I-9 Violations Costly for Employers

Navigating the I-9 process can be difficult and mistakes or violations can be costly. The Justice Department today reached a settlement agreement with Farmland Foods Inc., a major producer of pork products in Kansas City, MO, resolving allegations of document abuse and discrimination in violation of the anti-discrimination provision of the Immigration and Nationality Act (INA).   Farmland has agreed to pay $290,400 in civil penalties, the highest civil penalty paid through settlement since enactment of the INA’s anti-discrimination provision in 1986.  The DOJ stated that Farmland engaged in discrimination by imposing unnecessary and excessive documentary requirements on non-U.S. citizens and foreign-born U.S. citizens during the I-9 employment eligibility verification process. The investigation revealed that Farmland required all newly hired non-U.S. citizens and some foreign-born U.S. citizens at its Monmouth, Ill., plant to present specific and, in many cases, extra work-authorization documents beyond those required by federal law. In the case of non-U.S. citizens, Farmland required the presentation of additional work authorization documents, generally by requiring social security cards, even when employees had already produced other documents establishing work authority. In the case of foreign-born naturalized U.S. citizens, Farmland required evidence of citizenship, such as certificates of naturalization or U.S. passports, even when those individuals had other means of proving their work authority. Farmland’s demand for specific or excessive documents to establish work authority.

Our attorneys conduct I-9 trainings for employers and human resources personnel.  If you are interested in a training or have questions about the I-9 form please contact our office at info at harms-law.com.

I-9 Audits and Business

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

Local Business Undergoing I-9 Audit

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.

Hints from the USCIS on E-Verify and Forms I-9

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.

Sonoma Employers Advisory Council Lessons

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:

1. Recent events in worksite enforcement
2. Possible employer sanctions from a worksite enforcement action: civil and criminal
3. Critical elements of the Form I-9 and common mistakes when completing the Form I-9
4. Changes to the Form I-9 and what these mean to HR professionals
5. E-Verify: What is it and what are the responsibilities involved with this system?
6. Should my employer enroll in e-Verify?  Is my employer required to enroll in e-Verify?
7. 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

Employers Watch Out for Fines for Employing Undocumented Workers

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.