On June 1, 2010, the USCIS published its notes from a session it held to gather feedback and input from stakeholders on E-Verify and the Form I-9 program.
There were a few notable points released in this memo:
1) A self-check initiative will be introduced in December. This initiative will enable anyone to go to the website and run a verification query on him/himself and determine the accuracy of his/her government record. Hopefully, this will allow those individuals who have recently changed their name or their immigration status to verify that the system is correct and solve problems before they are given an abbreviated window by the e-verify system to do so.
2) The Verification Division informed stakeholders that it runs monthly reports to see if companies are running checks outside 3 business days of an employee’s hire date. This statement confirms our suspicion that the USCIS is using the e-Verify tool to police Form I-9 completion. This monitoring could expand into other areas and also prompt further audits and investigations.
For further information about worksite enforcement activities, please visit our worksite enforcement portal under the “information” tab.
The Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security is charged with investigating entities that unlawfully employ workers without authorization. In 2009, this agency began focusing its reources on auditing and investigating employers and pursuing criminal penalties. In fiscal year 2009, ICE worksite investigations resulted in a total of 410 criminal arrests, including 114 management personnel.
On April 21, ICE announced that a San Diego bakery, its owner and manager were indicted on federal charges for hiring undocumented workers. This case highlights the agency’s reliance on social security “no match letters” as evidence that workers are not authorized to work in the US. The bakery allegedly paid the workers in cash after receiving the no match letters until the workers produced a new set of employment documents with different social security numbers. This indictment should serve as a warning to all employers that ICE does pursue criminal charges against managers and owners of establishments in worksite enforcement investigations.
Please refer to the Worksite Enforcement Tab under Information on this website for more information and useful links.
On March 17, 2010, I spoke at the Sonoma County Employers Advisory Council regarding worksite enforcement and immigration concepts human resource professionals must master when employing foreign nationals. I had some great questions from the group that I thought I might share from the presentation.
1) Can I use e-Verify as a pre-employment inquiry?
No. e-Verify may only be used after the employee has been offered the position and accepts the position. The memorandum of understanding (MOU) signed by all e-Verify participants outlines these terms of use.
2) Can I use the social security verification service as a pre-employment inquiry?
No. Although there is no direct regulation on the subject, it is probably not a good idea to use the SSNVS system during the hiring process or it could result in a discrimination claim or unfair employment practice. After someone is hired, it is permissible to use this service to ensure that the social security number is valid for wage reporting purposes.
3) Can I review the Form I-9 for my subcontractors?
Probably not. Due to privacy laws, your subcontractor will probably not share its Form I-9s with the contractor. However, it is a good idea to have an indemnification clause in the contract to ensure that the subcontractor maintains sound I-9 practices and will indemnify the contractor in the event of a worksite enforcement action. In a recent case, Wal-Mart was held responsible for its subcontractor’s failure to maintain proper I-9 records.
If you would like a copy of the power point from this presentation, please e-mail my office directly at info at harms-law and state your organization name and we will send you a copy. Please refer to the worksite enforcement section of this website for further information and resources.
Here are some of the topics covered by this powerpoint presentation:
E-Verify, I-9 Compliance and Worksite Enforcement: An Essential Primer for All Employers. With the new changes to the I-9 and increased worksite enforcement actions, completing and maintaining the I-9 form, once viewed as a simple HR function, has become more complicated and riddled with significant liability. This presentation will cover the following critical components of the Form I-9, the new e-Verify system as well as some tips for employers to protect themselves in event of a government worksite enforcement action:
- Recent events in worksite enforcement
- Possible employer sanctions from a worksite enforcement action: civil and criminal
- Critical elements of the Form I-9 and common mistakes when completing the Form I-9
- Changes to the Form I-9 and what these mean to HR professionals
- E-Verify: What is it and what are the responsibilities involved with this system?
- Should my employer enroll in e-Verify? Is my employer required to enroll in e-Verify?
- Strategies to reduce liability in the event of an audit and critical first steps for employers to follow when government agents arrive at the workplace
The Department of Labor announced that it has recovered more than $1.4 million in back wages for 237 employees employed by a contractor for the US Department of Homeland Security’s US Citizenship and Immigration Services Vermont Service Center at various locations for failing to pay these workers the prevailing wage for their positions.
When sponsoring individuals for H-1B status (the most common work-authorized work visa), the employer has to prove to the Department of Labor and the Department of Homeland Security’s USCIS agency that it is paying the prevailing wage for the position. Therefore, I find it highly ironic that the USCIS will hold employers to a higher standard than it holds its own contractors!
Although the term “rescission of safe-harbor procedures” sounds like a negative, in fact, the Department of Homeland Security’s (DHS) rescission of these safe harbor procedures relieves employers of responsibilities that were onerous and had dubious impact towards meeting the administration’s goal of reducing unauthorized employment.
On August 15, 2007 DHS released the final version of the Immigration and Customs Enforcement (ICE) regulation, “Safe Harbor Procedures for Employers Who Receive a No-Match Letter.” These regulations greatly increased the burden on employers who received a social security “no match” letter or discrepancy notice from DHS to take certain steps or face criminal and civil liability for unlawfully employing individuals without employment authorization.
Unfortunately, this proposed DHS regulation made the law more unclear for many employers. How many no-match letters could they receive and have the employee “fix?” What if the employee brought back something that appeared genuine with a different name? Employees were also caught in the middle. Many employees would be the subject of these letters based on a name change due to marriage, a typographical error or for some other innocuous reason. And forget about having the Social Security Administration (SSA) fix the error in the 90 days prescribed by the regulation. In the lawsuit challenging the rule, the former Secretary of the Social Security Administration stated that it would be close to impossible to get an error fixed in the database and provide an individual with the proof needed to satisfy the regulation within 90 days.
All I can say is good riddance to this “safe harbor.”
Tags: Department of Homeland Security, DHS, ICE, immigration and customs enforcement, no match, no match letter, safe harbor, social security, social security administration, SSA
Worksite Enforcement | melissa | 
October 7, 2009 5:34 pm | 
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In Washington, two owners of an engine parts company were fined $100,000 for employing workers not authorized to work in the US, as reported by the New York Times. This report illustrates the penalties that the Department of Homeland Security is imposing on employers with illegal workers on the payroll. In 2009, Immigration Customs and Enforcement (ICE) has a $3 billion budget for worksite enforcement actions. In 2008, it made 1103 criminal arrests of people in connection with worksite enforcement, and 5,184 administrative arrests. In light of the risks of criminal fines and arrests, employers should review their Form I-9s to ensure compliance with the immigration laws.
Beginning on September 8, federal contractors and subcontractors are required to use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify clause. Applicable federal contracts awarded after September 8, 2009 will include a clause committing government contractors to use E-Verify within 30 days of the contract award date. With certain exceptions, E-Verify will only be used to confirm that new hires are legally authorized to work in the United States. The USCIS released a Supplemental Guide on E-Verify For Federal Contractors on September 8, 2009 which contains detailed instructions regarding the use of E-Verify as well as which contractors and subcontractors are covered by this new rule.
Julie Myers Wood, the former head of US Immigration and Customs Enforcement, has no clue what it is like for an employer trying to run a small, or even large, business. In her recent article, Nice Guys Finish Last, she describes an overly simplistic world of employers who are trying to do “good” by only employing lawful workers and others who can underbid those “good” employers by knowingly hiring workers who are not authorized to work in the United States. She criticized the Department of Homeland Security of “dropping the social security no match rule” which placed the burden on employers who received social security no match letters to have the error corrected or risk liability for employing an individual unlawfully.
When I meet with my corporate clients, they are trying to wade through the countless regulations and laws that relate to employment authorization, discrimination, and unfair employment practices. These employers are the “nice guys” who want to follow the law, but don’t know which laws to follow. They know that by asking for a specific document in an I-9 context, they may have an unfair employment practice claim. They know that if they unduly question only the hispanic looking applicants, they will have a discrimination claim on their hands. They also are advised by me that the legacy INS has previously stated that a social security “no match” letter alone is not evidence that an employee is not authorized to work in the United States. I have also advised them that the former Secretary of the Social Security Administration, admitted that there was no possible way that his agency would be able to correct a legitimate error within the 90 days allowed by the social security no match law.
So what are employers to do with the smattering of laws and regulations that make them scared of their own shadows? Well, for once, the government has recognized this dilemma and decided the no-match regulation was unfair to employers (not to mention the employees who would have been wrongfully terminated due to simple errors in an imperfect system). It’s good thing Julie Myers Wood is not in charge of US Immigration and Customs Enforcement any longer.
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