Top 12 Immigration Mistakes Employers Made In 2012

by Fisher Phillips
Contact

[author: Shanon R. Stevenson]

Give your company the gift of an immigration audit this year – it may just keep your company off the government’s naughty list. Here are the top 12 immigration mistakes employers made in 2012:

1.  Failing To Properly Pay H-1B Workers

USDOL debarred a Washington information technology consulting services company from participating in the H-1B program for two years, assessed $405,175 in civil money penalties, and ordered payment of $983,039.12 in back wages for numerous H-1B violations, including willful failure to pay required wages by demanding workers pay H-1B government filing fees.

2.  Employing Unauthorized Workers

Two Houston companies each forfeited $2 million and agreed to adhere to revised immigration compliance programs for employing unauthorized workers. Both companies received multiple "no-match letters" from the Social Security Administration (“SSA”), which indicated employee names and Social Security numbers did not match SSA records. ICE completed an I-9 audit of both companies in 2011, revealing that from 2005 to 2009 about 44 percent of the workforce of one company was undocumented, many individuals were employed with numerous "egregiously suspect" identification documents, including misspellings of agency names and/or containing the words "novelty item." Similarly, an I-9 audit of the second company revealed that about 269 of its 451-person workforce consisted of undocumented aliens.

3.  Failing to Properly Notify USCIS of an H-1B Worker’s Termination

USDOL has repeatedly held that H-1B workers are entitled to back pay for the entire period of the H-1B approval where the company failed to promptly withdraw the H-1B with USCIS and pay for the reasonable cost of the H-1B worker's return transportation to his or her home country.

4.  Visa Fraud

The head of a Los Angeles law firm was sentenced to 10 months in prison for his role in orchestrating a lengthy employment visa fraud scheme where he and other members of the firm set up nearly a dozen shell companies in order to file at least 137 fraudulent employment-based visa petitions for nearly 100 foreign national clients in exchange for payments of $6,000 to $50,000.

5.  Citizenship Status Discrimination

USDOJ reached an agreement with a manufacturer of semiconductor structures and advanced solar cells based in Illinois to resolve allegations that the company violated the anti-discrimination provision of the Immigration and Nationality Act (“INA”), when it placed six online job postings that explicitly stated citizenship status preferences or requirements that excluded certain work-authorized non-citizens from consideration.  The company will pay $12,000 in civil penalties.

6. I-9 Document Abuse

In October, USDOJ settled a lawsuit against a Las Vegas Casino for $49,000 in civil penalties and full back pay to a former employee for unfair documentary practices. The complaint alleged the casino required non-citizen employees to provide more or different documents or information than it required from citizen employees during the initial employment eligibility verification process. The company then allegedly used the information gathered to impose improper document requests on non-citizens during the reverification process as a condition of continued employment. The complaint further alleged that the casino subjected non-citizen employees’ documents to a heightened review process by senior human resources representatives that was not applied to documents presented by U.S. citizens.

7.  Failure to Comply with State Immigration Laws

Employers are often unaware of the myriad of state immigration requirements.  A Survey of Immigration Laws is available on our website.

8.  Failing to Comply with the Deemed Export Rule

The Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) impose licensing requirements on the export, reexport, and in-country transfer of a wide variety of items that are controlled for national security, foreign policy, and other reasons. The requirements include an obligation for U.S. persons, including corporate employers, to seek and receive a U.S. Government license before releasing in the U.S. to foreign persons, including foreign person employees from certain countries, various types of technology controlled by these regulations. This obligation is referred to by the Commerce Department as the “deemed export” rule because releases of controlled technology to foreign persons in the U.S. are “deemed” to be an export to the person’s country or countries of nationality.

9.  Failure to Properly Complete Form I-9s

A construction company with no history of previous I-9 violations was assessed fines in the amount of $17,200 for 103 I-9 violations, including failure to present I-9 forms for 10 employees, failure to list the proper List A document in Section 2 of the I-9, and twenty-seven I-9s with procedural or technical violations.

10. Failing to Follow Proper E-verify Procedures

USDOJ reached a settlement with a provider of janitorial and facilities maintenance services based in Tampa to resolve allegations that the company violated the anti-discrimination provision of the INA when it failed to fully reinstate an employee in retaliation for asserting her right to work in the U.S. The company has agreed to pay $6,800 in monetary relief to the charging party, which included back pay and interest, along with a $2,000 civil penalty. The charging party alleged that the company failed to provide the employee with proper notice and instructions for contesting an initial data mismatch in E-Verify, resulting in E-Verify issuing an erroneous final response that she was not work authorized.

11.  Taking Adverse Actions Against Employees Based Solely on SSA No-Match Letters

There is no clear guidance from the government on how an employer should respond to No-Match Letters received in 2012. Employers should take the following steps upon receipt of a SSN No-Match letter:

  • Check your records to make sure your Human Resources department accurately recorded the employee’s information.  If an error was made, provide the SSA with any corrections;
  • If your records are correct, promptly notify the employee that you received a SSN No-Match letter and ask the employee to go to SSA to address any discrepancy;
  • Do not take any adverse action against the employee based solely on the SSA No-Match letter;
  • Apply any procedure developed to respond to the SSA No-Match letters in a non-discriminatory way; and
  • Give the employee a reasonable amount of time to correct any discrepancy.  If the employee indicates that he visited SSA and the situation is resolved, please note the actions you and the employee took to resolve the discrepancy in the event of an audit.

12. Not Preparing for an ICE Raid

In the chaos of an intrusive ICE raid, companies should ensure that their representatives are instructed not to volunteer statements to ICE agents or allow themselves to be interviewed or interrogated without an attorney present who represents the organization.

Last fiscal year, employers nationwide were ordered to pay nearly $10.5 million in civil fines for hiring violations. In addition, criminal charges were filed against a record-breaking 221 owners, employers, managers and/or supervisors – up from 196 in fiscal year 2010. Once the final statistics for 2012 are tallied, 2012 is expected to be another record-breaking year for enforcement. In order to avoid the above-listed costly errors, your company’s resolutions for 2013 should include ensuring immigration compliance programs are in place, up-to-date, and followed.

 

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.

© Fisher Phillips | Attorney Advertising

Written by:

Fisher Phillips
Contact
more
less

Fisher Phillips 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.
Custom Email Digest
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.