ICE audits « Richard A. Gump Jr. PC Immigration and Nationality Law

The Business of Texas

April 23, 2015

Filed under: Immigration — Tags: CIR, Comprehensive immigration reform, DACA, E-Verify, employers, FAR, I-9, I-9 audit, ICE audits, illegal aliens, immigration, Immigration Attorney, Texas Association of Business, USCIS, verification — drgump @ 8:13 pm

Texas is known as a business friendly state – low taxes, moderate regulations, and a good supply of workers. When it comes to immigration we have a mixed bag – (1) immigrants willing to work but may be here illegally and may have a low level of education, (2) resident tuition is available to immigrants but a proposal to abolish it if the individual does not have legal status has been introduced, and (3) local law enforcement focus on crimes, not immigration status but a proposal to forbid “sanctuary cities” has been introduced.

The proposals to limit resident tuition to those with legal status on its face makes sense until we realize it may not be wise to limit the education of children who don’t have status. Likewise, we don’t need to inhibit police efforts to solve crimes in the Hispanic communities by requiring them to check everyone’s immigration status.

We should be practical when it comes to educating children brought to the U.S. at an early age as well as supportive of police who want to focus on fighting crimes rather than be immigration cops frightening entire Hispanic communities.

Now we have a new immigration issue in the form of Executive Order No. RP-80, which requires state agencies under the direction of the governor, and contractors of such agencies, to use E-Verify for current and prospective employees. The problem for employers (the State of Texas agencies as well as private employers with contracts to do work for such agencies) is that federal law is clear that employer who sign up for E-Verify can only use it to verify newly hired employees except in certain limited circumstances (e.g. federal contracts under FAR rule). We don’t need this sort of confusion in Texas. While private attorneys and even the federal government agency responsible for E-Verify (USCIS) have pointed out the inconsistency to the governor’s office, RP-80 remains in effect. We encourage business associations, in particular the Texas Association of Business, which understands and promotes the need for fair and consistent immigration benefits and enforcement, to petition the governor’s office to rescind or amend RP-80 to conform with federal law.

Legal immigration is a net benefit to Texas businesses by encouraging entrepreneurs, trade and investment, as well as creating and filling jobs needed by employers. E-Verify is a wonderful tool to assist employers in determining whether prospective employees are authorized for employment but it must be enforced with one set of federal rules, without conflicting state rules.

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Three Little Words All Employers Hate to Hear

August 20, 2014

Filed under: Immigration — Tags: CIR, Comprehensive immigration reform, DHS, employers, I-9, I-9 audit, ICE, ICE audits, illegal aliens, immigration, Immigration Attorney, Immigration reform, liability, NOI, Notice of Inspection, USCIS, verification — drgump @ 7:48 pm

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.

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Verifying a Mobile Workforce

July 31, 2014

Filed under: Immigration,Standard — Tags: employers, I-9, ICE, ICE audits, immigration, Immigration Attorney, INA, liability, NOI, remote hires, verification — drgump @ 7:26 pm

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.

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