Categories
Government Agency Actions - USCIS, ICE, etc. Immigration Compliance

New Form I-9

On Jan. 31, 2020, USCIS published the Form I-9 Federal Register notice announcing a new version of Form I-9, Employment Eligibility Verification. This new version contains minor changes to the form and its instructions. Employers should begin using this updated form as of Jan. 31, 2020. Employers may continue using the prior version of the form (Rev. 07/17/2017 N) until April 30, 2020. After that date, they can only use the new form with the 10/21/2019 version date. The version date is located in the lower left corner of the form.

The major changes are to the form’s instructions, which include:

1. Clarified who can act as an authorized representative on behalf of an employer
2. Updated USCIS website addresses
3. Provided clarifications on acceptable documents for Form I-9
4. Updated the process for requesting paper Forms I-9
5. Updated the DHS Privacy Notice

Categories
Events Immigration Compliance

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.

Categories
Government Agency Actions - USCIS, ICE, etc. Immigration Compliance

NH Painting Contractor to Pay Nearly $500K in Wages, Dmanages and Penalties

A NH painting contractor was charged in October 2012 for violations of the Fair Standards Labor Act’s (FLSA) minimum wage, overtime and record keeping requirements. In 2014, the Department of Labor (DOL) obtained a preliminary injunction preventing the contractor from intimidating, retaliating or discriminating again current or former employees involved in the investigation and lawsuit. Specifically, the contractor threatened to call immigration if the employees cooperated with the DOL. A consent judgment was issued in which the contractor was ordered to pay $427,000 to 157 employees who were denied payment of overtime and/or minimum wage. In addition, they were ordered to pay civil money penalties to the DOL, maintain accurate records, provide employees and manager with training on FLSA’s requirements and prohibits them from withholding payment of back wages or damages, demanding, keeping or accepting back wages or damages to be paid or failing to cooperate with the DOL. The lesson to be learned here is to make sure that you comply with all laws when it comes to your foreign and U.S. employees, never threaten your employees into doing anything and to keep and maintain accurate records.

Categories
Government Agency Actions - USCIS, ICE, etc.

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.

Categories
Government Agency Actions - USCIS, ICE, etc. Immigration Compliance

PACKAGING COMPANY FINED THOUSANDS FOR BACKDATING I-9s

OCAHO ordered a California-based Liberty Packaging Inc. to pay $12000 for acting in bad faith by backdating 18 I-9 forms following a NOI (Notice of Inspection). The fine was lowered from $17000 by an Administrative Law Judge because they were a small employer with no previous violations.
Immigrations and Customs Enforcement became suspicious because markings on some of the forms implied that they had been completed after the respective date of hire. The case is USA v. Liberty Packaging Inc., Case Number 14A00027, before the U.S. Department of Justice’s Office for Immigration Review, Office of the Chief Administrative Hearing Officer (OCAHO).

Categories
Green Cards

MN Staffing Company Fined $225K for I-9 Violations

Employer Solutions Staffing Group II (ESSG), a large MN company with six to eight thousand temporary employees on its payroll, was recently fined $225 for “creating false attestations” on Section 2 of the I-9. Specifically, ESSG reviewed copies of the employee’s I-9 documents “without ever seeing the individuals whose documents they examined.” This is a clear failure to comply with the I-9 regulations as it is Section 2 that is the core of the employment verification process. This case is important for many reasons. First, it is further evidence that employers must be diligent when completing their I-9s. This is especially true for staffing companies who may employ remote hires. Employers – You must always review the original and unexpired identify and work authorization documents of each and employee and this must be done in the presence of the employee. Otherwise, how can you properly attest that you have done so? Second – E-Verify will not excuse such a failure to comply. In fact, it is a requirement of the E-verify system that you properly complete an I-9 before you run an E-Verify query. Thus, the affirmative defense provided by the regulations would be unavailable to an employer who creates a false attestation on an I-9. Finally, notwithstanding that no unauthorized workers are hired, this type of failure to comply with I-9 requirements is an exceedingly serious offense that could lead to a maximum penalty of $1100 per violation as well as other sanctions. In fact, in this case, ESSG was fined $935 per violation.

Update: On August 11, 2016, the 5t Circuit Court of Appeals vacated the $226,000 fine against Employer Solutions Staffing Group II (ESSG) having ruled that is was not a violation for them to have one of its agents inspect original employee documents in Texas and have another person in Minnesota complete the employer attestation in Section 2 after reviewing the photocopies of the documents sent by the Texas agent. See Employer Solutions Staffing Group v. OCAHO, No. 15-60173 (5th Cir. Aug. 11, 2016) and my new blog above.

Categories
Government Agency Actions - USCIS, ICE, etc.

EMPLOYERS BEWARE – THE U.S. GOVERNMENT WILL SPEND $$$$ TO COLLECT $500 FOR I-9 VIOLATIONS

In a recent case, U.S. v. Keegan Variety, LLC, 11 OCAHO no. 1238 (2014), the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) spent tens of thousands of dollars (think daily salaries of the investigators, the Judge and his/her staff) to collect $500 from an employer for two I-9 violations. Keegan Variety is a mom-and-pop convenience store in Van Buren, Maine on the Canadian border. The store employed only two people – a mother and cousin of the owners. While we understand that regulations regarding employment verification and work authorization must be followed, there is something to be said for wasting the taxpayers money to prosecute small family owned businesses. Maybe a written warming would have been appropriate in this situation. However, the moral of the story for each and every employer is that obviously the U.S. government is not above wasting the taxpayers’ money to prosecute you for violating I-9 regulations, no matter your size. For further information, please contact us for more information on how you can remain I-9 compliant. To read the case I am discussing above, please see: http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Looseleaf/Volume11/1238.pdf.

Categories
Immigration Compliance

E-Verify Employer Found Liable for 129 Form I-9 Violations

Golf International DBA Desert Canyon Golf, an E-Verify employer, was found liable for 129 Form I-9 violations by the Office of the Chief Administrative Hearing Office (OCAHO).  This included 125 violations consisting of failure to ensure that employees properly completed Section 1 of Form I-9 and/or failure to properly completing Section of Form I-9 and four violations consisting of failure to prepare and/or present Forms I-9.  The total fine was $136,697.00.  In its decision, OCAHO made it clear that the good faith defense is only available for technical and procedural Form I-9 violations and that participation in E-Verify DOES NOT exempt an employer from properly completing, retaining and producing for inspection Forms I-9 that relate to its employees.  This is a good reminder that all employers should audit their Forms I-9 and review any internal procedures regarding the proper completion and retention of their Forms I-9 on a regular basis.  Remember – An employer’s first and most important responsibility is to properly complete a Form I-9 for each new employee regardless of whether or not they use E-Verify.

Categories
Government Agency Actions - USCIS, ICE, etc. Immigration Compliance

ICE Investigates 1000 Companies

Last week, ICE issued 1000 subpoenas directed at companies throughout the US. The ICE investigation is focused on I-9 compliance and unauthorized employment. For questions about HLG’s compliance practice, contact Sherry Neal at sln@hammondlawgroup.com