Employers: Are You at Risk for Immigration and I-9 Audits?

by Carlton Fields
Contact

The Background
The Obama administration has attempted to attract and retain new and highly skilled talent to the United States, setting initiatives to allow foreign nationals working in the United States to remain here. Yet it has also extended the administrative site visit and verification program (ASVVP) to L-1 visas, the temporary work visa used for intercompany transferees. The ASVVP is designed to complement the U.S. Department of Homeland Security’s existing anti-fraud visits.

So, on the one hand, the United States recognizes the opportunities presented by globalization. But on the other hand, it continues to make it more difficult to hire employees from abroad by expanding site visits to include employers with L-1 transferees, in addition to continuing to conduct site visits on those that bring in or hire professionals with H-1B visas (another temporary work visa classification).

The U.S. Immigration and Enforcement (ICE) workforce enforcement strategy rolled out in April 2009, had collected far more than $12 million in administrative fines and debarred approximately 375 employers for administrative and criminal violations by the end of 2012. Homeland Security Investigations and ICE have targeted all industries and companies of all sizes for investigations of fraud, site visits, I-9 audits or audits of other employment-related practices that come to light as a result of other U.S. government agency visits or investigations.

The majority of I-9 audits or unfair immigration-related employment practice claims stem from anonymous tips from disgruntled or terminated employees; or tips or referrals from other U.S. government agencies.  In the past three months, the Department of Justice (DOJ) has reached several agreements with companies for unlawful employment eligibility verification practices based on such tips.

Government Targets All Industries
In one case, the DOJ reached an agreement with a Dallas concrete company requiring the company to pay $115,000 in civil penalties because it subjected non-U.S. citizen new hires to unlawful demands for specific documentation issued by the Department of Homeland Security (DHS) to verify their employment eligibility, and selectively used E-Verify to confirm employment eligibility of individuals the company knew or believed to be non-U.S. citizens or foreign-born. Additionally, the company was subjected to monitoring of its employment eligibility verification (I-9) practices for one year.

In a similar case, a Denver-based janitorial company reached an agreement with the DOJ to pay $75,000 in civil penalties following claims that it allowed U.S. citizens to present their choice of documents when completing the I-9, but subjected non-U.S. citizen new hires to unlawful demands for specific documentation to verify their employment eligibility.  In this case, the investigation was also initiated based on a referral from the USCIS, and the employer was also subjected to ICE monitoring of its I-9 practices for one year.

In yet another case, a Seattle food company was fined $40,500 and subjected to monitoring of its I-9 practices for one year based on the same unfair practices toward non-U.S. citizens. In aTexas-based case, the same findings were due to a  referral from the USCIS. There, a supermarket chain required lawful permanent residents to produce new employment eligibility documents when their green cards expired, even though the I-9 and E-Verify rules do not mandate that practice. The supermarket chain had to pay $43,000.00 in civil penalties and was subjected to monitoring of its employment eligibility verification practices for 18 months.

E-Verify Use Affords No Presumption of Compliance
The U.S. government can find employers who use E-Verify liable for I-9 violations and impose civil penalties. Employers who sign up to use E-Verify also sign a memorandum of understanding that provides that they are not exempt from the responsibility of completing, retaining, and making available for inspection forms I-9 that relate to their employees.

In a March 2014 case, the Office of the Chief Administrative Hearing Officer (OCAHO), one of three adjudicative components within the Executive Office for Immigration Review, found an Arizona golf club liable for 129 I-9 violations and that its use of the E-Verify program provided no blanket protection from I-9 rule compliance. The OCAHO has jurisdiction over three types of civil penalty cases arising under the immigration laws, including employer sanctions, unfair immigration-related employment practices and immigration-related document fraud. ICE sought $136,697 in total civil penalties from the golf club for improperly completing certain sections of the Form I-9 or failing to present certain employees’ I-9s when requested by ICE.

What Should Employers Do?
These actions should alert employers to take all necessary internal steps to prepare for any audits or investigations. Easy and cost-effective preparatory actions can prevent or minimize heavy civil penalties. Both legal and human resource departments can take the necessary steps to help ensure that the findings and penalties noted above are not imposed on their company. They should review internal immigration practices and I-9 completion and maintenance policies; conduct internal I-9 audits periodically; and conduct training sessions in I-9 completion and preparation for investigations and audits.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Carlton Fields | Attorney Advertising

Written by:

Carlton Fields
Contact
more
less

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.