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Posts Tagged ‘E-Verify’
Tuesday, June 7th, 2011
Yesterday, the Supreme Court of the United States vacated an order ruling unconstitutional the Illegal Immigration Relief Act ordinance of Hazelton, Pennsylvania. At issue is the local law that would penalize landlords who knowingly or with reckless disregard rent to an “illegal alien”, which is defined as “an alien who is not lawfully present in the United States” according to federal law. Separate provisions penalize employers hiring aliens without work authorization.
The Court remanded the case to the Third Circuit for further consideration in light of its rationale in Chamber of Commerce of the United States v. Whiting. As we mentioned last month, the Court’s ruling in Whiting will have nationwide effects and may lead to varying state law approaches to immigration-related laws and penalties.
It is important to note, however, that while the law at issue in Whiting and that enacted by Hazleton have some similarities, the Supreme Court has only upheld non-federal laws dealing with employment eligibility and the corresponding penalties for noncompliance. It remains to be seen how the Third Circuit will reconsider the legal issues presented by the Hazelton ordinance.
Tags: E-Verify, Hot Questions, immigration reform
Posted in Hot Questions, News & Politics | Click Here To Comment »
Thursday, May 26th, 2011
The U.S. Supreme Court today issued an opinion upholding the “Legal Arizona Workers Act” which mandates private employers’ use of E-Verify and supplies state-law sanctions against those who knowingly or intentionally employ aliens without work authorization.
The decision has far-reaching effects outside of Arizona. By upholding the law, the Supreme Court has cleared the way for 50 different state laws regarding employment eligibility verification and the penalties for noncompliance. As such, employers need to be aware of the laws in their state when hiring new personnel. For further information regarding E-Verify, visit our Worksite Compliance web site. Contact your Klasko Law attorney if you have specific questions regarding employment eligibility verification for your company or organization.
Tags: E-Verify, Hot Questions, I-9, I-9 Compliance, Immigration Compliance, Labor, Worksite Compliance, Worksite Enforcement
Posted in Agency Updates, Hot Questions, News & Politics, Worksite Enforcement | Click Here To Comment »
Monday, November 1st, 2010
As further evidence of increased enforcement efforts by the Department of Justice (“DOJ”), its Office of Special Counsel for Unfair Immigration-Related Employment Practices (“OSC”) has just announced that it reached a the settlement agreement with Catholic Healthcare West (CHW) to resolve allegations that it discriminated against non-US citizens by requiring them to provide more documentation of work authorization than is required for the purposes of the Form I-9. This type of violation is often referred to as document abuse, a violation of the Immigration and Nationality Act (INA) which prohibits employers from imposing different or greater employment-eligibility verification (I-9) standards on the basis of a worker’s citizenship status.
Under the terms of the settlement, CHW has agreed to pay $257 ,000 in civil penalties as well as $1,000 in back pay to the charging party. The OSC reported that this is largest amount of civil penalties ever paid to resolve such allegations. Nor do the fines and the potential for additional back-pay end there. As part of the agreement, CHW has also agreed to complete a review (conducted by employees who are independent of the routine I-9 process) of I-9s for all non-US citizens and naturalized citizens hired at all CHW hospitals and medical centers to identify each instance of over-documentation and whether employees suffered lost wages due to the document abuse. CHW agreed to issue progress reports on the review every 60 days and to provide back pay to make whole any employees who suffered lost wages as a result of document abuse within 10 days of the report. CHW also agreed to provide to OSC full documentation relating to the review as well as a final report to be reviewed by OSC to determine whether CHW was in full compliance. CHW also agreed to implement a detailed system-wide written policy describing nondiscriminatory employment eligibility verification procedures and to conduct I-9 training with annual updates.
Such actions by OSC against employers—including Universities and Hospitals—are not new. As the US Immigration and Customs Enforcement (ICE) has stepped up I-9 audits, so has OSC increased enforcement of antidiscrimination rules as they relate to the I-9 process. As previously reported, for example, OSC recently filed suit alleging that John Jay College (“John Jay”) discriminated against non-US citizens by requiring them to provide more documentation of work authorization than is required for the purposes of the Form I-9. That lawsuit alleges that John Jay engaged in a pattern and practice of discrimination, as at least 103 other people were also required to provide documentation beyond what was required and it seeks penalties of $1100 for each individual, in addition to compensation for each person who was impacted by the alleged discriminatory practice. Indeed, as we discussed previously, OSC also entered into an agreement with United States Citizenship and Immigration Services (“USCIS”) to share E-Verify information. Specifically, under the agreement, the USCIS will share data obtained from queries run through E-Verify with OSC, which will allow OSC to identify potential violations of the anti-discrimination provisions of the Immigration and Nationality Act. USCIS will also provide employer information to OSC, as necessary, when employers have engaged in potential misuse or abuse of E-Verify.
In light of these recent OSC enforcement actions, and the recent information sharing agreement, it is clear that the issue of discrimination in employment verification is a focus of both USCIS and DOJ. Employers should discuss I-9 compliance with experienced legal counsel and take all steps to ensure that employees responsible for I-9 completion are aware of the anti-discrimination provisions of the Immigration and Nationality Act. These steps include not only training employees on the “nuts and bolts” of these processes, but also training related to potential discrimination claims.
For more information, contact Elise Fialkowski at Efialkowski@klaskolaw.com
Tags: Agency Updates, discrimination, DOJ Office of Special Counsel, E-Verify, Government Investigations, I-9, I-9 Compliance, Immigration Compliance, Worksite Compliance, Worksite Enforcement
Posted in Agency Updates | Click Here To Comment »
Sunday, October 31st, 2010
This month, Department of Homeland Security (DHS) Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Director John Morton announced that ICE’s worksite enforcement numbers have climbed to historic highs with record breaking numbers of I-9 audits, fines and increased criminal prosecution of employers.
ICE announced that since January 2009, it has conducted I-9 audits of more than 3,200 US employers, more than ever before. By comparison, in fiscal year 2009—itself a banner year for I-9 audits–ICE conducted approximately 1400 audits. The audits conducted since January 2009 also resulted in record breaking penalties–ICE debarred 225 companies and individuals from doing business with the federal government and imposed approximately $50 million in sanctions for worksite enforcement violations. The increase in audits and sanctions is dramatic–ICE explained that the figures for just this year are higher than the total amount of audits and debarments for the entire Bush administration.
ICE also actively pursued criminal enforcement of employers–in fiscal year 2010, ICE charged 180 business owners, employers, managers, or supervisors with hiring illegal aliens, up from 135 in fiscal 2008 and 114 in fiscal 2009.
ICE pledged to continue aggressive enforcement against employers stating “enforcing worksite laws not only promotes fairness in the workplace, but it also substantially reduces the incentive for aliens to enter the United States illegally.”
These record breaking numbers reflect implementation of a new worksite enforcement strategy first announced by the Obama administration in April 2009. Rather than large scale raids, the new focus is on employers. As part of this strategy, ICE identified I-9 audits as an important administrative tool in building criminal cases, issuing civil penalties such as fines and bringing employers into compliance with the law. Not only will ICE use traditional criminal enforcement methods, but the guidance to the field emphasizes that administrative tools will be used “to advance criminal cases, and in the absence of criminal charges, to support the imposition of civil fines and other available penalties.” Indeed, the guidance makes clear that the “the most important administrative tool is the Notice of Inspection (NOI) and the resulting Form I-9 audit” as it will not only support the imposition of civil fines and other available penalties, but it “will often serve as an important first step in the criminal investigation and prosecution of employers.”
Consistent with this use of I-9 audits as the key administrative tool, ICE announced a nationwide initiative to audit employers’ Form I-9 employment eligibility verification records. As part of this initiative, in the first week of July 2009 alone, ICE issued Notices of Inspection (NOI) to over 650 employers across the country. In comparison, only 503 Notices of Inspection were issued in all of fiscal year 2008. As explained in earlier postings, ICE continued such widespread audits throughout the year, ultimately resulting in over 3200 audits. This widespread enforcement initiative is much different than any in the past. In the past, initiatives often focused on the most likely offenders—employers in industries such as meat-packing, construction, landscaping and manufacturing—commonly believed to regularly hire unauthorized workers. While these businesses were included within the I-9 audits, the reach was much broader to include a wide variety of businesses throughout the entire country. The message is clear—no employer is safe from an I-9 audit and investigation.
In order to avoid potential liability, employers are well advised to develop and implement detailed I-9 policies and practices. ICE recommends that employers, at a minimum, establish an internal training program, with annual updates, on how to manage completion of Form I-9 and how to detect fraudulent use of documents in the I-9 process; permit the I-9 and any E-Verify process to be conducted only by individuals who have received training; and include a review of the completed I-9 and documents by a second person as part of each employee’s verification to minimize the potential for a single individual to subvert the process. Regular audits–conducted before ICE comes knocking on the door– are also key to obtain compliance and limit liability.
For more information, contact Elise Fialkowski at Efialkowski@klaskolaw.com
Tags: E-Verify, Government Investigations, I-9, I-9 Compliance, ICE, Immigration Compliance, Notice of Inspection, Worksite Compliance, Worksite Enforcement
Posted in Agency Updates, News & Politics, Worksite Enforcement | Click Here To Comment »
Friday, August 20th, 2010
On July 30, 2010, Elise Fialkowski, partner at Klasko, Rulon, Stock & Seltzer, LLP, published an article entitled, “Pa., N.J. Move Forward With E-Verify; Feds Step Up Enforcement” in The Legal Intelligencer. In her article, Elise discusses recent legislation introduced into the Pennsylvania and New Jersey legislatures that, if passed, would require employers in those states to use E-Verify. The article also discussed Immigration & Customs Enforcement’s (ICE) plan for increased I-9 enforcement. You can view a complete copy of the article published in The Legal Intelligencer here.
Tags: E-Verify, I-9 Compliance, Worksite Compliance
Posted in Worksite Enforcement | Click Here To Comment »
Friday, April 30th, 2010
The United States Citizenship and Immigration Service (“USCIS”) has issued a revised list of questions and answers on the Federal Acquisition Regulation (FAR) final rule on E-Verify. The FAQ addresses what Federal contracts are impacted by FAR, what employees are impacted by FAR, information regarding the initiation of E-Verify inquiries, how the rule impacts subcontractors and more.
E-Verify is a free, Internet-based system operated by USCIS in partnership with the Social Security Administration (SSA). It allows employers to verify the employment authorization of newly hired employees. Based on the information provided by the employee on his or her Form I-9, E-Verify checks this information electronically against records contained in USCIS and SSA databases.
On June 11, 2008, President George W. Bush amended Executive Order 12989 to direct all Federal departments and agencies to require Federal contractors with a Federal contract that contains the FAR E-Verify clause, to use E-Verify to verify the employment eligibility of employees performing work under a qualifying Federal contract. On November 14, 2008, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council published the FAR final rule.
For more information on E-Verify and FAR please visit our website www.worksite-compliance.com or contact a Klasko Law attorney.
Tags: E-Verify, Federal Contractors, Worksite Compliance
Posted in Agency Updates, Hot Questions, Worksite Enforcement | Click Here To Comment »
Thursday, April 29th, 2010
On April 23, Governor Jan Brewer signed the harshest state immigration law to date. The Support Law Enforcement and Safe Neighborhoods Act is slated to go into effect on or about August 24 (90 days after the legislature goes into recess, currently scheduled to occur on May 26, 2010).
The new law requires police to determine whether a person is in the United States legally. It also requires immigrants to carry their alien registration documents at all times and requires police to question people if there is reason to suspect they’re in the United States illegally.
Critics of the law have stated that it is unconstitutional and will foster racial profiling. The most controversial provisions of the law include the requirement that police detain individuals they reasonably suspect are in the United States without authorization. The law makes failing to carry immigration documents a state crime and allows residents to sue cities if the believe the law is not being enforced. Moreover, the law aims to stop day labor solicitations by making it illegal to seek work from a road or sidewalk if doing so slows or impedes traffic. It also makes it a crime for a driver to pick someone up if the driver knows or recklessly disregards the fact that the alien is in the U.S. illegally.
The bill further amends the E-Verify provisions of the Legal Arizona Workers Act to require that employers keep a record of the work eligibility verification for all new hires for the duration of the employee’s employment or at least three years, whichever is longer. Interestingly, there is no such retention requirement under federal law for employers who participate in the E-Verify program. Although, federal immigration law requires that all employers maintain their Form I-9, employment eligibility verification forms for three years after the date of hire, or one year after the date employment ends, whichever is later. Thus, employers in Arizona will now be subject to two different retention requirements related to their employment eligibility documentation.
MALDEF, the American Civil Liberties Union, the ACLU of Arizona and the National Immigration Law Center announced today that they are preparing to challenge Arizona’s extreme new law. Protests against the legislation are scheduled to take place around the country on May 1st with over 100,000 people anticipated in Dallas, Texas alone. KRSS will continue to provide updates to our clients regarding the status of the legislation and the impact that this will have on the national debate relating to Comprehensive Immigration Reform.
Tags: Arizona, Comprehensive Immigration Reform, E-Verify
Posted in Hot Questions, News & Politics | Click Here To Comment »
Thursday, April 1st, 2010
The Utah and Virginia legislatures recently passed laws requiring the verification of new hires’ employment authorization by employers in those states. The Utah legislature passed the Private Employer Verification Act, although the Act currently awaits signature by the Governor before officially becoming law. This law requires private employers with 15 or more employees to verify the employment authorization of all new hires on and after July 1, 2010 through a “status verification system.” The law defines “status verification system” broadly to include E-Verify, the Social Security Number Verification System, or another similar program run by the federal government. Notably, the law exempts H-2A and H-2B workers from the verification requirement. Public employers also are exempt.
The Utah law also includes a “safe harbor” rule. If an employer unlawfully hires an alien without work authorization, the employer cannot be held civilly liable if the employer was registered with and used the status verification system, and the information received from the system indicated the employee had authorization to work in the U.S. Likewise, an employer cannot be held civilly liable if the employer refuses to hire the alien because the information from the status verification system indicated the alien was not authorized for employment by the federal government. As of March 19, 2010, the law was awaiting the governor’s signature.
Virginia also passed a law requiring the use of E-Verify. Unlike the Utah law, however, Virginia’s law only requires public employers to use E-Verify for new hires on or after December 1, 2012. Private employers in Virginia have no obligation to use E-Verify.
E-Verify is an internet-based Employment Eligibility Verification System run by United States Citizenship and Immigration Services (USCIS) that allows employers to electronically verify the employment eligibility of certain employees. To use E-Verify, an employer enters employee information from the Form I-9 into the web-based system. E-Verify then runs that information against records in the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases to confirm whether the employee is authorized to work in the United States. For more information, contact your Klasko Law attorney.
Tags: E-Verify, Worksite Enforcement
Posted in News & Politics, Worksite Enforcement | Click Here To Comment »
Wednesday, March 31st, 2010
Last week, USCIS issued a “Frequently Asked Questions” document to help federal contractors with the E-Verify process. The FAQ answered questions that arose from the E-Verify webinar sponsored by Department of Homeland Security in September 2009. The FAQ clarified setting up E-Verify accounts, employer’s responsibilities under the system, employee’s rights under the system, and the record keeping requirements for E-Verify, amongst a host of other specific questions.
On March 25, 2010, however, USCIS retracted the FAQ for federal contractors that were distributed on March 17, 2010 to webinar participants. According to USCIS, the FAQs were sent in error and that updated FAQs will be posted to the E-Verify website after DHS clarifies several points.
Under federal law that became effective June 30, 2009, federal contractors are required to participate in E-Verify. Failure to comply with the Federal Contractor Rule can result in loss of federal contracts and debarment from future federal contracts. To learn more about E-Verify, please visit our worksite enforcement website at: http://www.worksite-compliance.com/e-verify.php, or contact your Klasko Law attorney.
Tags: E-Verify, Worksite Enforcement
Posted in Worksite Enforcement | Click Here To Comment »
Friday, March 26th, 2010
In a move sure to capture the attention of employers using the E-Verify system, the United States Citizenship and Immigration Services (USCIS) has entered into a Memorandum of Agreement (“MOA”) to share information with the Civil Rights Division, Office of Special Counsel for immigration Related Unfair Employment Practices (“OSC”), which is a part of the of U.S. Department of Justice. Under the MOA, which went into effect on March 17, 2010, USCIS will share with OSC data obtained from queries run through E-Verify, which will allow OSC to identify potential violations of the anti-discrimination provisions of the Immigration and Nationality Act (“INA”). USCIS will also provide employer information to OSC, as necessary, when employers have engaged in potential misuse or abuse of E-Verify.
OSC is responsible for enforcing the anti-discrimination provisions of the INA. The types of discrimination and violations covered in these provisions include: (1) citizenship status discrimination, (2) national origin discrimination, (3) unfair documentary practices during the employment eligibility verification process (document abuse) and (4) retaliation. Under the MOA, USCIS will refer to OSC allegations involving potential discrimination resulting from employer misuse or abuse of E-Verify. OSC will analyze the information to identify potential patterns or practices of discrimination through the misuse of E-Verify, or by investigating individual claims of discrimination.
The announcement of the information sharing agreement coincides with the announcement by USCIS of two additional initiatives intended to “enhance” E-Verify. The first is the creation of an Employee Hotline, available starting on April 5, 2010, intended to address employee inquiries and complaints. The hotline will provide general information to employees about E-Verify and completing Form I-9, and will also provide an option for employees to contest an E-Verify case or file a complaint regarding possible discrimination or employer misuse of E-Verify. The second initiative was the creation of two videos, available now on dhs.gov and Youtube. The first is directed towards employers, to help them understand their responsibilities under E-Verify, while the other directed towards employees to inform them of their rights when working for employers enrolled in E-Verify.
The USCIS has indicated that the purpose behind these two initiatives, and the information sharing agreement with OSC, is to strengthen the efficiency and accuracy of the E-Verify system. The message to employers, however, is that participation in E-Verify now comes with the potential for additional scrutiny. In order to avoid a potential claim of system misuse, or discrimination, employers should take steps to ensure that employees responsible for submitting E-Verify queries on the company’s behalf understand the implications of using the system, and its requirements. Further, employers must ensure that employees responsible for verifying the eligibility of other employees understand the anti-discrimination provisions of the INA, both by providing training and by making available to those employees internal and/or external resources capable of providing assistance and advice when questions arise.
Tags: E-Verify, Worksite Compliance, Worksite Enforcement
Posted in Agency Updates, Worksite Enforcement | 1 Comment »
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