Posts Tagged ‘I-9 Compliance’
Tuesday, August 14th, 2012
Human Resources personnel possessing that keen eye for detail required for properly completing Form I-9 might have taken note that the current version of the form (Rev. 08/07/09 Y) contains an Office of Management and Budget control number expiration date of August 31, 2012. Yet to date, the Department of Homeland Security has not finalized a replacement form. In an announcement made yesterday on I-9 Central, USCIS has directed all employers to continue using the current version “until further notice.”
USCIS has directed employers to continue to use the Rev. 08/07/09 Y version even after the OMB control number expiration date of August 31, 2012 has passed, signaling that a new form will probably not be available for public consumption within the next two weeks. Back in March, the government proposed changes to the I-9 and created a draft two-page document with expanded instructions, subject to notice and comment from the general public. As we await the government to review its feedback and weigh its options for revision, yesterday’s announcement clarifies that employers should continue to use the current form and follow the current instructions until a new version is finalized.
We will continue our coverage of this issue as it unfolds. In the meantime, you can head over to our Worksite Compliance web site for our coverage involving issues relating to employment of work-authorized individuals, the latest developments in I-9 audits, E-Verify, and general immigration-related employment guidance.
If you have any questions regarding your company’s Form I-9 procedures, contact your Klasko Law attorney for specific guidance.
Thursday, August 9th, 2012
In a decision dated June 7, 2012, the Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer (“OCAHO”) handed down a substantial fine against a small business employer for failure to properly complete Form I-9.
In particular, Administrative Law Judge Ellen K. Thomas ruled that failure to complete Form I-9 Section 2 by reporting only List B on the I-9 constitutes a “substantive violation” of federal employment verification laws, even if photocopies of List A and/or C documents are kept in employee files. This finding is opposed to a ruling that such a failure to complete Section 2 would constitute a mere “technical violation” were lesser fines would have been imposed.
In U.S. v. Four Seasons Earthworks, the 22-person employer was served with a Notice of Inspection and Administrative Subpoena by Immigration and Customs Enforcement (“ICE”). Upon review of I-9s relating to 19 employees – including several family members of the family-owned business – ICE found that the employer entered information in Form I-9 Section 2 corresponding only to a List B document. Under the I-9 regulations and instructions, an employer must verify employment eligibility by inspecting a List A document (substantiating both identity and employment authorization, such as a U.S. passport) or by inspecting a List B (substantiating identity, such as a state driver’s license) and List C document (substantiating employment authorization, such as a social security card). The employer must then use those documents to fill out the form properly.
The employer argued that because it made photocopies of List A or List B and List C documents, it nonetheless complied with the regulations and any such violations should be considered to be merely technical. However, the OCAHO ruled that the regulations specifically provide that photocopying does not relieve the employer from the requirement to fully complete Section 2.
This case should serve as a warning to other employers to ensure that I-9s are properly completed and that Human Resources personnel are properly trained. It is important to note that both ICE and the employer were in agreement that each worker for the company was authorized to accept employment. Nonetheless, because the employer failed to properly complete Section 2, the violations were ruled to be substantive. Under the law, employers can face penalties ranging from $110 to $1,100 for each Form I-9 substantive violation.
In determining the level of the penalties, the ALJ found that there were mitigating factors that warranted a reduction in penalties including the following: 1) the employer was a small business; 2) it suffered an economic downturn and a related business went bankrupt; 3) it acted in good faith; and 4) its violations were not as serious as the total failure to complete an I-9 or obtain an employee signature. As such, the ALJ imposed a fine of $500 for each violation. Indeed, the employer could be considered to be fortunate to an extent considering that it could have faced a fine of $20,900 had these factors not been in its favor. Other companies in this situation might not have been so “lucky.” The case is important as it shows that even small employers with a legal workforce can face substantial fines simply because their I-9s are not properly completed.
Contact your Klasko Law attorney for guidance regarding federally mandated Form I-9 for employers and other issues relating to employment verification and worksite compliance.
Thursday, April 26th, 2012
In the wake of the Supreme Court’s decision upholding Arizona’s legislation mandating the use of E-Verify for its in-state employers last year, several other states have followed suit and enacted their own E-Verify provisions.
In order to make some sense of these disparate laws, our team has updated and reorganized our informational State-by-State Legislation Survey which can be found on our Worksite Compliance web site. We have summarized employer E-Verify obligations when conducting business in, or contracting with entities of, the 50 states and D.C.
E-Verify laws are in a near-constant state of change and the question of whether your organization is required to enroll depends upon federal, state, and local laws. For more information on how E-Verify might impact your business, contact your Klasko Law attorney.
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.
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
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
Friday, October 1st, 2010
On September 28, 2010, U.S. Immigration & Customs Enforcement (ICE) announced that it reached a $1,047,110 fine settlement with the clothing retailer Abercrombie & Fitch for I-9 violations. The settlement was reached after ICE conducted an audit of the company’s I-9 records in November 2008 for stores located in Michigan.
Abercrombie & Fitch used electronic software to complete the I-9 forms and retain the appropriate records as required by the Immigration & Nationality Act. The audit revealed numerous deficiencies in the I-9 software that the company had selected. Since the initial investigation, Abercrombie & Fitch has taken steps to cure the deficiencies in its I-9 procedures to ensure that future violations do not occur.
In its press release about the settlement, Brian M. Moskowitz, special agent in charge of ICE HSI for Ohio and Michigan, stated that, “Employers are responsible not only for the people they hire but also for the internal systems they choose to utilize to manage their employment process and those systems must result in effective compliance…We are pleased to see Abercrombie working diligently to complete the implementation of an effective compliance system; however, we know that there are other companies who are not doing so. This settlement should serve as a warning to other companies that may not yet take the employment verification process seriously or provide it the attention it warrants.” The I-9 regulations provide that if the employer uses an electronic I-9 system and that system does not meet the standards for data capture and record-keeping, ICE may invalidate the I-9s, leaving employers like Abercrombie vulnerable to expansive fines.
Klasko reminds employers that selecting an appropriate software platform is essential for those companies making the transition to electronic completion and storage of the Form I-9. If an employer chooses to move to an electronic I-9 compliance system, the software must meet certain standards to capture the required data and retain the same content as the paper I-9. Your Klasko Law attorney is integral in both sending requests for proposals to electronic I-9 vendors and determining whether all of the elements of the paper I-9 are present in the software platform. For more information, visit our Worksite Compliance website and contact your Klasko Law attorney.
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.
Monday, July 12th, 2010
Employers are often caught between the requirement to accept a valid documentation evidencing identity and employment authorization, on the one hand, and the need to administer a corporate immigration policy on the other.
One tool for administering a corporate immigration policy is to request that applicants confirm, early in the screening process, whether they will require immigration sponsorship. Because applicants who are US citizens, permanent residents, asylees, refugees, and temporary residents under the 1986 amnesty law are protected from citizenship status discrimination, some employers believe that any pre-hire inquiry into immigration status is prohibited, even where the job applicant does not fall into one of those categories.
In an exchange of correspondence posted to his blog, attorney Angelo Papparelli recently received guidance from the Office of Special Counsel at the Justice Department, which is responsible for enforcing the anti-discrimination provisions. He requested guidance from OSC about how an employer could determine whether job applicants presenting employment authorization documents were only authorized to work because of a pending application for adjustment of status. Such job applicants will only be able to continue their employment authorization if their application for permanent residence continues, and may need to present evidence to USCIS of their change in job.
OSC clarified that because temporary visa holders and applicants for adjustment of status to permanent residence are not protected from citizenship status discrimination, “an employment decision made exclusively on the basis of an individual’s status as a temporary visa holder or as an applicant for adjustment of status to permanent residence would not run afoul of the anti-discrimination provision.” Employers can, therefore, feel free to make decisions about whether or not to hire an applicant who is a temporary visa holder or an applicant for adjustment of status in accordance with their corporate immigration policy.
OSC also provided guidance on the kinds of inquiry an employer wishing to discover information about an applicant’s immigration status may ask prior to making a hiring decision. OSC approved use of a somewhat complicated question, albeit one which makes clear what information the employer is requesting about an employee’s need for future visa sponsorship. OSC approved the following two questions for inclusion on job applications, so long as they are asked of all job applicants:
1. Are you legally authorized to work in the United States? _____ Yes _____ No
For purposes of the following question “sponsorship for an immigration-related employment benefit” means “an H-1B visa petition, an O-1 visa petition, an E-3 visa petition, TN status and ‘job flexibility benefits’ (also known as I-140 portability or adjustment of status portability) for long-delayed adjustment of status applications that have been pending for 180 days or longer.” (Please ask us if you are uncertain whether you may need immigration sponsorship or desire clarification.)
2. Will you now or in the future require “sponsorship for an immigration-related employment benefit?” _____ Yes _____ No
This guidance is particularly helpful for employers conducting job searches for technically trained personnel, many of whom may have initiated the permanent residence process with other employers. If you need further guidance on particular situations, please feel free to contact your Klasko, Rulon, Stock & Seltzer, LLP attorney.
Wednesday, March 10th, 2010
Employers in Pennsylvania should heed the warnings of this story – it can be quite costly to hire illegal workers. Robert Kramer of Philadelphia was sentenced to one year of probation, including six months of home confinement, after he plead guilty to charges of knowingly employing illegal immigrants at a chain of car washes. U.S. Immigration and Customs Enforcement (ICE) investigated Kramer, which turned up over 50 illegal immigrants at Car Care, Inc. The business operated more than 50 car washes in six states, including Pennsylvania and New Jersey.
According to ICE, Kramer hired undocumented workers, gave those workers the names of former employees, and then paid the undocumented workers with checks in the names of the former employees. U.S. District Court Judge Darnell C. Jones, II, ordered Kramer to pay a $75,000 fine to be paid with personal, not corporate, funds. Judge Jones also ordered Kramer to perform, at the Court’s direction, community service.
Increased investigations and I-9 audits, coupled with ICE’s prerogative to collect civil penalties from employers and individuals, necessitate the maintenance of organized I-9 files.
For more information on worksite compliance, ICE enforcement actions, and how these developments impact your business please visit our website www.worksite-compliance.com or consult with a Klasko Law attorney.