Employers must not insist on ‘green cards’!

Documentary abuse and discrimination against work-authorized workers continues.

The Justice Department (USDOJ) announced today that it reached an agreement with Ross Stores Inc., resolving allegations that the company had engaged in a pattern or practice of discrimination based on citizenship status while verifying employment eligibility at its store in San Ysidro, CA. The allegation was that Ross Stores discriminated against a work-authorized individual when it refused to honor a genuine work authorization document and requested that she produce a green card, despite the fact that the company did not require US citizens to show specific work authorization documents.

The department’s investigation began in response to a charge of discrimination filed by a work-authorized, non-US citizen, who was not permitted to work at the San Ysidro store after showing a valid Employment Authorization Document (EAD) for the Form I-9. The worker complained that Ross Stores refused to allow her to work after presenting her EAD, and that Ross requested more or different documents for the Form I-9 and eventually withdrew her job offer. The worker had already produced sufficient documentation establishing her work authorization.

USDOJ alleged that Ross Stores subjected newly hired non-US citizens to excessive demands for documents, in order to verify their employment eligibility, but did not require the same of US citizens.

The Immigration and Nationality Act (INA) requires employers to treat all authorized workers equally during the employment eligibility verification process, regardless of their national origin or citizenship status.

Employers must not treat authorized workers differently during the employment eligibility verification process based on their citizenship status or national origin.

Under the settlement agreement, Ross Stores agrees to reinstate the charging party and pay $6,384 in back pay plus interest to the charging party and $10,825 in civil penalties to the United States. Ross Stores also agrees to comply with the law, to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process, and to be subject to reporting and compliance monitory requirements for 18 months.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Immigration Attorney

Copyright 2012.  All rights reserved.

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Part VIII: How can employers protect themselves from discrimination?

The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) has 10 recommended steps that helps employers avoid discrimination in the work place.

1. Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing.

2. Examine and accept original documents that appear genuine and relate to the employee.

3. Do not demand different or additional documents as long as the documents presented prove identity and work authorization, are listed on the back of Form I-9, and appear genuine.

4. As long as the job applicants are authorized to work in the US, avoid requiring job applicants to have a particular citizenship status unless mandated by law or federal contract.

5. Give out the same job information to all callers, and use the same application form for all applicants.

6. Base all decisions about firing on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of your employees.

7. Complete the I-9 form and keep it on file for at least three years from the date of employment or for one year after the employee leaves the job, whichever is later.

8. On Form I-9, verify that you have seen documents establishing identity and work authorization for all your new employees hired after November 6, 1986.

9. If re-verification of employment eligibility becomes necessary, accept any valid documents your employee chooses to present. For re-verification, employees need only present either a List A document or a List C document.

10. Be aware that US citizenship, or nationality, belongs not only to persons born within the fifty states, but may belong to persons born to a US citizen outside the United States. Persons born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, American Samoa, or Swains Island also are US citizens or nationals. Also, an immigrant may become a US citizen by completing the naturalization process.

Yet in 2011, we had nine cases of document abuse and seven cases of improper inquiry about citizenship status.

The University of California, San Diego (UCSD) Medical Center committed document abuse when it discriminated against non-US citizen employees by requiring them to produce specific List A documents, but did not ask for the same specific documents from US citizen employees. If a potential employee wrote that he or she was a noncitizen in Section 1 of Form I-9, UCSD Medical Center required them to issue particular List A documents to establish employment authorization. UCSD Medical Center continued the same documentary abuse, asking for specific List A documents, even at the re-verification stage. The employer entered expiry dates of all List A documents and then proceeded to re-verify List A documents that did not need to be re-verified.

The complaints started when a lawful permanent resident employee complained that UCSD Medical Center required her to present an unexpired “green card”, or she would be fired. An inquiry from OSC to UCSD Medical Center confirmed the complaint. From January 2004 to June 2011, UCSD Medical Center required noncitizen new hires to present specific List A documents. UCSD Medical Center misunderstood ‘green card’ for a visa or work permit, and thought this ‘green card’ required re-verification at expiration date. The employer also rejected combinations of List B and C documents if presented by noncitizen new hires; however, if a US citizen new hire presented those very same documents, the employer accepted those documents.

USCD Medical Center was charged with continuing a practice of document abuse according to U.S.C. § 1324b(a)(6), and adopting a “knowingly” and intentionally discriminatory policy toward non-citizens.

In another case, the company Life Generations Healthcare, LLC committed similar discriminatory conduct against its non-US citizen employees: Life Generations required non-US applicants, who were both naturalized and work-authorized, to compile more or different documents than needed on the Form 1-9; the company did not ask the same of native-born US citizens.

The complainant in the case was a work-authorized asylum applicant. When applying for a job, the company’s HR department asked the applicant to present a “green card”. The applicant explained that she did not have a Permanent Resident Card but was authorized to work. The second time the applicant applied for the job, she was asked to present her work authorization papers, or Employment Authorization Document (EAD). With her EAD, she was authorized to work as an asylum applicant. Even though the applicant was qualified for the job, she was told that she would not be employed because her EAD carried a future expiration date.

Between January 1, 2008 and April 12, 2010, the company required all newly hired non-US citizens to produce a List A document during the Form 1-9 Employment Eligibility Verification process because of their citizenship status and/or national origin. During the time the complainant was authorized to work, June 23, 2009-June 22, 2010, Life Generations Healthcare hired five new individuals: one US citizen and four lawful permanent residents. The lawful permanent residents presented a permanent resident card to show work authorization.

Life Generations Healthcare, LLC was found guilty of unfair immigration-related employment practice and in violation of the anti-discrimination provision of the INA, 8 U.S.C. § 1324b(a)(l) and (a)(6).

Citizenship status discrimination refers to employers treating potential employees differently because they may or may not be US citizens, or may or may not be authorized to work in the US. US citizens, recent permanent residents, temporary residents, asylees and refugees are protected from citizenship status discrimination. But there is an exception to the citizenship status discrimination: those permanent residents who do not apply for naturalization within six months of being eligible to apply are not protected from citizenship status discrimination.

Employers seem to be fixated on green cards. From the cases above, the employer’s HR employee asked for a green card during the I-9 employment verification process. In particular, HR was fixated on asking for green cards from non-US citizens even though these employees had produced valid and acceptable documents; HR consistently asked for more documents than required, and refused to accept valid and acceptable documents. This constitutes document abuse.

The result has been that OSC has settled with employers for very costly monetary fines, civil penalties and remediation. In addition, employers have to enter into agreements to undergo training, reporting and monitoring between 18 months to three years. This is an unnecessary expense for the employer. Fines have ranged from $10,000-$115,000.

What is the solution? First, employers should make sure HR personnel understand the laws, especially which documents are required in order to establish identity and work authorization. Second, seek help from an immigration lawyer. Last, use the newest updates and technology to ensure that no mistakes are made.

Next Week: Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Part VII: Penalties

This is Part VII of a blog series for employers to avoid audit by ICE. After the employer receives a notice from ICE, which details whether the employer has been found in violation, then ICE will determine the employer‘s penalties.

The following are the most common notices:

Notice of Inspection Results
Notice of Suspect Documents
Notice of Discrepancies
Notice of Technical or Procedural Failures
Warning Notice
Notice of Intent to Fine
Final Order
Notice of Hearing
Determination of Recommended Fine

Find that each type of notice is hyperlinked and explained in further detail.

There are three different types of violations that an employer could be found guilty of: civil fines and criminal penalties for violation for Form I-9 laws; ‘knowing hire’ and ‘continuing to employ’ violations; and substantive and uncorrected technical violations.

Employers who have ‘knowingly hire’ or ‘continuing to employ’ violations will be forced to stop unlawful activity and may be fined. ICE will divide the number of both violations by the number of employees with misfiled Forms I-9, and obtain a violation percentage.

In the case of technical violations, ICE will do the same in order to obtain a violation percentage.

The violation percentage gives a base fine amount depending on whether this is a First Tier (first time violator), Second Tier (second time violator), or Third Tier (third time violator) case.

In our very own city, St. Louis, J&J Industrial Supply, Inc. was found at fault for employing illegal workers after an inspection by ICE‘s Homeland Security Investigations (HSI). The company pled guilty to knowingly hiring multiple illegal immigrants, and was charged with a $150,000 penalty, a year of probation, and forfeiting a company car. The monetary fine was equal to the profit J&J made during the 12-month period that illegal immigrants were on the company payroll.

J&J Industrial Supply was initially caught because a driver of the (forfeited) company car was caught speeding. The car was pulled over by the police and found that an illegal alien employee was driving. ICE was immediately called. Under Missouri Statute 577.675.1, it is “unlawful for any person to knowingly transport, move, or attempt to transport in the state of Missouri any illegal alien who is not lawfully present in the United States…for purposes of employment.” Doing so will result in prison time, a monetary fine, or both.

In another midwest town, Springfield, IL, five employees from La Fiesta Mexican Restaurant were criminally charged. Three were charged with abuse of fraudulent employment eligibility records; the other two were charged with illegally reentering the US after having been previously deported. If found guilty, the penalty for misusing false documents is up to five years in prison; the penalty for reentering the US after deportation is 20 years in prison and a $250,000 fine. Not only will the unauthorized workers be charged, but the owners can also be charged in civil and criminal indictments, and are also liable to fines.

In San Diego, California, The French Gourmet, Inc. was sentenced for charges of knowingly hiring illegal workers after a four year inspection by ICE‘s HSI. The company was ordered to forfeit $109,200 in profits made during the year in which illegal workers were employed, and ordered to pay $277,375 for its employment of illegal aliens. The company’s owner was also sentenced to five years of probation based on these ‘knowingly hiring’ violations.

Click on the different types of violations, which are hyperlinked, to find charts of employment percentages and fines.

Next Week : Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Part VI: Step Three in the ICE Audit Process

We took a little break from detailing the US Immigration and Customs Enforcement (ICE) audit process for you, but now we’re back with the step three of ICE’s inspection.

Our entries on Form I-9 are guidelines that employers should follow in order to avoid audit by ICE. After an ICE officer visits the employer‘s worksite and examines Forms I-9, then the officer determines whether the employer adheres to rules and regulations or is in violation.

Step Three: Penalties

The employer may be given a monetary fine for technical violations. When determining the penalty amount, ICE considers five factors: the size of the business; good faith effort to comply with I-9 regulations; the seriousness of the violation by the employer; whether the violation(s) by the employer involved hiring unauthorized workers; and the employer‘s history of previous immigration and I-9 violations.

An employer who ‘knowingly’ hired, or continued to employ unauthorized workers, will be required to stop hiring unauthorized workers. The employer may be fined and in certain situations may be prosecuted criminally. This action by ICE may also involve criminal prosecution of the company’s officers. The employer may also face debarment by ICE, meaning that the employer can not participate in future federal contracts, or receive other government benefits.

Monetary fines for ‘knowingly’ hiring and ‘continuing to employ violations’ range from $375 to $16,000 per violation, with repeat offenders receiving higher fines. Fines for substantive violations, which includes failing to produce Form I-9, range from $110 to $1,100 per violation.

Employers who violate the law may be subject to:
• civil fines
• criminal penalties (when there is a pattern of violations)
• debarment from government contracts
• a court order requiring the payment by the employer to an individual employee discriminated against
• a court order requiring the employer to hire the individual employee discriminated against

An example of how an employer should not proceed is made by two companies in Houston. Atrium Companies and Advanced Containment Systems Inc. (ACSI) were found by ICE of knowingly hiring illegal immigrants to work in their facilities. Both companies were made to forfeit $2 million to Department of Homeland Security. However, the US government has agreed to not criminally prosecute the companies; instead, forcing the companies to rectify previous immigration violations, pay a hefty penalty and remain cooperative with the criminal investigation.

Atrium Companies and ACSI were sent multiple notices by the Social Security Administration (SSA), signifying that the companies’ employee names and Social Security numbers did not match SSA records. Both companies did not address this question of immigration, and continued to employ illegal immigrants from 2005-2009.

In 2011, both companies received separate audits by ICE. These audits showed that nearly half of both companies’ workforces consisted of illegal immigrants, and that the companies were knowingly hiring illegal immigrants. Since the audit’s began, all illegal immigrant employees were terminated.

Read the full details of the case here.

In the next section of Part VI, Section D, we will be discussing the last step in ICE’s auditing process.

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Tara Mahadevan

Copyright 2012.  All rights reserved.

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What happens when the Government asks to inspect Forms I-9?

The government asks an employer for Forms I-9 in order to verify and identify the employer employees. There are several steps in the process of an inspection on Form I-9.

First, either officials from the Department of Justice, the Office of Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor will inspect an employer‘s Forms I-9. Typically a written Notice of Inspection (NOI) will be sent to the employer three days prior to the inspection, via U.S. mail. However, officials may opt out of giving the employer any notice, instead using subpoenas and warrants to acquire the employer‘s Forms I-9.

Officials commonly choose where inspections will occur. An officials might require the employer to bring Forms I-9 to an ICE Field Office. Sometimes an inspection will be conducted where the forms are stored.

The five general steps to an inspection as follows:
1. Notice of Inspection (NOI)
As described earlier, a written NOI is sent to the employer, giving him or her three days notice.
2. Obligation to make records available
At the time of inspection, all Forms I-9 and attachments must be available at the location where the inspection was requested.
3. Recruiters or referrers
A recruiter or referrer for a fee, who has designated an employer to complete the employment verification procedures, may present a photocopy of Forms I-9 and attachments instead of presenting Forms I-9 and attachments in its original form.
4. Compliance with inspection
Employers who refuse to present Forms I-9 will be in violation of law.
5. Use of subpoena authority
An officer may be forced to attain Forms I-9 and attachments by issuing a subpoena if the employer has not complied with a previous request to present Forms I-9.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Issue of 221(g) and Other Delays for H-1bs in India

H-1b fraud is rampant in India, and is one of the most falsified visas in India. Many Indian H-1b cases require site visits, as it is necessary for officials to authenticate H-1b applicants’ experience letters due to applicants fabricating employment. According to the India Biannual Fraud Update, 2009, the city of Hyderabad, in Andhra Pradesh, India, is a center for counterfeit documentation in educational qualifications, experience letters and nonexistent companies. Worldwide there are 300,000 H-1b applications that are filed, 100,000 of which that are adjudicated in India.

According to the Fraud Update, Hyderabadi applicants make up over 30% of the consulate’s visa workload. In the first three months of H-1b assessment, the Consulate General of Hyderabad detained and prosecuted multiple vendors on the basis of falsified documents. Some Hyderabadi applicants even tried to submit their applications through the Mumbai Consulate by alleging that their employer was in Pune, which is in the jurisdiction of the Mumbai Consulate. Applicants often used these shell companies so that they could change jurisdictions and avoid applying through the Chennai consulate.

The 2009 Fraud Report enumerated high volumes of fraudulent documentation, namely in education degrees and experience letters. Since then, India has been on high alert and visas are being re-adjudicated—reexamined based on evidence presented by the beneficiary at the interview. It was discovered that H-1b applicants who did not meet minimum education qualifications were being approved for H1B visas. In Hyderabad, India, when the applicants’ experience letters were investigated through site visits to verify the existence of 150 companies, 77% of these employers turned out to be fraudulent. The outcome of this fraud report has led to a higher number of requests for evidence in the US, and a greater number of applicants being sent into administrative processing by the consulates for both H-1b and L-1b visas. The Chennai Consulate has hosted a worldwide H and L fraud conference, which has been attended by, amongst others, Department of Homeland Security (DHS), Kentucky Consular Center (KCC), and multiple posts that adjudicate a number of Indian H-1b applicants.

In other words, the outcome is that even if you have an approved H-1b, there is a 27% chance worldwide of being re-judged, reexamined and re-adjudicated by an officer at the consulate. At this time, there is no deference being accorded to approvals by US Citizenship and Immigration Services (USCIS) of H-1b applications. The H-1b visa holder who has been approved in the US, either through change of status, extension of status, or change of employer, now faces a prospect of going through another judgment process. At the consulate, the H-1b visa applicant is either given a visa stamp of approval in their passport or given a notice under Immigration and Naturalization Act (INA) 221(g). Or worse yet, the applicant is denied.

A 221(g) notice will generally ask for more documentation from the employer and from the employee, and for documentation that demonstrates an employer-employee relationship between the two. H-1b applicants must establish the existence of an employer-employee relationship with documentation that demonstrates that the requirements of experience and employment have been met. Among the various documents required by the consulate are petitions of tax returns; petitions of employees; state tax returns; employee’s work itinerary; a detailed account of the development project that the employee is working on; and academic credentials.

Under the US Department of State (DOS), Foreign Affairs Manual volume 9, FAM 41.53, Congress is given the authority to determine whether the alien meets the required qualifications for “H” status. This approval, in general, is to be considered prima facie evidence that the employee has met the requirements for H visa classification. According to 9 FAM 41.53 N2.2, “DOS does not have the authority to question the approval of H petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status. The large majority of approved H petitions are valid, and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the H petition was filed.” On the other hand, even if DHS approves the petition, this does not relieve the employee from establishing that they are eligible for the visa at the visa interview. New information could be made available to DOS during the interview, which could determine whether the consular officer should or should not approve H status without additional evidence. This evidence should bear a reasonable relationship to the issue, but the consular officer should not reconsider the petition because of legal or factual disagreements with DHS. In fact, 9 FAM 41.53 N2.2 states that, “By mandating a preliminary petition process, Congress placed responsibility and authority with DHS to determine whether the alien meets the required qualifications for “H” status. Because DHS regulations governing adjudication of H petitions are complex, you should rely on the expertise of DHS in this area.” These are the specific directions to DOS consular officers to accord deference to USCIS decisions. Yet, in a knee jerk reaction to the 2009 Fraud Report, it appears that far more petitions are issued 221(g) notices, demanding more documentation despite apparent bona fides established by the visa applicant and employer.

Further, Regulation 9 FAM 41.53 N2.2 also authorizes consular officers to process applications that appear legitimate; identify applications that require local investigation; and identify applications that require referral to USCIS for reconsideration. To avoid inconveniencing petitioners and beneficiaries, and causing duplication by DOS, the consular officer must have specific evidence of a requirement of automatic revocation of the visa; misinterpretation in the petition process; a lack of qualification on the part of the beneficiary; or if other previously unknown facts come to light that might alter a USCIS finding of approval.

When a consular officer seeks reconsideration of previously approved USCIS petition, the consular officer sends the application to KCC with Form DS-3099. The consular officer includes pertinent documentation, or a written memorandum of evidence supporting the request for reconsideration. KCC forwards the request to the approving USCIS office; then KCC scans the request and all the supporting documents to Petition Information Management Service (PIMS). KCC maintains a copy and tracks consular revocation requests. USCIS reconsiders the petition and sends back an approval or denial. This process may take several weeks or months.

The effect of this delay is that employees who are currently employed by US companies on various projects, and who are spending their vacation time with friends and family abroad, are now delayed 3-6 months in their home country. US companies are scrambling to fill those unexpected vacancies; there is a huge loss of revenue and profitability for US companies in the US. Consular officers often reject H-1b petitions based on an erroneous belief that given the high rate of unemployment in the US, those positions filled by the H-1b visa holder should actually be filled by a US citizen.

There is also a belief that US employers want to employ H-1b visa holders instead of US citizens — that US workers are fired so US companies may hire foreign nationals on H-1b visas who may work for lower pay. This is not true. Under current statute and regulations, H-1b visa holders must be paid the higher of the prevailing wage or the actual wage paid to US citizens in similar employment. In fact, every US employer attests to this fact when they file for Labor Condition Application (LCA) certification with the Department of Labor (DOL). US companies pay approximately $6,000 in additional legal and government imposed fees when hiring an H-1b visa holder.

Offsite working is a common practice in the computer industry. Large US companies in the business process consulting industry employ foreign nationals, and place these H-1b visa holders at customer work sites in order to design, build; and deliver business driven technology solutions that enable customers to get a competitive advantage in their market place. Due to the nature of the products and services offered by these US companies to its clients, it is necessary for US employers in this particular industry to provide its products and services directly at the customer’s location. When consular officers see a beneficiary of an H-1b visa not working at the employer’s offices but at a third party location, the immediate reaction by a consular official is to require the H-1b applicant’s employer to provide documentation of employee-employer relationship —- the right to control and the actual control. This requires both employer and employee to provide tax documentation, employee payroll, state tax payroll, contract letters, agreements with customers, and signed employee benefit manuals. It apparently does not matter that some or all of this information may be either confidential or proprietary to the US employer and their customer. Employers are between a rock and a hard place; between disclosing too much private or proprietary information, and risking a denial if these documents are not provided.

To counter these issues presented to and by consular officers, employers and employees should follow the subsequent list of Best Management Practices (BMPs) for adjudicating while applying for H-1b visas.

As an employee, you should avoid traveling outside the US; it could be detrimental to the status of your H-1b. If you must travel, you should notify your employer and attorney and wait for consent, an application review and an update by your immigration attorney, before traveling abroad. Your DS-160 Form should not say “unemployed” while you are not working for your employer. Obtain a vacation letter from your manager.

In terms of the application, the beneficiary should be aware of what the company says about him or her. The beneficiary must have supporting evidence that proves he or she has the skills and expertise to do the job. The beneficiary should also know the organizational framework of the company, and know how education and experience qualifications make him or her eligible for H-1b. If the beneficiary has been with the employer for over two years, then it is wise to begin the Labor and Green Card process and fill out an I-140 Form. Before submitting the H-1b application, make a full copy of the petition with all the supporting documents and study the original H-1b application. Be prepared to answer questions that are not within the scope of the application. Remember to dress business casual, and do not be modest about your accomplishments.

As an employer, the support letter should describe the company’s product, and the employer must ensure that the application meets the criteria of a US company. The employer must identify job duties, qualifications and experience for employees; and that the employer is the source of tools and knowledge for the job. The employer must prove that he or she manages the employee, and has the authority to delegate supplementary tasks and hire and fire, as well as review employee performance and furnish company benefits. Evidence should support the fact that the employer pays employees’ wages, and pays federal, state and local taxes on the employee’s wages. The employer must show that he or she claims the beneficiary as an employee on tax filings. The employer must also provide employee records, corporate tax returns and payroll for employees. In addition, companies must ensure that any publicly available information about their business is accurate. Consular officers either check Vibe or perform a quick search online about the company.

Please contact Mahadevan Law Office if you have any further questions.
Phone: 314-725-9958
Email: nsm@lawyersyoucantalkto.com
Website: www.lawyersyoucantalkto.com

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part VI: Step Two in ICE Audit Process

This blog details how employers can avoid I-9 audit by ICE. After ICE issues the employer a Notice of Inspection (NOI), ICE visits the employer‘s worksite, or the employer visits ICE‘s offices, with the electronic or paper Forms I-9 and supporting documentation.

Second Step: Violations

If, during the audit, ICE finds technical or procedural violations, then the employer is given 10 business days to make corrections.

Employers should avoid hiring:
• workers who do not have current authorization to work in the U.S.
• workers who have criminal immigration violations
• workers who fail to produce documents from Lists A or Lists B and C.

Worksite enforcement is conducted by ICE, Immigration and Criminal Enforcement, and a department of the U.S. Department of Homeland Security.

Worksite Enforcement Strategy:
• ICE will arrest and remove any illegal workers who are found in the course of these worksite enforcement actions.
• ICE will use civil fines and debarment to penalize and deter illegal employment.

ICE officers look for evidence of mistreatment of workers, employer discrimination against workers and evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct. ICE offices will get indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney’s Office (USAO) to prosecute the employer before arresting employees for violations at a worksite.

To avoid audit, employers must not:
• Discriminate against individuals on the basis of national origin, citizenship, or immigration status.
• Hire, recruit for a fee, or refer for a fee aliens he or she knows to be unauthorized to work in the United States.

In the next section of Part VI, Section C, we will be discussing the final step in the ICE auditing process.

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part VI: Step One in ICE Audit Process

This blog is for employers to avoid I-9 audit by ICE. ICE audits start with a letter from ICE called Notice of Inspection (NOI). Since the process of auditing is complex, the auditing process has been broken down into several steps so that it is easier to understand and follow.

First Step:

ICE‘s auditing process starts with an NOI that is sent, or mailed, to the employer. The NOI asks for a record of Forms I-9 maintained by the employer. The NOI is typically presented 3 business days before the employer must produce Forms I-9. ICE will ask the employer for documentation that support Forms I-9, either in the form of the payroll, list of current employees, Articles of Incorporation, or business licenses. ICE will then inspect the Forms I-9 for compliance with rules and regulations.

ICE officers usually choose where a Form I-9 inspection occurs. ICE may ask the employer to bring Forms I-9 to an ICE field office. Sometimes arrangements may made at the employer‘s worksite. When officials arrive to inspect the employer’s Forms I-9, the employer must present:
• Electronically stored Forms I-9 and any other requested documents
• Necessary hardware and software to validate electronic documents
• Any existing electronic summary of the information on Forms I-9

Employers who refuse or delay an inspection will be in violation of the law.

In the next section of Part VI, Section B, we will be discussing the second step in the ICE auditing process.

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part V: When to Complete Section 3 of Form I-9

This is Part V of a blog series for employers to maintain and complete Form I-9 and to avoid audit by ICE. In our previous blogs we discussed I-9 basics; which employers should collect I-9; how to fill out section 1 of Form I-9; and how to fill out section 2 of Form I-9.

In Section 3, the employer re-verifies the the employee‘s information on Form I-9. When an employee’s employment authorization or documentation expires, the employer must re-verify that the employee is still authorized to work.

Employers should complete Section 3 when:
• An employee’s employment authorization or employment authorization documentation has expired
• An employee is rehired within three years of the date the previous Form I-9 was completed
• An employee changes his or her name

Employers should not re-verify U.S. Citizens; lawful permanent residents who presented a Permanent Resident Card for Section 2; List B documents; however, employers must re-verify all other employment authorization documentation.

Check the previous post to learn how to fill out Section 2 of Form I-9.

Next week : Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part IV: How to Fill Out Section 2 of Form I-9

This is Part IV of a blog series for employers to maintain and complete Form I-9 and to avoid audit by ICE. In our previous blogs we discussed I-9 basics; which employers should collect I-9; and how to fill out section 1 of Form I-9.

Section 2 of Form I-9 is to be filled out by the employer. The employer must fill out and sign Section 2 within three days of the employee’s first paid work day. If the job lasts less than three days, the employer must complete Section 2 before the first paid work day.

It is the employee‘s decision on what documentation to produce to prove their identity or employment authorization. He or she must make one selection from List A, or one selection from List B in combination with List C. The employer must not specify which documents are required; instead, the best practice would be for the employer to present the employee with a printed list of Lists A, B, and C, and for the employee to choose which of those documents to present.

Employees who present documents from List A do not have to present any other document. List A includes:
U.S. Passport or U.S. Passport Card
Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant
visa
Employment Authorization Document (EAD) that contains a photograph (Form I-766)
Foreign passport with Form I-94 or Form I-94A, and Arrival/Departure Report

The employer must be careful that the employee is authorized to work for the employer, especially if they are on a visa that allows the employee to work. The employer must ascertain that the employment authorization to work is not tied to a particular employer who is not the employer hiring the foreign worker. This is particularly important when employing foreign students, and employees on H visa, L visa, and other work visas.

Employees who present documents from List B also have to present a document from List C.

List B includes:
Driver’s license or Identification Card issued by a United States authorities that contains a photograph or name, date of birth, gender, height, eye color and address
Identification Card issued by federal, state or local government agencies or entities that contains a photograph or name, date of birth, gender, height, eye color and address
• School Identification Card with photograph
• Voter’s registration card
• U.S. military card or draft record
• Military dependent’s ID card
• U.S. Coast Guard Merchant Mariners Document Card
• Native American tribal document
Driver’s license issued by a Canadian government authority

List C includes:
• U.S. Social Security account number that is unrestricted. Unrestricted Social Security account numbers are only issued to:
-U.S. citizens
-Non-citizen Nationals of the U.S.
-Lawful permanent residents
-Refugees
-Asylees
-Citizens of the Republic of Marshall Islands, the Federated States of Micronesia, or the Republic of Palau
-Canadian-born American Indians
-Mexican-born Kickapoo Indians
Certification of Birth Abroad issued by the U.S. Department of State
Certification of Report of Birth issued by the U.S. Department of State
Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the U.S. bearing an official seal
• Native American tribal document
U.S. Citizen ID Card
ID Card for Use of Resident Citizen in the U.S.
Employment Authorization Document issued by Department of Homeland Security:
-Form I-94 issued to an asylee
-Work-authorized non-immigrant
-The Unexpired Re-entry Permit
-The Certificate of U.S. Citizenship

The employer must examine each employee‘s documents. If the employer rejects the document, then the employee is allowed to present other documents from Lists A, B and C.

To complete Section 2, the employer should:
• Record the document title, issuing authority, number(s) and expiration date from the employee’s original document(s)
• Enter the date the employee began or will begin paid work
• Provide the name, signature and title of the person completing Section 2, as well as the date he or she completed Section 2
• Record the employer’s business name and address
• Return the documentation presented back to the employee
• Return the documentation presented back to the employee
• Entering the date the employee began employment
• Entering the date the employer examined the employee’s documentation

The employer may copy the documents presented by the employee and attach it to I-9 for record keeping purposes. However, this practice must be uniform for all employees; once started, the best practice for the employer is to employ a uniform policy of retaining a copy of the employee‘s identification and other documents presented that qualifies them to work for the employer.

Check the previous post to learn how to fill out Section 1 of Form I-9.

Next week : Part V: When do you complete Section 3 of Form I-9

Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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