Tag: ICE

Latest I-9 Virtual Flexibility Guidance

On Oct. 11, 2022, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension to compliance flexibilities governing Form I-9. The extension permits continued remote verification and additional Form I-9 flexibilities until July 31, 2023.

ICE initially implemented the policy in March 2020, presumably responding to increased remote employment due to COVID-19. These flexibilities were narrowly and exclusively applied to employers and workplaces that were 100 percent remote, reflecting the agency’s long-standing resistance to remote I-9 verification. ICE granted some discretion in the physical presence requirements associated with Form I-9, allowing employers to inspect documentation remotely. Employers were instructed to state “COVID-19” in Section 2 on Form I-9.

Many employers have since implemented telework arrangements to adapt to changes brought about by the COVID-19 pandemic. ICE’s guidance since March 2020 has been revised to suggest that positions that are remote, even if other positions at the same employer are not remote, are eligible for remote I-9 verification. Further reflecting the changing nature of the workplace, on Aug. 18, 2022, DHS announced a Notice of Proposed Rulemaking (NPRM) intended to explore alternative regulatory options, including making some of the current pandemic-related flexibilities permanent.

The proposal includes a pilot program and framework allowing the DHS secretary to authorize optional alternative documentation examination procedures in the event of heightened security needs or a public health emergency. Moreover, DHS proposed adding boxes to Form I-9 that allow employers to report alternative procedures used to complete Section 2 or Section 3, as well as updates to form instructions to clarify the purposes of these boxes.

Importantly, this NPRM doesn’t itself adopt a specific remote I-9 procedure – it is intended to formalize DHS’ authority to make some form of remote I-9 verification permanent. Subsequent adoption of I-9 remote verification procedures would require separate rulemaking.

Article By Tejas Shah and Mandira Sethi of Barnes & Thornburg LLP

For more immigration law legal news, click here to visit the National Law Review.

© 2022 BARNES & THORNBURG LLP

DHS May Make Form I-9 Flexibility a Fixture

The Department of Homeland Security (DHS) announced it is considering changes to the Form I-9 documentation examination procedures. As human resources teams know, the remote workplace that became common during the COVID-19 pandemic made an already complicated I-9 process a logistical nightmare. With the U.S. government’s declaration of a national emergency due to the COVID-19 pandemic, DHS and Immigration and Customs Enforcement (ICE) announced certain flexibilities in March 2020 that suspended the requirement of in-person review of I-9 documents when a company was operating remotely due to COVID-19. Those flexibilities have been extended numerous times and are currently set to expire Oct. 31, 2022.

While DHS says it is considering making these temporary flexibilities permanent, the Notice of Proposed Rule Making (NPRM) published last month does not seek to do so. Instead, the NPRM seeks to validate the authority of the DHS secretary to enact flexibilities, offer alternative options, and/or implement a pilot program to evaluate existing and additional alternative I-9 procedures for some or all employers. DHS recognizes that more and more employers are utilizing telework and remote work for their employees and that requiring in-person review of I-9 documents is no longer consistent with work patterns of many businesses.

Some of the more notable possible changes to the I-9 process described in the NPRM include requiring employers to note on the Form I-9 which of the alternative procedures they used; requiring employers to retain copies of I-9 documents; requiring online training on fraudulent document and/or anti-discrimination training for employers who wish to utilize the alternative procedures; and limiting eligibility to use the alternative procedures to employers that utilize E-Verify, the government’s online employment verification system.

Comments to the NPRM are due on or before Oct. 17, 2022.

Article By Rebecca B. Schechter of Greenberg Traurig, LLP

For more immigration legal news, click here to visit the National Law Review.

©2022 Greenberg Traurig, LLP. All rights reserved.

Biden Administration to Open New For-Profit Immigrant Detention Center in Pennsylvania

After Pennsylvania’s York County prison dissolved its contract with Immigration Customs and Enforcement (ICE) in August, it was announced that a new immigration detention center will be opened in Clearfield County. The Clearfield County Board of Commissioners approved and signed a five-year contract with ICE and the GEO Group.

Clearfield County Immigration Detention Center

The prison, which operates for-profit, will convert the former Clearfield County Prison facility into a detention center to process individuals in violation of federal immigration laws. The prison can house roughly 1,900 immigrant detainees, but due to COVID-19 safety requirements, no more than 800 members will be held. “The beds will hold adults. There will not be any children. Primarily males, with some room for females,” said John Sibel, a Clearfield County Commissioner.

Training for prison employees is due to start soon, and the facility is expected to be in full operation within the next two months. Upgrades to the prison’s fencing and other areas will be underway soon.

GEO Group Detention Center and Clearfield County

GEO Group, a private company that ran the former Moshannon Valley Correctional Center, also owns the facility in Philipsburg. The correctional center, a federal prison, was closed in March this year. The closure impacted 300 employees, causing job loss in an already economically disadvantaged area.

Unlike York County, where the facility housed both immigrant detainees and other incarcerated people, the converted facility will house only immigrant detainees. Sibel said, “[t]he signing of the contract guarantees now that property tax revenues will continue to come to Clearfield County, Decatur Township, and the Philipsburg-Osceola School District.”

Safety Concerns for Local Residents

Residents of Clearfield County raised safety concerns over the new facility. However, Sibel reassured them that the GEO Group, which is responsible for running the facility, is in the process of upgrading the perimeter, and will transport immigrants who are released to the locations where they want to return.

“A lot of the folks that will be there, that will go through the processing center, will be there because they violate federal immigration laws, but they won’t necessarily have committed a criminal act… that would have caused them to be in the old prison,” Sibel said.

ICE’s Priorities Guidelines to Be Enforced

The Action field office director Brian McShane said that individuals held in the facility will fall under ICE’s enforcement priorities guidelines. Those priorities are focused on national security, border security, and public safety. “They will have their due process in immigration court if that’s what the law calls for while we go through the process to attempt to effectuate their removal,” he added.

©2021 Norris McLaughlin P.A., All Rights Reserved

Form I-9 Requirement COVID-19 Flexibility Extended until August 31

U.S. Immigration and Customs Enforcement (ICE) has announced an extension of its interim policy that allows employers to inspect the Form I-9 requirement virtually through August 31, 2021. This flexibility was first issued by ICE in March 2020, due to the pandemic, and has been extended multiple times since.

COVID-19 Flexibility Extended

Form I-9 flexibility policy was set to expire on May 31, 2021. The policy applies only to employers and workplaces that are operating remotely. If the workplace is functioning even partially at the work location, the employer must implement an in-person verification process. Employers who meet the criteria for remote operation must diligently create cases for their new hires within three business days from the date of hire.

The announcement had no new information apart from that regarding the extension but encouraged employers to monitor the USCIS website for any latest guidance.

Form I-9 Requirement

Form I-9 is a mandatory form that employers must complete and maintain with its records, confirming the employment authorization of individuals hired for employment in the United States. Employers must verify the documents of the new hire within three days of hire, and both employee and employer must complete the form. The list of acceptable documents can be found on the last page of the form.

The Department of Homeland Security (DHS) inspects, either randomly or on tips or complaints, the records the employers maintain. The purpose of the audit is to ensure that the employers are following legal hiring practices. When an employee receives a Notice of Inspection (NOI) from the DHS about an upcoming audit, it is best to hire an attorney and have staff from Human Resources handle the audit. If the DHS finds discrepancies in the records, they issue a warning notice and provide time to correct the violations. If the violations are not rectified, the DHS issues a Notice of Intent to Fine; often the amount of the fine is huge.

©2021 Norris McLaughlin P.A., All Rights Reserved

ARTICLE BY Raymond G. Lahoud of Norris McLaughlin P.A.
For more articles on form I-9, visit the NLRImmigration section.

ICE To Increase STEM OPT Worksite Inspections

U.S. Immigration and Customs Enforcement (“ICE”) has recently increased site visits for employers who employ F-1 students under STEM OPT (short for Science, Technology, Engineering, Mathematics Optional Practical Training) work authorization. While ICE has had this authority since the STEM regulations were passed in 2016, the agency only recently started conducting site visits to ensure that employers and F-1 students remain in compliance with the regulations governing F-1 STEM OPT work authorization.

What Is STEM OPT?

STEM OPT allows eligible F-1 visa students with STEM degrees from accredited U.S. colleges or universities to apply for an additional 24 months of Occupational Practical Training. This is in addition to the initial, one-year post-completion OPT granted to all non-STEM-degree F-1 students. In addition to the STEM degree requirements, the F-1 visa student must secure employment with a bona fide employer, work a minimum of 20 hours per week for that employer, and the employer must provide a formal, practical training and learning program within the STEM field which is related to the F-1 student’s degree. Details of the training program are outlined by the employer on Form I-983, which is submitted to and approved by the Designated School Official at the F-1 student’s academic institution.

What Is a Site Visit?

ICE conducts site visits to ensure that STEM OPT students receive the structured and guided work-based learning experiences required by the regulations. The purpose of the site visit is to confirm that information reported on the F-1 student’s Form I-983 training plan is accurate and being executed by the employer.

ICE generally notifies employers at least 48 hours prior to conducting a STEM OPT site visit. However, ICE is authorized to conduct unannounced site visits in the event that the agency receives a complaint or other evidence of noncompliance with STEM OPT guidelines. ICE has been sending emails directly to the managers of F-1 student STEM OPT trainees with an attached Notice of Site Visit. These communications contain:

  • The date of the scheduled visit;
  • A list of F-1 students whose STEM OPT training has been selected for inspection;
  • A request for a copy of each F-1 student’s Form I-983, Training Plan for STEM OPT Students; and
  • A request for other documentation related to the organization’s STEM OPT training program.

If you receive any communication from ICE or the Department of Homeland Security, please notify your attorney immediately before responding. This is to ensure both the legitimacy of the correspondence as well as to ensure that an appropriate response is submitted to ICE.

What Will Happen During a Site Visit?

The purpose of the STEM OPT site visit is to ensure that the employer and F-1 student are following the training plan as outlined in the Form I-983, and that the employer possesses the ability and resources to provide the structured and guided work-based learning experiences outlined in the training plan. During a site visit, ICE may review several aspects of the F-1 student’s STEM OPT training plan, including a review of pay documents to ensure that the student is being paid properly, a review of the Form I-983 training plan, and a review of the trainee’s workspace.

The inspection may include individual interviews with company personnel, a review and discussion of the F-1 student’s training plan and its implementation, and a review of the F-1 student’s skills and degree in relation to the STEM degree. ICE may also request to view F-1 student workspaces or receive a tour of the premises.

It is important that students and STEM OPT employers accurately and comprehensively complete the Form I-983 training plan, and that the F-1 student, the student’s immediate manager, and the immigration contact are all familiar with the contents of the Form I-983 training plan. Inconsistencies between the opportunity as described in the training plan and what the student is actually doing can have serious consequences for students and employers.

While this type of site visit should focus exclusively on STEM OPT, if evidence of other immigration-related violations is found during the site visit, ICE may address the violation or refer it to the appropriate agency or ICE unit for further review.

How Can I Prepare for a Site Visit?

At each worksite where an F-1 STEM OPT student is being trained, your organization should designate a point of contact, such as a human resource or immigration manager, to receive ICE officers. Receptionists and security personnel should be advised to complete the following steps should an ICE officer arrive to conduct an inspection:

  1. Notify the designated point of contact to inform him or her that an ICE officer has arrived to conduct a site inspection;
  2. Verify the officer’s identity: ask to see and take note of the officer’s identification, including badge, name, and ID number. Ask for the officer’s business card and call the number on the card to verify the identity of the officer. Officers should expect this and it is important that the officer’s identity is verified before disclosing or discussing employee information;
  3. Wait for the designated point of contact to arrive before releasing any information.

During the visit, the officer will ask questions, request documentation, and may take photographs. The designated point of contact should remain with the officer throughout the visit and take detailed notes, including the name, title and contact information of each officer; the names and titles of anyone interviewed by the officer; questions asked during interviews; any company documents provided to the officer; worksite areas visited by the officer; and any photographs taken by the officer. If company documents are provided to the officer, the designated point of contact should be sure to list the documents provided and retain copies. If the officer takes photographs of the worksite, the designated point of contact should ask for copies. The officer may request that the designated point of contact not be present during interviews with the F-1 student or managers. In this instance, the designated point of contact should remain available to answer any questions that may arise.

Managers, supervisors and F-1 students should be prepared to answer questions on the following topics:

  • The information provided in the trainee’s Form I-983 training plan;
  • The nature of the F-1 student’s job duties at the organization;
  • How the job duties relate to the F-1 student’s degree and academic program;
  • Why the F-1 student is qualified for the position;
  • What qualifications managers look for when hiring for similar positions;
  • How the manager supervises the F-1 student and executes the training plan; and
  • If the F-1 student is placed at a third-party worksite, how does the manager supervise the F-1 student and implement the training plan.

Special Note for California Worksites: Immigrant Worker Protection Act (AB 450)

Employers who have worksites in California are also required to comply with portions of the Immigrant Worker Protection Act. In 2017, California passed the Immigrant Worker Protection Act (AB 450), placing requirements on how public and private employers could interact with Federal immigration authorities. On March 6, 2018, the U.S. Department of Justice filed a lawsuit challenging the Immigrant Worker Protection Act, and on July 5, 2018, the U.S. District court enjoined California from enforcing portions of the law related to worksite inspections and employment eligibility as it applied to private employers. This means that private employers cannot currently be prosecuted for:

  1. Allowing or consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace;
  2. Voluntarily allowing the federal immigration enforcement agent access to employee records; or
  3. Re-verifying the employment eligibility of a current employee outside the time and manner required by federal law, under Section 1324a(b) of Title 8 of the United States Code.

Private employers are still required to comply with the notice requirement provisions of the Immigrant Worker Protection Act. An explanation of the Immigrant Worker Protection Act, and information regarding the Act’s notice requirements, can be found here.

© 2019 Mitchell Silberberg & Knupp LLP

Read more regarding ICE activities on the National Law Review Immigration Law page.

More Employers Were “ICED” in Fiscal Year 2018

The U.S. Immigration and Customs Enforcement agency (ICE) recently released statistics on its worksite enforcement activities for the federal fiscal year ending on September 30, 2018. It should surprise no one that worksite enforcement designed to crack down on the employment of undocumented aliens has skyrocketed.

In FY 2018, 6,848 worksite investigations were initiated, representing a fourfold increase from the prior fiscal year. Similarly, ICE conducted 5,981 audits of employers’ Form I-9s, which is five times the number from the prior year. Criminal and worksite arrests were also way up and readers will recall that immigration law violations are one of the few areas of employment law which can result in direct criminal prosecution.

As stated by ICE, “[our] worksite enforcement strategy continues to focus on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance.”

What does this flurry of activity mean for employers? Under the Immigration Reform and Control Act of 1986, all employers must verify the identity and work eligibility of all individuals hired by completing a Form I-9 within three days of starting work. While appearing to be fairly simple on its face, many employers fail to pay attention to the details and fail to properly complete and certify that they have carefully verified the identity and work authorization of each hire. This can be especially true when hiring is done in remote locations where there are no trained management personnel to supervise the completion of the I-9.

When an employer receives a Notice of Inspection from ICE, it has three business days after which ICE will physically inspect the I-9s. Noncompliance could result in civil fines or even criminal prosecution. ICE worksite investigations are also designed to look for evidence of mistreatment of workers, human trafficking, and document fraud.

Given the reality that immigration enforcement activities are not likely to update anytime soon, employers are well-advised to take the following steps now:

  • Conduct a self-audit of all of your I-9s and if mistakes are identified take the appropriate steps to correct them. Consult the Handbook for Employers to know how the form must be completed.

  • Review and, where necessary, retrain all employees who are responsible for reviewing the documents presented by the new hire and certifying the accuracy of the form I-9.

  • Be sure you know the right way to fix errors that are identified.

  • Audit the records of any employees who are working under temporary visas. Oftentimes, employers verify work authorization at the time of hire but then fail to track expirations and renewals. What may have been legal at the time of hire may not be the case years later.

© 2018 Foley & Lardner LLP
This post was written by Mark J. Neuberger of Foley & Lardner LLP.
More immigration news at the National Law Review’s Immigration Page.

ICE Raids on 7-Eleven Franchise Stores Result in 21 Arrests

On January 10, U.S. Immigration and Customs Enforcement (ICE) agents commenced employment audits at nearly 100 7-Eleven franchises across the U.S., signaling the biggest crackdown on suspected illegal workers since President Trump took office. The raids resulted in 21 administrative arrests. Following the raids, ICE Deputy Director Thomas Homan said in a statement: “Today’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”

ICE gave no reason why 7-Eleven, famous for the Slurpee, was targeted. The notices of inspection, also known as  I-9 audit notices, were served on stores in Washington, D.C., and in California, Colorado, Delaware, Florida, Illinois, Indiana, Maryland, Michigan, Missouri, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Texas, and Washington. The franchise owners have three days to provide the agency with the immigration status of their workers.

The recent raids stem from a 2013 ICE investigation that resulted in charges against nine 7-Eleven franchise owners and managers. All of those individuals have now been arrested as of November 2017, and eight out of the nine pleaded guilty and were ordered to pay more than $2.6 million in restitution for back wages.

In its own statement, 7-Eleven said it is aware of the raids and its franchisees are “independent business owners” who are “solely responsible for their employees including deciding who to hire and verifying their eligibility to work in the United States.” 7-Eleven says it has terminated the franchise agreements of franchisees convicted of violating immigration laws.

President Trump ran on a campaign promise to prevent U.S. business from employing undocumented workers. ICE’s actions against 7-Eleven are a clear indicator of keeping that promise. Expect ICE to move forward with similar enforcement actions, as one top ICE official stated the 7-Eleven raids were “a harbinger of what’s to come” for employers.

 

© 2018 Barnes & Thornburg LLP.
This post was written by Joseph D. Hess from Barnes & Thornburg LLP.
Click here for more Immigration Coverage from the National Law Review.

ICE Worksite Fines, No Thaw in Sight for 2013! (Immigration and Customs Enforcement)

The National Law Review recently published an article regarding Immigration Compliance written by Dawn M. Lurie with Sheppard, Mullin, Richter & Hampton LLP:

Sheppard Mullin 2012

Just how much money did Immigration and Customs Enforcement (ICE) fine US companies last year? While we don’t have an exact number confirmed by the government, we do know the fine amounts skyrocketed to over $10 million according to data released by ICE in response to a request from the Associated Press. What’s more important is the fact that ICE issued over 3,000 Notices of Inspection (NOI) in FY 2012. An NOI initiates a government administrative inspection of a company’s Form I-9s. NOIs are considered administrative tools which are used to assist in criminal investigations. We also know that 238 company managers were arrested last year in light of these investigations. Under the Obama administration, civil administrative audits are just one of many tools ICE is using to reduce the demand for unauthorized unemployment and protect opportunities for U.S. workers. This enforcement strategy also includes the expanded use of civil penalties, employer audits, and debarment. While ICE has told stakeholders it no longer tracks the conclusion of an investigation or whether a matter is being pursued before the Office of the Chief Administrative Hearing Officer (OCAHO), we know the Agency does track how many Notices of Inspection (NOIs), Notices of Fines, Final Orders, and Debarments it issues. The scope of this Alert does not cover debarments for federal contractors, but it should be noted that ICE has rapidly expanded the program and continues to refine the suspension and debarment process.

With comprehensive immigration reform on the horizon and President Obama’s proposal calling for “cracking down on employers hiring undocumented workers,” we can expect at least another 3,000 audits in 2013 (bets anyone?). ICE is fairly predictable and consistent in its approach to worksite enforcement. In fact, it is likely we will see the first round of audits by mid-March. While the days of “worksite enforcement actions” (AKA raids) are gone, there are many in the government that still agree with the words of Julie Myers Wood, a current proponent for comprehensive immigration reform and former Department of Homeland Security Assistant Secretary for ICE who said, “We want to send the message that your cost of business just went up because you risk your livelihood, your corporate reputation and your personal freedom.” Wood was also quoted as saying that ICE was prosecuting “individuals who have profited from hiring illegal aliens…we’re going after their houses, their Mercedes and any money that they have, as well.”

For certain, NOIs and administrative audits are something every employer needs to take very seriously. These inspections are clearly serving as examples and being used as deterrents. Again, as immigration reform heats up and the Administration focuses on effectuating a new policy, the fines are likely to increase and enforcement efforts will be stepped up. The inequities that plague the worksite program in terms of how some employers are treated verses other employers will likely be addressed during the reform process. We can also expect that once reform is effectuated there will be serious consequences embedded in the legislation, not only for employers, but also for employees that work without authorization. That said, in order toemployers to the government, and provide employers with adequate tools and discernible guidance to determine who is authorized to work and who is not.

In the meantime, the fine amounts listed below, coupled with ensuing bad P.R., legal expenses and other drains on a company involved in a worksite investigation should be high enough to catch the attention of “mom & pop” employers and the Board of Directors of public companies alike.

Specifics from four states

In numbers that were just released today, February 5th, ICE noted it fined 10 businesses in San Diego and Imperial counties more than $173,800 for hiring “unlawful” employees. In addition to listing the names of the businesses and the amounts fined the agency noted in a news release, “In fiscal year 2012, HSI conducted 151 worksite audits in San Diego and Imperial counties, compared to 86 audits the previous year and 63 audits in fiscal year 2010.”

In Massachusetts, ICE issued a total of thirty-five NOIs and ultimately fined seventeen employers for a total of $349,620. The fines hit Northern Pelagic Group (NORPEL) particularly hard with the highest amount fined in Massachusetts, $151,200. Special agent in charge (SAC) of Homeland Security Investigations (HSI) Boston Bruce M. Foucart disclosed that ICE’s investigation of NORPEL discovered 351 suspect documents, which according to Foucart “for the most part…means the employee[s] [were] illegal.”

Companies in Connecticut were fined a total of $132,584. Out of the eighteen inspections ICE conducted, ICE issued twelve fines to Connecticut companies ranging from $45,000 to $1,386. Calabro Cheese Corporation of East Haven received the highest fine of $45,000. Foucart, who has jurisdiction over this area as well, announced that the company had a “significant amount” of workers with suspect documents, along with “supporting documents that were not real or were from someone else.” Calabro’s general manager Rich Kaminski noted that ICE “led all of the people who were illegal out of [the company] on the same day.”

Rounding third on the list of fines was Maine with a grand total of $78,967. Out of the twenty-two inspections ICE conducted, eight resulted in fines ranging from $13,900 to $1,777. While substantial, these numbers represent a significant drop from ICE’s total fines of $150,000 for only six Maine companies in 2011. SAC Foucart of Boston who oversees HSI throughout New England noted that these settlements will “serve as a reminder to employers that HSI will continue to hold them accountable for hiring and maintaining a legal and compliant workforce.” Foucart expanded that employers should “take the employment verification process seriously” because ICE is expanding the number of audits it is conducting each year, focusing on employers that are “knowingly employing illegal workers.” According to Foucart, ICE will continue to target specific industries and businesses known or alleged to hire illegal workers. ICE has continued its trend of ramping up worksite enforcement efforts in the criminal arenas, as well. Last October, three individuals were arrested for unlawful employment and for conspiracy to induce illegal aliens to reside in the United States. The indictment alleges that the three owners of the Bamboo Village restaurant in Rosenberg, Texas, hired employees without completing Form I-9s or viewing identification and work authorization documents. If convicted of the conspiracy charge, the owners could face up to ten years in prison and a $250,000 fine.

In September, Micro Solutions Enterprises (MSE) and its owner both pled guilty to criminal charges resulting from a HSI investigation in 2007. As part of its plea bargain, MSE pled guiltyto one misdemeanor count of continuing to employ unauthorized workers, admitted to hiring fifty-five unauthorized workers and continuing to employ them, will pay $267,000 in civil and criminal fines, and is on a three-year probation term with implementation of “stringent measures” to ensure it is complying with hiring laws. MSE’s owner pled guilty to one felony count of false representation of a Social Security number and faces up to five years in prison and up to a $250,000 fine.

There is good news to add in at this point. A review of recent OCAHO decisions, illustrates that for the majority of those employers challenging the fine assessments ICE in 2012, the court reduced the amounts of the fines/penalties sought by the government.

The Takeaway

What is the bottom line? Take NOIs seriously. Consider while some companies get lucky with new/inexperienced auditors and agents who may not have the time or interest to pursue an investigation, other special agents remain aggressive. Also consider that in many instances neither ICE nor the U.S. Attorney’s office will forgive companies who they consider to be “willfully blind”. Ignoring a “problematic” work force, identity theft issues, and error-ridden Form I-9s can lead to the knowing hiring or continued employment of unauthorized workers. At the same time, if you have received a fine notice from ICE after trying to negotiate a reasonable settlement, don’t rule out a hearing before OCAHO, if the economics warrant, and the company has the appetite to challenge the fine assessment.

The message remains the same: Be proactive; review your Form I-9-related compliance; conduct internal audits supervised by experienced counsel and act on the results; do not ignore unconventional Social Security no-match notifications (such as unemployment claims of employees not working at your company) and potential identity theft issues; provide ongoing training to those individuals completing Form I-9s; seriously consider the use of E-Verify, and finally, above all else, institute a written compliance plan and establish workable policies.

Copyright © 2013, Sheppard Mullin Richter & Hampton LLP