Saturday, December 31, 2011

AILA Midyear Conference Focuses on Worksite Enforcement as I-9 and E-Verify Issues Continue to Heat Up the Headlines

by Marcine Seid, Guest Blogger

AILA’s 2012 Midyear Conference traditionally brings together the leadership of the Immigration Bar to provide intensive focus on national issues that affect our clients. This year’s conference will analyze worksite enforcement practice issues and the surrounding politics that will increasingly affect US employers.

How Hot is the Worksite Enforcement Issue?

During the past few years, we have seen unprecedented enforcement and legislative activity relating to Form I-9 and E-Verify worksite compliance. Since fiscal year 2009, Immigration and Customs Enforcement (ICE) has audited more than 6,000 employers, debarred 441 companies and individuals, and imposed more than $76 million in financial sanctions. Meanwhile, states and cities across the country have been mandating the use of E-Verify at the local level, sometimes implementing rules which go above and beyond federal I-9 requirements. The result has been a virtual patchwork of employment verification requirements which are difficult to track, let alone maintain.

Below are just a few of the hot topics which we’ll be discussing at the AILA Midyear conference

  • Judiciary Marks Up Mandatory E-Verify Bill - Chairman Lamar Smith of the House Judiciary Committee has pushed his mandatory E-Verify bill through Committee markup. Individuals who start work will be subject to mandatory E-Verify processing and a potential final nonconfirmation without the ability to correct errors in the DHS/SSA databases before termination of employment. The bill also contains a provision that would make the misappropriation of a Social Security number a felony.

  • Silent Raids Continue - In fiscal year 2011 ICE conducted 5 times as many I-9 audits than it did in fiscal year 2008. Josie Gonzalez will lead a panel examining problematic I-9 issues facing employers and will provide effective resolution strategies.

  • ICE Carrot and Stick Approach - ICE is inviting “express” membership in the IMAGE program, with the possibility of an individual agreement that may allow the mitigation or waiver of even substantive I-9 errors if there is less than a 50% error rate after a voluntary Form I-9 inspection. At the same time, however, ICE is aggregating penalties against employers who are first time violators after issuance of a Notice of Inspection (NOI).

  • The Employer Compliance Inspection Center (ECIC) – ICE has continued to grow its auditor workforce which in turn has lead to increased I-9 audits and worksite investigations of large employers across the nation.

  • Pre-NOI Remediation as an Effective Compliance Strategy - ICE has made it abundantly clear that the agency will look favorably upon I-9 corrections made before the issuance of an NOI. Charles M. Miller will discuss how attorneys can successfully conduct an immigration compliance audit before ICE comes knocking at the door using innovative and detailed audit tools.

  • The Burrito Effect – Case Studies of Chipotle, IFCO, and American Apparel at the Intersection of SEC and Immigration Law – Dan Siciliano of Stanford Law School will discuss a new kind of I-9 liability that has arisen from the increasing fiduciary, legal, and ethical oversight responsibilities of publicly traded companies.

  • Constructive Knowledge in Today’s World – Kathleen Campbell Walker will lead a discussion of recent case law and policy developments which give new meaning to constructive knowledge and reckless disregard. The 2012 AILA Midyear Conference is a must-attend event for attorneys representing clients in today’s new worksite enforcement regime. Don’t miss this exciting and topical opportunity to interact with a host of experts on worksite enforcement, I-9, and E-Verify issues. This is your chance to learn and engage with the immigration leaders in our community as they share their invaluable knowledge on how to survive the worksite enforcement jungle.

Thursday, December 22, 2011

Form I-9 Remediation in a Private Audit: The Bridge Over Troubled Waters

U.S. employers have had continuing troubles with the Form I-9 since its delayed roll out in September 1987.  Employers have used the I-9 to verify the identity and employment authorization of every person hired after November 6, 1986.  While Homeland Security deemphasized  civil enforcement of the IRCA employers sanctions laws in the years following 9-11, it swung the pendulum back to emphasize high profile criminal investigations beginning in 2006.  In 2009, however, ICE worksite enforcement investigations changed focus to administrative inspection of critical infrastructure employers, and in 2010 to America’s largest companies.

A decade later, the  Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) was passed to strengthen enforcement efforts, but to allow employers to correct deficient I-9s that were the products of innocent, but deficient recordkeeping.  On the one hand IIRAIRA featured an amendment that reduced the number of documents that employers could accept to eliminate fraud.  On the other hand, the bill contained a good-faith defense against technical or procedural Form I-9 paperwork violations for employers. This amendment allows employers ten days after agency notice to effect good-faith corrections avoiding the substantive violations penalties.  In 1997,  the INS brought out the Virtue Memorandum which ICE continues use as guidance to ICE agents and the public as to the cure of the technical and procedural violations that plagued employers.  

While the Virtue Memorandum remains viable agency policy, in October,  2011 ICE began to discuss with AILA’s Verification Committee another policy toward employers who, after conducting a private audit,  remediated  (cured or corrected)  I-9 errors in good faith,  prior to the time that the agency initiated an administrative inspection through a Notice of Inspection (NOI).   

This policy represents a potential departure from the agency’s previous interpretation of  the IIRAIRA good faith defense. The agency previously had taken the position  that substantive paperwork  failures could not be corrected. This would bring ICE policy in line with Department of Justice OCAHO administrative decisions, which attach weight to remediation measures for mitigation of damages, application of the general good faith defense and to begin the running of the statute of limitations for certain penalty provisions.

In our American Bar Association book Immigration Compliance Auditing for Lawyers, Marcine Seid, Chris Stowe and I,  provide a remediation analysis to be used by attorney auditors employed in a private immigration auditing.  The auditor recommends remediation for substantive and technical or procedural I-9 paperwork failures and knowingly hiring or continuing to employ unauthorized employee violations.  The external auditor additionally recommends remediation which extends to all potential violations under the Immigration and Naturalization Act. This remediation opportunity is necessary to mitigate potential penalties and to begin the running of the statute of limitations. The ABA book contains guidance for the remediation of substantive and technical paperwork violations, missing I-9s, as well as knowing hiring and continuing to employ violations.  This recognizes that the role of the private attorney auditor is broader than the ICE forensic auditor or special agent, looking to mitigation of damages and the running of the statute of limitations.

The ICE IMAGE program has also included the private audit as a necessary part of its new Express program, and has encouraged membership by mitigating or waiving potential penalties where the total percentage of violations is less than 50%. The combination of private audit remediation and this penalty amnesty makes for an attractive inducement.  We will keep you informed of our efforts to  seek  IMAGE agreements that  would allow the private audit described in the ABA book  to replace an ICE inspection as a condition of Express membership.   That would truly represent a bridge over troubled waters. 
copyright 2012 Charles M. Miller.  All rights reserved.