Employment Eligibility Compliance Update

You may have noted the recent articles on Immigration and Customs Enforcement (“ICE”) audits in The Dallas Morning News, Wall Street Journal, and the New York Times.  The government is aggressively concentrating its enforcement efforts on audits employers to create a culture of compliance on a broad scale to deter the hiring, continuing to hire, or continuing employ unauthorized employees.  The belief is that employers are the driving force in illegal immigration.

 Consider the facts:

• ICE focuses on workplace inspections and audits often targeting smaller businesses to make it clear that no one is safe from enforcement.
• In fiscal year 2011, nationwide ICE has audited 2,338 businesses, up from 503 in 2008.
• In each of February and June 2011 ICE sent out 1,000 Notices of Inspection (“NOI”).  NOIs are the beginning of an ICE audit. 
• In Texas, according to information obtained by Dallas Morning News reporter Tristan Hallman, audits have resulted in fines against 62 employers totaling about $900,000 since 2009.
• Nationally, from fiscal year 2009 to date, ICE has initiated Form I-9 inspections against nearly 4,000 businesses resulting in fines over $7 million.
• ICE arrested 196 employers in 2010.

 ICE has ramped up its audit team and has the capacity to conduct many audits of large and small companies at once. It is anticipated that several more rounds of Notices of Inspection will be initiated this year, many of which will target businesses in North Texas.  Four other factors come into play:

• ICE is pushing E-Verify, a free government verification program which utilizes government databases to ensure that new hires are employment authorized.  Most federal contractors and their subs are required to use E-Verify.
• State and local laws must be reviewed before doing business in a locality, much like permitting for contractors.  The Supreme Court has recently ruled that states may require the use of E-Verify, opening the door for conflicting state legislation.   
• Starting in April, the Social Security Administration began issuing no-match letters again.  No-match letters inform an employer that the information provided on an employee’s W-2 does not match Social Security records.  
• Unauthorized employees who have to be terminated often change identities and work for a competitor who has not been audited.

It makes good business sense to engage in preventative maintenance of policies and procedures when it comes to the employment eligibility verification of employees.  The law says an employer cannot hire or continue to hire/employ someone who is unauthorized, and an employer who has knowledge (through HR, supervisors, or other personnel who know the person is unauthorized) cannot rely on documents presented which appear genuine.  Knowingly accepting fake documents or documents containing someone else’s identity is a serious crime.  Many ICE audits which begin as civil investigations end up with criminal indictments (check out the current Chipotle restaurants investigation).  Written policies and procedures followed by training of applicable personnel minimize the opportunity for mistakes, or worse, underlying criminal activity within an organization.

An independent third party I-9 audit can help bring your company into compliance.  Our firm has the ability and capacity to help businesses address preventative maintenance and improve risk management to minimize potential liability.  Please contact the attorneys at the Law Offices of Richard A. Gump Jr. if we can be of assistance. 

Deadline for all states to implement the Real ID Act changed from May 11, 2011 to January 15, 2013

The Real ID Act of 2005 set forth certain requirements for state driver’s licenses and ID cards to be accepted by the federal government for “official purposes”. “Official purposes” has been defined as presenting state driver’s licenses and identification cards for boarding commercially operated airline flights and entering federal buildings and nuclear power plants.

Originally set to expire on May 11, 2011, the deadline for states to implement the Real ID Act of 2005 is now January 15, 2013.

As of this date, Federal agencies, including the Transportation Security Administration (TSA) will not accept state issued driver’s licenses or identification cards for use in boarding commercial aircraft unless the driver’s license or identification card has been issued by a state in compliance with the regulations in the Real ID Act of 2005.

IRS Opens Second Special Voluntary Disclosure Initiative

On February 8, 2011, the IRS announced a special voluntary disclosure initiative designed to bring offshore money back into the U.S. tax system and help people with undisclosed income from hidden offshore accounts get current with their taxes.  The new voluntary disclosure initiative will be available through Aug. 31, 2011.

IRS Press Release

WSJ – 1,000 companies to receive Notices of Inspection

“The federal government is requiring as many as 1,000 companies to turn over their employment records for inspection, part of an expanding crackdown on businesses suspected of hiring illegal immigrants, according to people close to the Department of Homeland Security. The audits, which the government is expected to make public in the next few days, represent the biggest such operation since 2009.”

WSJ Report

USCIS Implementing E-Verify “Self Check”

On March 16, the Department of Homeland Security (DHS) published a notice in the Federal Register announcing that a new E-Verify feature, set to go online on March 18, will allow individuals to check their employment eligibility status before being hired.  Known as a “Self Check”, individuals will be able to go online outside of the standard E-Verify system and determine if the E-Verify databases at the Social Security Administration (SSA) and DHS will confirm the individual’s work authorization status.

If an SSA or DHS database “mistmatch” occurs, the individual will have the option of resolving the mismatch.  This process will be similiar to the current E-Verify process for disputing a tentative non-confirmation (TNC) of work authorization status.  With E-Verify the subject of Congressional hearings, DHS hopes that “Self Check” will improve the system and potentially allow for continued expansion of the program.

USCIS to Issue Single Card for Employment and Travel Authorization for I-485 Applicants

In order to improve security and durability, USCIS is now issuing employment and travel authorization on a single card for certain applicants filing an Application to Register Permanent Residence or Adjust Status, Form I-485.  This card will serve as both an Employment Authorization document (EAD) and an Advance Parole (AP) document.

To find out more, see the USCIS Interim Memorandum here.

Dream Act? Birthright Citizenship?

First, we have young children brought into the U.S. illegally beyond their control by parents who are successful in school and don’t commit any crimes. They hit a brick wall in terms of advancing to employment and remain unauthorized with nowhere to go.

Second, Congress introduces legislation (DREAM ACT) to allow persons like the ones described above to become legal so they can work and pay taxes, but they are left in the cold because one group of legislators ties passage to assisting additional groups of immigrants and another group ties passage to more immigration enforcement. Yet no one will agree to approach comprehensive reform with realistic benefits and strict enforcement.

Third, Congress introduces legislation to alter the 14^th Amendment so that birthright citizenship no longer applies, which will add another lost group of children who are not legal and are possibly stateless. We thus create a subclass who can never achieve U.S. citizenship for themselves or their children. Every birth will require an attorney to determine who is a citizen and who is not, (e.g. orphans, children of one U.S. citizen and one unauthorized alien, children of students on temporary visas who become U.S. citizens, children of visitors who overstay their visa by a few days, etc.). No thought is given to directly attacking the source of the problem, mothers who cross the border to have their children and don’t pay for the cost, such as negotiating a treaty with Mexico to allow hospitals to bill the Mexican government or taking other pecuniary action against Mexico.

So we cause more adults who were either born here or were brought here as young children to go underground because they have no remedy at law to become legal. We still have limited enforcement led by pieces of a 19^th century wall solution, and we have no employment based immigration policy that allows supply to meet demand in a meaningful way.

We are digging ourselves into a hole by not putting aside the rhetoric (liberals versus conservatives, open border advocates versus nativists) and developing a realistic and comprehensive immigration plan. Wouldn’t it be refreshing if we could (1) identify people who are physically in the U.S, and who is legal and who is not, (2) create a competitive supply demand environment where U.S. citizens have priority but employers (not the government) decide who they need and want to work for them, and (3) be ensured that all workers come out of the shadows and pay their fair share of taxes?

–Rick

Don’t Discriminate When Verifying Employees

Employers need to be forewarned of a new wave of citizenship discrimination cases. Catholic Hospital West and the Hoover cases are fresh examples of why companies must avoid citizenship discrimination (e.g. treating Hispanics differently from others, over documentation, requiring U.S. citizenship) in the verification process. The Office of Special Counsel independently is investigating complaints and demanding settlements that include expensive fines, extensive monitoring, and invasive document review to identify possible employment rejections for persons who may be awarded back pay.

HOOVER CASE

The Justice Department today announced that it has reached a settlement agreement with Hoover Inc., a leading manufacturer of vacuum and carpet cleaners with facilities in Ohio and Texas, to resolve allegations that Hoover engaged in a pattern or practice of employment discrimination by imposing unnecessary and discriminatory hurdles in the I-9 process upon lawful permanent residents. According to the department’s findings, Hoover required all permanent residents who presented a permanent resident card (green card) for I-9 purposes to produce a new green card when theirs expired. In contrast, Hoover’s U.S. citizen workers were not required to present new documents. Like U.S. citizens, permanent residents are always work authorized, regardless of the expiration of their documentation. The Immigration and Nationality Act (INA) prohibits employers from treating permanent residents differently than U.S. citizens in the I-9 process. DOJ, Nov. 10, 2010.

CATHOLIC HEALTHCARE CASE

Under the terms of the settlement, CHW has agreed to pay $257,000 in civil penalties –the largest amount of civil penalties ever paid to resolve such allegations – and $1,000 in back pay to the charging party. CHW has also agreed to review its past I-9 practices at all of its 41 facilities in order to identify and compensate any additional victims of over-documentation who have lost wages as a result, and to devise and implement policies and procedures for ensuring best practices with regard to hiring and employment eligibility verification. Further, CHW has agreed to train its recruitment personnel on their responsibilities not to discriminate and provide periodic reports to the department for three years.

“All workers who are authorized to work in the United States have the right to look for a job without encountering discrimination because of their immigration status or national origin,” said Thomas E. Perez, Assistant Attorney General for the Justice Department’s Civil Rights Division. “We are pleased to have reached a settlement with CHW and look forward to continuing to work with public and private employers to educate them about anti-discrimination protections and employer obligations under the law.”  DOJ, Oct. 19, 2010.

Immigration Attorney Richard A. Gump, Jr. speaks on Worksite Compliance

Richard A. Gump, Jr., of the Law Offices of Richard A. Gump, Jr., PC recently presented at the following events regarding immigration, worksite compliance and worksite enforcement:

October 22, 2010 – What to do when you get the call: Government Investigations & Audits of Employers (34^th Annual University of Texas Immigration and Nationality Law Conference, Austin, Texas). The presentation was attended by corporate attorneys from Texas and across the United States.

October 25, 2010 – Current Work Site Enforcement (NAFSA Region III Annual Conference, New Orleans, Louisiana). This presentation covered the current status of Worksite Enforcement by ICE. In addition, it covered basic I-9 compliance and the I-9 audit process after receiving an ICE subpoena. The annual conference was attended by HR personnel from Texas, Arkansas, Oklahoma and Louisiana.

November 9, 2010 – What You Should Know About Workplace Enforcement and Immigration (5^th annual FBA Chicago Chapter, Chicago, Illinois). The FBA Chicago Chapter’s annual worksite enforcement program is the premier worksite enforcement seminar in the Midwest. The program and its national-level speakers drew an audience of immigration practitioners, criminal defense lawyers, employment lawyers and human resources representatives from across the Midwest region.

Mr. Gump graduated from the University of Texas, School of Law, and has been practicing business and employment-related immigration law for more than 37 years. He is a member of AILA (American Immigration Lawyers Association), past chair of the AILA Texas Chapter and past chair of the AILA Texas Service Center Liaison Committee, member of Compliance Audit Standards Committee, and is a planning committee member of University of Texas’ Immigration and Nationality Law Conference. Mr. Gump handled the first employer sanctions case filed in the southwestern United States under the Immigration Reform and Control Act of 1986, and was co-counsel in one of the largest civil/criminal settlements in worksite compliance history.

With USCIS, ICE and DOL dramatically increasing the number of employer investigations, businesses must be aware of the potential for a government initiated audit. To avoid potential liability, employers should consider an independent third party audit.

Abercrombie & Fitch fined $1M for I-9 violations

U.S. Immigration and Customs Enforcement’s (ICE) Office announced a $1,047,110 fine settlement reached with Abercrombie & Fitch for violations of the Immigration and Nationality Act related to an employer’s obligation to verify the employment eligibility of its workers.

The settlement is the result of a November 2008 Form I-9 inspection of Abercrombie & Fitch’s retail stores in Michigan. The audit uncovered numerous technology-related deficiencies in Abercrombie & Fitch’s electronic I-9 verification system. The company was fully cooperative during the investigation and no instances of the knowing hire of unauthorized aliens were discovered….more