immigration compliance update: recent developments in immigration law

Immigration Compliance Update:Recent Developments in Immigration Law

Involving the Workplace

Stephen Davis

Recent Developments in Four Areas

▼ Internal I-9 Audit Tips

▼ Constructive Knowledge

▼ E-Verify and I-9 Decisions

▼ Proposed E-Verify Changes

Civil Fines and Criminal Penalties for I-9/Immigration Violations

DOJ and ICE Publish Joint

Guidance on Internal I-9 Audits

▼In December 2015, U.S. Immigration and Customs Enforcement

(“ICE”) and the U.S. Department of Justice (“DOJ”) Civil Rights

Division issued joint guidance for employers conducting internal

Form I-9 audits.

▼The guidance addresses some key concerns and issues frequently

encountered in the course of in-house audits, including the

purpose of the audit, how to correct certain errors on the I-9 and

how to handle potential unauthorized workers going forward.

▼Joint guidance available at:

www.justice.gov/crt/file/798276/download



▼What information should an employer communicate to its

employees before and during an internal audit?

▼ The guidance recommends that the employer inform the employee in writing

that the employer will conduct an internal I-9 audit, explain the scope and

reason for the internal audit, and state whether the internal audit is

independent of or in response to a government directive.

▼ When a deficiency is discovered in an employee’s Form I-9, the employer

should notify the affected employee, in private, of the specific deficiency.

▼ Also provide the employee with a copy of the deficient I-9 and give the

employee a reasonable opportunity to correct it.



▼What is the proper procedure for correcting errors or omissions

found on a Form I-9?

▼ Section 1 of the I-9 Form

▼ An employer may not correct errors or omissions in Section 1- only the employee

can.

▼ The best way to correct the error is to have the employee: (1) draw a line through the

incorrect information; (2) enter the correct or omitted information; and (3) initial

and date the correction or omitted information.

▼ If the employee no longer works for the employer, the employer should attach

to the existing I-9 Form a signed and dated statement identifying the error or

omission and explain why corrections could not be made (for example, the

employee no longer works for the employer).



▼Sections 2 and 3 of the I-9 Form

▼ An employer should correct errors in these sections by following the same

process: (1) mark through the error; (2) enter the correct information; and (3)

initial and date.

▼Do not erase text or use correction fluid.

▼If there are multiple errors, fill out the correct information on a new I-9

Form and attach it to the previously-completed form. Also attach a brief

explanation of the changes and sign and date the explanation.



▼What if the internal I-9 audit reveals that an employee did not

present proper documentation?

▼ The employer should ask the employee to present documentation to satisfy the

requirements and complete Section 2 or 3 (whichever is applicable) on a new I-

9 Form.

▼ Do not backdate the new I-9.

▼ Staple the new I-9 with the prior I-9 and include a signed and dated

explanation of the corrective action taken.



▼What if the employer uses E-verify and the internal audit reveals

that the employer did not create an E-Verify case for a certain

employee?

▼ The general rule (unless you are a federal contractor) is that you cannot run

existing employees through E-Verify.

▼ Under this circumstance, if the employer learns that it mistakenly failed to

create a case in E-Verify, the employer should immediately create a case for

the employee.

▼ May an employer request specific documents when correcting a

Form I-9 as a result of an internal audit?

▼ No. Although an employer may tell an employee that a particular document

called into question by the internal audit may not be used again, the employer

should not request specific documents.



▼Is an employer required to terminate employees who, as a result of

the employer’s internal Form I-9 audit, disclose that they were

previously not authorized to work, even though they are authorized

to work now?

▼ No. This is not required by the law.

▼ In cases where an employee was not previously authorized to work (and the

employer had no knowledge thereof), but the employee is authorized now, the

employer is not required to terminate.

▼ However, the employer should be careful to apply its “honesty policy” (if

applicable) in a consistent manner.

▼ If the employer decides to retain the employee, a new Form I-9 must be

completed, attached to the prior I-9 with a signed and dated explanation.

Current I-9 Form Remains

Valid After Expiration Date

▼USCIS announced recently that the current version of the I-9 Form

will remain in use beyond its March 31, 2016 expiration date.

▼Employers should continue to use this I-9 Form, which bears an

“edition” date of March 8, 2013, until further notice.

▼USCIS is working on a proposed “smart” PDF version of the I-9

Form with drop-down menus and detailed instructions embedded

in hover text.

▼The revised I-9 Form will not be released until it clears the federal

approval process, which will probably be several months from now.

Constructive Knowledge

▼When does an employer have “constructive knowledge” that an

employee is not authorized to work?

▼Constructive knowledge is defined as “knowledge which may fairly

be inferred through notice of certain facts and circumstances

which would lead a person, through the exercise of reasonable

care, to know about a certain condition.” 8 CFR 247

▼Guidance in this area of the law is constantly changing and can be

interpreted differently by different auditors or agents.

▼Check with immigration counsel and/or the I-9 employer helpline

before taking action on constructive knowledge issues.

Constructive Knowledge Pointers

▼Constructive knowledge can arise where an employer:

▼ Fails to complete or improperly completes the Employment Eligibility

Verification Form, I-9;

▼ Has information available to it that would indicate that the alien is not

authorized to work, such as Labor Certification and/or an Application for

Prospective Employer; or

▼ Acts with reckless and wanton disregard for the legal consequences of

permitting another individual to introduce an unauthorized alien into its work

force or to act on its behalf.

8 CFR 274a.1(l)(1)

Constructive Knowledge Hypothetical #1

▼An anonymous person called human resources and left a message

stating that “all of the workers on assembly line 8 are illegal.”

▼Constructive knowledge under this scenario? Is the employer

required to take any action based on these anonymous

allegations?

▼ NO – This tip probably does not rise to the level of constructive knowledge.


(Continued)

▼The employer needs to evaluate the credibility and the specificity of

the information to determine whether further inquiry is required.

▼While an anonymous tip does not lack credibility merely by virtue

of being anonymous, the tip must be more specific for the

employer to act further.

▼Moreover, this tip does not identify any particular employee by

name or provide any basis for the caller’s knowledge.

▼Finally, because the tip is anonymous, the employer does not have

the ability to follow up with the caller to obtain additional

information about the reason or basis for the allegations.


▼A benefits specialist calls a human resources representative and

tells her that the Social Security Numbers of six employees were

rejected because of discrepancies.

▼Constructive knowledge under this scenario?

▼ MAYBE – This is a situation that requires the employer to investigate further

to determine the reason for the discrepancy.


(Continued)

▼Benefits specialists are often the ones who would notice a discrepancy in

filing tax paperwork, health insurance, retirement fund contributions, etc.

▼Based on this information, the employer would need to determine if the

Social Security Number being used is valid and belongs to the specific

employee.

▼This should be done in a non-discriminatory manner and fully documented,

as it is possible that the employees are victims of identity theft rather than

being the ones using someone else’s number.

▼The best course of action is to notify the employees and let them know

what has occurred and ask them to verify that their information on file is

correct. If the employees confirm that the Social Security Number is

correct, the employer should give the employee sufficient time to retrieve

evidence from the Social Security Administration (“SSA”).

Relationship Between Constructive

Knowledge And Document Abuse

▼Employer must avoid “document abuse” and the risk of being fined

by the U.S. Department of Office of Special Counsel (“OSC”).

▼ If the employer requests specific documents or more documentation

from the employee that is required by law, the employer could be

found liable for document abuse.

▼Avoid document abuse by developing a consistent strategy:

▼ Remember that the employer has an interest in avoiding a disruption

to the employment relationship.

▼ The employer is not expected to be a detective ferreting out all

unauthorized workers from its workplace.

▼ In situations where the employee presents documents evidencing

employment eligibility from the acceptable list of documents on Form

I-9, those documents are prima facie proof of the employee’s eligibility

to work in the United States.

General Strategies to Follow in Constructive

Knowledge Situations

▼There are some safeguards the employer may take to avoid

penalties for discrimination while still complying with the

constructive knowledge standard when problem situations arise:

▼ Do not reject a document simply because it varies from the version

illustrated in the government’s instruction booklet.

▼ Do not further inquire about employment eligibility or request or

require additional documents based on an employee’s physical

appearance or accent.

▼ Do further inquire if the employee presents a “receipt” showing that

he or she applied for a List A or C document.

▼ Do further inquire if the document presented shows obvious signs of

being tampered with or forged, or the name or descriptive information

contained in the document does not relate to the employee.

Recent Trends in Document Abuse and

Constructive Knowledge Situations

▼Under the Obama Administration, the OSC is increasingly using

individual employee document abuse complaints as a basis for

conducting wall-to-wall investigations of an employer’s I-9 and E-

verify practices and procedures.

▼More recently, in June 2015 the OSC settled an immigration-related

discrimination claim against Abercrombie & Fitch for approximately

$160,000.

▼ The investigation found that Abercrombie required a non-U.S. Citizen

to produce specific documentary proof of her immigration status to

verify her employment eligibility.

▼ Specifically, OSC found that Abercrombie required the employee to

present her green card.

▼ This is a clear case of document abuse.

I-9 Compliance Update – OCAHO Clarifies

Meaning of “Independent Contractor” for I-9

Purposes

▼U.S. v. Saidabror Siddikov, 11 OCAHO no. 1257 (published 8/20/15)

– Office of the Chief Administrative Hearing Office (“OCAHO”) final

decision and order holding that the government did not show that

the individuals named in the complaint were ever employees of the

employer, and thus, employer was not required to prepare I-9s for

them.

▼ The general rule is that independent contractors are not required to

complete an I-9.

▼ The case involved a U.S. Immigration and Customs Enforcement

(“ICE”) complaint against an employer who failed to present I-9 forms

for six individuals in response to a Notice of Inspection issued under

the employer sanctions provision of the Immigration and Nationality

Act (“INA”), as amended by the Immigration Reform and Control Act of

1986 (“IRCA”), 8 U.S.C. § 1324(a)(2012).

▼ The owner argued that all six individuals were independent contractors

and I-9s were not required for them.



Purposes (Continued)▼OCAHO looked at the “totality of the circumstances” to determine whether

the employees were independent contractors or employees.

▼Specifically, OCAHO observed that:

▼ None of the work was performed on the employer’s premises;

▼ There was no supervision or control by the employer;

▼ Most of the relationships with the six individuals were short lived;

▼ The individuals had been treated all along as autonomous;

▼ Two of the individuals apparently operated their own businesses;

▼ Two others had regular jobs and moonlighted doing the floor jobs on the side;

▼ While the individuals did not provide their own supplies or equipment, the

employer did not provide their supplies or equipment either; these were provided

by the customers;

▼ The choice of whether payment was made at an hourly rate or by the job was the

customers’ choice as well; and

▼ The individuals did the work according to their own means and methods without

control by the employer, their services were available to others, and they worked

for different clients at the same time.



Purposes (Continued)

▼Considering the totality of the circumstances, OCAHO found that, apart

from the fact that the actual work itself was unskilled, the remainder of the

regulatory and common law factors pointed in the direction of independent

contractor status for all six individuals. As such, they were not required to

fill out an I-9 form for the employer.

▼Bottom line – An employer should not blindly assume that an individual

does not need to fill out an I-9 because he or she is simply labeled an

“independent contractor.”

▼ It is important to determine if, in the event of an I-9 audit, the government would

apply the above tests and determine that an individual is actually an employee

for I-9 purposes.

▼ Further, employers must understand that, while true independent contractors are

not required to complete an I-9, employers may still be liable for knowingly

employing unauthorized workers if they have actual or constructive knowledge

of the independent contractors’ unauthorized status.

I-9 Compliance Update – OCAHO Decision

Holds that E-Verify Participation does not

Entitle Employer to Blanket Protection

▼U.S. v. Golf International, 11 OCAHO no. 1214 (published 3/26/14)

▼ Employer was a semi-private golf club in Scottsdale, Arizona whose I-

9 forms were audited by ICE.

▼ In the course of the audit, 157 I-9s were produced for active and terminated

employees. The employer was charged with failure to sign Section 2 of 107

I-9s, of which 93 were entirely left blank.

▼ In addition, the employer was charged with failure to ensure that employees

had properly completed Section 1 of the I-9 in 11 instances. In the course of

the audit, the employer corrected the omissions in Section 2 of the I-9s and

submitted the information to E-Verify.

▼ As a defense to their I-9 errors, the employer asserted that because it used E-

Verify, it was entitled to a rebuttable presumption that it had not violated the

employment authorization verification requirements of Section 274A of the INA.

▼ The employer also argued that its use of E-Verify was sufficient to accomplish

the verification and attestation requirements in Section 2 of each I-9 and that

failure to complete Section 2 had been excused.

I-9 Compliance Update – OCAHO Decision

Holds that E-Verify Participation does not

Entitle Employer to Blanket Protection

(Continued)▼OCAHO disagreed. It held that the employer’s use of E-Verify did not

provide it with a “blanket protection” from fine proceedings for failure to

properly complete an I-9 form for each new employee.

▼The decision further stated:

▼ “An employer’s first responsibility in [E-Verify] is, in fact, to properly complete an

I-9 form for each new employee. As ICE points out, the E-Verify Memorandum of

Understanding that must be signed by a participating employer provides that ‘The

Employer understands that participation in E-Verify does not exempt the Employer

from the responsibility to complete, retain, and make available for inspection

Forms I-9 that relate to its employees.’”

▼Takeaway – All employers, regardless if they are registered for E-Verify,

must be careful and consistent when completing I-9s for all employees.

Proper use of E-Verify can protect the employer if it is later determined that

an employee is not authorized to work, but E-Verify does not insulate

employees from I-9 errors.

E-Verify – Proposed Changes Regarding Re-

Verification of Employees▼U.S. Citizenship and Immigration Services (“USCIS”) recently

announced proposed modifications to the E-Verify employment

eligibility program that would require participating employers to re-

verify employees whose work authorization has expired.

▼Currently, employers are only required to re-verify employees using

the I-9. Under the proposed changes, employers would also be

required to use the program to verify the work eligibility for

workers employed prior to the company participating in E-Verify.

▼ This is an entirely new step for E-Verify, as employers currently only

verify new employees who are hired after the employer has joined E-

Verify.

▼Logistically, the proposed changes would require the following:

▼ When an employer must re-verify an employee (through Section 3 of

the I-9) whose temporary work authorization is expiring, the employer

will have three business days after completing the re-verification to

open an E-Verify case inquiry.

E-Verify – Proposed Changes Regarding Re-

Verification of Employees (Continued)

▼If a Tentative Nonconfirmation (“TNC”) is received, the employer

must follow the same procedures that apply for TNCs for newly

hired employees.

▼ Therefore, the employer will meet with the employee and provide

the employee with an opportunity to contest the TNC. If the TNC is

resolved, the employer may continue to employ the individual.

▼ If the TNC is not resolved, E-Verify will issue a Final

Nonconfirmation (“FNC”). The employer then must inform E-Verify

of whether the employee continues to be employed.

▼ If the employer does not terminate the employee, the employer

may be deemed to have knowingly employed someone who is not

authorized to work lawfully in the United States. If the Department

of Homeland Security (“DHS”) audits, the employer also may be

fined at a higher rate.

E-Verify – Proposed Changes Regarding Final

Nonconfirmation (“FNC”) Formal Reviews▼ In addition to the proposed re-verification changes, USCIS also proposed a formal

review process for FNCs.

▼ Under current procedures, the E-Verify program provides a formal process to contest

the TNC, but not the FNC.

▼ Under the new proposal, DHS will establish a procedure for review of the FNC. The E-

Verify system will generate a written notice confirming the FNC. The FNC Notice also

will state that the employee may request that DHS or SSA (if SSA is the source of the

nonconfirmation) review the evidence and FNC determination. DHS and SSA may ask

for additional information from the employee during the review.

▼ The employer must provide a copy of this FNC Notice to the employee (if still

employed) and also attach the FNC Notice to Form I-9. If the employee has provided an

e-mail address in section 1 of the Form I-9, DHS also will e-mail the FNC notice to the

employee.

▼ The employee may request FNC review even if: (1) the employee did not contest the

TNC or (2) the employee contested the TNC but failed to visit the SSA or call DHS

within the time period allowed. DHS will inform the employer when a FNC review is

commenced and of the result of such a review. The employer may choose to terminate

the employee after the FNC is received. DHS will not require that the employer wait for

the employee to request FNC review or for the agency to issue a decision on the FNC

review.

Questions?

Stephen Davis

(256) 512-0101

[email protected]

immigration compliance update: recent developments in immigration law

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