Global Immigration Blog : Immigration Lawyers & Attorneys : Jackson Lewis Law Firm : Labor Certification, Adjustment of Status

“Hi, this is Kevin."

“Hi Kevin, it’s Sally at ABC Company. We need your help again. ICE Special Agents came by the worksite again today and delivered a Notice of Inspection for our Forms I-9 and supporting documents. They limited the inspection to the I-9s for active AND separated employees hired after their last inspection, but were sure to mention that they’re taking a look at our old mistakes to see if we’ve learned from the last time we were inspected . . .”

“Sure Sally. You’re not the first of our clients to be revisited by ICE. We’ve got the team in place, and we’re ready to get to work.”

Calls like this one will be increasing for immigration lawyers. The Obama administration is launching another round of worksite investigations—this time, returning to employers that have already been the subject of I-9 inspections during the last three years. Approximately 500 employers are being re-visited by Special Agents to confirm that noncompliant activity identified during prior reviews has been remedied, according to ICE.

Obviously, ICE offices has kept track of employers targeted for re-evaluation. ICE has not discussed any plans for the NOIs, but has confirmed that “the agency continues to be interested in egregious employers as they tend to break other laws in addition to immigration…including paying employees under the table, avoiding taxes and ignoring employee protections.” You do not need to have run afoul of the law before to feel ICE’s heat. The Obama administration has reimposed civil fines for paperwork and substantive violations, making Form I-9 errors an expensive problem even for first time infractions.

We expect additional ICE initiatives to continue throughout 2012 (it is an election year). Employers may consider contacting their Congressional representatives to revive interest in comprehensive immigration reform, to temper the need for tough enforcement efforts . For now,, diligent employers must redouble their compliance efforts, and those who have not yet started must focus their efforts on a comprehensive review of their records, policies and protocols.

Read more.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Director of Immigration and Customs Enforcement (ICE) John Morton has announced record numbers of worksite enforcement investigations, criminal prosecutions, and administrative-fine-awards for FY2011.

As the investigative arm of the U.S. Department of Homeland Security, ICE’s primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal border control, customs, trade, and immigration laws.

As a primary part of its immigration enforcement effort ICE has targeted employers that recruit, hire, and continue to employ unauthorized foreign nationals. ICE’s comprehensive worksite enforcement strategy is focused on deterring unlawful employment. ICE believes its increased investigative activity will have the effect or driving all employers toward instituting fairly conservative standard operating procedures to cultivate a culture of compliance with the nation’s immigration-related employment laws. In testimony before the House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement, Morton indicated that the Administration is focused on conducting criminal investigations and prosecuting employers who exploit the verification system or abuse their employees.

As of September 17, 2011, ICE instituted 3,015 administrative/criminal investigations—a 54% increase over FY2008. In FY2010, ICE arrested and criminally prosecuted 196 owners, HR managers, and executives—a 45% increase over FY2008. ICE refused to release statistics on those employers subject to potential criminal prosecution who negotiated with ICE or U.S. Attorneys to enter into deferred prosecution agreements.

In FY2011, ICE issued a record 2,393 Notice of Inspection (for federal Forms I-9 and supporting documents), a more than 375% increase from that issued in FY2008.

ICE has issued 331 final administrative fine orders in FY2011, totaling more than $9 million in fines levied on employers (it issued to 18 final orders in FY2008, totaling $675,000 in fines). In addition, FY2010 worksite investigations resulted in a record $36.6 million in judicial fines, forfeitures, and restitution.

“Enforcing our immigration priorities and obligations is neither simple nor easy, and we are committed to getting it right. We all agree that we need fair, consistent, and enforceable immigration laws that encourage the free flow of commerce while respecting both security and the rights of individuals,” Morton said.

Employment verification compliance requirements are onerous, but employers must remain vigilant. Employers with multi-state locations also must consider supplemental state verification compliance requirements. To the extent that ICE must review an employer’s Forms I-9 prior to coming to a conclusion about the rate of employment of unauthorized foreign nationals, all employers are at risk. Now is the time to minimize exposure.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The United States Immigration and Customs Enforcement (“ICE”) has announced that, as at July 21, 2011, it has fined 14 employers in New England this year for hiring illegal aliens in violation of law.

The companies were the subject of an investigation and audit of their Form I-9 documents, which is part of ICE’s ongoing worksite enforcement strategy. Following investigation, the companies, located from Massachusetts to Maine, were subjected to fines ranging from $23,000 to more than $100,000.

Nationally, ICE has been pursuing a worksite enforcement strategy, launched in 2009, to reduce demand for illegal employment of aliens and to protect employment opportunities for America’s legal workforce. This strategy has focused on auditing and investigating employers suspected of hiring workers later determined to be unauthorized for employment in the United States.

As quoted by Bruce M. Foucart, Special Agent in charge of ICE in Boston:

“These settlements serve as a reminder to employers that ICE will continue to hold them accountable for hiring and maintaining a legal and compliant workforce. We encourage companies to take the employment verification process seriously.”

ICE’s continued focus on worksite enforcement warrants employers’ ensuring their compliance with the employment verification process. Employers must complete and retain a Form I-9 for every individual hired for employment in the United States. Each employee is required to provide the employer with proof that the employee is authorized to work in the United States. Failure to properly complete the employment verification process can lead, at a minimum, to fines or, depending on the seriousness of any uncovered violations, a criminal investigation of an employer by ICE.

The Global Immigration practice of Jackson Lewis routinely advises our clients in navigating the employment verification process.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

To avoid potential conflict, the U.S. Department of Labor (DOL) and the Department of Homeland Security (DHS) have entered into a Memorandum of Understanding (MOU) concerning their respective civil worksite enforcement activities. Under the March 31, 2011, MOU, U.S. Immigration and Customs Enforcement agreed that, unless determined necessary by the Director of ICE, Secretary of Homeland Security or an Officer of the DOL, it would refrain from engaging in civil worksite enforcement at a worksite if there is an existing DOL investigation of a labor dispute. The MOU specifically states that ICE and DOL agree to create a means by which they will exchange information from their respective investigations. 

The DOL’s enforcement activities are to ensure proper wages and working conditions for all workers regardless of their immigration status. DHS enforces immigration laws to ensure that all workers are authorized to work. 

It is unclear how the MOU will be implemented by a prospective joint Worksite Enforcement Coordination Committee. What is clear is that there will be information sharing between the DOL and DHS/ICE. While they generally will not conduct joint or coordinated civil worksite enforcement, ICE is not restricted from investigating after a DOL investigation is completed.

The U.S. government has become increasingly active in enforcing immigration compliance against corporate employers in recent years. Thus, it is critical for employers to ensure their policies and practices are in compliance with laws and regulations enforced by the Wage and Hour Division (WHD), the Office of Federal Contract Compliance Programs (OFCCP), the Occupational Safety and Health Administration (OSHA), and ICE.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Approximately $50 million in financial sanctions for worksite enforcement violations were imposed by the federal government in fiscal year (FY) 2010, according to Department of Homeland Security (DHS) Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Director John Morton. The agencies announced record-breaking immigration enforcement results that reflect the aggressive stance taken under the Obama Administration to combat the hiring of unauthorized workers. While the government continues to detain and remove unauthorized individuals, Secretary Napolitano emphasized that the Obama Administration also would continue to pressure employers, holding them accountable through I-9 audits, fines and debarment from immigration programs.

ICE has achieved the following in FY 2010:
• Removing 392,000 individuals, including 195,000 convicted criminal foreign nationals
• Bringing criminal charges against a record-breaking 180 owners, employers, managers and/or supervisors — up from 114 in FY 2009 and 135 in FY 2008
• Conducting more than 2,200 I-9 audits — up from a little more than 1,400 in FY 2009
• Imposition of approximately $50 million in financial sanctions
• Debarment of 97 businesses and 49 individuals in FY 2010, up from 30 businesses and 53 individuals in FY 2009

This is a reminder to employers to question and review their I-9 practices and policies. While ICE states that it conducts I-9 investigations of employers based on credible leads (such as complaints from disgruntled employees, tips from the public or cases having national security or public safety implications), they also reserve the right to initiate audits for other reasons, such as referrals from other government agencies that have investigated an employer in an unrelated matter or even randomly targeting industries generally known to have high reports of undocumented workers, such as in construction, hospitality, retail and food production.

To forestall any negative government actions in this area, an employer would be wise to conduct its own internal I-9 audit or engage legal counsel to do so. Start with an overall audit plan and implementation of the plan, and follow through on corrections of identified errors and maintenance of a thorough I-9 compliance policy. For more information on how the Global Immigration Group can assist you, see our I-9 Compliance Brochure. Preparation is key.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The scorching Texas summer is not the only heat Texas employers are feeling these days. According to a recent article in the Houston Chronicle, the United States Immigration and Customs Enforcement (ICE) has hit 23 Texas companies with civil fines exceeding $600,000 for hiring unauthorized workers, failing to comply with regulatory employment verification requirements, or both. Some of these employers are also facing criminal prosecutions.

It is no secret that the current administration has placed heavy emphasis on enforcing workplace laws and numerous employers have felt the brunt of it. Enforcing immigration laws that prohibit employers from hiring unauthorized workers and that require all employers to verify each new hire for work authorization and completion of the I-9 Employment Eligibility Verification Form is a part of the overall scheme. And, since there are budget deficits that must be made up, hefty fines for violations help.

Under this enforcement regime, employers are cast as the villains of the piece and the cause for the massive influx of illegal workers into this country. Rather than deporting apprehended illegal workers, the government now allows many to remain in the United States, where they are given employment authorization in return for their assistance in the investigation and prosecution of employers.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Due to the dramatic increase in ICE worksite enforcement actions in 2009, employers are taking steps ensure their I-9 compliance, and utilizing such tools as internal audits, training, and implementation of I-9 software. I-9 software can often help to minimize the disorganization and clerical errors that can result in an absolute nightmare upon receipt of an ICE inspection notice. In response to growing employers’ compliance efforts, software companies are rushing “feature-rich” I-9 software packages to market. And while employers tend to scrutinize the user features available when selecting I-9 software, many are overlooking a vital feature – data security.

Once I-9 software has been implemented by your company, proper data security is required to protect your employees’ stored personal data. Minnesota state agencies using a Texas-based I-9 software provider with inadequate data security recently discovered that the personal data of nearly 500 employees may have been made accessible through the software provider’s web site, displaying employee names, dates of birth, hire dates, and Social Security numbers. This is a wake-up call to many employers that data security is a feature that cannot be overlooked when selecting I-9 software.
Employers should always ask their software provider to outline the software’s data security features. Compare them to features offered by other providers. Generally, you want to ensure that all user accounts are properly password protected, a sophisticated encryption method is used to encrypt the data, and if the data is stored remotely by the software provider, measures are taken to ensure that data is protected from external hackers and that the data is properly isolated to ensure that it is not erroneously accessed by another user.
I-9 software is an excellent tool to use in the quest for I-9 compliance, and a fear of a potential data compromise should not prevent you from implementation. Most software packages have adequate data security features, and a few have substantial ones. However, employers should be aware of the importance of data security when shopping for an I-9 software package, and should move data security to the top of their list of questions for their potential providers.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link