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

USCIS Releases Revised I-9

The USCIS recently issued a revised version of the Form I-9, Employment Eligibility Verification Form. This form must be used beginning on September 18, 2017. All existing storage and retention rules for Form I-9 must continue to be followed. As you know, employers use the Form I-9 to verify the identity and employment authorization of newly hired employees. In this latest revision, the USCIS modified the List of Acceptable Documents to include adding to List C the Consular Report of Birth Abroad (Form FS-240), combined all certifications of report of birth issued by the U.S. Department of State (Forms, FS-545, DS-1350 and FS-240) into List C, and renumbered all List C documents except the Social Security Card. Additionally, the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices was changed to its new name of Immigrant and Employee Rights Section and removed “the end of” from the phrase “the first day or employment.”

Please contact your HLG attorney if you have any questions about the new form, how to do an internal audit, E-Verify or with any other immigration or employment verification questions.

Categories
Immigration Compliance

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.

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

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.

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

New Form I-9 Approved – Current Form I-9 Valid until 1/21/2017

On August 25, 2016, the Office of Management and Budget (OMB) approved a revised Form I-9, Employment Eligibility Verification. The new Form I-9 must be published by November 22, 2016. Employer can continue to use the current form until January 21, 2017. After that date, the new Form I-9 must be used. No other editions will be valid.

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

Minnesota Promotional Marketing Company Liable for I-9 Violations

The Office of the Chief Administrative Hearing Officer (OCAHO) found International Packaging Inc., a Minnesota-based promotional marketing company liable for failing to prepare or present Forms I-9 for 21 of its employees and for substantive errors found in 73 Forms I-9. Form I-9 is used to confirm an employee’s identity and work authorization. Fines have yet to be levied but the government is arguing for baseline penalties of $935 for each violation. The judged stated that employers may be entitled to a “good faith” defense for paperwork technical or procedural violations but that defense has no application to substantive violations, such as those in this case. This is the second recent decision against a Minnesota employer by OCAHO. Last week, as we blogged, Golden Employment Group Inc. was found liable for over 465 Form I-9 violations.

Categories
Green Cards Immigration Compliance

Employers Should Continue to use the Form I-9 With an Expiration Date of 03/31/2016

The USCIS has announced that until further notice, employers should continue to use the Form I-9, Employment Eligibility Verification, with expired on 03/31/2016. USCIS is in the process of drafting a new version of Form I-9 and they will provide further information once it becomes available.

Employers are required to complete a Form I-9 to confirm identity and employment verification of all new employees and should have a completed Form I-9 for each employee hired after November 6, 1986. As such, as indicated above, please continue to use the expired form until USCIS issues the new version.

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Government Agency Actions - USCIS, ICE, etc.

Employer Pays $215K to Settle Citizenship Discrimination Case

Louisiana Crane & Construction LLC, which provides oilfield services, has agreed to pay $165,000 in civil penalties and create a $50,000 fund to pay workers who lost wages because of the company’s policy requiring workers who were not U.S. citizens to provide additional documents during the Form I-9 employment verification process. The company will also be required to conduct anti-discrimination training and be subject to monitoring for two year.
The Immigration and Nationality Act’s (INA) anti-discrimination provision prohibits employers from requiring additional documents from workers during the employment eligibility verification process based on their citizenship status
This case is serves as evidence that the Department of Justice’s (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is continuing to ramp up its activities thanks in part to a 2010 agreement requiring the U.S. Citizenship and Immigration Services (USCIS) to refer discrimination matters to the OSC, along with any relevant information from the E-Verify system. As such, employers should be very careful to properly follow the employment verification regulations regarding proper completion of a Form I-9 and use of the E-Verify system.

The case is U.S. v. Louisiana Crane Co. LLC, case number 14B00102, before the U.S. Department of Justice’s Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer.

Categories
Government Agency Actions - USCIS, ICE, etc.

DOJ SECURES LARGEST CIVIL PENALTY FOR DISCRIMINATIN CLAIM

The Department of Justice (DOJ) reached an agreement on May 27th with a farm labor contractor, in Bakersfield, California, Luis Esparza Services, Inc. (LES), which resolved claims that LES discriminated against individuals because of citizenship status in violation of the Immigration and Nationality Act (INA). The agreement involved the largest civil penalty to date that the DOJ has ever secured for a discrimination claim under the INA.
As determined during the DOJ investigation, LES required work-authorized non-U.S. citizens to produce documents issued by the Department of Homeland Security (DHS) as a condition of employment, but did not require the same of U.S. citizen workers. This type of additional documentation burdens placed on some employees and not others is prohibited under the anti-discrimination provisions of the INA.

The settlement agreement provided that LES would pay $320,000 in civil penalties; compensate a worker who lost wages due to LES’s employment eligibility verification practices; undergo training on the anti-discrimination provision of the INA; revise its employment eligibility verification policies; and be subject to monitoring of its employment eligibility verification practices for three years.

This case serves as a reminder to all employers that they should have standard operating procedures in place for the completion of Form I-9s that do not discriminate based on national origin and must be followed by everyone involved in the Form I-9 process.

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
Government Agency Actions - USCIS, ICE, etc.

E-Verify Systems Records Purge

Starting on January 1, 2015, E-verify transaction records more than 10 years old will be deleted by the E-Verify system. E-Verify users will no longer have access to cases created prior to December 31, 2004. This action is required to comply with the National Archives and Records Administration’s (NARA) retention and disposal schedule.

In order to retain the ability to access cases created prior to December 31, 2004, you must download the newly created Historical Records Report prior to December 31, 2014. The reports will contain all of your transaction records for cases more than 10 years old. Please note that the report will only be available until December 31, 2014. Instructions for downloading the Historical Records Report are available online at: http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/Instructions_to_Download_NARA_Reports_in_E-Verify.pdf

In order to remain compliant with NARA, the E-Verify system will delete records annually on December 31st. Therefore, we recommend that you record the E-Verify case number on the related Form I-9 and retain the Historical Records Reports with you Forms I-9. If you did not use the E-Verify system before December 31, 2004, there will be no Historical Records Report to download.