Wednesday, March 17, 2010

Practice Alert: ICE Policy Regarding the Good Faith Paperwork Violation Defense and the Statute of Limitations

On February 23, 2010, the Enforcement Law Division of the ICE Office of the Principal Legal Advisor (OPLA) and with the Worksite Division of ICE’s Office of Investigations provided representatives from the American Immigration Lawyers Association guidance concerning the IIRAIRA good faith paperwork violation defense and the applicability of the Federal Omnibus five-year statute of limitations provision in federal employer sanctions cases.

ICE officials confirmed that the agency continues to follow the IIRAIRA good faith defense policy set forth in 1997 Virtue Memorandum, the 1998 proposed regulations and the ALJ holdings in the WSC Plumbing case. ICE acknowledged that, consistent with the leading OCAHO case, the Federal Omnibus five-year statute of limitations provision of 28 USC § 2462 applied to 8 USC § 1324 (a) proceedings.

IIRAIRA amended the INA to allow a good faith defense when the employer is found to have made technical or procedural errors in preparing or completing Form I-9. The amendment provides for an exception to the good faith defense where the Service (or another enforcement agency) has explained to the employer the basis for the failure, and the employer has been provided a period of not less than 10 business days (beginning after the date of the explanation) within which to correct the failure, and the employer has not voluntarily corrected the failure during that 10 day period. The defense is not available to an employer who is or has engaged in a pattern or practice of sanctions violations.

The INS first implemented the March 6, 1997 policy memorandum from Paul Virtue, then Acting Commissioner for Programs, for field guidance concerning the good faith defense. The Virtue Memorandum distinguished between "technical or procedural" failures in the Form I-9 verification system occurring after September 30, 1996 that could be corrected. The Virtue Memorandum also listed the substantive verification failures that could not be cured by the statutory defense. The Virtue Memorandum’s policy interpretation of the good faith defense was continually approvingly cited in OCAHO decisions. In the WSC Plumbing case, it was held that the agency was bound by the ten day notice requirement before it could cite technical violations in a complaint. The judge approvingly cited the policy contained in the Virtue Memorandum for its interpretation of the good faith defense and the ten day notice requirement.

In 1998, the Legacy INS published a proposed rule on this subject which adopted most of the policy in the Virtue Memorandum. While proposed rule did not become the subject of final agency rulemaking, ICE indicated in its meeting with AILA that the proposed rule was also continuing valid agency policy.

Thursday, March 4, 2010

Has your company been ICED?

U.S. Immigration and Customs Enforcement (ICE) has announced that it is issuing an additional 180 Notices of Inspection to employers in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. This brings the number of administrative audits that ICE has announced in the last 8 months to 1832. On July 1, 2009, John Morton, the Department of Homeland Security Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE) announced a policy change, issuing notices of inspection to 652 employers across the country to initiate administrative I-9 audits. On November 19, 2009 DHS announced that it had issued an additional 1000 notices of inspection to employers in critical infrastructure industries.

These announcements marked a shift in enforcement emphasis from the Bush administration’s worksite enforcement policy which emphasized criminal immigration investigations of employers using criminal search warrants, without advance notice.

The Forms 1-9 must be available for an inspection at the location where the government officers request to see them on three days' notice.

It is wise for an employer to comply with an ICE request to inspect the Form 1-9. If the employer does not comply with the request to present the Form 1-9, ICE may compel production by issuing a subpoena. A refusal or delay in the production of the Form 1-9 will be considered a violation of the retention requirements by the government.

ICE may also assert general powers to obtain personnel records that pertain to the hiring and employment of an individual employee. In the absence of the employer's willingness to produce the personnel records, ICE may issue an administrative subpoena to obtain these materials.

ICE investigations determine whether employers have violated the prohibitions against knowingly employing unauthorized aliens and Form 1-9 paperwork violations. Before ICE can issue a Notice of Intent to Fine for technical or procedural I-9 errors the employer must be provided with a ten day notice and the opportunity to correct these deficiencies within that period.

Depending on the alleged violations, an ICE warning or a Notice of Intent to Fine (NIF) may result. In cases when a NIF is issued, employers may request a hearing within 30 days of its service hefore an Administrative Law Judge of the Office of the Chief Administrative Hearing Officer (OCAHO). Hearing requests must be in writing and filed with the ICE office designated in the NIF. If a hearing is not requested within the 30-day period, the ICE will issue a final order to cease and desist and to pay a civil money penalty.