While the administration of George W. Bush focused on headline-making raids that resulted in arrests of immigrant workers, the Obama administration has gone after employers with ICE’s I-9 audits on the theory that employers who hire unauthorized workers create the demand that drives most illegal immigration. Nationally, from fiscal year 2009 to date, ICE has initiated Form I-9 inspections against nearly 4,000 businesses resulting in fines of nearly $7 million. Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual’s identity and employment eligibility document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual. Additionally, an employer must ensure that the employee provides certain information regarding his or her eligibility to work on the Form I-9. The New York Times ran a story on July 14, 2011 that discussed the effect that an I-9 audit can have on a business. The article focuses on the case of a California employer, David Cox, whose I-9 audit revealed that 26 of his 99 employees were not authorized to work in the United States. Because ICE determined he had acted reasonably in hiring them, Mr. Cox was not fined or held criminally liable. But after confirming that the 26 employees could not produce authentic documents, he was forced to fire them. The article discusses the economic effect that this had on his business.
Here is the link to the full article:
http://www.nytimes.com/2011/07/14/business/smallbusiness/how-a-small-business-can-survive-an-immigration-audit.html?_r=1&sq=immigration&st=cse&scp=3&pagewanted=all
UC Berkeley’s newspaper, The Daily Californian, reported that the Berkeley-based Pacific Steel Casting Company will be subject to an audit to verify the employment eligibility of its workers by the U.S. Immigration and Customs Enforcement, the investigative arm of the Department of Homeland Security. The audit seeks to verify the employment eligibility of employees through the evaluation of Employment Eligibility Verification Form I-9s that employees submit. The company is the fourth-largest existing steel foundry in the nation, employing a diverse group of workers belonging to approximately 30 different nationalities, according to the company’s website. ICE penalizes employers for knowingly hiring or employing unauthorized workers. ICE has shifted its enforcement focus to employers so it is important that the HR staff is compliant with the current requirements and procedures.
USCIS has updated its handbook for employers regarding the I-9. The updated handbook with helpful information can be found at: http://www.uscis.gov/files/form/m-274.pdf
USCIS has also posted a new I-9 Q&A at: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=330df7c555b2e210VgnVCM100000082ca60aRCRD&vgnextchannel=330df7c555b2e210VgnVCM100000082ca60aRCRD
If you have questions about the I-9 form or are interested in an I-9 training for your HR staff please contact our office at info at harms-law.com.
The new visa bulletin is out.
Family based petitions are backlogged, with the most recent date at March 2008.
Employment-based categories have moved a bit since last month and are as follows:
- EB-1 is current for all countries
- EB-2 is current, except for India (March 2007) and China (March 2007)
- EB-3 is at October 2005 for all countries, except for India (May 2002), China (July 2004), and Mexico (July 2005)
- EB-3 other workers is at November 2004 for all countries, except India (April 2003), China (April 2003) and Mexico (November 2004)
- EB-4, religious workers, EB-5, and targeted employment areas and regional centers are all current.
The full visa bulletin can be found at http://www.travel.state.gov/visa/bulletin/bulletin_5489.html
The U.S. government will unveil a national initiative to combat immigration services scams this week. The Departments of Homeland Security (DHS) and Justice (DOJ) and the Federal Trade Commission (FTC) are leading this effort. DHS’s U.S. Citizenship and Immigration Services (USCIS) will announce the initiative on June 9. These immigration scams include the unauthorized practice of immigration law and deceptive practices. These scams cause harm to our immigration system and victimize members of the immigrant community. Federal, state and local partners will come together to combat immigration services scams through three approaches: enforcement, education, and continued collaboration.
Obama administration officials are sharpening their crackdown on the hiring of illegal immigrants by focusing increasingly tough criminal charges on employers while moving away from criminal arrests of the workers themselves. The scope of the administration’s strategy has become clear as long-running investigations of employers have culminated in indictments, convictions, exponentially increased fines and jail sentences. While conducting fewer headline-making factory raids, the immigration authorities have greatly expanded the number of businesses facing scrutiny and the cases where employers face severe sanctions. Last year, according to government figures, the enforcement agency started 2,746 workplace investigations in addition to audits, more than double the number in 2008, the last full year of the Bush administration. Fines totaling about $43 million, also a record, were levied on companies in immigration cases. Department of Homeland Security officials, speaking anonymously in order to discuss internal policy, said immigration officers were no longer authorized to carry out workplace raids unless they cooperated with federal prosecutors to prepare criminal cases against the employers. Last year, 119 employers were convicted.
To read more: http://www.nytimes.com/2011/05/30/us/politics/30raid.html?pagewanted=1&sq=immigration&st=cse&scp=2
The San Francisco Chronicle reported last week that Susan Su of Pleasanton was indicted by a federal grand jury on charges that her school, Tri Valley University, was a front for foreign students seeking to establish U.S. immigration status. Federal prosecutors say she illegally obtained visa documents “without regard to the students’ academic qualifications or intent to pursue a course of study required to maintain a lawful immigration status.” Authorities said Indian nationals paid $2,700 a semester in tuition for visa-related documents that allowed them to live and work in the country on student immigration status.
The original article can be found on SFGate.com here:
http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2011/05/03/BAC01JAS0N.DTL
President Obama gave a speech today in El Paso, Texas on the need for immigration reform. He asked for a bipartisan effort to overhaul the nation’s immigration laws to deal with the millions of skilled and unskilled workers already here illegally. The President’s trip was part of a series of events to promote his support for immigration reform legislation. The President urged Congress to act on this issue and reiterated his legislative aims: A path to citizenship for illegal immigrants that would require them to come forward, pay taxes and a penalty, and learn English; legal status to encourage foreign college graduates and other skilled non-citizen residents to remain and start businesses; and the so-called Dream Act, providing citizenship to young people who were brought to the United States as children and receive an education or want to enter the military.
Here is a link to the text of his speech: http://www.nytimes.com/2011/05/11/us/politics/11obama-text.html
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.
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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