We have recently received reliable information that another round of audits is occurring throughout the United States. It is very important for companies to be prepared in the event you receive an NOI (Notice of Inspection) from ICE. Fines have been very high for both Form I-9 paperwork violations as well as knowing hire or continuing to employ violations. (more…)
Richard A. Gump Jr. P.C. Blog
July 25, 2018
July 21, 2017
The backlog of pending cases in immigration court reached an all-time high in the month of June. According to records obtained through Freedom of Information Act requests by the Transactions Records Access Clearinghouse (TRAC) at Syracuse University the immigration court backlog jumped by about 11,000 cases in one month, reaching a record high of 610,524. The TRAC report also detected a 9.3 percent drop in final dispositions issued in immigration court cases since President Trump took office, decreasing from 84,956 over a five-month period last year to 77,085 over that same time frame this year. The TRAC report breaks down the backlog by state and then court within that state and provides numerous graphs to help create a visual image of the drastic increase in pending cases since the mid-2000’s. It can be found here.
The increase in backlog and decrease in final dispositions could be attributed to a number of variables. These include recent shifts in judge assignments, revised case processing priorities, and the almost complete end of prosecutorial discretion in closing cases. The use of prosecutorial discretion had helped lessen the court’s backlog in recent years; however, the number of cases pending in courts nationwide has been steadily increasing since about 2008. Prosecutorial discretion has been essentially handcuffed by the current administration and ICE has even started reopening cases that had been closed for years under previous priority hierarchies.
President Trump allocated additional funds to the Department of Homeland Security in his May budget proposal and there has been talk of hiring additional judges and support staff. Since the backlog has been increasing for almost a decade and high numbers of judges have been hired and trained in recent years, it is unlikely that throwing more judges into the mix will have any meaningful impact on the backlog because of the rate that people are being put in proceedings and because old cases are being reopened.
Our office recently had an individual hearing postponed from December 2017 until May 2020. If something is not done to prioritize cases more effectively and provide for a shorter start to finish timeline for non-detained individuals, then efforts at increasing border security and discouraging people from overstaying their visas will not be able to overcome the current culture of “press you luck”. Word will get around that a person who gets put in proceedings and applies for relief can remain and wait in the U.S. for an additional two years, five years, ten years, who knows. What incentive does a person have to return to his or her home country if our current laws, policies, and outrageous backlog will allow that person to remain here for an almost indefinite period of time? Now, each case presents its own issues and a person’s immigration and criminal history may dictate whether he or she lingers in proceedings for years or is sent back to his or her home country on a bus or plane the next day. However, if our overarching goals are to create a set of immigration laws that encourage and reward compliance and to ensure that our borders are being respected—we have a mountain of over 610,000 cases to climb before we get there.
When the Price Is Right: Becoming I-9 Compliant Now Can Save Your Company From Paying the Price Later
June 8, 2017
I-9 compliance is one business expense you should not consider cutting. ICE recently reached settlements with three different companies and imposed heavy fines for I-9 infractions and hiring discrimination against both legal permanent residents and U.S. citizens. These fine amounts illustrate the importance of spending the time, effort, and money now to ensure you are I-9 and visa compliant so as to avoid hefty fines and headaches when ICE comes knocking at your office door.
On June 7th, an OCAHO judge ordered Alpine Staffing Inc., a Minnesota-based staffing company, to pay over $276,000, finding the company had neglected to adequately complete I-9 forms for more than 100 workers. The company failed to prepare or present I-9 forms for 34 employees, didn’t give the government such forms for 310 workers after three days of notice, and failed to “properly complete” I-9 forms for 130 employees. ICE had initially requested an even higher fine amount.
On May 16th, the Office of Special Counsel- Immigrant Employee Rights division reached a settlement agreement with Washington Potato Company and Pasco Processing, LLC. The lawsuit alleged that the company requested LPRs to produce a specific document to prove work authorization. The antidiscrimination provision of the INA prohibits such unfair documentary requests when based on citizenship status or national origin. Under the agreement, the company will pay $225,750 in civil penalties, post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel on the requirements of the INA’s anti-discrimination provision, and be subject to departmental monitoring and reporting requirements.
On May 23rd, OSC reached a settlement agreement with Carrillo Farm Labor, LLC, an onion farm in New Mexico. The settlement resolves the department’s investigation of complaints that Carrillo Farm discriminated against U.S. citizens due to a hiring preference for H-2A foreign visa workers. The company must pay $44,000 in full back pay and lost wages, a $5,000 civil penalty, and provide notice to the OSC IER of any H-2A visa applications filed for the next two years, among other requirements.
The best way to avoid fines it to conduct an internal I-9 audit, review your hiring policies and procedures to determine any discrimination issues, and to assess all employment-based visas you have filed or will file to ensure you are in full compliance. Our office offers I-9 audit services and can advise you on all aspects of discriminatory practices and visa compliance to prevent you from paying the price later on. Spending the time and effort now is the best way to avoid the financial hassle of ICE becoming interested in your business practices later.
June 2, 2017
The May 29th Kiplinger Letter predicts the workplace will be “…a growing target for aggressive immigration enforcement…as the Trump administration increases raids, audits and site visits to identify undocumented workers and find violations of temporary work visas.” We agree. Employers should shore up their compliance by independent audits of their I-9 policies and procedures as well as their H-1B and L-1 visas.
May 9, 2017
Beginning this week, employers may start seeing a new design of both green cards and Employment Authorization Documents (EAD’s) presented to them by employees for I-9 employment verification purposes. The cards have been redesigned with added security features in an effort to make forgeries more difficult. The new cards will:
- Display the individual’s photos on both sides;
- Show a unique graphic image and color palette:
- Green Cards will have an image of the Statue of Liberty and a predominately green palette;
- EAD cards will have an image of a bald eagle and a predominately red palette;
- Have embedded holographic images; and
- No longer display the individual’s signature.
You can check a card presented to you by an employee against the sample below (also found at uscis.gov). The new cards will have been issued on May 1, 2017 or later. USCIS may use up the remaining stock of the previous card design before moving on to the new cards.
Our firm offers I-9 training services and conducts internal audits to ensure your company is complying with proper I-9 completion, storage, and verification processes to prevent future fines in the event of an ICE or Department of Labor investigation or audit. ICE audits could be on the rise and employers may want to become compliant for a small price now rather than waiting to be hit by a large government fine later.
February 10, 2017
As of January 17, 2017, the U.S. Citizenship and Immigration Services (USCIS) has implemented a new EAD automatic extension for certain EADs. While the automatic extension provision is a welcome relief to many foreign nationals who depend on EADs for documentation of employment eligibility, the new regulation carves out this benefit only to certain employment authorization categories.
The automatic extension takes place if a renewal EAD is not received before the current EAD expires and lasts for a period not to exceed 180 days, provided that the renewal application is:
- Properly filed with USCIS before the expiration date shown on the face of the expiring EAD,
- Based on the same employment category shown on the face of the expiring EAD, and
- Falls into one of the following fifteen eligibility categories:
|Eligibility Category Code||
|(a)(7)||Aliens admitted as parents or dependent children of aliens granted permanent residence|
|(a)(8)||Citizen of Micronesia, Marshall Islands, or Palau|
|(a)(10)||Withholding of Deportation or Removal Granted|
|(a)(12)||Temporary Protected Status (TPS) Granted|
|(c)(8)||Asylum Application Pending|
|(c)(9)||Pending Adjustment of Status under Section 245 of the Act|
|(c)(10)||Suspension of Deportation Applicants (filed before April 1, 1997)
Cancellation of Removal Applicants
Special Rule Cancellation of Removal Applicants Under NACARA
|(c)(16)||Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972)|
|(c)(19)||Pending initial application for TPS where USCIS determines applicant is prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit”.|
|(c)(20)||Section 210 Legalization (pending I-700)|
|(c)(22)||Section 245A Legalization (pending I-687)|
USCIS has provided the following guidance on how employers and employees should complete Form I-9 when this automatic 180-day period takes effect, but they have not yet made any statements on whether an individual will be able to renew an expired driver’s license based on this same principle.
Instructions for an Employee Completing Section 1 of Form I-9
If you are a new employee:
When completing Section 1, new employees should:
- Select the option “An alien authorized to work until”; and
- Enter the date that is 180 days from the “card expires” date of their EAD as the “employment authorized until mm/dd/yyyy”
If you are a current employee:
Current employees whose employment authorization was automatically extended should:
- Cross out the “employment authorized until” date in Section 1;
- Write the date that is 180 days from the date their current EAD expires; and
- Initial and date the
Instructions for Employers Completing Section 2 of Form I-9
If your employee is new and presents an automatically extended EAD that is still within the 180-day extension period:
When completing Section 2, the employer should:
- Enter into the “Expiration Date” field the date upon which the automatic extension period expires, not the expiration date on the face of the expired The automatic extension expiration date is the date 180 days from the “card expires” date on the EAD; and
- Enter the receipt number in the “Document Number” Note that this expiration date may be cut short if the employee’s renewal application is denied before the 180-day period expires.
If your employee is currently working for you:
For a current employee, update Section 2 of Form I-9 with the new expiration date as follows:
- Draw a line through the old expiration date and write-in the new expiration date;
- Write EAD EXT in the “Additional Information” field of Section 2; and
- Initial and date the
The new expiration date the employer should enter is the date 180 days from the “card expires” date, which is the date on the face of the EAD.
Note: This is not considered a reverification; do not complete Section 3 until either the 180-day extension has ended or the employee presents a new document to show continued employment authorization, whichever is sooner. At the end of the 180-day extension, the employer must reverify the employee’s employment authorization in Section 3 of Form I-9.
Instructions for Employers Completing Section 3 of Form I-9
When the automatic extension of an EAD expires, an employer must reverify the employee’s employment authorization in Section 3. At that time, the employee must present any document from List A or any document from List C, or an acceptable List A or List C receipt described in the Form I-9 Instructions to reverify employment authorization. Note that employers may not specify which List A or List C document employees must present.
For E-Verify Employers
An employer may create a case in E-Verify for a new employee using the information provided on Form I-9 from Form I-797C. The receipt number entered as the document number on Form I-9 should be entered into the document number field in E-Verify.
Our office is happy to assist any employers or employees who may have questions about this new policy and we will provide updates regarding driver’s licenses and other things impacted by this as they come out in the coming months.
January 30, 2017
Here are some key things to keep in mind in light of President Trump’s most recent Executive Order regarding immigrant and non-immigrant citizens and refugees of certain countries:
- The Executive Order applies to all individuals “from” the seven designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. That can include Legal Permanent Residents (LPRs), non-immigrant visa holders, immigrant visa holders, refugees, derivative asylees, Special Immigrant Visas (SIVs), etc.
- Anyone who holds a passport from a designated country is “from” there—this includes dual citizens.
- Until we have clarity on the ability of a certain person to gain entry, we advise anyone from a designated country not to travel outside the United States.
- If you, an employee, or someone you know, is from a designated country and is already outside the US, obtain his or her return date and current status and contact us so that we may determine his or her ability to re-enter the US at that time.
- Further study regarding this new vetting process is needed, and the little information that is available does not allow us to provide answers on the process or timing with much certainty.
- The order itself and the court cases associated with it are constantly evolving, so please make sure you have the most up to date information prior to making a decision.
We also anticipate another Executive Order to be signed sometime soon that may impact the way in which visas are issued at Consulates. This could include additional vetting as well as prohibiting the waiver of an interview, meaning all applicants may be required to attend an interview at the Consulate. Please be prepared to adapt to these new procedures and reach out to us if you have any questions.
We will provide updates on the ever-changing immigration environment as often as we are able, but please do not hesitate to call or email us if you have any questions, concerns, or issues.
December 8, 2016
Assessment of Employer Concerns Over the Next Few years
1. DACA is likely dead. Current work permits may be allowed to expire without being withdrawn, but new and renewal DACA filings can be swept away with the stroke of the President’s pen. This may mean some of your employees may lose their work permits and you will not be able to continue to hire them.
a.DACA (Deferred Action for Childhood Arrivals) allows certain undocumented immigrants to the U.S. who entered the country as minors to receive a renewable two-year period of deferred action from deportation and eligibility for work authorization.
b.DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) and expanded DACA programs will likely never be implemented.
2.Unauthorized workers will likely be targeted at the workplace via ICE raids. As employers may recall, prior to 2009 ICE conducted numerous raids on employers as opposed to audits. It is believed that more raids will be forthcoming. Employers should be prepared for these raids by ensuring that a point person exists who can manage the situation and call our office if and when a raid is in progress. The President can authorized this change of policy without Congress.
3.E-Verify will become mandatory for all employers. While mandatory E-Verify will have to be legislatively enacted, for employers who are already active users of the system it might be less likely that a raid will occur.
4.Deportation may increase. Even though an employer may employ an individual prior to its E-Verify use and who presented what appeared to be a valid work authorization document, this individual could still be arrested and deported if he/she is illegally in the U.S.
We believe that President-elect Trump and a Republican Congress will be more business friendly, even in the immigration context. However, persons here illegally and companies that knowingly hire illegals, especially if they have any crimes, will be targets for removal and fines.
September 23, 2016
The National Academies of Sciences, Engineering, and Medicine (NAS) released a report, The Economic and Fiscal Consequences of Immigration, that examined a decade’s worth of data to come to the conclusion that immigrants and their offspring make important contributions to economic growth, innovation, and entrepreneurship in the U.S. Immigrant workers will be vital in replacing the tax and economy loss of retiring Baby Boomers and they serve as an essential counterpart to other native born workers. As has been found in a number of other reports before, the NAS report showed that immigrant workers cause little to no negative effects on the wages or overall employment levels of native-born workers and adverse consequences are generally found only for U.S. workers without a high school degree.
The report also found that the estimated GDP growth due to contributions of immigrant workers from 2015 to 2016 amounted to nearly $2 trillion. Children of immigrants continue to be some of the top economic contributors among the U.S. population. While first generation immigrants may be slightly more costly to the government than a native-born American, that is usually due to a lower income and paying less in taxes, not because they are a drain on federally-sponsored programs. Furthermore, Americans now spend less on consumer goods and services like child care, food preparation, house cleaning and repair, and construction thanks to immigrants.
Our immigration system is in dire need of reform; but, even in its current broken state, immigrants continue to have an overwhelmingly positive impact on the U.S. economy. Any reforms that could potentially be passed by a newly elected Congress next year could only continue to provide economic benefits throughout the nation.
Fifth Circuit Throws Out Fine Against Staffing Agency That Used Corporate Attestation to Complete Form I-9
September 5, 2016
The Form I-9 employment verification process can be a thorn in any employer’s side as it seems to force company representatives into the role of “junior immigration officers.” Furthermore, this basic two-page verification document (minus instructions and acceptable documents list) is accompanied by a 70 page instruction manual, which only proves how easy it is for employers to make mistakes if the employment verification process is not fully understood.
For companies that hire remotely, the I-9 process becomes even more tedious. I-9 regulations state that in order to complete and certify Section 2 of the Form I-9 the company representative must physically examine the employment verification documents. Photocopies, scanned documents, pictures, or even documents viewed via Skype are not appropriate.
But that all changed on August 11, 2016, when the Fifth Circuit threw out a six-figure fine against a staffing agency who’s employment verification process consisted of one company representative in Texas inspecting the employee’s documents while another company representative in Minnesota saw photocopies and certified Section 2 of the Form I-9. According to the Fifth Circuit panel, the most reasonable interpretation of I-9 protocol allowed for corporate attestation.
While the Fifth Circuit’s ruling was the first of its kind, many are skeptical that other courts will follow suit. Therefore, best practice when completing the Form I-9 for remote hires would be that the company representative who looks at the employment verification documents must be the same individual who certifies Section 2.
The full case can be found here: http://www.ca5.uscourts.gov/opinions%5Cpub%5C15/15-60173-CV0.pdf
The Law Offices of Richard A. Gump, Jr., PC is committed to assisting employers with their employment-based immigration matters.