US Immigration and Customs Enforcement (ICE) is issuing Notices of Inspection (NOIs) of I-9 forms to 180 businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. 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 document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.
The notices warn business owners that ICE will be inspecting their hiring records to determine whether they are complying with employment eligibility verification laws and regulations. The names of the businesses have not been released.
See the ICE press release here. For information on I-9 requirements, see this blog posting.
I have blogged before about the current administration's increased enforcement of immigration laws at worksites. The Department of Homeland Security (DHS) announced yesterday that it had issued NOIs (Notices of Inspection) to another 1,000 employers nationwide. View the press release here.
The audits involve a detailed analysis of the employers' Forms I-9. This form should be completed for every employee on hiring, and it verifies the employee's identity and work authorization.
The press release also provides statistics since the increased enforcement started last April:
45 businesses and 47 individuals debarred;
0 businesses and 1 individual were debarred during same period in FY 2008.
142 Notices of Intent to Fine (NIF) totaling $15,865,181;
ICE issued 32 NIFs totaling $2,355,330 in all of FY 2008.
45 Final Orders totaling $798,179;
ICE issued eight Final Orders totaling $196,523 during the same period in FY 2008.
1,897 cases initiated;
ICE initiated 605 cases during the same period in FY 2008.
1,069 Form I-9 Inspections;
ICE initiated 503 Form I-9 Inspections in all of FY 2008.
In July, ICE issued 654 NOIs to businesses nationwide in the largest operation of its kind before today - part of ICE's effort to audit businesses suspected of using illegal labor.
Statistics resulting from the 654 audits announced in July:
ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents - approximately 16 percent of the total number reviewed.
To date, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are currently being considered for Notices of Intent to Fine (NIFs).
ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.
The New York Times published an article on this subject today. It notes that
The audits, however, have resulted in large-scale dismissals at the hands of employers, leaving the government one step removed.
In September, American Apparel, a clothing maker with a large garment factory in downtown Los Angeles, fired about 1,800 immigrant employees — more than a quarter of its work force — after a federal audit turned up irregularities in identity documents the workers presented when they were hired.
As I have discussed in prior blog postings, the requirement that certain federal contractors use E-Verify took effect on September 8, 2009. USCIS has a comprehensive user manual for employers available online here.
The Department of Homeland Security (DHS) is offering free 1.5 hour webinars on various dates, covering employer compliance topics. The webinars will include a topic overview, demonstration of the E-Verify system if applicable, and a question and answer session.
Attendees will have the opportunity to learn about the E-Verify program and its proper use as well as other select topics. The overview will allow participants to receive a full understanding of the program and key features.The webinars will cover the following topics:
Form I-9, Employment Eligibility Verification
E-Verify
FAR E-Verify.
Registration for the webinars is required, and more details are here.
USCIS has received significant funding for a substantially increased volume of random site visits to employer petitioners. Over the coming year, many thousands more employers will be visited by USCIS, often unannounced.
FDNS (Office of Fraud Detection and National Security) visits are to verify the existence of the employer, discuss the information that the employer has provided to USCIS in their petition(s) and whether the foreign national is working in accordance with the terms of their admission to the USA. Sometimes the visits relate to an approved petition, and sometimes they are used to check information in a pending petition.
Officers commonly ask about the employer’s business; the worksite; the number of employees; whether the employer filed the immigration petition in question; whether the foreign national is actually employed by the employer; the foreign national’s position, job duties and salary; and the foreign national’s qualifications for the position, educational background, previous employment and immigration history, residence and dependents in the United States. Typically, the FDNS officer will want to talk to the HR representative and perhaps also the foreign national.
If you are contacted about an upcoming site visit, please contact your immigration attorney immediately. If you receive an unannounced site visit - please contact us as soon as possible afterwards to discuss. In either situation, it is important to cooperate with the CIS representative as far as possible
Immigration and Customs Enforcement (ICE) issued a new Fact Sheet last week with FAQs on ICE's worksite enforcement procedures, figures, and reasons. The Fact Sheet explains that in Fiscal Year 2008
Of the individuals criminally arrested, 135 were owners, managers, supervisors or human resources employees facing charges including harboring or knowingly hiring illegal aliens. The remaining workers criminally arrested are facing charges including aggravated identity theft and Social Security fraud.
ICE has also made more than 5,100 administrative arrests for immigration violations during worksite enforcement operations.
ICE made more than 1,100 criminal arrests tied to worksite enforcement investigations.
In April 2009, Secretary Napolitano issued guidance outlining that ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration. ICE will continue to arrest and process for removal any illegal workers who are found in the course of these worksite enforcement actions in a manner consistent with immigration law and DHS priorities. Furthermore, ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.
E-Verify is an Internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees.
Background to the new rule:
President George W Bush issued an executive order in 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees.The amended Executive Order reinforces the policy, first announced in 1996, that the federal government do business with companies that have a legal workforce.This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States.
The effective date of the final rule requiring certain federal contractors and subcontractors to use E-Verify has been delayed until June 30, 2009.
Who is affected?
The rule will only affect federal contractors who are awarded a new contract after June 30 that includes the Federal Acquisition Regulation (FAR) E-Verify clause (73 FR 67704).Federal contractors may NOT use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the FAR E-Verify Clause.
What contracts are included?
The E-Verify requirement would apply to federal contracts with a performance period longer than 120 days and a value over $100,000. The rule covers subcontractors if a prime contract includes the clause. For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000.
As a follow-up to last week's blog posting about the new I-9 requirements starting on April 3, USCIS has released a Question and Answer document for employers here. The Q&A answers questions such as
What is the difference between the revised Form I-9 and the old one?
Why can’t I present an expired document?
As an employer, can I accept documents that used to be on the Form I-9 but aren’t now?
Do I need to complete the revised version of the Form I-9 for all my employees or just the new ones?
Previous blog posting: http://martinvisalaw.blogspot.com/2009/04/are-you-ready-new-i-9-requirements-take.html.
The new requirements regarding completing the Form I-9, to verify employment eligibility in the US, take effect tomorrow, April 3rd. Starting tomorrow, employers must use the new I-9 form to verify new hires and to reverify existing hires. The list of acceptable documents that an employee can present will change tomorrow also, primarily by eliminating expired documents from the list. USCIS has issued a Q&A document on the new requirements, available here. As the Q&A explains:
The new rule: • Requires that all documents presented during the verification process be unexpired; • Eliminates List A identity and employment authorization documentation Forms I-688, I-688A, and I-688B (Temporary Resident Card and outdated Employment Authorization Cards); • Adds foreign passports containing certain machine-readable immigrant visas to List A; • Adds to List A as evidence of identity and employment authorization valid passports for citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI), along with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI ; and • Makes technical updates.
The new I-9 and instructions are here. The updated USCIS Handbook for Employers (M-274) is here.
On November 13, 2008, the USCIS (formerly INS) updated their website regarding new E-verify requirements starting in 2009. Federal contractors and subcontractors will be required to begin using the USCIS’ E-Verify system starting Jan. 15, 2009, to verify their employees’ eligibility to legally work in the United States. The new rule implements a June 2008 Executive Order directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees. The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business with companies that have a legal workforce. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States. Federal contracts awarded and solicitations issued after Jan. 15, 2009, will include a clause committing government contractors to use E-Verify.
