I-9

Social Security Number No-Match Letters Return

This spring, the Social Security Administration (“SSA”) has begun sending “Employment Correction Request Notices,” or no-match letters, to all employers with at least one W-2 form in which an employee’s name and Social Security number (“SSN”) does not match their records. Employers who receive such letters should not use the letters as reason to take adverse employment actions against their employees. In fact, such action may violate the anti-discrimination provision of the Immigration and Nationality Act, which prohibits discrimination on the basis of national origin, citizenship status or immigration status, document abuse during the employment eligibility verification process, and retaliation. Instead, employers should inform the employee of the no-match, verify the accuracy of their personnel records, and give the employee a reasonable time to contact the SSA office and correct the error.

 

For a complete list of steps employers should take upon receiving a no-match letter and information on how to avoid no-match letters, please see this month’s copy of the HLG Advocate.

 

If you have questions regarding this matter, please contact your HLG attorney or Rebecca M. Baibak, Esq. at rebecca.baibak@hammondlawgroup.com.

Why I-9 Compliance Remains Important

On August 7, 2017, the Ninth Circuit upheld charges against DLS Precision Fab LLC, a now bankrupt sheet metal company, which resulted in $305,000 in penalties for employing unauthorized immigrants. In this decision the court rejecting the company’s arguments that a rogue HR director was to blame.

DLS was found to have failed to comply with the INA’s worker verification requirements and employed more than a dozen individuals known to be ineligible to work in the U.S. DLS attributed its failure to properly vet employees on a rogue HR director who, unbeknownst to it, shirked compliance to the point “of literally stuffing the government’s correspondence in a drawer and never responding.” The Court was not persuaded by this argument.

The bulk of the charges stem from I-9 violations. I-9 violations are not merely violations when filed but remain continuing violations until DLS is no longer required by law to retain them (three years from the date of hire or one year after termination). As for retaining eligible employees, the clock starts upon termination. DLS was therefore not able to use the statute of limitations as a defense.

While these appear to be a pretty blatant violations, it is still a good reminder that properly vetting your employees and maintaining your I-9 records is very important.

HLG to host I-9 Compliance Seminar

On Tues Feb 7th, HLG will host a free teleconference on I-9 compliance. More information can be found here and registration is available at the HLG events page.

EMPLOYERS: You Can Use the Current Form I-9 until 01/21/2017

USCIS will publish a new Form I-9, Employment Eligibility Verification by November 22, 2016. As such, employers can continue to use the current Form I-9, dated 03/08/2013 until 01/21/2017. On or before 01/21/17, employers must use the new form.

OCAHO FINES TEXAS RESTAURANT $33,379.50 FOR 32 I-9 VIOLATIONS

Immigration and Customs Enforcement (ICE) served Jula888, LLC (Para Tacos La Chilanga) on August 4, 2014 with Notice of Inspection (NOI) which required production of the Forms I-9 for its employees, along with other business documents by August 7, 2014. On August 13, 2014, Jula888, through their attorney, notified ICE that no records were available to be produced. On December 15, 2014, ICE served Jula888 with Notice of Intent to Fine (NIF) with one count, alleging 32 violations of 8 USC 1324(a)(1)(B). Specifically, failure to prepare and/or present Forms I-9 for 32 employees. ICE proposed a fine of $34,408.00. Jula888 timely filed a request for a hearing before an Administrative Law Judge (ALJ) with the Office of the Chief Administrative Hearing Officer (OCAHO). ICE filed its complaint incorporating the violations included in the NIF, including the proposed fine. On September 21, 2015, Jula888 filed its prehearing statement, agreeing to the first six proposed stipulations, but not the seventh which concerned whether or not the 32 individuals were in fact employees of the company. On December 18, 2015, ICE filed a Motion for Summary Decision contending that it has it burden demonstrating the absence of a genuine issue of material fact as to Jula888’s liability for the 32 violations. Jula888 filed a Response to the government’s Motion for Summary Decision on January 20, 2016 arguing that the Government has not presented any evidence regarding the number of people employed by Jula888. On June 9, 2016, the ALJ ordered the parties to submit additional evidence. Jula888 did not provide any additional evidence. The evidence from ICE included testimony from former employees confirming the number of employees at each location and sworn statements from current employees confirming the number of employees, the fact that they were undocumented and that wages were withheld to pay smuggling fees. Based on the evidence in the record, OCAHO granted the government’s motion but adjusted the fines as a matter of discretion to an amount close to the maximum of permissible penalties.

5th Circuit Overturns OCAHO I-9 Fines for MN Staffing Company

On Monday, August 11, 2016, the 5th Circuit Court of Appeals vacated a $226,000 fine again Employer Solutions Staffing Group (ESSG) in a ruling that determined that it was not at that time a violation for an employer to have one of its agents inspect original employee documents in Texas and have an employer representative in Minnesota complete the employer attestation in Section 2 of the Form I-9 after reviewing the photocopies of the documents sent by the agent in Texas. In the underlying cases, ICE alleged that ESSG failed to ensure that 242 employees properly completed Section 1 of the Form I-9 or failed to properly complete Section 2 or 3 of the Form I-9, thereby committing substantive I-9 violations. The 5th Circuit said that the INA was unclear as to whether the same person who reviews the original documents must also complete Section 2 or 3 of the Form I-9 and that therefore, it was reasonable to conclude that the attestations were valid as long as the same “entity” both reviews the original documents and completes the Form I-9 attestation. They also found that neither the regulations or the Form I-9 current at that time provided any additional guidance. Indeed, after fining ESSG, but before the Court made its decision, ICE changed the Form I-9 instructions to make it clear that the same person who examines the document must be the same person that signs the Form I-9. Employers who may be in the situation for Forms I-9 completed before 2013 should contact an immigration attorney to determine if the 5th Circuit decision affects their situation. See Employer Solutions Staffing Group v. OCAHO, No. 15-60173 (5th Cir. Aug. 11, 2016).

Is E-Verify More of a Hassle Than it is Worth?

E-Verify is an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. While voluntary for most employers and relatively easy to use for all, registering for and using the E-Verify system, without first performing an internal Form I-9 audit and ensuring you have adequate HR resources to complete the E-Verify process in a timely manner, could have serious consequences.

Problems can arise when E-Verify is used incorrectly by an employer. This improper or incorrect use of E-Verify can lead to an investigation from the U.S. Department of Justice Office of the Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Improper or incorrect use could include anything from listing too many List A documents, not running the E-Verify query within the mandated three day after hire timeframe, using E-Verify to pre-screen applicants or using E-Verify to verify the entire workforce. These independent investigations can lead to hundreds or thousands of dollars in fine and penalties. Therefore, it is our recommendation that before you register for and begin using E-Verify, you contact your immigration attorney to carefully review the pros and cons of using E-Verify and to make sure your company is in the best position to head off any potential issues.

JOINT GUIDANCE ISSUED FOR EMPLOYERS CONDUCTING I-9 INTERNAL AUDITS

The U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) and the U.S. Immigration and Customs Enforcement (ICE) have issued joint guidance intended to help employers properly perform internal Form I-9 audits.

While this guidance provides helpful tips aimed at avoiding discrimination in the internal audit process, following this guidance will not insulate an employer form liability under the anti-discrimination provisions of the Immigration and Nationality Act (INA).

The guidance is designed to outline the audits’ scope and purpose and provide potential issues that should be considered before performing an internal audit. It also provides guidance on correcting errors and omissions. The guidance can be found at: https://www.ice.gov/sites/default/files/documents/Document/2015/i9-guidance.pdf.

ICE FINES WASHINGTON APPLE ORCHARD MILLIONS FOR i-9 VIOLATIONS

A $2.5 million dollar settlement was reached between the U.S. Immigration and Customs Enforcement (ICE) and Broetje Orchards, LLC for violations of the Immigration Reform and Control Act of 1996 (IRCA). The multimillion dollar settlement was a result of ICE’s findings during an I-9 audit performed by ICE”s Homeland Security Investigations (HIS) last summer. Specifically, HSI found that almost 950 of the company’s employees may not have been authorized to work in the United States. In the settlement, although Broetje Orchards did not admit any criminal wrongdoing, they did acknowledge that it continued to employ unauthorized workers after being notified by ICE that those employee did not have permission to work in the U.S.

Pursuant to IRCA, employers are required to properly complete and maintain for inspections original Form I-9s for all current employees (with limited exceptions) and for some terminated employee. An employer must retain the completed Form i-9s for terminated employees for a period of at least three years from the date of hire or for one-year after termination, whoever is longer. Audits of this kind have been increasing in number and fine amount in the past few years.

OCAHO Reduces Fines Notwithstanding Backdating of Forms I-9

The Office of the Chief Administrative Hearing Officer (OCAHO) reduced the penalty for Liberty Packaging, Inc. after finding that although backdating I-9 forms is a serious violation, Liberty Packaging Inc. (Liberty) is a small employer with no history of previous violations and the unauthorized status of the five individuals listed in the NSD was not established. (U.S. v. Liberty Packaging, Inc., 2/24/15) .

Immigration and Customs Enforcement (ICE) filed a complaint alleging that Liberty failed to timely prepare 18 forms I-9 in violation of Immigration Reform and Control Act of 1986 (IRCA). ICE served Liberty with a Notice of Inspection (NOI) on July 31, 2012 and subsequently conducted a Form I-9 inspection in response to which Liberty provided an employee list, recent payroll records and 21 forms I-9. On September 25, 2012, ICE served Liberty with a Notice of Suspect Documents (ND) and a Notice of Intent to Fine (NIF) on March 20, 2013. Liberty’s answer was accompanied by a different set of 19 I-9s. ICE filed their complain with OCAHO on January 2, 2014.

For various reasons discussed in the opinion, ICE asserted that Liberty backdated the forms I-9. As such, they set a baseline penalty of $935 for each of the 18 violations and enhancements totaling 15% were added for bad faith, seriousness of the violations and presence of unauthorized workers. OCAHO in its opinion found that although an employer may not have done anything wrong, they are responsible for the wrongs that may be perpetrated by their agents of a form I-9. Notwithstanding, OCAHO determined that ICE failed to show that the penalties should be enhanced based on the presence of allegedly unauthorized workers in Liberty’s workforce and that a NSD is not sufficient in itself to establish a worker’s unauthorized status. As such, OCAHO reduced the penalty to a rate of $650 for each of the 18 violations.

Several lessons to be learned:

1. Never backdate a Form I-9.
2. Never fire an individual who is listed on the NSD without first allowing them to present other evidence of work eligibility and identity.
3. A NSD is not enough to determine a worker’s unauthorized status.
4. Always cooperate with ICE and retain the services of an immigration attorney with extensive experience with I-9 compliance.