I-9 Employment Eligibility

ICE Expands Employment Verification Enforcement From Paperwork Violations to Organized Crime and Transportation System For Illegal Workers

2010-02-10T12:03:00.000-05:00

Fourteen Texas Busing Companies Implicated in Illegal Alien Smuggling Scheme

Immigration and Customs Enforcement (ICE) arrested 22 individuals charged with conspiracy to transport illegal immigrants, which carries a maximum penalty of 10 years in prison and a $250,000 fine. The arrests came after a three-month investigation into fourteen Houston-area transportation businesses. According to federal officials, the individuals “allegedly accepted cash from alien smugglers to move undocumented aliens in vans and SUVs from Houston to other cities around the United States.”

ICE says these were not legitimate businesses, but were instead working exclusively with enterprises seeking to smuggle illegal aliens into the United States. Once the aliens had been smuggled into the United States, the busing companies paid commissions to smugglers to bring the aliens to them. The companies then charged the aliens up to an exorbitant $650 for a one-way ticket from Houston to cities throughout the country, such as Miami, Washington D.C., New Jersey and New York.

ICE also arrested 81 suspected illegal aliens during the operation, who were then placed in deportation proceedings, and seized 32 vehicles and 18 weapons, including one weapon that was reported stolen.

DHS Assistant Secretary for ICE John Morton called the operation “unprecedented,” saying that Immigration and Customs Enforcement is no longer targeting just one transportation company, or arresting just one driver at a time. “We are taking on the whole industry,” he said.

The Houston Chronicle reported that the companies avoided major highways that were likely to be patrolled by law enforcement, and traveled primarily at night. The companies paid commissions to smugglers, typically $200 to $300 each, to bring the smuggled immigrants to them, and would buy and trade passengers for fees. Apparently Houston has become a hub for these illegal transportation companies.

The Obama administration has stepped up inspections of employers' Form I-9 employment eligibility verification employment paperwork since last year. The Obama employment eligibility enforcement now targets employers through on-site investigations and administrative or "desktop" audits of required employment eligibility verification documents.

Kevin Lashus, a former assistant chief counsel for ICE, told the Chronicle that the ICE is evolving its enforcement and not just going after the employers — they're going after the transportation system, the underground trafficking routes that are used in Southern Texas and in Houston.”

Gerald Goulder is a North Carolina immigration lawyer with clients throughout the United States and the world. His services assist employers develop recommended Forms I-9 compliance procedures and practices, and avoid substantial civil and criminal penalties that may be assessed for I-9 employment eligibility violations. His services include training company personnel on properly completing and retaining Forms I-9, creating company policies and procedures for all aspects of proper Form I-9 compliance, and conducting internal company I-9 audits of its Forms I-9. His I-9 and worksite enforcement blog and I-9 employment eligibility verification website provide the most authoritative and extensive information on the Internet concerning Form I-9 compliance and employer sanctions laws. Contact Gerald Goulder through his websites (www.gouldervisa.com or www.I-9employmenteligibility.com) or by phone at 1-866-US VISAS.

Gerald Goulder is a North Carolina immigration lawyer with clients throughout the United States and the world. His services assist employers develop recommended Forms I-9 compliance procedures and practices, and avoid substantial civil and criminal penalties that may be assessed for I-9 employment eligibility violations. His services include training company personnel on properly completing and retaining Forms I-9, creating company policies and procedures for all aspects of proper Form I-9 compliance, and conducting internal company I-9 audits of its Forms I-9. His I-9 and worksite enforcement blog and I-9 employment eligibility verification website provide the most authoritative and extensive information on the Internet concerning Form I-9 compliance and employer sanctions laws. Contact Gerald Goulder through his websites (www.gouldervisa.com or www.I-9employmenteligibility.com) or by phone at 1-866-US VISAS.

ICE Enforces I-9 Employment Eligibility Verification “Culture of Compliance” with Civil and Criminal Charges Against Ohio Mexican Restaurant Operator

2010-01-26T13:26:00.000-05:00

The owner of eight Casa Fiesta restaurants Ohio has been charged by the Department of Justice with eight counts of harboring and concealing illegal aliens, three counts of mail fraud and seven counts of subscribing to a false tax return stemming from July 2008 raids by federal agencies. Ramon Ornelas of Norwalk, Ohio, owned Casa Fiesta restaurants in Youngstown, Vermilion, Ashland, Norwalk, Fremont, Oberlin, Oregon and Sandusky.

The Mexican restaurants were raided July 23, 2008, which resulted in the arrests of 58 undocumented Mexican employees. All 58 arrested have either been deported or will be deported. The federal government alleges Ornelas employed undocumented workers, failed to obtain proper immigration documents and sometimes provided them places to live. The information states that Ornelas routinely paid workers in cash without withholding FICA and Medicare taxes and submitted falsified documents to the state Department of Job and Family Services.

The Bureau of Immigration and Customs Enforcement, the IRS Criminal Investigation Division and the U.S. Department of Labor and the Office of Inspector General were involved in the investigation.

"These criminal charges represent (U.S. Immigration and Customs Enforcement)'s firm commitment to holding employers accountable for brazenly ignoring immigration laws as it relates to their work force," said John Morton, Department of Homeland Security assistant secretary for immigration and customs enforcement. "In order to create a culture of compliance among businesses, ICE will take the necessary actions, including leveling both criminal and civil fines against employers."

Gerald Goulder is a North Carolina immigration lawyer with clients throughout the United States and the world. His services assist employers develop recommended Forms I-9 compliance procedures and practices, and avoid substantial civil and criminal penalties that may be assessed for I-9 employment eligibility violations. His services include training company personnel on properly completing and retaining Forms I-9, creating company policies and procedures for all aspects of proper Form I-9 compliance, and conducting internal company I-9 audits of its Forms I-9. His I-9 and worksite enforcement blog and I-9 employment eligibility verification website provide the most authoritative and extensive information on the Internet concerning Form I-9 compliance and employer sanctions laws. Contact Gerald Goulder through his websites (www.gouldervisa.com or www.I-9employmenteligibility.com) or by phone at 1-866-US VISAS.

Comments On the Comprehensive Immigration Reform debate

2010-01-19T14:36:00.000-05:00

This blog focuses on the Form I-9 employment eligibility verification process, employer I-9 employment eligibility verification compliance practices, and ICE enforcement of I-9 employer violations and employer sanctions.

I appreciate all visitors to my blog. I encourage and invite your comments. However, please understand the I-9 employment eligibility verification blog is NOT a forum for comprehensive immigration reform (CIR) debate.

The blog is about existing I-9 employment eligibility verification law and employer sanctions compliance. It is an area of immigration law that I practice. The I-9 compliance is part of my immigration law practice. I have no position per se on one side or the other in the comprehensive immigration reform debate. I do, however, have opinions of particular aspects of the debate and legislation.

Comprehensive immigration reform has become a difficult matter to discuss. The CIR bills introduced in Congress are very long, complicated and often difficult to understand.

There are many forums on the Internet for the discussion of “illegal aliens”, “illegal immigrants” or “undocumented immigrants”; as variously labeled based on one’s position. I welcome your comments, but please offer your comments on the I-9 employment eligibility verification process and employer compliance aspects of immigration law and policy. Thank you.

The Comprehensive Immigration Reform Act in 1986

2010-01-19T14:05:00.000-05:00

The 1986 Comprehensive Immigration Reform—A Short Review

The Immigration Reform and Control Act of 1986 (IRCA) [Public Law 99-603] secured legal immigration status for 2.7 million illegal aliens. IRCA was an omnibus or comprehensive immigration reform law—an attempt to form a grand bargain that resolve many immigration policy disputes.

History of prior comprehensive immigration reform acts may help anchor us in our on-going comprehensive immigration reform debate a little more than 20 years later.

The 1986 comprehensive immigration reform included “employer sanctions” for knowingly employing unauthorized workers, principally illegal aliens (the Form I-9 employment eligibility verification laws).

The second aspect of the 1986 comprehensive immigration reform legislation was the legalization package. The promise of the 1986 comprehensive immigration reform act was that employer sanctions would eliminate the lure of jobs in the U.S. economy, thus ending the reason for illegal aliens entering the U.S; and the legalization package put several important groups of illegal aliens on the path to citizenship.

The 1986 comprehensive immigration reform act was intended to thus both shrink the size of the current and future illegal populations.

IRCA included four separate legalization programs within its 100 pages, which at the time was a rather large amount of pages.

Two of the IRCA legalization programs involved an extremely narrow focus that drew a few thousand applicants. The Registry program gave legal status to long-term illegal aliens who could document their presence in the U.S. since January 1, 1972. Another narrow class of illegal aliens granted legalization under IRCA was Cubans who entered illegally during the Cuban Mariel crisis, and Haitians who took advantage of the Mariel opportunity.

The major legalization program of the comprehensive immigration reform act of 1986 (IRCA) amended the Immigration and Naturalization Act adding Section 245A providing legal status to aliens who: a) applied between May 5, 1987, and May 4, 1988; b) had been in the country continuously since January 1, 1982; c) who did not have serious criminal records; and, d) who met some other stipulations. 1,763,434 aliens applied under Section 245A.

The other major legalization program in the 1986 comprehensive immigration reform act included the Special Agricultural Worker (SAW) program providing legal status to aliens who had done seasonal farm work in the United States for at least 90 days in 1984, 1985, or 1986, and who applied between June 1, 1987, and November 30, 1988. The SAW legalization drew 1,277,041 applicants.

SAW and the pre-1982 programs created a new legal immigration status “Temporary Resident Aliens” (TRAs), a step toward green card or permanent residence status. Temporary Resident Aliens had limited access to government-funded programs, and they could not use the TRA status to sponsor more immigrants into the U.S.

The House of Representatives and the agricultural growers’ lobby made an issue to porvide farm workers an easier path to legalization. SAWs could legalize based on much shorter stays in the United States and had a longer period during which to apply for legalization. The SAWs, unlike the pre-1982s, did not have to meet any English-speaking or civics requirements to secure a “green card”. In some circumstances SAWs could apply from outside the U.S. and their transition from TRA status to green card status was automatic, which was not the case for the pre-1982s.

The comprehensive immigration reform in 1986, which was intended to resolve illegal alien circumstances, legalized about 2.7 million persons, and required, generally five years presence in the U.S. with no serious criminal record.

DHS/ICE enforcement of I-9 and employer sanctions laws targets employers through on-site investigations and administrative or "desktop" audits.

I-9 compliance (and E-Verify for registered employers, now including certain federal contractors (FAR), require that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, whether documented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".

Employer failure to verify employment eligibility and properly complete and retain I-9 Forms. I-9 employer employment verification laws are enforced by the Immigration and Customs Enforcement (ICE) and ICE enforcement policy now targets employers. I-9 employer sanctions subject the company to stiff I-9 criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants are personally liable for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.

Employer, executive, manager and supervisor liability is based on knowingly hiring or continuing to employ unauthorized workers. Employer liability extends to circumstantial evidence and “constructive knowledge”.  The I-9 process mandates accurate and timely completion of the Form I-9 by all U.S. employers and their employees.

Goulder Immigration Law Firm assists employers with Form I-9 consulting, including I-9 and employer sanctions compliance training, developing a company I-9 and employer sanctions compliance manual, and employment eligibility compliance auditing services. Written I-9 compliance policies and a Form I-9 and employer sanctions law internal audit will help protect employers from government fines and criminal penalties and help ensure that all I-9 Forms comply with I-9 and employer sanctions laws. The web's most authoritative source for Form I-9 compliance information is www.I-9employmenteligibility.com.

Social Security Administration Fails to Use E-Verify in Violation of Law

2010-01-16T18:05:00.001-05:00

And now for something entirely different…

The Social Security Administration (SSA) operates the E-Verify system with the Department of Homeland Security (DHS). The SSA is required by law to use E-Verify. (As are certain federal contractors pursuant to the FAR E-Verify Regulations.)

This month the SSA Inspector General released a report stating the SSA failed to use E-Verify for 20% of their new hires. Perhaps an even more devastating concern I that the SSA improperly ran checks on 169 volunteers and individuals who had not yet been hired; a plain violation of the law and a fundamental condition of participation in the E-Verify program. Furthermore, the report states the SSA also violated E-Verify rules with respect to the timing of its verifications 49 percent of the time.

Heads need to roll. Jobs need to be lost. Bureaucratic incompetence by the SSA, which is a fundamental component of the E-Verify database, is horrific indictment of the critical and highly important E-Verify program.

Certain federal contractors are required to participate in E-Verify. These contractors would be sanctioned for the kind of violations of law evidenced by the SSA.

Private employers who violate I-9 employment eligibility verification procedures are subject to criminal and civil liability. Private employers are responsible for training their I-9 managers.

It is absurd for ICE to prosecute private employers for violating E-Verify and I-9 employment eligibility verification requirements but allow federal government and SSA supervisors and managers to skate.

DHS/ICE enforcement of I-9 and employer sanctions laws targets employers through on-site investigations and administrative or "desktop" audits.

Employer failure to verify employment eligibility and properly complete and retain I-9 Forms subjects the company to stiff I-9 criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants are personally liable for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.

Goulder Immigration Law Firm assists employers with Form I-9 consulting, including I-9 and employer sanctions compliance training, developing a company I-9 and employer sanctions compliance manual, and employment eligibility compliance auditing services. Written I-9 compliance policies and a Form I-9 and employer sanctions law internal audit will help protect employers from government fines and criminal penalties and help ensure that all I-9 Forms comply with I-9 and employer sanctions laws. The web's most authoritative source for Form I-9 compliance information is www.I-9employmenteligibility.com.

Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law for North Carolina clients and for clients throughout the United States, and the world. Immigration law is a federal law practice not limited attorneys in a particular state. Contact Gerald Goulder through his authoritative website www.gouldervisa.com or by calling toll free 1-866-US VISAS.

ICE Drives Undocumented Aliens to Work Knowing They Are Not Authorized for Employment

2010-01-14T16:21:00.005-05:00

{I recently updated this story with more interesting information--January 20, 2010}

DOH! ICE drove illegal workers—unauthorized for employment—some of whom were underage, to shovel snow for a New England Patriots game! Say it isn’t so!

ICE driving unauthorized (and underage) workers to work is astonishing enough. It is over the top that the New England Patriots of the National Football League and Gillette Stadium do not use standard sound business practices with their subcontractors for Form I-9 and employment eligibility verification. NFL football executives and teams are civilly and criminally liable for I-9 violations. They should be replaced for their negligence alone.

You won’t learn about this from ICE or the companies involved of the Department of Homeland Security enforcement news. We learn about it from the Providence Journal who reported that ICE agents detained workers last Wednesday on Route 1 in Foxboro as they rode in vans from Providence to Gillette Stadium to clear snow for the New England Patriots.

Forty-nine of the 60 people stopped by U.S. Immigration and Customs Enforcement agents were released after being processed at the Foxboro police station, because they had no evident criminal records or outstanding deportation orders.

The Journal report says, “Foxboro Police Chief Edward O’Leary said ICE agents drove released workers to Gillette in the vans they were stopped in, because some of the drivers lacked licenses. The workers then shoveled the snow.” Six of the unauthorized workers are minors 14, 16 and 17 years old.

This is astonishing. ICE drives undocumented aliens to work because they lacked driver licenses; after determining they were unauthorized for work and under age!!

The New England Patriots and Gillette Stadium are also clueless. Talk about questionably negligent management practices. These companies and their executives and managers could face criminal and civil liability if they had constructive knowledge of their subcontractor’s employment eligibility verification and I-9 practices and violations—assuming, in Boston, ICE prosecutes employers for I-9 and employment eligibility verification violations.

[It raises an interesting 14^th Amendment defense for employers elsewhere in the United States who have been prosecuted for constructive knowledge I-9 violations based on the Equal Protection Clause.]

Seven of the people stopped by ICE remain in federal custody including people targeted as fugitives from deportation. A total of 56 workers were being brought to work by the Patriots’ subcontractor. The Patriots have used subcontractors before to remove snow and clean up the stadium. Maybe it is possible they had no idea any of these workers were unauthorized for employment.

DHS/ICE enforcement of I-9 and employer sanctions laws targets employers through on-site investigations and administrative or "desktop" audits.

Employer failure to verify employment eligibility and properly complete and retain I-9 Forms subjects the company to stiff I-9 criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants are personally liable for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.

Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law for North Carolina clients and for clients throughout the United States, and the world. Immigration law is a federal law practice not limited attorneys in a particular state. Contact Gerald Goulder through his authoritative website www.gouldervisa.com or by calling toll free 1-866-US VISAS.

Summary of New State and Local E-Verify Laws Effective January 1, 2010

2010-01-04T11:15:00.000-05:00

South Carolina: Presently, the South Carolina Illegal Immigration Reform Act requires all employers with 100 employees or more to participate in E-Verify or only hire employees who possess or qualify for a South Carolina driver’s license (or other state license with similarly strict requirements). Effective January 1, 2010, the law expands and includes all state contractors, regardless of size. Effective July 1, 2010, the law will increase coverage to all employers.

Illinois: Effective January 1, 2010, Illinois places significant new state-level obligations on employers who use the federal E-Verify program to check the identity and work authorization of their employees. Although the statute is consistent with federal E-Verify requirements in certain areas, it goes well beyond the federal provisions in others.

Under the new law, which amends the Illinois Right to Privacy in the Workplace Act, Illinois employers are required to sign a sworn attestation either upon initial enrollment in E-Verify, or by January 31, 2010 if they are already enrolled in the program. An official E-Verify attestation form provided by the Illinois Department of Labor (“IDOL”) is available for employers to use. The attestation form affirms that the employer has received the requisite E-Verify training materials from the U.S. Department of Homeland Security (“DHS”), and that all employees with access to the company’s E-Verify account have completed mandatory online E‑Verify tutorials. It further states that the employer has posted the required legal notices regarding its enrollment in E-Verify and certain non-discrimination procedures. The employer must retain the signed original attestation and proof of its employees’ E-Verify training.

The Illinois law also details a number of prohibited actions, the knowing and willful violation of which can result in significant company fines and petty offense charges for executives and HR managers. The following actions are prohibited:

1. Failing to display the appropriate E-Verify related notices.

2. Allowing an untrained employee to use the E-Verify system.

3. Failing to take reasonable steps to prevent an employee from using another's login and password in lieu of completing his or her own E-Verify tutorial with the DHS.

4. Using E-Verify on an applicant prior to hiring, or prior to completing the Form I-9 process.

5. Terminating or otherwise taking adverse action against an employee prior to a receiving a Final Non-Confirmation (for E-Verify related reasons).

6. Failing to notify an employee in writing of a Tentative Non-Confirmation and his or her right to contest it.

7. Failing to safeguard the information contained in the E-Verify database and the means of access to it (passwords, etc.).

The statute gives injured employees a private right of action in state court after first seeking redress with the IDOL.

Georgia: On January 1, 2010, public employers (city, municipality and county), contractors and subcontractors will be required to post their federally issued E-Verify user identification number and date of authorization to use E-Verify on their website. Covered cities that do not maintain a website must annually publish the identification number and date of authorization in the legal organ for the county.

Lancaster, CA: Beginning January 1, 2010, businesses operating in the City of Lancaster, California are required to use E-Verify for all new hires and employers that hire unauthorized workers may have their business licenses revoked.

DOJ and ICE REACH $4.5 MILLION AGREEMENT WITH PILGRIM'S PRIDE

2010-01-04T10:57:00.000-05:00

Immigration and Customs Enforcement (ICE) announced December 30 that ICE and Pilgrim’s Pride reached a non-prosecution agreement to resolve an investigation with respect to the hiring and employment of unauthorized aliens at Pilgrim's Pride's plants in the Eastern District of Texas. Under the terms of the agreement, Pilgrim's Pride agrees to pay $4.5 million and adopt more stringent immigration compliance practices to ensure that its work force is composed of employees legally entitled to work in the United States. In return, the U. S. Attorney's Office agrees to conclude its immigration-related investigation of Pilgrim's Pride and any current or former employees that began in 2007. Pilgrim’s Pride will pay the settlement fine over the next three years.

In a factual statement accompanying the agreement, the parties acknowledge that at the beginning of the investigation, U.S. Immigration and Customs Enforcement (ICE) had reason to believe that a substantial number of unauthorized aliens were employed at several Pilgrim's Pride plants. As part of that investigation, twenty-five unauthorized aliens were arrested in the Eastern District of Texas in December 2007 and charged with misuse of a Social Security Account number. In early 2008, a number of worksite enforcement actions were conducted by ICE at five Pilgrim's Pride plants in Texas, Florida, West Virginia, Arkansas, and Tennessee, resulting in the apprehension of approximately 338 unauthorized aliens. Thirty-eight illegal aliens were convicted in the Eastern District of Texas for misuse of a Social Security Account number.

At the time of the arrests, Pilgrim's Pride said the employees taken into custody represented about 4% of its work force at the facilities, which included its plants in Batesville, Ark.; Chattanooga, Tenn.; Live Oak, Fla.; Morefield, W.Va.; and Mt. Pleasant, Texas. The company said it terminated all employees who were arrested and would terminate employees found to have engaged in similar misconduct.

As part of the settlement, Pilgrim's Pride agreed to enhance its compliance programs to more accurately identify unauthorized persons who seek or gain employment through identity fraud.

The company said no criminal or civil charges were ever filed against it during the investigation. It added the settlement didn't constitute any admission of misconduct on the part of the company or its executives.

The news comes two days after Pilgrim's Pride announced it had emerged from Chapter 11 bankruptcy, completing a 13-month restructuring. The company and other meatpackers have been hurt by weak demand, partially due to woes at recession-hit restaurants, and have closed plants.

Form I-9 and Hiring Process Reviews and Training Are Critical to Avoid Fines and Criminal Sanctions

2009-12-29T19:06:00.000-05:00

The Obama administration is absolutely committed to continue to increase employment eligibility verification worksite enforcement and I-9 compliance resources in an effort to crack down on employers who hire undocumented immigrants. Department of Homeland Security’s (DHS) employment eligibility verification, or Form I-9, enforcement agency is Immigration and Custom Enforcement (ICE). ICE received substantial enforcement budget increases in FY 2009 and FY 2010.

ICE has launched hundreds of investigations nationwide. ICE and other federal agencies have hired hundreds of new investigators to inspect your I-9 records. In one week in 2009 more business were hit with I-9 fines than in all of 2008.

Recently, an internal ICE memorandum from April of 2009 detailing ICE’s enforcement strategy was made public. ICE’s worksite enforcement priorities emphasize continuing worksite investigations, including “criminal cases against employers who hire and use illegal workers.”

The memo specifies the ICE enforcement strategy will include: penalizing employers who knowingly hire unauthorized workers; deterring employers who are inclined to hire unauthorized workers; and encouraging employers to make sure that they are in compliance with immigration regulations.

ICE’s enforcement guidelines require ICE officers to “obtain indictments, criminal arrests, or search warrants or commitment from a U.S. Attorney’s Office to prosecute target employers before arresting employees for civil immigration violations at a worksite.” (emphasis added).

ICE encourages agents to use informants, cooperating witnesses, undercover agents, consensual searches and I-9 audits as investigative tools.

The memo states that ICE’s “most important administrative tool” in conducting investigations is the Notice of Inspection, or NOI. ICE inspections include a comprehensive review of the employer’s entire employment eligibility verification process, including its I-9 forms and training and recordkeeping procedures.

You are liable as an “employer” if you are an owner, executive, supervisor or manger. I-9 employment eligibility enforcement may involve either civil fines or criminal prosecutions.

Civil fines range from $110 to $1,100+ per occurrence—an occurrence is a single I-9 Form. Criminal penalties include imprisonment, asset forfeiture and forfeiture of profits. (Not to mention the lawyer’s fees you pay along the way to defend the company and company executives, officers, managers and supervisors pay to defend themselves.)

Any business owner, executive, supervisor or manger can face multiple federal criminal charges including Harboring Illegal Aliens, Inducing Aliens to Enter the United States for Commercial Purposes, Making False Statements on a Form I-9, Aiding or Abetting an employee’s false statement, and Conspiracy to commit immigration law violations.

Liability is assessed for constructive knowledge, not actual knowledge. Constructive knowledge can be based on errors in I-9 Forms whether or not in the employee’s Section 1 or the employer’s Section 2.

Form I-9 compliance is becoming more complicated. Last year alone there were more than 80 changes to the I-9 laws.

Faced with federal criminal prosecution and possible imprisonment companies, executives, managers and supervisors are pleading guilty and agreeing to fines and less jail time rather than fighting costly, time consuming and what would ultimately be losing battles in federal criminal court.

Businesses are pleading guilty to I-9 violations in record numbers. Employers are paying record fines for I-9 errors and violations. Employers are forfeiting assets and “profits” made from employing workers who are not authorized for employment.

Company owners, executives, managers, supervisors and human resources managers have no effective defense for improper I-9 compliance practices. The Department of Justice’s Office of Chief Administrative Hearing’s Officer (OCAHO) recently ruled that a “good faith” defense was unavailable in a paperwork violation case. The ruling suggests that employers will not be able to avoid significant fines based on cooperation after the fact, good faith or ignorance of the law.

Employers must ensure that they do not hire or continue to employ workers they know to be ineligible for employment. Employers must also ensure that they are in full compliance with all regulatory requirements in case of government investigation.

Every employer, regardless of size, must regularly review its Forms I-9 compliance practices. It is quite simply negligence not to regularly review your I-9 compliance practices and training.

Goulder Immigration Law Firm in North Carolina assists clients throughout the United States with their I-9 and employment eligibility verification practices, procedures and training. These Form I-9 services assist companies to develop I-9 compliance best practices, including preparing written policies and procedures, training human resources or other staff who handle your I-9s, conducting regular internal company I-9 audits, and preparing you to properly respond to an ICE I-9 investigation or ICE worksite enforcement action. These recommended best practices will help ensure that only persons lawfully authorized to work are allowed access into your workplace. As part of our services, we will work with you to make any corrections required on your employees' I-9 Forms.

Gerald Goulder is a North Carolina immigration lawyer with clients throughout the United States and the world. His services assist employers to avoid substantial civil and criminal penalties that may be assessed for I-9 employment eligibility violations. His services include training company personnel on properly completing and retaining Forms I-9, creating company policies for all aspects of proper Form I-9 compliance and conducting internal company I-9 audits of its Forms I-9. His I-9 and worksite enforcement blog and I-9 employment eligibility verification website provide additional information on employer liabilities for Forms I-9. Contact him at 1-866-US VISAS.

Democrats Begin New Legalization Push: Unfortunately They Will Once Again Doom Chances for Meaningful Immigration Reform

2009-12-15T16:40:00.000-05:00

Building Bi-Partisan Support, Allowing House and Senate Debate, and Trying ‘Smaller Bite at the Apple’ Bills Would Be More Effective in Getting Positive and Meaningful Immigration Reform

Democrats on Tuesday began their new push for an immigration bill, hamstrung by the image of legalizing millions of illegal immigrant workers at a time when the unemployment rate stands at 10 percent -- more than twice what it was in 2007 the last time Congress tried to act.

A draft overview of the bill, circulated with the letter, ends some enforcement tools such as the 287(g) local police cooperation program, calls for an electronic verification system to replace the voluntary E-verify program, argues that there's no need for more U.S. Border Patrol agents or fencing, and establishes a long-term path to citizenship for illegal immigrants.

That path would require illegal immigrants to pay a $500 fine, pass a background check and learn English and civics to gain legal status. After six years, they could apply for legal permanent residence, or a green card, which is the interim step to citizenship. There is no 'touchback' provision requiring them to return to their home countries at some point in the process.

Republicans are sharpening their attacks and going straight for the jobs argument. “With 15 million Americans out of work, it's hard to believe that anyone would give amnesty to 12 million illegal immigrants,” said Rep. Lamar Smith of Texas, the top Republican on the House Judiciary Committee. “Even the open-borders crowd agrees that illegal immigrants take jobs from American workers, particularly poor and disadvantaged citizens and legal immigrants. This is exactly why we need to oppose amnesty.”

His office has calculated that there are 19 states where the number of illegal immigrants in the work force is at least 50 percent of the number of unemployed workers.

Arizona tops the list, with unemployment at 293,000 as of October and with 300,000 illegal immigrants either working or seeking work as of 2008, according to a 2009 Pew Hispanic Center report. New Jersey, Nevada, Maryland and Texas round out the top five states.

More astute political observers have already voiced concern that the Obama administration has too much on its plate with the economy and health care reform issues. “They can introduce the bill, but it’s going to have a very difficult time with all of the other agenda items,” said James Thurber, director of American University’s Center for Congressional and Presidential Studies. “We have lots of Democratic seats in trouble in the House, and this particular issue is an issue that doesn’t play very well in some of those Blue Dog districts. I think the leadership will be very careful about pushing it, and the president will also.”

So far, however, Democrat leaders Pelosi and Reid have not been too interested in building bi-partisan support for the Obama legislative agenda, which many feel has already damaged Obama’s approval ratings and portends damage to the Democrats in the 2010 midterm elections.

Supporters of legalization acknowledge the tough sell on jobs but say the math is more complex than stacking unemployment and immigration numbers against each other.

In 2006, at President Bush's urging, the Senate passed a bill to legalize most illegal immigrants and to boost security. That bill stalled when the House insisted on an enforcement-only approach.

In 2007, with Democrats in control of Congress, the Senate tried again. The comprehensive immigration reform failed in 2007 because Senate Majority leader Harry Reid insisted on holding immigration reform hostage to partisan politics.

Reid insisted, in 2007, that there could be no debate on his bill which was brought forth by a gang of 10 with a “take our bill or too bad” attitude. The only vote in 2007 was to cut off debate on the take it or leave it bill. The majority of the Senate voted to allow debate. When the Senate voted for debate on the bill Reid pulled the bill off the table and shut off the chance for any immigration reform.

I was in the senate gallery for the debate and vote. It was clear many Republican Senators favored some form of immigration reform, and voted for debate. Reid’s action was despicable.

The Democrats insist on immigration reform being a “one bite at the apple”, all or nothing, my way or the highway bill, ostensibly because they want the Republicans to have to take any heat of a “no” vote.

In fact, the Democrats do the country and millions of undocumented’s a terrible injustice. The fact is there are many, many immigration reforms that the American public would support and smaller bites at the apple, through multiple, more specific bills would probably pass.

For example, why remove hundreds of thousands of undocumented parents of United States citizen children and spouses of U.S. citizens? What purpose does it serve to remove family income earners from families of U.S. citizens? These are not criminals; these are parents of citizen children and spouses of citizens. These are sponsored immigrants. These are family providers. These are not criminals. The American public “gets this”. Taxpayers don’t want to have to support U.S. citizens after forcing good parents, father, mothers, husbands and wives to depart the U.S.

Congress could also change the outrageously high standard of proof an undocumented spouse or parent of a U.S. citizen has to establish to be eligible for the discretionary grant of waiver of inadmissibility after having been unlawfully present in the U.S. Presently the standard of proof is “extreme and unusual hardship” to the qualifying citizen spouse or child. A lower hardship standard would serve the same purpose and enable more waivers and permanent residence for these families.

The public outcry appears based on concerns for continued illegal immigration across the U.S. southern border. The American public was hood winked in the 1986 immigration reform “amnesty” because the border was not made less porous.

It strikes me that it would be common sense politics to build bi-partisan support by providing guaranteed funding for the southern border “fence” which would cost less than $14 billion. Funding a southern border fence would satisfy the vast majority of public opposition to immigration reform.

DHS Test for Employer "Constructive Knowledge" of Form I-9 Violation or Unauthorized Employment—Totality of Circumstances

2009-12-07T16:56:00.001-05:00

Employers are liable for Form I-9 errors and violations of the I-9 employer sanctions laws. The new ICE I-9 workplace enforcement strategy targets employers. Employers must complete a Form I-9 for every new hire. Thus, employers must have a Form I-9 properly completed and on file for every employee on its payroll (hired after 1986). Employers are required to make its Forms I-9 available for inspection on three days' notice.

Employers are subject to civil money penalties for failure to properly complete and retain Form I-9 for every employee. The I-9 violation civil fines range from $100 to $1,100 per violation. The civil penalties are on a per Form I-9 or per occurrence basis.

Employers are also subject to criminal fines and imprisonment for I-9 violations and employment of unauthorized workers. Owners, executives, managers and supervisors are subject to this criminal liability.

The employer (and its executives, managers and supervisors) are liable for employing unauthorized workers. The employer's actual knowledge that a worker is not authorized for employment is not required for liability. The employer (and its executives, managers and supervisors) are liable if they have "constructive knowledge" a worker is not authorized for employment.

According to the DHS "the totality of the circumstances" determines the employer’s "constructive knowledge" in a given case. DHS’ position is that a reasonable employer would act prudently if it has any notice of circumstances that suggest an employee is not employment authorized. DHS' specific guidance states that an employer’s receipt of a No-Match letter (Social Security Number No-Match letter) may support a finding of constructive knowledge in the totality of circumstances.

DHS has been silent on what it considers “good faith” compliance with Form I-9 and employer sanctions laws.

In many cases employer liability is derived from errors in completing its Forms I-9, "Employment Eligibility Verification".

I am reminded on an almost daily basis in my immigration law practice that there has been a cultural shift in the United States concerning compliance with laws and regulations. Virtually every day a client lets me know that a law or regulation doesn't make sense. [Of course, more often than not this can be a reasonable reaction in immigration law.] Many very responsible folks make a self-determination that when a law doesn't make sense to them, that there will be leniency in enforcement. Trust me, there is no employer above the law when it comes to Forms I-9 compliance, regardless of how picayune a Form I-9 error may seem.

Clearly, if ICE contacts one of my clients concerning specific Forms I-9 matters then I am extremely concerned that notice, in and of itself, may trigger constructive knowledge liability for Form I-9 violations and employment of unauthorized workers.

Currently, it is almost impossible for me to overstate to my clients their need to conduct internal I-9 company audits and provide regular training on I-9 compliance.

Quite honestly, I recently recommended that a public company revamp its internal I-9 systems and told them it was probably negligent to not conduct I-9 internal company audits and regular I-9 training. Public companies face Sarbanes-Oxley issues and shareholder liability issues when they management fails to act prudently.

Errors on Forms I-9 may be innocent. But even simple errors on Forms I-9 will result in costly civil penalties on a per Form I-9 and per occurrence basis—from $110 to $1,100 per I-9 Form. An erroneous Form I-9 is the employer’s liability and supports a finding that the employer had actual or constructive knowledge that the employee was not authorized for employment.

When ICE comes knocking on doors for Forms I-9 the employer has only three days to produce all Forms I-9 and I-9 documents for inspection. It is likely ICE will also want additional information concerning: employees terminated within the last six months with SSNs; all correspondence with the Social Security Administration; all correspondence with the Department of Labor and state wage and Hour Division(s); quarterly wage and hour statements; and, your tax returns.

Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law for North Carolina clients and for clients throughout the United States, and the world because immigration law is a federal law practice not limited attorneys in a particular state.

Gerald Goulder has been a licensed attorney and counselor at law for 30 years. His practice is exclusively immigration, visa and citizenship law.

His broad professional background includes working as a special state prosecutor, owning and operating a business, serving on boards of non-profit organizations, religious organizations and private corporations, and taking political leadership roles. Mr. Goulder has also worked as an Assistant Attorney General of Ohio, and Ohio Special Prosecutor in law enforcement and prosecution, and he was appointed Special Counsel to the Attorney General of the State of Ohio. Although his private practice initially involved commercial, business, and corporate/commercial real estate matters, he now practices exclusively immigration, visa and citizenship law.

Goulder Immigration Law Firm also assists employers with Form I-9 consulting, including I-9 and employer sanctions compliance training, developing a company I-9 and employer sanctions compliance manual, and employment eligibility compliance auditing services. Written I-9 compliance policies and a Form I-9 and employer sanctions law internal audit will help protect employers from government fines and criminal penalties and help ensure that all I-9 Forms comply with I-9 and employer sanctions laws.

Gerald Goulder, managing partner of Goulder Immigration Law Firm, is a North Carolina immigration lawyer with clients throughout the world, guarantees personal service to every client. Clients receive one-on-one direct access to immigration attorney Gerald Goulder on phone calls, emails, or letters. If you are seeking guidance, experience and knowledge of immigration and visa laws involving family-based or employment-based permanent residence and green cards, visas, or citizenship, do not hesitate to contact Goulder Immigration Law Firm.

DHS Outlines Fines for I-9 Violations

2009-11-23T10:45:00.000-05:00

DHS released an overview of the I-9 inspection process, which includes recommended penalties for noncompliance as well as guidance on how investigators should enhance or mitigate the assessed fine. The recommended penalties are presented in two schedules – one for employers who have knowingly hired or continue to employ unauthorized workers, and another for substantive and uncorrected technical violations on the I-9 form. In both schedules, the range of penalties is determined by dividing the number of violations by the number of employees (violation percentage) and then considering whether it is a first offense, second offense, or a third or more offense.

Violations

Employers determined to have knowingly hire or continuing to employ violations shall be required to cease the unlawful activity and may be fined. The agent or auditor will divide the number of knowing hire and continuing to employ violations by the number of employees for whom a Form 1-9 should have been prepared to obtain a violation percentage. This percentage provides a base fine amount depending on whether this is a First Tier (1^st time violator), Second Tier (2^nd time violator), or Third Tier (3^rd or subsequent time violator) case. The standard fine amount listed in the table relates to each knowing hire and continuing to employ violation. The range of the three tiers of penalty amounts are as follows:

Knowing Hire/Continuing to Employ Fine Schedule

(For violations occurring on or after 3/27/08)

Penalties for Substantive and Uncorrected Technical Violations

The agent or auditor will divide the number of violations by the number of employees for whom a Form 1-9 should have been prepared to obtain a violation percentage. This percentage provides a base fine amount depending on whether this is a first offense, second offense, or a third or more offense. The standard fine amount listed in the table relates to each Form 1-9 with violations. The range of penalty amounts are as follows:

Substantive/Uncorrected Technical Violation Fine Schedule

	Standard Fine Amount for each offense
Substantive Verification Violations	1st Offense $110 – $1,100	2nd Offense $110 – $1,100	3rd Offense + $110 – $1,100
0% – 9%	$110	$550	$1,100
10% – 19%	$275	$650	$1,100
20% – 29%	$440	$750	$1,100
30% – 39%	$605	$850	$1,100
40% – 49%	$770	$950	$1,100
50% or more	$935	$1,100	$1,100

Enhancement Matrix

After the “base” fine is determined, investigators can also “enhance” or “mitigate” the recommended fine by 5% for each of five separate factors, which include business size, good faith, seriousness, unauthorized workers, and history. The end results means that fines could be as great as 25% above or below the base recommended penalty.

The following matrix will be used to enhance or mitigate the recommended fine contained on the Notice of Intent to Fine:

Factor	Aggravating	Mitigating	Neutral
Business Size	+5%	- 5%	+/- 0%
Good Faith	+5%	- 5%	+/- 0%
Seriousness	+5%	- 5%	+/- 0%
Unauthorized Workers	+5%	- 5%	+/- 0%
History	+5%	- 5%	+/- 0%
Cumulative Adjustment	+25%	- 25%	+/- 0%

DHS/ICE Form I-9 and employer sanctions laws enforcement now targets employers through on-site investigations and administrative or "desktop" audits.

Employer failure to verify employment eligibility and properly complete and retain Form I-9 subjects the company to stiff criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants, are personally liable for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.

I-9 compliance (and E-verify for registered employers, now including FAR federal contractors) requires that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, whether documented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".

Employer liability extends to circumstantial evidence and “constructive knowledge”.  It is unlawful to knowingly hire or continue to employ unauthorized workers. This I-9 process mandates accurate and timely completion of the Form I-9 by all U.S. employers and their employees.

"Knowingly hire" includes "constructive knowledge". The requisite employer's knowledge may be constructive knowledge when it may be fairly inferred through notice of certain facts which through exercise of reasonable care would lead a person to know about; or the employer deliberately fails to investigate such facts. Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

Goulder Immigration Law Firm assists employers with Form I-9 consulting, including I-9 and employer sanctions compliance training, developing a company I-9 and employer sanctions compliance manual, and employment eligibility compliance auditing services. Written I-9 compliance policies and a Form I-9 and employer sanctions law internal audit will help protect employers from government fines and criminal penalties and help ensure that all I-9 Forms comply with I-9 and employer sanctions laws.

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DHS Outlines I-9 Employment Eligibility Verification Inspection Process

2009-11-23T10:34:00.000-05:00

Employers are required by law to maintain for inspection original Forms 1-9 for all current employees. In the case of former employees, retention of Forms 1-9 are required for a period of at least three years from the date of hire or for one year after the employee is no longer an employee, whichever is longer.

The administrative inspection process is initiated by the service of a Notice of Inspection (NOI) upon an employer compelling the production of Forms 1-9. U.S. Immigration and Customs Enforcement (ICE) typically will allow 3 business days to present the Forms I-9.

Often, ICE will request the employer provide supporting documentation, which may include a copy of the payroll, list of current employees, Articles of Incorporation, and business licenses. ICE agents or auditors then conduct an inspection of the Forms 1-9 for compliance.

When technical or procedural violations are found, pursuant to INA §274A(b)(6)(B)(8) U.S.C. § 1324a(b)(6)(B)), an employer is given ten business days to make corrections.

An employer may receive a monetary fine for all substantive and uncorrected technical violations. Employers determined to have knowingly hired or continued to employ unauthorized workers under INA § 274A(a)(l)(a) or (a)(2) (8 U.S.C. § 1324a(a)(l)(a) or (a)(2)) will be required to cease the unlawful activity, may be fined, and in certain situations may be criminally prosecuted. Additionally, an employer found to have knowingly hired or continued to employ unauthorized workers may be subject to debarment by ICE, meaning that the employer will be prevented from participating in future federal contracts and from receiving other government benefits.

Monetary penalties for knowingly hire and continuing to employ violations range from $375 to $16,000 per violation; repeat offenders receiving penalties at the higher end. Penalties for substantive violations, which includes failing to produce a Form 1-9, range from $110 to $1,100 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.

ICE will notify the audited party, in writing, of the results of the inspection upon completion. The following are the most common ICE I-9 inspection notices:

Notice of Inspection Results - also known as a "compliance letter," used to notify a business that they were found to be in compliance.
Notice of Suspect Documents - advises the employer that based on a review of the Forms 1-9 and documentation submitted by the employee, ICE has determined that the employee is unauthorized to work and advises the employer of the possible criminal and civil penalties for continuing to employ this individual. ICE provides the employer and employee an opportunity to present additional documentation to demonstrate work authorization if they believe the finding is in error.
Notice of Discrepancies - advises the employer that based on a review of the Forms 1-9 and documentation submitted by the employee, ICE has been unable to determine their work eligibility. The employer should provide the employee with a copy of the notice, and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility.
Notice of Technical or Procedural Failures - identifies technical violations identified during the audit and gives the employer 10 business days to correct the forms. After 10 business days, uncorrected technical and procedural failures will become substantive violations.
Warning Notice - issued in circumstances where substantive verification violations were identified but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer.
Notice of Intent to Fine (NIF) - may be issued for substantive, uncorrected technical, knowingly hire and continuing to employ violations

In instances where a NIF is served, charging documents will be provided specifying the violations committed by the employer. The employer has the opportunity to either negotiate a settlement with ICE or request a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO) within 30 days of receipt of the NIF. If the employer takes no action after receiving a NIF, ICE will issue a Final Order. If a hearing is requested, OCAHO assigns the case to an Administrative Law Judge (ALJ), and sends all parties a copy of a Notice of Hearing and government's complaint, thus setting the adjudicative process in motion.

The Notice of Hearing spells out the procedural requirements for answering the complaint and the potential consequences of failure to file a timely response. Many OCAHO cases never reach the evidentiary hearing stage because the parties either reach a settlement, subject to the approval of the ALJ, or the ALJ reaches a decision on the merits through dispositive prehearing rulings.

DHS/ICE Form I-9 and employer sanctions laws enforcement now targets employers through on-site investigations and administrative or "desktop" audits.

Employer failure to verify employment eligibility and properly complete and retain Form I-9 subjects the company to stiff criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants, arepersonally liable for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.

I-9 compliance (and E-verify for registered employers, now including FAR federal contractors) requires that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, whether documented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".

Employer liability extends to circumstantial evidence and “constructive knowledge”.  It is unlawful to knowingly hire or continue to employ unauthorized workers. This I-9 process mandates accurate and timely completion of the Form I-9 by all U.S. employers and their employees.

"Knowingly hire" includes "constructive knowledge". The requisite employer's knowledge may be constructive knowledge when it may be fairly inferred through notice of certain facts which through exercise of reasonable care would lead a person to know about; or the employer deliberately fails to investigate such facts. Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

ICE announces 1,000 new workplace audits to hold employers accountable for their hiring practices

2009-11-19T17:44:00.000-05:00

U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton today announced the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country associated with critical infrastructure-alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws.

"ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces," said Assistant Secretary Morton. "We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules."

The 1,000 businesses served with audit notices this week were selected for inspection as a result of investigative leads and intelligence and because of the business' connection to public safety and national security-for example, privately owned critical infrastructure and key resources. The names and locations of the businesses will not be released at this time due to the ongoing, law enforcement sensitive nature of these audits.

Audits involve a comprehensive review of Form I-9s, which employers are required to complete and retain for each individual hired in the United States. I-9 forms require employers to review and record each individual's identity and work eligibility document(s) and determine whether the document(s) reasonably appear to be genuine and related to that specific individual.

Protecting employment opportunities for the nation's lawful workforce and targeting employers who knowingly employ an illegal workforce are major ICE priorities, for which ICE employs all available civil and administrative tools, including audits. Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law.

In April, DHS issued updated worksite enforcement guidance emphasizing ICE's major enforcement priorities-specifically focusing on dangerous criminal aliens and employers who cultivate illegal workplaces by breaking the country's laws and knowingly hiring illegal workers. In this strategy, ICE identified form I-9 audits as the most important administrative tool in building criminal cases and bringing employers into compliance with the law.

Statistics since implementation of new ICE worksite enforcement strategy on April 30:

45 businesses and 47 individuals debarred—0 businesses and 1 individual were debarred during same period in FY 2008;
142 Notices of Intent to Fine (NIF) totaling $15,865,181—ICE issued 32 NIFs totaling $2,355,330 in all of FY 2008;
45 Final Orders totaling $798,179—ICE issued eight Final Orders totaling $196,523 during the same period in FY 2008;
1,897 cases initiated —ICE initiated 605 cases during the same period in FY 2008;
1,069 Form I-9 Inspections—ICE initiated 503 Form I-9 Inspections in all of FY 2008.

In July, ICE issued 654 NOIs to businesses nationwide in the largest operation of its kind before November 19, 2009, as part of ICE's effort to audit businesses suspected of using illegal labor.

Statistics resulting from the 654 audits announced in July:

ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents—approximately 16 percent of the total number reviewed;
To date, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are currently being considered for Notices of Intent to Fine (NIFs).
ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits.

Employer failure to verify employment eligibility and properly complete and retain I-9 Forms subjects the company to stiff criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants are personally liable for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.

I-9 compliance (and E-verify for registered employers, now including FAR federal contractors) require that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, whether documented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

1200 Illegal Workers Fired in Minnesota

2009-11-11T12:02:00.000-05:00

In the largest immigration enforcement action under the Obama Administration, 1,200 illegal aliens working as janitors in Minnesota were fired last month having presented the employer with suspect I-9 employment documents. The company, San Francisco-based ABM, that contracts to clean office buildings, carried out an internal audit prompted by Immigration and Customs Enforcement (ICE).

The 1,200 workers fired is almost as many employees as the number arrested in the six 2006 Swift raids and about three times as many as were arrested in Postville in 2008. The main difference is these janitors were fired, not arrested and deported. Workers who continue working at the company said about 80 percent of the workforce was fired.

The process began this summer with ABM letters to workers saying ICE had found problems with their paperwork. The employees were provided a reasonable timey to fix the problems, but time ran out in October when the firings started.

Federal law prescribes specific procedures by which employers conduct employment verification activities.

ABM's letter to employees said, "ICE has informed ABM that the documentation you previously provided to confirm your employment authorization in the United States does not satisfy the I-9 Form employment eligibility verification requirements of the Immigration and Nationality Act."

The letter directed employees to bring in additional documents evidencing employment eligibility or work authorization. The company extended the deadline several times to give workers more time to provide the proper paperwork.

The unemployment rate in Minnesota in September was 7.3%. Of the 1,200 job openings created by the firings, apparently all the jobs have been filled.

ICE “desktop audits” are part of the Obama worksite enforcement strategy targeting employers. Shifting from the Bush worksite enforcement policy of conducting large worksite enforcement actions, the Obama Administration conducts company audits of I-9 documents. Unlike the Bush-era enforcement actions, no action was taken against the fired workers.

ABM will likely be prosecuted.

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits.

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

South Carolina Mini E-Verify Law Enforcement to Provide Inspection Notice

2009-11-05T10:00:00.000-05:00

South Carolina Mini E-Verify Law Revised Enforcement Procedures

The South Carolina Department of Labor, Licensing and Regulation (LLR) has revised its enforcement procedures in connection with the private employment provisions of the South Carolina Illegal Immigration Reform Act of 2008, in response to business’ concerns over disruptions to daily operations by unannounced site visits, requests for documents including I-9 forms and requests to interview employees.

Advance Notice of Inspections. Like federal inspections of employer I-9 forms, LLR is now providing several days notice prior to conducting an audit. This advance notice gives employers the opportunity to make administrative arrangements ahead of time to minimize disruption to business operations and promotes efficiency in the process by giving employers the time to make relevant documents available for inspection.

No Inspection of I-9 Documents. In compliance with federal regulations pertaining to employment eligibility verification, LLR is no longer requesting to inspect I-9 forms and supporting documentation.

New Compliance Affirmation Form. In lieu of certain investigation practices, LLR has implemented a new “Affirmation of Legal Work Status” form to be signed by employers or their authorized representatives affirming that the employer is not knowingly or intentionally employing an unauthorized alien.

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits.

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

Electronic Travel Authorization (ESTA) is Required of All Travelers Entering the United States Under the Visa Waiver Program

2009-10-30T10:08:00.001-04:00

Electronic Travel Authorization (ESTA) is Required of All Travelers Entering the United States Under the Visa Waiver Program

ESTA
ESTA stands for Electronic System for Travel Authorization. ESTA is an online application to pre-screen travelers before they are allow to board an airplane or ship bound for the United States. Any person entering the United States under the visa waiver program is required to hold an approved ESTA Travel Authorization.
All travelers entering the United States (by air or sea) under the visa waiver program are required to hold a valid ESTA travel authorization. The purpose of ESTA is to allow DHS to pre-screen all Visa Waiver Travelers before they leave their respective countries. U.S.-bound travelers are recommended to apply for a Travel Authorization at least 72 hours prior to departure.

The Visa Waiver Program
The visa waiver program is a U.S. government program that enables citizens and nationals from the 35 Visa Waiver Countries to enter the United States for tourism or business purposes for up to 90 days without obtaining a visa. The advantage of entering the United States under the visa waiver program is that you can travel to the United States on short notice without obtaining a visa. FAQs about the visa waiver program.

Eligibility to Apply for Admission Under the Visa Waiver Program
You are eligible to apply for admission under the Visa Waiver Program (VWP) if you:
•                Intend to enter the United States for 90 days or less for business, pleasure or transit;
•                Have a valid passport lawfully issued to you by a VWP country;
•                Have authorization to travel via the Electronic System for Travel Authorization;
•                Arrive via a VWP signatory carrier;
•                Have a return or onward ticket;
•                Travel may not terminate in contiguous territory or adjacent islands unless the traveler is a resident of one of those areas; and
•               Are a citizen or national of one of the VWP countries listed below:

•    Andorra

Iceland

Norway

•    Australia

Ireland

Portugal

•    Austria

Italy

San Marino

•    Belgium

Japan

Singapore

•    Brunei

Latvia

Slovakia

•    Czech Republic

Liechtenstein

Slovenia

•    Denmark

Lithuania

South Korea

•    Estonia

Luxembourg

Spain

•    Finland

Malta

Sweden

•    France

Monaco

Switzerland

•    Germany

Netherlands

United Kingdom

   Hungary

New Zealand

ESTA Travel Authorization Process
The Department of Homeland Security and the United States Customs and Border Protection have provided a secure public Web site with an automated form for you, or a third party, to complete in order to apply for a travel authorization. Once you enter the required biographic and travel information on the secure Web site, your application is processed by the system to determine if you are eligible to travel to the United States under the Visa Waiver Program without a visa. The system will provide you with an automated response, and prior to boarding, a carrier will electronically verify with the United States Customs and Border Protection that you have an approved travel authorization on file.
Travel Authorization Does Not Guarantee Admission to the United States
If your electronic travel authorization is approved, this approval establishes that you are eligible to travel to the United States under the Visa Waiver Program, but does not guarantee that you are admissible to the United States. Upon arrival in the United States you will be inspected by a Customs and Border Protection officer at a port of entry who may determine that you are inadmissible under the Visa Waiver Program or for any reason under United States law.
Travel Authorization is Valid for Two Years
Unless revoked, travel authorizations are valid for two years from the date of authorization, or until your passport expires, whichever comes first. The Authorization Approved screen displays your travel authorization expiration date.

Apply At Least 72 Hours Prior to Travel
Applications may be submitted at any time prior to travel to the United States. The Department of Homeland Security recommends that travel authorization applications be submitted at least 72 hours prior to travel. Unless revoked, travel authorizations are valid for two years from the date of authorization, or until your passport expires, whichever comes first. Currently there is no fee to apply for a travel authorization. However, there may be an application fee in the future.
If You Are Not Approved For ESTA Travel Authorization
If you receive a Travel Not Authorized response to your travel authorization application, but wish to continue with your travel plans, please visit the United States Department of State Web site at www.travel.state.gov for additional information about applying for a visa. The denial of a travel authorization only prohibits travel under the Visa Waiver Program and is not a determination of eligibility for a visa to travel to the United States.

If a Visa Waiver Program Applicant is Found to be Inadmissible
Travelers applying for admission to the United States under the Visa Waiver Program who are determined to be inadmissible to the United States will be denied admission and returned to their country of origin, or a third country from which the traveler holds a round-trip ticket, aboard the carrier on which the traveler arrived in the United States.
Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law for North Carolina clients and for clients throughout the United States, and the world because immigration law is a federal law practice not limited attorneys in a particular state.
Gerald Goulder has been a licensed attorney and counselor at law for 30 years. His practice is exclusively immigration, visa and citizenship law. He has broad experience with family sponsored green cards, naturalization and citizenship, employer sponsored green cards, employment and work visas like H-1B visas and other nonimmigrant visas, and I-9 employment eligibility and employer sanctions laws.
His broad professional background includes working as a special state prosecutor, owning and operating a business, serving on boards of non-profit organizations, religious organizations and private corporations, and taking political leadership roles. Mr. Goulder has also worked as an Assistant Attorney General of Ohio, and Ohio Special Prosecutor in law enforcement and prosecution, and he was appointed Special Counsel to the Attorney General of the State of Ohio. Although his private practice initially involved commercial, business, and corporate/commercial real estate matters,
Gerald Goulder, managing partner of Goulder Immigration Law Firm, is a North Carolina immigration lawyer with clients throughout the world, guarantees personal service to every client. Clients receive one-on-one direct access to immigration attorney Gerald Goulder on phone calls, emails, or letters. If you are seeking guidance, experience and knowledge of immigration and visa laws involving family-based or employment-based permanent residence and green cards, visas, or citizenship, do not hesitate to contact Goulder Immigration Law Firm.

Many States Have Mandatory E-Verify Laws

2009-10-23T14:28:00.000-04:00

E-Verify is an Internet-based system operated by the Department of Homeland Security (DHS) and its agency U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). E-Verify is currently free to employers and is available in all 50 states. It provides an automated link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers. E-Verify is now required for many federal contractors.

Although E-Verify is voluntary, many states now require employers to use E-Verify.

States Requiring the use of E-Verify

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits.

I-9 compliance (and E-Verify for registered employers, now including FAR federal contractors) require that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, whether documented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

Should an Employer Subject to FAR Federal Contractor E-Verify Its Entire Workforce?

2009-10-23T14:00:00.001-04:00

Once an employer is subject to the FAR E-Verify Regulations, it has two decisions to make.

1. Will it only verify employees assigned to the project, or will it verify all employees of the business entity?

2. Will it require all re-verified employees to complete a new I-9, or will it only complete a new I-9 when required to do so?

Verifying the Form I-9 employment eligibility for the entire workforce and using it company-wide going forward will ensure compliance under the FAR E-Verify Regulations.

Then, the employer only needs to make sure that its qualifying subcontractors, flowing from the employer’s prime contracts, comply with the FAR E-Verify regulations when the subcontracts are for services or for construction with a value over $3,000.

E-Verify does allow a federal contractor to change their selection from just employees assigned to contract and new hires to entire workforce.

However, E-Verify does not allow an employer to change from E-Verifying its entire work force to just employees assigned to contract and new hires.

A company may withdraw from E-Verify altogether once the covered federal contract is completed, then re-register with E-Verify with a new “basic” E-Verify account.

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits.

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

Illegal Workers in Agriprocessors Postville, Iowa, Raid Would Not Be Guilty Under Recent Supreme Court Ruling in Flores-Figuera

2009-10-13T10:48:00.001-04:00

In May 2008 ICE executed its largest worksite action ever in Postville, Iowa against Agriprocessors. ICE led 16 state and federal agencies in executing the warrants. Over 300 illegal workers were arrested for identity fraud, served 5 months and were deported.

The Agriprocessor owner’s trial gets started this week. He faces bank fraud charges that were uncovered after and as a result of the worksite action. The owner faces a total 163 charges and, if convicted, a maximum prison sentence of 1,995 years.

However, under a May 2009 United States Supreme Court ruling ICE can no longer pressure unauthorized workers with identity theft unless they know that the identity actually belongs to a specific person.

In Flores-Figueroa v. United States the United States Supreme Court held that a person cannot be convicted of aggravated identity theft (AIT) unless the government proves beyond a reasonable doubt that defendant knew that the documentation number that he used actually belonged to another person. The ruling puts an end to the ICE’s prevalent use of the aggravated identity theft statute [18 U.S.C. § 1028(a)(1)] in immigration cases to prosecute aliens who buy false IDs, not knowing whether or not the particular social security number used on the false ID is one belonging to an actual person or is simply a randomly chosen number.

The ruling directly limits the scope of ICE’s worksite enforcement authority. ICE has generally used the threat of prosecution under the federal aggravated identity theft statute and the mandatory prison time of 2 years imposed by the statute to obtain plea agreements to lesser charges from unauthorized workers, as well as waivers of their rights to contest their deportation.

By limiting the use of the aggravated identity theft statute to situations where the defendant actually knows that he is using a Social Security number or other means of identification that belongs to a real person, the Supreme Court’s decision provides undocumented workers with an important tool in contesting their arrests in enforcement efforts.

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits.

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

Agriprocessors is a Case Study in Immigration Related Prosecution of HR Employees and Mid Level Supervisors

2009-10-13T10:42:00.002-04:00

Agriprocessors, of Postville, Iowa, is a case study in the difficult web of immigration-related employer liability that can spread throughout a company. The ICE raid occurred in May, 2008. The company owner's first trial began this week.

The 99 count indictment alleges that the defendants committed some or all of the following crimes: conspiracy to harbor undocumented aliens for profit, harboring and aiding and abetting the harboring of undocumented aliens for profit, conspiracy to commit document fraud, aiding and abetting document fraud, aiding and abetting aggravated identity theft, unlawful flight to avoid prosecution, bank fraud, false statements and reports to a bank, money laundering and aiding and abetting, and finally, willful violation of an order of the Secretary of Agriculture and aiding and abetting the same.

Indictments were brought no only against the owner of the company, but charges were also brought against mid level HR employees and supervisors. An HR employee or a supervisor at any level of a company deludes himself/herself if s/he believes that federal authorities are only interested in the big bosses.

A former HR employee was charged with conspiracy to harbor undocumented immigrants and harboring, aiding and abetting the harboring of undocumented aliens for profit.

The saga began because an ICE investigation that indicated rampant IF fraud by almost 700 workers at the plant.

The ICE raid was the largest in history. The worksite enforcement action raid involved 16 local, state and federal agencies, led by U.S. Immigration and Customs Enforcement (ICE). The 300 workers arrested represent almost one-third of the plant's 968 workers

Typical of many worksite enforcement actions, the immigration-related violations that opened the door to the company resulted in numerous charges that are not immigration related. The owner has been on federal bank fraud, state child labor violations and under a dusted off 1921 Meatpackers and Stockyards Act that no one can remember ever being used in a criminal action.

The mountains of documents both sides are combing through for discovery include: all Agriprocessors' personnel office files, 10 binders containing I-9 forms, 12 binders of grand jury testimony, electronic discovery that would equal 100 banker boxes if in paper form and at least 10 boxes of records on the bank fraud charges.

The owner faces a total 163 charges and, if convicted, a maximum prison sentence of 1,995 years.

The more than 300 illegal workers served 5 months and were deported.

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits.

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

FAR Federal Contractor E-Verify Timelines

2009-10-08T13:25:00.001-04:00

The Federal Acquisition Regulation (FAR) is the primary set of rules that regulate how the government purchases goods and services and the activities of government personnel involved in procurement. The E-Verify amendment to the FAR began on September 8, 2009. September 8, 2009 is NOT the date that covered federal contractors were required to use E-Verify. Rather, September 8 was the date on which federal government contracting officers were to begin to include a specific E-Verify clause in covered contracts.

Once a federal contractor is subject to FAR E-Verify requirement through a covered federal contract the timeline for implementing E-Verify is set forth below.

Background
The Federal Acquisition Regulation (FAR) is the primary set of rules that regulate how the government purchases goods and services and the activities of government personnel involved in procurement. The E-Verify amendment to the FAR began on September 8, 2009. September 8, 2009 is NOT the date that covered federal contractors were required to use E-Verify. Rather, September 8 was the date on which federal government contracting officers were to begin to include a specific E-Verify clause in covered contracts.

September 8th federal contracting officers were also to begin amending certain existing indefinite-delivery/indefinite-quantity (IDIQ) contracts on a bilateral basis provided that the remaining period of performance extends at least six months after September 8, 2009, and the amount of work or number of deliveries in the remaining performance period is substantial.

Covered Contracts and Subcontracts
In general, the regulation applies only to certain federal contracts awarded on or after September 8, 2009; it does not apply to federal grants or cooperation agreements, as these arrangements are not governed by the FAR.

A federal contract will be subject to the E-Verify requirement if it is valued at more than the simplified federal acquisition threshold of $100,000, is for work that is performed in the U.S., has a performance period of at least 120 days, and is not for “commercially available off-the-shelf” (COTS) items, items that would be COTS but for minor modifications, items that would be COTS if they were not bulk cargo, or commercial services that are part of the purchase of a COTS item and are performed by the COTS provider as a normal part of provision of the COTS item.

However, tit is the responsibility of federal contracting officials, not contractors, to determine which contracts are subject to the requirement and to include the prescribed E-Verify clause in such contracts.

The contractor's entire organization must comply with the E-Verify requirement--a departure from the traditional practice of allowing employers the option to participate in E-Verify at only certain of its locations. However, the requirement will apply only to the corporate entity that signs the federal contract. Parent and subsidiary entities that are not obligated under the contract and that do not perform direct services under the contract are not generally required to comply with the regulation.

In general, if a prime federal contract is covered by the requirement, some subcontractors may be covered and thus required to use E-Verify. If the prime federal contract contains an E-Verify clause, a subcontract is also covered if it is for services or construction and has a value of more than $3,000. If the prime federal contract is exempt from the requirement, its subcontracts are exempt as well.

It is the responsibility of the prime contractor to “flow down” the E-Verify requirement by including an E-Verify clause in subcontracts subject to the regulation.

The subcontractor obligation is potentially quite broad. The regulation defines “subcontract” as “any contract ... entered into by a subcontractor to furnish supplies or services for performance of a prime contract or a subcontract ... including but not limited to purchase orders, and changes and modifications to purchase orders.”

Commentary to the regulation indicates that the obligation applies to covered subcontracts flowing from the prime contract “at any tier”--a potentially very broad and burdensome obligation for employers given the complexity of many federal contracts.

Prime contractors are also responsible for “general oversight” of a subcontractor's compliance with the E-Verify requirement. Although the regulation and its commentary are largely silent on the extent of this responsibility, the government has stated that prime contractors are not required to monitor are not expected to monitor the verification of individual subcontractor employees.

Exemptions
The federal contractor E-Verify regulation contains several exemptions and limitations. As noted above, the requirement does not apply to federal contracts with a value of $100,000 or less, that are for work that will be performed solely outside of the U.S., that have a performance period of less than 120 days, or that are only for commercially available off-the-shelf items. The rule also contains the possibility of an E-Verify waiver. In exceptional circumstances, the head of a contracting activity may grant a waiver of the requirement.

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

2009-10-08T13:22:00.001-04:00

The Federal Acquisition Regulation (FAR) is the primary set of rules that regulate how the government purchases goods and services and the activities of government personnel involved in procurement. The E-Verify amendment to the FAR began on September 8, 2009. September 8, 2009 is NOT the date that covered federal contractors were required to use E-Verify. Rather, September 8 was the date on which federal government contracting officers were to begin to include a specific E-Verify clause in covered contracts.

Once a federal contractor is subject to FAR E-Verify requirement through a covered federal contract the timeline for implementing E-Verify is set forth below.

Background
The Federal Acquisition Regulation (FAR) is the primary set of rules that regulate how the government purchases goods and services and the activities of government personnel involved in procurement. The E-Verify amendment to the FAR began on September 8, 2009. September 8, 2009 is NOT the date that covered federal contractors were required to use E-Verify. Rather, September 8 was the date on which federal government contracting officers were to begin to include a specific E-Verify clause in covered contracts.

September 8th federal contracting officers were also to begin amending certain existing indefinite-delivery/indefinite-quantity (IDIQ) contracts on a bilateral basis provided that the remaining period of performance extends at least six months after September 8, 2009, and the amount of work or number of deliveries in the remaining performance period is substantial.

Covered Contracts and Subcontracts
In general, the regulation applies only to certain federal contracts awarded on or after September 8, 2009; it does not apply to federal grants or cooperation agreements, as these arrangements are not governed by the FAR.

A federal contract will be subject to the E-Verify requirement if it is valued at more than the simplified federal acquisition threshold of $100,000, is for work that is performed in the U.S., has a performance period of at least 120 days, and is not for “commercially available off-the-shelf” (COTS) items, items that would be COTS but for minor modifications, items that would be COTS if they were not bulk cargo, or commercial services that are part of the purchase of a COTS item and are performed by the COTS provider as a normal part of provision of the COTS item.

However, tit is the responsibility of federal contracting officials, not contractors, to determine which contracts are subject to the requirement and to include the prescribed E-Verify clause in such contracts.

The contractor's entire organization must comply with the E-Verify requirement--a departure from the traditional practice of allowing employers the option to participate in E-Verify at only certain of its locations. However, the requirement will apply only to the corporate entity that signs the federal contract. Parent and subsidiary entities that are not obligated under the contract and that do not perform direct services under the contract are not generally required to comply with the regulation.

In general, if a prime federal contract is covered by the requirement, some subcontractors may be covered and thus required to use E-Verify. If the prime federal contract contains an E-Verify clause, a subcontract is also covered if it is for services or construction and has a value of more than $3,000. If the prime federal contract is exempt from the requirement, its subcontracts are exempt as well.

It is the responsibility of the prime contractor to “flow down” the E-Verify requirement by including an E-Verify clause in subcontracts subject to the regulation.

The subcontractor obligation is potentially quite broad. The regulation defines “subcontract” as “any contract ... entered into by a subcontractor to furnish supplies or services for performance of a prime contract or a subcontract ... including but not limited to purchase orders, and changes and modifications to purchase orders.”

Commentary to the regulation indicates that the obligation applies to covered subcontracts flowing from the prime contract “at any tier”--a potentially very broad and burdensome obligation for employers given the complexity of many federal contracts.

Prime contractors are also responsible for “general oversight” of a subcontractor's compliance with the E-Verify requirement. Although the regulation and its commentary are largely silent on the extent of this responsibility, the government has stated that prime contractors are not required to monitor are not expected to monitor the verification of individual subcontractor employees.

Exemptions
The federal contractor E-Verify regulation contains several exemptions and limitations. As noted above, the requirement does not apply to federal contracts with a value of $100,000 or less, that are for work that will be performed solely outside of the U.S., that have a performance period of less than 120 days, or that are only for commercially available off-the-shelf items. The rule also contains the possibility of an E-Verify waiver. In exceptional circumstances, the head of a contracting activity may grant a waiver of the requirement.

In addition, a federal contractor that is an institution of higher education, a state or local government, the government of a federally recognized Native American tribe, or a surety performing under a takeover agreement with a federal agency has modified E-Verify obligations, as discussed below.

I-9 Enforcement: Owner of Company Sentenced for Money Laundering and Hiring Unauthorized Workers and Forfeiture of Over $1 Million

2009-10-08T13:16:00.001-04:00

I-9 Enforcement: Owner of Company Sentenced for Money Laundering and Hiring Unauthorized Workers and Forfeiture of Over $1 Million

The owner and operator of Tempo Inc., a corporation doing business as Annapolis Painting Services (APS), was sentenced to six months' confinement in a halfway house as part of three years of probation for hiring unauthorized workers and for money laundering.

In addition the company was order to forfeit five bank accounts, ten vehilces and seven properties bought or paid for with the proceeds from the operations of his painting business, estimated to be worth more than $1 million.

According to U.S. Immigration and Customs Enforcement (ICE), the owner knowingly hired and employed up to 24 unauthorized workers at his business.

Judge Williams D. Quarles of the U.S. District Court for the District of Maryland had previously entered a preliminary order of forfeiture requiring the owner to forfeit five bank accounts, ten vehicles and seven properties bought or paid for with the proceeds.

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits.

I-9 compliance (and E-verify for registered employers) require that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, whether documented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

I-9 Enforcement: Failure to Develop Company Employer Sanctions Law or I-9 Compliance Manual Proves Costly

2009-10-08T13:14:00.001-04:00

ICE Announces $450,000 Worksite Enforcement Fine

George's Processing Inc., an Arkansas-based poultry-processing company that employs 4,000 workers at three facilities in Arkansas, Missouri and Virginia, recently paid a $450,000 administrative fine as a result of a 2007 worksite enforcement investigation conducted by U.S. Immigration and Customs Enforcement (ICE) which resulted in the arrest of 136 unauthorized workers at the plant.

It is not clear what the company’s legal expenses were in defending the ICE action, but undoubtedly they were high.

Workers Prosecuted. Twenty-eight of the workers were criminally prosecuted for various immigration violations.

Company Hiring Personnel Convicted. Two of the company's hiring personnel were convicted of harboring unauthorized workers and inducing them to remain in the United States.

Settlement. The settlement directs the company to train human resources managers and employees on how to avoid hiring unauthorized workers and to develop a compliance program to ensure that hiring procedures comply with U.S. immigration laws.

Enforcement Action Fines Fund Continuing ICE Enforcement. ICE will use the penalty funds to promote law enforcement programs and activities in worksite enforcement.

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits.

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

DHS Rescinds No-Match/Safe Harbor Rule But No-Match Letters Remain Evidence of Constructive Knowledge of Unauthorized Employment and Form I-9 Sanctions

2009-10-08T13:09:00.000-04:00

Form I-9 Violations: Rescinds No-Match/Safe Harbor Rule--Remain Evidence of Employer Constructive Knowledge of Unauthorized Employment

Though ICE may not continue to base investigations on SSA No-Match Letters, employer action following up after receiving an Social Security Administration (SSA) No-Match Letter may be evidence of employer constructive knowledge that an employee is not authorized to work.

Employers annually send the SSA millions of earnings reports (Forms W-2) in which the combination of employee name and social security number (SSN) does not match SSA records. In some of these cases, the SSA sends the employer an employer-correction request, commonly referred to as a no-match letter, that informs the employer of the mismatch. While there can be many causes for a no-match, including clerical error and name changes, one potential cause may be the submission of information for an alien who is not authorized to work in the U.S. and who may be using a false SSN or an SSN assigned to someone else.

Recently DHS rescinded its No-Match Safe Harbor Rule. Despite DHS' rescission of the no-match safe harbor rule, employers are advised to heed the following language in the preamble to the final rule:

"DHS has not changed its position as to the merits of the 2007 and 2008 rules ... . Receipt of a No-Match letter, when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of “constructive knowledge” [that an employee is not authorized to work in the U.S.].

A reasonable employer would be prudent, upon receipt of a No-Match letter, to check their own records for errors, inform the employee of the no-match letter, and ask the employee to review the information. Employers would be prudent also to allow employees a reasonable period of time to resolve the no-match with SSA. ... [R]eceipt of a No-Match letter and an employer's response to a No-Match letter, in the totality of the circumstances, may be used as evidence of a violation of the employment restrictions of the Immigration and Nationality Act. ... Employers remain liable where the totality of the circumstances establishes constructive knowledge that the employer knowingly hired or continued to employ unauthorized workers."

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits.

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

Employers Must Prepare for Increased Immigration Related Site Visits by DHS and State Wage and Hour Division Agents

2009-10-07T09:34:00.000-04:00

Department of Homeland Security's dramatically increased I-9 employment eligibility verification enforcement efforts include targeting employers. DHS' new Worksite Enforcement Strategy (WES) includes increased enforcement through site visits to the workplace, administrative or "desktop audits" and an expanded definition of "employers" subject to penalties.

DHS has increased random, unannounced site visits and audits by the Fraud Detection and National Security Division (FDNS) of U.S. Citizenship and Immigration Services (USCIS). FDNS is using what it learns in “desktop” audits to add fraud indicators to its database in an effort to identify patterns and potential fraud during adjudications. State Wage and Hour Division audits and IRS audits also result in sharing I-9 related information with DHS.

Employers must prepare for immigration-related worksite inspections by developing and implementing compliance policies, internally auditing their I-9s and H-1B public access files, and planning in advance how to respond when immigration agents visit. Employers should designate a company immigration compliance or employer sanctions officer who should work with the company immigration counsel and contact immigration counsel immediately upon an DHS/FDNS site visit, or a state wage and hour division site visit, and implement an investigation response plan in advance that includes everyone from upper management to receptionists.

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits.

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

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