audits, and OSC hiring discrimination claims, contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

Our Employer Resource Center is very informative – check it out.

We had the ICE IMAGE Training and Forum in Los Angeles last week on May 3rd where they explained the benefits of the IMAGE Program and followed up with releasing all the Powerpoint Presentations through email after the event.  They have made some excellent information available to the public on their website; namely:

1. An HSI I-9 Presentation
2. An IMAGE HSI Presentation
3. OSC IMAGE Event Presentation
4. Self Check User Presentation
5. E-Verify Presentation

We felt that their perspective on the above topics was critical information to  be shared and analyzed alongside your other resources.  They can be accessed here.

Please know that we are available to assist you with your compliance program and offer practical and sustainable services and solutions to assist you in establishing a compliant workforce.

By:  Timothy Sutton, Communications Editor

Like many successful restaurant managers, I worked my way up from the bottom of the employee food chain. That meant with each promotion from bus boy to manager, I was trained by other employees on how to do my job. By the time I became a General Manager, I erroneously believed that being a good manager meant being able to follow established procedures. I soon discovered that this was actually a recipe for disaster.

Auditioning a new waiter is a common practice in the restaurant industry. This entails observing an applicant voluntarily interacting with customers, taking orders, serving food and working with other employees. Typically, the audition ends with a free meal in exchange for the waiter’s time and parking validation if the restaurant is generous. Throughout the industry, restaurateurs believe that this practice limits their liability because the applicant has not yet become an employee in “volunteering,” their time to audition for the job.

However, the M-274 Handbook For Employers instructions on completing form I-9 (Employment Eligibility Form) classifies this practice of meals and parking reimbursement as remuneration: anything of value given in exchange of labor or services, including food or lodging. Because restaurant managers typically train one another on hiring practices, there is a perpetual false belief that auditioning waiters is a healthy hiring practice. According to the M-274, the work done in exchange for the value of a meal exposes restaurants to form I-9 non-compliance fines. Essentially, the audition becomes Day One of employment, which requires I-9 forms to be completed and retained.

If the applicant is not hired, both Section 1 and 2 of the I-9 form must be completed that same-day in order to comply with rules regarding employees retained for three-days or less. Without the proper knowledge and training on these I-9 compliance issues, managers expose their companies to thousands of dollars in fines by auditioning waiters. A successful manager goes beyond following the established procedures by having the foresight to seek professional guidance to ensure that company employment practices are in accordance with the law.

For fresh insight into how your business’s employment practices can become a recipe for success contact our office at info@immigrationcompliancegroup.com or call 562 612.3996.

Please refer to our informative Employer Resource Center for more, and here for a list of our services and solutions.

By:  Timothy Sutton, Communications Editor

HerbCo International Owner Ted Andrews, Vice President David Lykin and General Manager Debra Howard will appear in Court on May 1, 2012, charged with re-hiring nearly two dozen of the 86 workers fired after an I-9 audit by the Immigration and Customs Enforcement agency back in February of 2011. A HerbCo employee tipped off authorities about the scheme to pay these 20 illegal workers roughly $40,000 in cash, despite being fired for non-conforming I-9 forms and failing to pass E-verify background checks.

During an ICE Audit of 334 I-9 forms, it was found that 214 employees had presented fraudulent documents.  All the employees listed in the social security “no-match letter” who were still employed, 86 of them, were terminated.

Under federal law, an employer is required to verify the identity and work authorization of every employee hired. However, there are limitations on how an employer can legally seek additional verification of documents they suspect to be fraudulent.

The HerbCo executives are expected to receive a year of probation for guilty pleas to their criminal charges. Prosecutors are seeking an additional $1M in fines from HerbCo, sending an obvious message to employers that hire illegal workers.

The US Attorney’s office stated the following regarding the amount of the fine, “Within the worksite universe of either the United States or the State of Washington, the defendants’ conduct appears unremarkable only because of the sheer numbers of other culpable employers who have not been prosecuted for similar conduct. Of 20 million illegal aliens residing in the United States and 230,000 in the State of Washington, 86 were employed at Herbco on April 15, 2011.”

For more information about how to safeguard your business from a costly I-9 audit, contact our firm at info@immigrationcompliancegroup.com or call 562 612.3996.

We  link to more on this, and here also.

At a time when the prospects for immigration overhaul seem most dim, supporters have unleashed a secret weapon: a group of influential evangelical Christian leaders.

For more on this, read the story.

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If this is your first time visiting us, Immigration Solutions provides US and global visa services to individuals and employers throughout the USA and abroad.  We specialize in business immigration and have a depth of experience in the IT, healthcare, arts & entertainment sectors, amongst others.  We additionally provide employer compliance consulting services on proper I-9 (Employment Eligibility Verification) auditing, training, and work with our clients to develop compliant immigration policies and procedures.  We offer these services, as well, to government contractors and advise on FAR E-Verify enrollment and compliance issues.