Time to Upgrade Your Company's Immigration Compliance Program

All U.S. employers face enhanced responsibilities to effectively comply with recent Department of Homeland Security changes to the Form I-9 and the lists of acceptable documents. Certain government contractors and subcontractors have been required to join the E-Verify electronic verification system which augments the I-9 attestation and maintenance responsibilities.

These new compliance duties require that the employer adopt an effective worksite enforcement compliance strategy. The efficient execution of this compliance plan must be a high priority. By the time there is an ICE worksite enforcement action, remediation and any possible negotiations will be under the supervision of the DHS and/or the U.S. Attorney’s office in the city where the enforcement action takes place.

It would be a mistake for employers to reduce compliance efforts because of the Obama Administration’s return to the primacy of administrative civil sanctions as an enforcement tool of choice. The April 30, 2009 ICE Office of Investigations Worksite Enforcement Strategy memorandum reemphasized that the agency’s worksite enforcement operations, including the criminal prosecution of noncompliant employers, the removal of an unauthorized workforce and the debarment of government contractors, would remain significant deterrence options. Nevertheless, the ICE Worksite Enforcement strategy memorandum emphasizes that administrative I-9 inspections remain the agency’s primary enforcement tool and will support later criminal investigations and prosecutions.

How an employer fills out a one page I-9 form could result in Homeland Security's seizure of a business. Small business owners and large corporations now have reason to dread the Immigration and Customs Enforcement (ICE) ramp up of its I-9 administrative inspections which come with administrative subpoenas that ask for payroll and other government agency records.

While employers are required to verify the identity and work eligibility of all employees, including U.S. citizens, on Form I-9, they also have the duty to refuse to employ a person whose authorization and/or identity documents are unacceptable.

Informer tips and related worksite investigations throughout the United States have provided ICE with information regarding questionable employment practices of thousands of employers. In addition to administrative civil fines, targeted employers also faced criminal charges with potential seizure and forfeiture of company and personal assets. Companies are in federal courts across the United States facing felony criminal charges with potential prison terms, fines and forfeiture of assets.

Many criminal acts covered under the U.S. Code are subject to seizure and forfeiture of all property which has been or is currently being used in the commission of the violation. This includes harboring of unauthorized aliens, money laundering, visa and document fraud, and the knowing hire of 10 or more unauthorized aliens. The property that is subject to seizure and forfeiture includes boats, vehicles, aircraft, bank accounts and other traceable assets.

How to Upgrade the Immigration Compliance Program

One of the most effective compliance techniques is to conduct an internal evaluation of the existing compliance program. The advantages to doing this are that once a company has answered the questions that help evaluate the program including the strengths and, yes, the weaknesses, of existing efforts will be revealed. It is recommended that this be done in advance of the decision to join the E-Verify or IMAGE programs, or before a private external audit. This will allow the company’s compliance staff to learn about the latest compliance techniques, and it will save the company future expense.

The employer’s existing compliance program should be evaluated both for its policies and how those policies are implemented into compliance program procedures. Written compliance manuals and training programs should be assessed to determine whether the company’s IRCA Form I-9 verification and retention, anti-discrimination, no-match letter, contractor liability, and FAR (E-Verify) government contractor policies are up-to-date and reflected in current compliance procedures.

The employer’s immigration law compliance policy manual should provide the human resources department with clear guidance on the various record-keeping and penalty provisions including H-1B posting, benching and public access requirements. The company’s immigration compliance training program for executives, managers and hiring agents should be evaluated for its effectiveness. Further, the company’s recruitment, hiring and termination policies and training must be evaluated for their compliance to the anti-discrimination and unfair immigration-related employment practices laws. Some key factors to evaluate are the following:

Compliance Policy - Does the company have a written Form I-9 and immigration law policy? A written policy manual serves several purposes: (1) It sets forth the line of supervision and responsibility for compliance decision making; (2) it provides the compliance staff with clear indications of which decisions require a manager and which do not; and (3) it provides directors. officers. managers. supervisors and responsible compliance employees with a frame of reference as to the requirements of the law, taking into consideration the employer’s compliance
history.

Training Program - Does the company have an ongoing compliance training program? If so, does it include anti-discrimination. Form I-9 verification and contractor and subcontractor issues? Does the employer have legal counsel to call on when there is the need for more information on a particular compliance issue? Does the company require managerial employees to receive compliance training? Are there library and reference files dedicated to Form I-9 verification and other compliance issues?

• Training on worksite compliance issues pays dividends over time. It helps the company develop an institutional attitude of compliance which continues to provide staff with confidence that they are performing their compliance tasks correctly.

• One effective training method is a compliance training teleconference with legal counsel every six months. This regular training is particularly helpful for companies with remote worksites that are performing Form I-9 verifications, such as retail stores.

• An effective compliance training program is good evidence that the company treats its compliance responsibilities seriously and in good faith. Government agencies and courts are impressed with a company that continually seeks to improve its compliance efforts with a current training program.

• All anti-discrimination notices to employees about their rights should
be prominently posted.

• All personnel involved with immigration-related hiring, including managers and supervisors, should be educated about the requirements for compliance with the anti-discrimination laws including document abuse, national origin, citizenship and immigration status violations, retaliation, and other unfair immigration-related employment practices.

Tickler System – Does the company maintain a tickler system to keep track of the expiration dates of employee Form I-9 forms and allow sufficient time for reverification? The tickler system should highlight the expiration date by which the employer must actually undertake reverification of the alien’s work authorization, as well as provide a warning date to remind the employee to obtain an extension of an employment authorization document, if necessary, allowing sufficient time for CIS processing, taking into consideration the deadline date for reverification.

At the end of the internal evaluation, it may be valuable to discuss your employer's compliance with an immigration attorney with I-9 compliance expertise.  An immigration compliance audit is the the surest way to eliminate noncompliance and upgrade your immigration compliance program for the future. 

Handbook for Employers Updated

A new electronic version of the Handbook for Employers: Instructions for Completing Form I-9 (M-274) (Rev. 06/01/11) N is available in the Employer Section of the Publications Page on our Website. This version includes:

• Expanded guidance on how to complete Form I-9
• Illustration of I-9 completion for minors and persons with disabilities (special placement)
• TPS special rules
• Verification and reverification of F-1 Students, including Optional Practical Training, Curricular Practical Training, Cap Gap and STEM extensions
• J-1 Exchange Visitors and M-1 verifications and reverifications
  

Employers are advised to now begin to use the new version for a general reference for the completion of the Form I-9.

In the area of employment verification and worksite enforcement, the USCIS is responsible for Form I-9 and for the administration of the E-Verify employment eligibility verification program. The USCIS publishes the Form M-274 Handbook for Employers, as instructions for employment verification on Form I-9, and maintains a Website, www.uscis.gov .

Haiti receives TPS Redesignation

The USCIS has redesignated Haiti for Temporary Protected Status (TPS) and extended the country’s current TPS designation for 18 months—through Jan. 22, 2013.

Haitian nationals should review the Federal Register notice published on May 19 and the Federal Register notice published on May 23, as well as the TPS page at www.uscis.gov, regarding the redesignation of Haiti for TPS to determine whether it is necessary to file a new TPS application and Form I-765, Application for Employment Authorization.

The agency reminds employers that Haitian TPS employees with expired EADs may still be authorized to work. A May 23 Federal Register notice describing the re-registration procedures for Haitian TPS beneficiaries announced that employees from Haiti who have Temporary Protected Status (TPS) and an EAD based on TPS received an automatic six-month extension of their EADs.

To determine if an employee’s EAD has been automatically extended by the Federal Register notice, employers should do the following:

• Look at the “Category” section on the expiring (or expired) EAD.
• If either A12 or C19 is listed, the EAD was issued under the TPS program.
• Look at the expiration date of the EAD.
• If the expiration date on the EAD is July 22, 2011, then the employee is a TPS beneficiary from Haiti and his or her employment authorization has been automatically extended to January 22, 2012.
• If a different category or expiration date is listed, then the six-month automatic extension does not apply, and the usual Form I-9 reverification rules apply upon expiration of the card.

The Stanford Law School Worksite Immigration Compliance Symposium

STANFORD, CA –Stanford Law School held its first annual Worksite Immigration Compliance Symposium, a one-day event focusing on corporate immigration compliance, hosted by the Stanford Law School Rock Center for Corporate Governance.

Featuring experts from the Department of Homeland Security, the Department of Justice, lawyers from private practice and academia, the symposium covered recent trends in I-9 related worksite enforcement, various government programs (including E-Verify) and emerging best practices from the field.

Symposium attendees received a copy of the ABA’s Immigration Compliance Auditing for Attorneys . This book provides authoritative, step-by-step guidance for conducting immigration compliance audits under the Department of Homeland Security regulations and related employment laws. Charles M. Miller, Marcine A. Seid and S. Christopher Stowe, Jr., the distinguished authors of this ABA best-seller, served as moderators for several of the panels. Remediation is the crux of the Immigration Compliance Audit – it allows mitigation and preserves good faith. The remediation steps outlined Immigration Compliance Auditing for Attorneys include how to deal with missing I-9s, timeliness violations, knowingly hired/continuing to employ violations, and paperwork errors.

Paul Virtue, the former INS General Counsel, responsible for the "Virtue Memorandum" concerning the treatment of I-9s in the workplace, was the Symposium's keynote speaker.

Tina Sciocchetti, Assistant US Attorney in the Northern District of Albany discussed the corporate charging factors for employers with criminal I-9 violations. In particular, the prosecutor must weigh all of the factors normally considered in the sound exercise of prosecutorial judgment: the sufficiency of the evidence; the likelihood of success at trial; the probable deterrent, rehabilitative, and other consequences of conviction; and the adequacy of noncriminal approaches. Prosecutors will also consider the nature and seriousness of the crime, pervasiveness, company history, existence of compliance programs, remedial actions, collateral consequences, and the adequacy of civil or regulatory remedies.

SLS Associate Dean and Rock Center Faculty Director, Dan Siciliano spoke on corporate immigration compliance in a Sarbanes-Oxley, Dodd-Frank World. As part of his presentation Dean Siciliano demonstrated how corporate awareness of I-9 compliance issues could be compared to studies of the observation of extrinsic factors, illustrated by this the Invisible gorilla video.

The Symposium speakers discussed recent enforcement actions where thousands of large high-profile publicly traded companies and hundreds of other companies have recently undergone extensive, and often expensive, scrutiny at the hands of the Department of Homeland Security. Recent headlines are testament to the increasing impact of administrative sanctions leveled against those employers that err in the process of preparing and maintaining I-9s (the document companies must complete to establish and evidence that employees are eligible to work in the U.S.). In addition to expanded record keeping audits, the ICE Worksite Enforcement Program has increasingly focused on employers that have knowingly hired unauthorized workers using ICE inspections that generate civil and criminal penalties for thousands of noncompliant companies.