Welcome to our July 2011 I-9/E-Verify newsletter ~~

For those of you who are new readers, at Immigration Compliance Group, we partner with employers and their representatives to determine whether existing corporate compliance policies meet best practices according to U.S. immigration law and related federal regulations. We conduct onsite and offsite I-9 audits for companies of all sizes, design custom training programs to assure that staff is knowledgeable concerning the processing and 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. We additionally provide US and Canadian immigration services for business and individual related immigration matters, and specialize in complex business visas for investors, multinational managers, and outstanding individuals in the areas of Information Technology, Healthcare, the Sciences, Business, Arts & Entertainment, and PERM Labor Certification.

We invite you to subscribe to our free information: Blog, News, Client Alerts and our Podcasts, please sign up here. Check out our I-9 Employer Resource Center and follow us daily on Twitter and LinkedIn

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I-9 audits today are the key driving force of the Agency’s efforts in determining whether businesses are violating U.S. employment laws by hiring unauthorized workers. It has been reported that this latest wave of I-9 inspection notices to employers brings the total number of ICE I-9 audits to 2,338 for this year.  This exceeds their record-breaking audit total from 2010 of 2,196.  Average audit fines appear to be exceeding $110,000.

“The inspections will touch on employers of all sizes and in every state in the nation, with an emphasis on businesses related to critical infrastructure and key resources,” ICE spokeswoman Gillian Christensen said in a statement.

Although ICE has not disclosed the names of the companies being targeted, they do include both large and small businesses in some 17 business sectors, including garment, construction, agriculture, food production, fast food chains, hospitality and financial services industries, as well as IT, healthcare, transportation, postal, shipping and freight, commercial nuclear reactors, drinking water and water treatment facilities.

Article continues here on our Blog.

Other related media:

• Wall Street Journal
• Politico

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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 entirely 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.

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Building on changes made in June 2010 to enhance the E-Verify web interface’s usability, security, accuracy and efficiency, U.S. Citizenship and Immigration Services (USCIS) recently announced further improvements, including:

• the ability to verify applicants’ driver’s license information;
• less strict entry requirements for U.S. passport and visa number information;
• improved messages that guide employers towards creating qualifying passwords;
• upgrades to the user registration process concerning additional users;
• the ability to select a future hire date;
• a “help” icon linking to instructions and information;
• an upgraded “case details” screen, making it easier to locate detailed case information;
• interface enhancements, e.g., sorting client companies alphabetically, to increase the efficiency of the case creation process for E-Verify employer agent users.

An employer’s existing user ID and password remain valid, and all pre-update case information will be available upon login. However, upon the first login to the enhanced website, users will be required to take a short tutorial to learn about the changes.

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• More Silent Raids on Employers
• The Facts about Mandatory E-Verify
• Video on Mandatory E-Verify
• Dairy Farmers fined $2.7 Million
• Farmland Foods: Discrimination in Hiring
• Egg Processor fires 1/3 of its workforce for failing to provide proper documentation
• Maricopa Community College District: Justice Department Settles Allegations of Immigration-Related Employment Discrimination
• Justice Dept files suit against Farmland Foods
• The ICE brochure on IMAGE (please consult with a qualified compliance attorney prior to signing up for IMAGE)
• ICE Letter to Employers re IMAGE

Should you wish to know more about our services or to become a client of our office, please contact us at info@immigrationcompliancegroup.com or call us at 562 612.3996.

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Disclaimer/Reminder: This newsletter does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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Copyright © 2011 Immigration Compliance Group.