Articles Posted in I-9

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I-9 and E-Verify compliance enthusiasts report a noteworthy trend in recent cases brought to the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Many of the recent cases in which OSC has reached settlements with employers for work authorization noncompliance were initiated by a referral from USCIS’s Verification Division Monitoring and Compliance Branch (M & C Branch).

The E-Verify Statute requires that Department of Homeland Security (DHS) ensures the security of the E-Verify System. The authority to monitor and provide oversight is based on Section 404(d) of the E-Verify statute and the Memorandum of Understanding which E-Verify employers are required to enter into with DHS.

The M & C Branch describes their mission as overseeing the usage of E-Verify and detecting and reducing misuse with the responsibility of protecting the integrity of the E-Verify Program. In addition to acting as a customer service center for confused or novice E-Verify employer-participants, M & C Branch monitors E-Verify system usage to identify potentially noncompliant employer-participants.

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On March 11, 2014, the Office of the Chief Administrative Hearing Officer (OCAHO) laid down yet another hefty fine for I-9 violations. OCAHO found that M&D Masonry, Inc., a Georgia construction contractor, was liable for $228,000 in I-9 penalty fines. The case discusses several notable points that U.S. employers should be aware of.

(1) ICE can initiate an investigation after reading a disparaging newspaper article about the employer.

ICE served a Notice of Inspection after reading in the Atlanta Journal Constitution an article entitled “Illegal Hiring for Airport Construction,” which quotes an M&D foreman saying that M&D employs undocumented workers. M&D argued that ICE cannot serve a Notice of Inspection based on hearsay in an article without first investigating the article itself. The OCAHO rejected M&D’s argument because M&D presented no legal authority and stated that it does not have the authority to direct ICE’s choices of businesses to inspect.

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On February 18, 2014, unofficial minutes were published from a November 19, 2013 meeting with USCIS and ICE regarding Form I-9. One of the most important matters discussed in the meeting was the inability of an employee to provide his or her I-94 number on the first day of employment due to technical issues within the CBP’s online I-94 system. USCIS rejected suggestions that would allow for employment without providing the I-94 number (e.g., implementing a procedure comparable to the Receipt Rule used in Section 2). USCIS stated that adopting such suggestions would constitute rulemaking. USCIS instead relied heavily on CBP’s statement that it neither has nor ever had glitches in its system. USCIS emphasized the regulation that if the employee’s I-94 number is required to complete Section 1 and the number is not known, then the employee cannot work for pay as the Form I-9 cannot be completed. This also means that the employer cannot open an E-Verify case for that individual.

A second important issue discussed was whether birth certificates issued by hospitals are acceptable List C documents. The Form I-9 Manual (M-274) reads that only birth certificates issued by government authorities are acceptable. USCIS’s I-9 Central guidance on the matter states that USCIS cannot comment on state law or whether a hospital may have the authority to issue birth certificates under that state law. USCIS was asked revise and clarify the guidance to recognize that state laws may have changed in the decades between birth certificate issuance and presentation to complete the Form I-9. USCIS refused this suggestion and in response repeated the I-9 Central guidance language on the issue.

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Recently blogs and the media have focused in the increase of ICE I-9 audits of U.S. employers. Meanwhile, many companies remain unaware that the Justice Department’s Office of Special Counsel (OSC) is another key player in ensuring I-9 compliance. OSC falls within the Justice Department’s Civil Rights Division and investigates discrimination charges alleging immigration-related violations, including the way an employer has managed its I-9 and E-Verify procedures.

Charges can be filed with OSC by federal agencies such as USCIS or the injured party (e.g., employees, former employees, and job applicants) within 180 days of the alleged act of discrimination. OSC has 210 days to investigate. During the final 90-day period, OSC and/or the injured party can file an administrative complaint against the employer. Complaints are then tried before an Administrative Law Judge.

In FY2012, OSC made 192 informal phone “interventions” with employers. Sometimes the phone call was all it took to resolve the charges. Other times, an actual investigation was deemed necessary, which means that OSC conducted a more formal inquiry. This included contacting the employer in writing and requesting a review of certain documents. When the charges had merit, OSC filed an official complaint against the employer.

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In U.S. v. Occupational Resource Management, Inc., OCAHO addresses key issues in the adjudication of I-9 violations allegations, 10 OCAHO no. 1166 (2013). We discuss below two of these important matters and how they emphasize the importance of employers’ use of E-Verify.

1) Constructive knowledge

Federal regulations prohibit hiring a foreign national worker knowing that he or she is unauthorized to work in the United States. Regulations define “knowing” as including both actual and constructive knowledge. However, OCAHO admits in Occupational Resource Management (ORM), that its “case law respecting constructive knowledge has not been fully developed.” On one hand, OCAHO case law does show that an employer cannot cultivate “conscious disregard” or “deliberate ignorance” with regards to employees’ employment eligibility. Generally, when an employer receives specific information that casts doubt on an employee’s work authorization and continues to employ the individual without taking adequate steps to reverify his or her employment eligibility, OCAHO may find the employer had constructive knowledge.

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OCAHO (Office of the Chief Administrative Hearing Officer) is responsible for the general supervision and management of Administrative Law Judges who preside over hearings related to the Immigration and Nationality Act (INA). OCAHO was a particularly active throughout 2013 issuing decisions on I-9 related cases. (This is no surprise considering the increasing number of federal I-9 audits.)

One of these cases was U.S. v. Super 8 Motel and Villella Italian Restaurant, 10 OCAHO no. 1191 (2013). Super 8 sheds light on the OCAHO’s current construction of OCAHO case law, INA, and the Virtue Memorandum (an INS memorandum issued by Paul W. Virtue that addresses I-9 compliance). Its dicta and holding are particularly interesting to any employer who wants to ensure I-9 compliance.

First, OCAHO reinforces its established belief that attaching photographs of documents to an incomplete Form I-9 does not constitute substantial compliance. In several instances, a Super 8 employee failed to complete Section 1 and/or Super 8 erroneously completed Section 2. OCAHO rejected Super 8’s argument that those errors were cured by the attachment of photocopied documents.

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One of the key responsibilities of an employer during I-9 and E-Verify employment eligibility verification is to avoid discrimination. The anti-discrimination provisions of the Immigration and Nationality Act (INA) §274B, 8 U.S.C. §1324b, prohibit four types of conduct:

(1) Citizenship or immigration status discrimination (actual or perceived)

(2) National origin discrimination (actual or perceived)

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The recent increase in government audits has motivated many employers to ensure that they are I-9 compliant. However, many do not know what compliance actually entails.

ICE reduces I-9 compliance to 3 elements:

(1) Verify the identity and employment authorization documents of employees;

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On October 30, 2013 the U.S. Department of Justice (DOJ) announced the biggest immigration-related violation fines ever issued, fining IT services giant Infosys Limited (INFY) $34 million. This is only the latest indication that the DOJ is cracking down more frequently and more severely on immigration and work authorization violations.

Infosys, which is the second largest employer of H-1B visa holders in the United States, is an Indian technology, consulting, and outsourcing company. Not many details of ICE’s I-9 audit of Infosys have been revealed until the DOJ’s October 30 press release: “Infosys failed the maintain I-9 records for many of its foreign nationals in the United States in 2010 and 2011 as required by law, including widespread failure to update and reverify the employment authorization status of a large percentage of its foreign national employees.” The audit revealed “more than 80 percent of Infosys’s I-9 forms for 2010 and 2011 contained substantive violations.” (Each one of these errors warrants a fee of at least $935.) In addition to paying heavy fines, Infosys is required to undergo additional third party I-9 auditing one and two years after the settlement.

Infosys is only the most recent in a line of US employers subjected to immigration-related investigations. Since April 2009, Immigration and Customs Enforcement (ICE) has systematically tightened I-9 compliance enforcement measures. The number of I-9 audits has risen from just 3 in 2004 to 500 in 2008 to 3,004 in 2012. In 2011, ICE issued a sweeping warning that this increasing number of inspections will “touch on employers of all sizes and in every state in the nation. No one industry is being targeted nor is any one industry immune from scrutiny.”

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