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Posts Tagged ‘I-9 Compliance’
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.
Tags: anti-discrimination, discrimination, DOJ Office of Special Counsel, I-9 Compliance
Posted in Agency Updates, Hot Questions, Worksite Enforcement | Click Here To Comment »
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.
Tags: I-9 Compliance, Worksite Enforcement
Posted in Agency Updates | Click Here To Comment »
Tuesday, March 9th, 2010
Last week, Immigration & Customs Enforcement (ICE) issued a press release stating that it will send another 180 Notices of Inspection (NOIs) to businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. The notices alert the employers that ICE will be coming to their workplace to inspect I-9 records. This marks another round of inspections by ICE, which in 2009 issued 1000 NOIs to employers around the country. Acting special agent in charge of the ICE Office of Investigations in New Orleans, Raymond R. Parmer, Jr., stated that “ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This effort is a first step in ICE’s long-term strategy to address and deter illegal employment.”
Employers around the country should expect ICE to issue more NOIs throughout 2010. As ICE explained, in 2009 it “implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers.”
Klasko reminds employers that it is critical to keep accurate I-9 records. Form I-9 requires employers to determine the employment authorization of hires by reviewing and recording the employee’s identity documents and determining whether the documents reasonably appear to be genuine and related to the individual. Employers are required to maintain an original Form I-9 and supporting documentation for all current employees. Employers also must retain an I-9 file for at least 3 years from the employee’s hire date, or 1 year after the employee’s termination date, whichever is longer.
For more information on worksite enforcement issues, please visit our website at: http://www.worksite-compliance.com.
Tags: I-9 Compliance, Worksite Enforcement
Posted in Worksite Enforcement | Click Here To Comment »
Tuesday, November 24th, 2009
Immigration and Customs Enforcement (ICE) has issued its “Form I-9 Inspection Overview,” to educate employers on Form I-9 audits, and alert the public of its new penalty schedule. ICE’s Worksite Enforcement Unit released the I-9 Inspection Overview along with its announcement that it will issue a thousand new Notices of Inspection (NOIs) to employers, as Klasko reported on November 20, 2009. Form I-9 is used by employers to verify the work authorization of new employees hired after November 6, 1986.
A complete description of the inspection and fine process, after the jump.
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Tags: I-9, I-9 Compliance, ICE, Worksite Enforcement
Posted in Worksite Enforcement | Click Here To Comment »
Friday, October 9th, 2009
In the first week of October, an internal ICE memorandum was released to the public in response to a Freedom of Information Act request filed by the American Immigration Lawyers Association. The memo outlines ICE’s worksite enforcement strategy policy and explains that while the agency continues to levy civil files, “ICE is re-focusing efforts to develop criminal cases against employers who hire and use illegal workers.”
The memo reiterates the announcements made earlier this year by Obama Administration officials regarding this focus on employers as the primary means for deterring illegal immigration to the U.S. In July, DHS Secretary Janet Napolitano went on record with her promise to audit employers to ensure their compliance with immigration regulations. Likewise, ICE Secretary John Morton has publicly stated that ICE will continue to crackdown on employers who hire unauthorized workers. These announcements were followed by the issuance of hundreds of Notices of Inspection to employers around the country.
In this era of enforcement it is critical for employers to avoid immigration related liabilities due to non-compliance with federal immigration regulations by reviewing their internal policies and procedures. Internal I-9 audits can identify issues and correct violations. Training of human resources personnel on all aspects of immigration compliance will ensure that companies establish proper record-keeping procedures. These important steps can limit a company’s liability in case of government inspection.
For more information on I-9 compliance please visit our website www.worksite-compliance.com
Tags: I-9 Compliance, ICE, Notice of Inspection
Posted in Agency Updates | Click Here To Comment »
Thursday, October 8th, 2009
This week, the Department of Homeland Security (DHS) issued a final rule rescinding the Social Security “No-Match” regulation. The so-called No-Match rule would have charged an employer with having “constructive knowledge” of the unauthorized employment of its employees if the employer failed to take certain steps in response to receiving a No-Match letter from the Social Security Administration, informing it that an employee’s name and Social Security Number provided for a W-2 earnings report did not match SSA’s records.
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Tags: I-9 Compliance, Immigration Compliance, No-Match, No-Match Rule, Worksite Enforcement
Posted in Worksite Enforcement | Click Here To Comment »
Friday, September 18th, 2009
John Morton, the newly appointed Secretary of U.S. Immigration and Customs Enforcement (ICE), the enforcement arm of the Department of Homeland Security (DHS) responsible for investigating immigration violations and enforcing immigration laws at the worksite said this week that ICE will continue to crackdown on employers who hire unauthorized workers. He warned employers that “You are going to see audits regularly and on a larger scale.” Secretary Morton reiterated that the agency is set to increase the number of companies it will audit and will civil impose fines on violators. ICE will also pursue criminal charges against bad-faith actors.
Secretary Morton’s comments reiterate the announcement made on July 1 by DHS Secretary Janet Napolitano that the agency would actively audit employers to verify whether their employees were eligible to work. He further confirmed that there are 654 companies currently under investigation ICE and that many more employers will receive Notices of Inspection soon.
Most recently, ICE’s audit of American Apparel, Inc. a clothing manufacturer and retailer made national headlines after the company announced that it would be laying off 1,500 employees following receipt of a Notice of Inspection. The layoffs are estimated to impact 25% of the company’s workforce. American Apparel, Inc. is also likely to face thousands of dollars in penalties for hiring workers who weren’t eligible to be employed. The government has publicly stated that fines against the company may exceed $800 per unauthorized employee. Earlier this year, Krispy Kreme Doughnut Corporation was also fined by ICE for violations of immigration laws following an audit of the company’s I-9s that revealed that the company employed dozens of illegal aliens at one of their doughnut factories in Cincinnati.
With the Obama Administration’s support of increased I-9 enforcement actions, it is clear that employers must pre-empt immigration related liabilities due to non-compliance with federal immigration regulations by being proactive. Internal I-9 audits are invaluable tools for identifying issues and correcting violations. Bringing in experienced immigration counsel to train human resources personnel on all aspects of immigration compliance and establish proper record-keeping procedures can significantly limit exposure and liability.
Employers who receive notices of inspection are advised to contact their immigration counsel as quickly as possible. Generally, these notices only provide three days for the employer to submit their I-9s to ICE for review. This short period of time is critical. Counsel must be contacted as quickly as possible. Employers must gather all of the company’s I-9s and supporting documentation to make sure that it is available to ICE. It is advisable to have counsel review the company’s payroll to identify any discrepancies between the number of employees and the company’s I-9s. All efforts should be made to correct any I-9s with obvious errors. Company representatives responding to the Notice of Investigation should always retain copies of any documentation submitted to ICE. Employers who can demonstrate good-faith efforts to comply with immigration laws are more likely to be assessed lower level civil fines if violations are uncovered.
For more information on government investigations and how I-9 compliance requirements affect your business please visit our website http://www.worksite-compliance.com.
Tags: Government Investigations, I-9 Compliance, ICE, Notice of Inspection
Posted in Agency Updates, Hot Questions | Click Here To Comment »
Friday, August 28th, 2009
United States Citizenship and Immigration Services (USCIS) has announced an extension of the validity of Form I-9, and has made a PDF-fillable version available on their web site. The new edition contains no changes from the previous edition and USCIS stated they will continue to accept the February 2, 2009 edition in addition to the current edition, dated August 7, 2009.
Tags: Agency Updates, I-9, I-9 Compliance, Worksite Enforcement
Posted in Agency Updates, Worksite Enforcement | Click Here To Comment »
Thursday, July 16th, 2009
Secretary of the Department of Homeland Security (DHS) Janet Napolitano announced on July 8, 2009 the Agency’s plans regarding two controversial regulations dealing with worksite enforcement.
DHS announced that they would withdraw the Social Security No-match regulation which has been enjoined from taking effect and the subject of federal court litigation. Controversial since its passage, the Social Security No-Match rule established procedures that employers could follow if they received No-Match letters from the Social Security Administration or DHS. No-Match letters inform an employer that an employee’s name and Social Security Number provided for a W-2 earnings report do not match SSA records. However, DHS acknowledged in their court filings that the letters are not indicative of unauthorized employment as they are often the result of typographical errors or unreported name changes.
The regulation was promulgated as part of the previous Administration’s effort stop the employment of unauthorized aliens. Since October of 2007, the rule has been enjoined from taking effect. DHS was ordered by the Federal Court to submit a brief by July 10, 2009 explaining the Obama Administration’s view on the regulation. In the press release, Secretary Napolitano stated that DHS will imminently be proposing a new regulation rescinding the 2007 No-Match Rule.
DHS also announced that it will implement the amendment to the Federal Acquisition Regulation (FAR) which, with a few exceptions, requires federal contractors to verify the employment authorization of new employees as well as existing employees working on federal contracts. The FAR requirements apply to the verification of work eligibility on federal contracts that are for a period longer than 120 days and with a value of over $100,000. FAR also includes service or construction subcontracts of a covered contract, valued at over $3,000. Contracts for commercially available off the shelf items, as well as federal contracts for food and agricultural products shipped as bulk cargo would not be subject to this requirement. Secretary Napolitano indicated that she expects FAR to go into effect on September 8, 2009.
“E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” said Secretary Napolitano. “Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce. The rule complements our Department’s continued efforts to strengthen immigration law enforcement and protect critical employment opportunities.”
Also on July 8, 2009 the U.S. Senate approved an amendment to the Homeland Security appropriations bill, introduced by Senator Jeff Sessions (R-AL) that would extend the E-Verify program until September 30, 2012. In addition, the Sessions amendment would mandate the requirement that federal contractors use E-Verify without the exceptions noted above.
Tags: Agency Updates, E-Verify, I-9 Compliance, No-Match Rule, Worksite Enforcement
Posted in Agency Updates | Click Here To Comment »
Wednesday, July 8th, 2009
U.S. Immigration and Customs Enforcement (ICE), the enforcement arm of the Department of Homeland Security responsible for investigating immigration violations and enforcing immigration laws at the worksite, announced a nationwide initiative to audit employers’ Form I-9 employment eligibility verification records on July 1, 2009. The announcement was followed by the issuance of Notices of Inspection to 652 employers across the country. This was a strong statement by ICE of their intentions to pursue worksite enforcement actions. In comparison, only 503 Notices of Inspection were issued in all of fiscal year 2008.
The ICE announcement is in line with the recent Department of Homeland Security (DHS) announcement that the Obama Administration is interested in focusing its resources on the criminal prosecution of employers who knowingly hire illegal workers. In conjunction with the notice the DHS Assistant Secretary for ICE John Morton stated “ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE’s long-term strategy to address and deter illegal employment.”
Under the new worksite enforcement policy, ICE began notifying businesses that it planned to inspect their hiring records to see whether employees have proper employee documentation.
ICE has indicated that many of the companies were located in New York and California. On Wednesday, American Apparel Inc., a Los Angeles clothing retailer, confirmed that ICE gave notice that 1,600 of its 5,600 factory employees might be working illegally. It couldn’t verify the status of 200 others. In Arizona alone, federal immigration-enforcement agents notified 32 Arizona companies on Wednesday that their employment records are being audited.
In this era of worksite enforcement, it is critical for employers to recognize and pre-empt immigration related liabilities due to non-compliance with federal immigration regulations. Experienced immigration counsel is invaluable to companies during this time, as they can assist with internal I-9 internal audits and providing Human Resources’ personnel with ongoing training and tools for compliance. Such actions can limit exposure and liability and establish record-keeping procedures that will establish compliance in case of an audit by ICE.
Tags: Government Investigations, Hot Topics, I-9 Compliance, Worksite Enforcement
Posted in Agency Updates | 1 Comment »
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