Articles Posted in I-9

Published on:

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.

Published on:

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.

Published on:

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)

Published on:

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;

Published on:

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.”

Contact Information