Richard A. Gump Jr. P.C. Blog
August 20, 2014
Notice of Inspection
Those are three words an employer never wants to hear.
The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) division has issued more than 10,000 Notices of Inspection in the last four years alone. Companies that receive an NOI will undergo an extensive review of their I-9 forms, policies and procedures and, at the end of the day, could receive significant financial fines due to errors in I-9 completion and retention.
Through their attempts to hire a legal workforce, while at the same time weeding out illegal employees from their current personnel, employers continue to remain caught in legally questionable situations.
One of the best solutions to combat the formidable employment verification process is through the use of E-Verify, a free, web-based program that allows employers to further verify their employees’ employment eligibility once hired. It is important to note that E-Verify does not replace Form I-9 compliance; the I-9, whether a hard copy or electronic version, must still be completed. However, the added benefit of E-Verify usage is that this government program compares the data from the employee’s completed Form I-9 with that of the Social Security Administration as well as the U.S. Department of Homeland Security (DHS). This government initiated program expands the compliance initiative aimed at establishing a wholly legal workforce.
While numerous benefits exist to utilizing E-Verify, such as an improved level of Form I-9 compliance and extra security in knowing that the employee’s I-9 information matches that in the government’s database, it is important to note that employer implementation of E-Verify does carry with it additional concerns. Recently, the U.S. Citizenship and Immigration Services (USCIS) has implemented data-mining strategies to track E-Verify users who are potentially violating immigration laws. When certain trends are discovered through data-mining, USCIS shares its findings with other government agencies, such as Immigration and Customs Enforcement (ICE) and the Office of Special Counsel (OSC), for investigatory purposes.
Current data-mining trends include:
- Verifying existing employees
- Failing to verify employees within three days of hire
- Failing to print TNC notices
- Intermittent use of E-Verify
- Employer requests specific documents from Lawful Permanent Residents
Consequently, employers must be prudent in their compliance endeavors when utilizing E-Verify, as enrollment alone does not safeguard companies from future investigations and liability.
July 31, 2014
As the construction industry claws its way out of the Great Recession, employers need to be acutely aware of on-going company procedures that pose to threaten their re-acquired stability. At the heart of this introspection is the employer’s workforce itself, without which a company would be useless. As the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) continues to significantly increase its number of, often times, industry-driven audits (in the past four years alone more than 10,000 employers have been audited), it is imperative for employers to verify their workforce. While this may pose no concern for those already established in their culture of compliance, it is essential for all employers to take a second glance at their company’s protocols.
The construction industry revolves around a transient workforce and must adapt to ever-changing worksite locations. Therefore, when headquarters is based in a different location than the worksite, employers must ensure that correct employment verification processes are not abandoned for the sake of convenience. When verifying a mobile workforce the most common error involves Section 2 of the Form I-9. In most circumstances, it is the employer’s responsibility to complete Section 2 within three business days of the employee’s first day of employment. Through this certification process, the employer or the employer’s agent is saddled with the responsibility of inspecting the List A, or List B and List C supporting documents. However, if this employer is not in the same location as the new hire then a fairly straight-forward I-9 process quickly transforms into a complex scenario full of hidden violations.
These violations are caused by none other than the thing that has transformed all employers into fierce competitors who can operate on a global scale: technology. Known for its rapid speed and instantaneous gratification, it would make perfect sense to utilize technological measures in order to verify a remote hire. Have the remote hire take a picture of his or her supporting documents with a cellphone and email/text it to the employer; utilize Skype; or make a copy/scan it to headquarters. While all options make sense, they are nonetheless Form I-9 violations and employers will be held accountable for them. Why? Because Section 2 requires the employer or the employer’s agent to physically examine each original document to ensure its genuineness. Failing to do otherwise can result in significant fines (in 2012, worksite I-9 audit fines were reported at nearly $13 million).
The answer to this frustrating problem involves some degree of creativity and a mandatory company procedure regarding the verification of remote hires. One option is to ensure that an I-9 trained employer representative or agent (e.g. notary public) is available at each worksite location to verify every new hire’s employment authorization. This would allow for the physical inspection of the supporting documents; however, it is imperative to note that the employer and potentially the agent will be liable for the actions taken, thus, correct I-9 training is key. The government has taken note of the difficulties employers face when attempting to verify a mobile workforce but has taken no action. Therefore, a current effort to consider the utilization of post offices to assist in Section 2 completion is underway. Bottom line: employers must have a plan of action for verifying their mobile workforce, which must include correct training, physical examination of supporting documents and periodic auditing practices.
With the number of ICE audits increasing annually, the need to develop and maintain ongoing compliance measures is key towards avoiding costly fines. And as employees become more mobile, developing an acute awareness of acceptable employment verification processes will only ensure continued success in an employer’s remotely linked workforce.
Liability: a single word that carries significant weight, and in the construction industry avoiding liability can mean the difference between a good profit and a bad loss. While no business can fully escape it, many have tried to eliminate theircompany’s vulnerability with best practices (e.g. auditing; training; written policies and procedures) in such areas as safety, employment and verification, and construction standards. But when it comes to the hiring of new employees a rigorous methodology can often times have the reverse effect, thereby placing employers at an increased risk of exposure.
Form I-9 discrimination is one such threat that employers must address to avoid significant fines, government oversight, and overall reputation damage. During the Form I-9 verification process the Immigration and Nationality Act (INA) specifically prohibits employer discrimination against individuals on the basis of their citizenship or immigration status, or based on an individual’s national origin. While a seemingly straight forward employer regulation, the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), which investigates charges of employment discrimination based upon an individual’s citizenship or immigration status, maintains an intricate interpretation that can leave employers questioning every hiring strategy established. And with OSC investigations on the rise due to increased referrals from other enforcement agencies, employers must be acutely aware of their verification protocols.
When completing the Form I-9 the most common employer risk prevention tactic is to specifically request the employee to present a particular supporting document (e.g. U.S. passport or permanent resident card). Although often done in good faith to ensure valid employment authorization or responding to the employee’s request as to which document to present, OSC perceives this approach as discriminatory in nature because only the employee can legally choose which document to present. In contrast, when an employer requests too many supporting documents (e.g. List A, List B and List C), this constitutes document abuse and can also be construed as discrimination. The employer must strictly follow the I-9 requirements: either a List A or List B and List C document(s).
Additional OSC discriminatory interpretations that take employers by surprise include the following:
- Form I-9 reverifications are not meant for everyone. Even though permanent resident cards and U.S. passports maintain expiration dates, neither permanent residents nor U.S. citizens need to be reverified for I-9 purposes. To do otherwise exposes an employer to discrimination liability.
- Job acceptance prior to document production. Getting a jump start on the hiring of authorized workers by requesting employment authorization documents before the individual has accepted the job can mean jumping head first into discrimination litigation. There must be a job offer and an acceptance prior to documents being produced.
- Future expiration of documents does not preclude a potential hire. Form I-9 identifies three types of employees who qualify as work authorized: U.S. citizens, permanent residents, and work authorized aliens. As long as the employee presents an unexpired employment authorization document, this individual is employment eligible and should not be excluded from hiring endeavors.
The potential for Form I-9 discrimination is enormous if an employer does not properly train its personnel regarding appropriate hiring protocols. Something as simple as an I-9 training session could be the deciding factor between liability prevention and discrimination litigation. And while employer liability will never cease to exist, knowing how to effectively minimize and manage the risk can help the employer avoid substantial civil penalties and possible criminal fines, thereby leading to the establishment of successful verification policies aimed at continued compliance.
March 18, 2014
A high school diploma is one of the most important documents to have in today’s society. Almost every job will require an individual to have either a high school diploma or a GED and is essential for any college and/or university enrollment. Yet many students drop out each year due to personal responsibilities and/or lack of effort.
Deferred Action for Childhood Arrivals (“DACA”) was introduced in the summer of 2012 by President Obama. DACA is a program that gives work authorization to children who were brought to the United States by their parents at a young age and are in the United States illegally. The program provides unrestricted work authorization to individuals who qualify, and also allows young people to obtain a social security number and a driver’s license.
Young adults must meet several criteria to be eligible for the program. One of the criteria is that the applicant must be enrolled in school or a GED program, or have a high school or GED diploma.
DACA has inspired many students to further their education and enroll in an educational program. Unfortunately, many are looking to the internet for an easier way to get a high school diploma instead of enrolling in a credible school or GED program. What many students find are online programs that promise a legitimate high school diploma (equivalent to a real high school diploma or GED)…which ultimately turns out to be an internet “diploma mill”. Diploma mills charge a flat fee for a high school diploma and mislead people into believing that the diplomas are legitimate and accepted by universities and employers across the United States.
Degree mills love to use official-sounding terms to impress potential students. These terms often sound good, yet mean little in terms of educational quality. Be wary of these terms and phrases: “authenticated,” “verifiable,” “licensed,” “internationally approved,” “notarized,” and “accredited by UNESCO.”
Most online programs claim that their diplomas are legitimate but before enrolling in a program that could turn out to be a fake, it is important to review the following:
- Is the school accredited? – The site may contain information and links to the school’s “accreditations”. Unfortunately, the majority of internet degree mills are accredited, but not by an agency recognized by the Council on Higher Education Accreditation (CHEA) or the U.S. Department of Education. The problem is that they are accredited by bogus agencies that they themselves have created.
- Does the school ask for transcripts, academic records or other evidence of the individual’s previous education?
- Does the website over-emphasize the ease and speed of obtaining a high school degree (“To get your high school diploma you only need to pass our high school equivalency test and pay $299.99″)
- Is any attendance required of students, either online or in class?
- Are few assignments required for students to earn credits?
- Is one of the requirements for graduation possession of a valid Visa or MasterCard?
- Does the operation provide any information about a campus or business location or address?
- Does the operation provide a list of its faculty and their qualifications?
- Does the operation have a name similar to other well-known colleges and universities?
If you have suspicions regarding the validity of an online program, you can always contact your local college or university and ask if the program will be accepted by the college as evidence of a high school diploma or GED.
To find legitimate programs in your area, simply contact your local school district and ask about high school completion and GED programs. Most offer day and night classes as well as flexible schedules. If you must use an online program, do your homework and make sure you do not become a victim of a diploma mill.