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Posts Tagged ‘Worksite Enforcement’
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.
Tags: I-9, I-9 Compliance, Immigration Compliance, Labor, Worksite Compliance, Worksite Enforcement
Posted in Agency Updates, Hot Questions, Worksite Enforcement | Click Here To Comment »
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.
Tags: Government Investigations, Hot Questions, I-9, I-9 Compliance, ICE, Immigration Compliance, Notice of Inspection, Worksite Compliance, Worksite Enforcement
Posted in Hot Questions, Worksite Enforcement | Click Here To Comment »
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.
Tags: E-Verify, Hot Questions, I-9 Compliance, Immigration Compliance, immigration reform, Labor, Worksite Compliance, Worksite Enforcement
Posted in Hot Questions, Worksite Enforcement | 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 »
Tuesday, December 14th, 2010
Effective on December 23, 2010, U.S. Citizenship and Immigration Services (“USCIS”) is requiring the use of a new Form I-129, Petition for a Nonimmigrant Worker, to file nonimmigrant petitions for employees in categories such as H-1B, L-1 and O-1. The new form contains several changes to previous editions of the form, including being more detailed about the location of the employee’s work. Most notably it requires certain petitioning employers to make an export control license attestation regarding the sponsored employee. The so-called “deemed export” attestation is made by H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitioners only.
Part 6 of Form I-129 contains the new “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” The new Certification requires the employer to certify that it has reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”). The employer certifies, with respect to any technology to which the employee will have access on the job, that a license from the Department of Commerce or Department of State is not required to release the technology to the foreign national (or, in the rare case that a license is required, the employer will restrict the beneficiary’s access to the technology until a license is obtained).
What Are the EAR and ITAR Regulations?
The EAR regulations (found at 15 CFR Parts 770-774) and the ITAR regulations (found at 22 CFR Parts 120-130) prevent controlled technology with sensitive military, law enforcement, anti-terrorism, or similar applications from being exported or released to other countries. An employer who releases controlled technology or technical data to a foreign national in the course of his or her employment, even if the employment is in the United States, is deemed to have “exported” that technology to the person’s country or countries of citizenship. More detailed information on the topic of “deemed exports” is available from the Department of Commerce’s deemed export page. The EAR and ITAR regulations require employers to obtain export control licenses before releasing controlled technology or technical data to foreign nationals in the United States.
Which Employers Are Likely to Require Licenses?
Employers who are military contractors or subcontractors are most likely to be affected, but both universities and private employers will be affected by the changes to Form I-129. In general, most types of commercially-available technology are not controlled under the EAR and ITAR regulations, or are exempted from the licensing requirement because they are commercially available. However, employers dealing with certain advanced scientific and manufacturing equipment, as well as certain software and software systems, may be subject to licensing requirements for employees from certain countries, depending on whether the technology has military, law enforcement or counterterrorism applications in addition to its normal, civilian uses.
What Additional Responsibilities Are Required Now of All Petitioning Employers?
With the new I-129, all employers sponsoring H-1B, H-1B1 Chile/Singapore, L-1, and O-1A nonimmigrants must now determine whether an export control license is needed for the nonimmigrant employee before the petition can be prepared. Employers may be able to make such a determination for all employees of a particular type; for example, if an employer only hires physical and occupational therapists on H-1B visas, the employer may be able to consult an export control lawyer, or obtain an advisory opinion from the Department of Commerce, that such employment does not involve controlled technologies. For other employees, a case-by-case assessment with the assistance of an export control lawyer may be necessary.
Personnel responsible for H-1B petitions also must determine the appropriate person within the organization to contact regarding the organization’s export control compliance, who can help identify whether the technology and technical data that will be used by or available to the alien beneficiary in the course of his or her employment is controlled under the EAR and ITAR regulations . Your Klasko Law attorney can work with your in-house export control compliance specialist to help develop a protocol between Human Resources, General Counsel and others involved in the immigration process to document that the organization has reviewed the issue and determined that no license is necessary. If your organization does not have that capability in-house, we can help your organization select outside counsel to make an initial determination regarding export compliance, and help establish a clearance protocol with them if necessary.
The protocol developed will enable employer to document how and when the EAR and ITAR determination was made, and to keep that information in the H-1B employee’s file, should it ever be requested. Such documentation will then be available in the case of an audit, a site visit or a request for evidence pertaining to the employer’s export control compliance.
The deemed export control regulations are complex, but your Klasko Law attorney can help your organization get ready for the new attestations on Form I-129. If your organization sponsors H-1B, H-1B1 Chile/Singapore, L-1, and O-1A nonimmigrants, contact us to determine how the deemed export attestation will affect your organization’s immigration compliance.
Tags: Agency Updates, Government Investigations, H-1B, Immigration Compliance, Worksite Enforcement
Posted in Agency Updates, Hot Questions, Temporary Visas, 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 »
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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