The Good Faith Criterion: Lessons Learned From US vs. M&D Masonry and Form I-9

In 2010, ICE alleged in two counts that M&D Masonry committed 364 violations against the Immigration and Nationality Act (INA). The first count charged that 277 of M&D’s employees didn’t correctly complete section 1 and 2 of Form I-9; the second count charged that M&D didn’t have proper paperwork for 87 additional employees. The company refuted ICE’s allegations, and protested to 40 of the 277 violations named in Count I, and six of the 87 violations named in Count II.

For Count I, the government contests that M&D failed to ensure that:

  • 34 employees signed the attestation in section 1 of Form I-9;
  • 60 employees checked a box in section 1;
  • three employees attested to only one status in section 1; and
  • 10 employees who attested to status as lawful permanent residents entered their respected alien numbers on the adjacent line.

For Count II, M&D failed to:

  • complete section 2 of Form I-9 properly;
  • sign section 2;
  • record the issuing authority for a List B document;
  • provide the document number for List A, List B, and List C documents; and
  • review both List B and C documents.

Additionally, M&D instead accepted unacceptable documents, and didn’t examine or authenticate many I-9 forms within three business days of the individual’s hire date.

Among the defenses, the company alleges that the proposed monetary fines are exorbitant and do not consider the M&D’s financial abilities; and that ICE’s enforcement practices are unreasonable and impulsive. On January 6, 2014, ICE revised its complaint and retracted 25 of the named persons in Count I. According to the US government, M&D supplied satisfactory evidence that demonstrated that those employees had been dismissed before ICE’s inquiry, and wasn’t within the purview of the audit.

Lesson 1

A newspaper article is actually what led ICE to inspect and fine M&D Masonry. On April 30, 2010 an article titled “Illegal hiring for airport construction?” was printed in the Atlanta Journal Constitution. The article cited a hiring foreman for M&D who said that the company was hiring people without sufficient work authorization. ICE conducted a worksite enforcement inquiry on May 7, 2010; subsequently, ICE served M&D with a Notice of Inspection (NOI) for current and past employee I-9 forms from May 7, 2007 to May 7, 2010, and for employment records, payroll data, and wage and hour reports. ICE then issued M&D with slew of other notices throughout 2010 and 2012, including a Notice of Technical and Procedural Failures (NTPF), a Notice of Suspect Documents (NSD), and a Notice of Intent to Fine (NIF).

Lesson 2 & 3

M&D was timely in their response to ICE, and filed a Request for Hearing a month after ICE issued the NIF.

After acquiring and studying M&D’s Wage Inquiry by Employer Number records—obtained from the Georgia Department of Labor—Count II of ICE’s allegations concluded that M&D failed to prepare I-9 forms for 87 employees. M&D’s violations in Count II are far more egregious than Count I because failure to properly prepare and/or present I-9 forms destroys the purpose of the INA.

Penalties

M&D believed that ICE should fine the company based on its financial means; however, the governing statute asserts that such consideration is only applicable in five certain circumstances; M&D did not fall within the scope of those circumstances. While some OCAHO cases have previously taken financial means into consideration when determining penalties in a case, such leeway is not required of the government.

ICE fined M&D $332,813.25 for 339 violations, where each violation cost $981.75. Each violation incurred a baseline penalty of $935, also taking into account the employer’s 84% error rate. ICE heightened the penalties by 5 percent for the significance of the violations—over 100 I-9 forms were purportedly verified by signature stamp, although section I of the forms reflected various dates—and 5 percent for the size of the company: M&D had been in business for over 20 years, employed over 400 workers in a three year period, had a payroll of $4.3 million, and a large amount of contracted work. ICE handled the inclusion of unauthorized workers and absence of previous violations as neutral; ICE also lessened the penalties by 5 percent due to the good faith criterion.

ICE was charitable by applying the good faith criterion in M&D’s case. The good faith criterion is gauged by a study of whether the employer tried to comply with the INA obligations before the delivery of the NOI. Since M&D’s case isn’t the most extreme example of the INA violations, the penalties were lessened to a grand total of $228,300.

Takeaway

Incorrectly preparing and/or presenting a Form I-9 is one of the grievous paperwork violations an employer can make. Good faith is only taken into account when an employer actually attempts to determine its legal duties and yield to them. When judging suitable violations of the INA, the following must be favored:

  1. size of the employer;
  2. employer’s good faith;
  3. gravity of violations;
  4. whether an individual is an unauthorized alien; and
  5. employer’s history of previous violations.
See you in my next blog.
Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

logo
The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.Copyright 2014. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

E-Verify returns!

E-Verify has resumed operations following the federal government shutdown. All E-Verify features and services are now available.

Information for Employers

Form I-9
The Form I-9 requirements were not affected during the federal government shutdown. All employers were required to complete and retain a Form I-9 for every person hired to work for pay in the US during the shutdown.

E-Verify
Employees who received a Tentative Nonconfirmation (TNC):
If an employee had a TNC referred between September 17, 2013 and September 30, 2013, and was not able to resolve the TNC due to the federal government shutdown, employers must add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation’. Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If employers have an employee who decided to contest his or her TNC while E-Verify was unavailable, an employer should now initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.

Steps to take if an employee has received a SSA Final Nonconfirmation (FNC) or DHS No Show result:
If an employee received a Final Nonconfirmation (FNC) or No Show because of the federal government shutdown, please close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the Tentative Nonconfirmation (TNC) that led to the FNC result.

Creating Cases: Three-Day Rule
You must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013. If you are prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.

Federal Contractor Deadlines
During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. If your organization missed a deadline because E-Verify was unavailable, or if it has an upcoming deadline for complying with the federal contractor rule, please follow the instructions above and notify your contracting officer of these instructions.

Information For Employees

If the federal government shutdown prevented you from contesting a Tentative Nonconfirmation (TNC), you will be allowed additional time to contact the Social Security Administration (SSA) or Department of Homeland Security (DHS). If your TNC was referred between September 17, 2013 and September 30, 2013, and you were not able to resolve the mismatch due to the federal government shutdown, you should:

  • Add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation’ that your employer gave you after you contested the TNC. Federal business days are Monday through Friday, and do not include federal holidays.
  • Contact SSA or DHS by the new date to resolve your TNC.
  • If you received a Final Non-Confirmation (FNC) because you could not contact DHS or SSA during the federal government shutdown, or because you could not contact DHS or SSA in the first ten days after the government reopened, please contact your employer and request that the employer re-enter your query. For more information about contesting your TNC or FNC, please refer to Employee section of the E-Verify website.

Customer Support

E-Verify Customer Support expects an increase in requests for assistance. Due to this increase, customers may experience longer than normal delays and response times. We apologize for any inconvenience and appreciate your patience.

For any questions or additional information about how the federal shutdown affects E-Verify, please email E-Verify@dhs.gov. For questions about Form I-9, please visit I-9 Central or email I-9Central@dhs.gov. Employers and employees may also contact E-Verify at 888-464-4218. Customer Support representatives are available Monday through Friday 8:00 am to 5:00 pm local time.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

Employment Practices that Could Lead to Immigration Discrimination, Pt. 2

The Office of Special Counsel (OSC)‘s job is to enforce the Immigration and Nationality Act (INA), which disallows employment-related anti-discrimination based on immigration and citizenship status, and nationality. I previously wrote about OSC’s responses to some employers’ questions on unfair employment practices, such as an employee presenting either invalid or fraudulent documents. OSC also answers immigration-related questions posed by law firms’, pertaining to law firm clients.

If, for example, a general contractor, is hiring out to a subcontractor, and then requires the subcontractor’s employees to again produce original documents — such as a passport or driver’s license — that were already presented during the hiring process and upon completion of a Form I-9 by the subcontractor, then a host of problems can present themselves:

  1. The original documents have expired and the employee has obtained a new version of those documents;
  2. The employee’s immigration status has changed, and thus has different documents to prove work authorization; and
  3. The original documents have been stolen or lost.

This could all amount to a claim by the employees that the general contractor was discriminating against them due to their citizenship or immigration status. Employees could also maintain that they are discriminated against in this case: An employer, who is an E-Verify user, hires a private vendor to disseminate paychecks, also giving the vendor access to Forms I-9. The vendor is authorized to examine the Forms I-9 in order to confirm the identities of employees, who the employer wants to pay.

What could easily happen is that, because the vendor didn’t see the employees’ original documents, he/she inquires about the adequacy of the documents that were initially presented to the employer for I-9 purposes. If the employer feels persuaded to ask his/her employees for further documentation, such a request might be perceived as document abuse, which violates the anti-discrimination provision of the INA. OSC found that the INA was not applicable in either circumstance.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

Government Shutdown Affects Employers with Foreign Workers

We sent an alert to our clients a couple of days ago when we felt that the Federal Government shutdown was imminent. We didn’t really expect it to happen but it did! The shutdown is unfortunately affecting US immigration services, so writing about action to be taken or postponed for pending immigration applications became imperative.

The websites of the US Department of Labor (US DOL) are no longer functional because it is considered a non-essential service. For employers, this means that if there is a current or potential employee who has to start, extend or transfer to a new employer, the employer will not be able to file a labor condition application for an H1B visa. The implication is that no application for the H1B visa can be filed with USCIS because that application has to be supported by a certified labor condition application (LCA). In the past, when there was a prolonged outage of the US DOL website, USCIS allowed employers to file with uncertified LCAs. We hope this happens with this shutdown, if it is prolonged.

For employees whose cases are pending audit on a PERM case; or if a prevailing wage determination or Form 9089 (PERM application) is either to be filed, or has been filed or is pending with the US DOL, no action will be issued by the agency until the shutdown has been terminated.

USCIS is functional because it is a fee-for-service agency. Biometrics collection is used for many immigrant applications, as well as for re-entry permits required for multinational employees who have a green card through employment but are currently stationed overseas. Biometric services for employees are also still being collected.

US Department of State consulates are currently functional, processing visa stamps and interviews. These services are supported by a mix of fees and federal budget allocation: if the shutdown is prolonged, or if there is a budgetary crisis, then there may be a suspension of services at the consulates for both US citizens and non-citizen consular services. The budgetary crisis could impact both employment-based and other categories of visa issuance, including visitor and business visas. If business travelers want to attend or plan to attend meetings and conferences in the US, please plan to obtain a visa while consular services are still available.

The Social Security Administration is open with limited service; issue of Social Security cards has been suspended. Hence, new visa-based employees will be unable to obtain new social security numbers, which could impact I-9 forms. Although collection of social security numbers is optional, if the employer is an E-verify employer, the employer is required to collect a social security number for work authorization verification. Certain federal and state contractors are also mandated to collect this information. To alleviate this problem, the 3-day rule for E-verify is suspended for those cases affected by the shutdown. Employers may not take adverse action against employees because of the employee’s E-verify interim status.

Wage payments to some new non-immigrants may be a problem because of the non-availability of the social security number. New J non-immigrant visa holders who cannot obtain social security numbers should approach their sponsoring agency for direction.

E-verify is unavailable during the shutdown. Consequently, USCIS, which administers the program, will not be issuing non-confirmation letters (TNC), and employers will be unable to verify work authorization of new employees. Current time to process TNCs has been extended; but the obligation to collect, maintain and process Form I-9 continues as an employer mandate.

Border security is an essential service – there will be no shutdown of services at the border, but travelers are expected to face slowdowns in screening and higher security.

US Passport services, which are a fee-for-service program, are not affected by the slowdown. Of course the severity of the impact will depend on the length of the shutdown. We will post updates as they become available.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

The New and Improved I-9 Form

On March 8, 2013, USCIS published a new Form I-9 for employers to use for new hires, which is for immediate use. USCIS received over 6,000 comments on the form and has tried to incorporate some of the suggestions. To ensure that the correct form is being used, look for the form’s date in the lower right-hand corner of the form.

When Should Employers Use the New I-9

The new form is to be used for all new hires. The 3 day rule remains, which is to fill Section 1 within 3 days of starting work. The form can also be filled in advance, as long as an offer of employment has been made and accepted. If the old form was used and the employee has not started work, a new form should be used in lieu of the old form.

The new form should be used for both US citizens and non-citizens, if they are working within the geographical boundaries of the United States of America. If a new office or an employee is hired in Mexico or Canada, there is no obligation to maintain a Form I-9 for the new hire. Employers should use the new Forms I-9 from 8 March, 2013 onwards. Older forms dated 02/02/2009 and 08/07/2009 can be used until May 7th, 2013.

The Spanish version can be filled out by new hires only in Puerto Rico. On the mainland, the Spanish version can be utilized as a translation tool for Spanish speaking new hires, but only an English language version Form I-9 can be filled out by both the employer and employee and retained by the employer.

The New Form

The new form is 7 pages of instruction and two pages of form to be filled. Section 1 occupies its own page, with expanded areas for the employee to fill personal identifying information. The expanded area allows work-authorized non-citizens to complete their information.

Page 2 of the form is divided between Section 2 and 3. Section 2 is renamed to include authorized representative review and Section 3 is now called “Reverification and Rehires”, instead of “Updating and Reverification”. Section 3 is to be used for employees who return to work after an absence of time. Once the initial I-9 is filled out by the employee, the employer cannot ask legal permanent residents or US citizens to present new documents to complete reverification for work authorization.

The Takeaway

The form is more detailed and thus, may have more pitfalls. Print the new form on both sides of the paper to keep both pages together. The 67 page book of “Instructions” is now called “Guidance”. The important step is to start using the new form and to cease using the old form. Section 1 cannot be populated by electronic programs used to ‘onboard’ new hires. Employer liability, audits and monetary fines remain the same under the old and new forms.

We are available to discuss the new form or needs for training and assistance.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather