1. IMMIGRATION CONFERENCE CHAIRED BY NEIL DORNBAUM
The New Jersey Institute for Continuing Legal Education’s 11th Annual Immigration Conference provided an in-depth look at several hot immigration issues including Form I-9 enforcement and E-Verify. Moderated by attorney Neil Dornbaum, the conference featured a “who’s who” of government speakers from important agencies (USCIS, ICE, DOJ, DOL), as well as representatives from Congressional offices, academia, think tanks, and the US Chamber of Commerce.
The panel on I-9 and E-Verify was comprised almost entirely of leading government officials, including Brett Dreyer, Unit Chief, Worksite Enforcement Unit of ICE; Kathy Lotspeich, Deputy Chief, Verification Division of USCIS, and Jennifer Sultan, Civil Rights Division of the Department of Justice. Each one of the speakers began their presentation describing their respective agencies and goals with respect to employment eligibility verification, and then relaying the latest developments in their field. The overall message will sound familiar: we can expect increasing I-9 enforcement, expanding E-Verify requirements, and the ever- essentially involves preventing a company from getting government contracts, loans, grants, insurance etc.
In the last 5 years, ICE has reinvigorated the Form I-9 inspection program by vastly increasing the number of audits. Recently, ICE established a National Audit Center to handle the overflow from local offices and enable the auditing of large employers. So how does ICE pick an organization for audit? Contrary to popular opinion, it is generally not by random selection. ICE’s predecessor, INS, used this tactic (auditors would select companies from Dun and Bradstreet). This was generally considered ineffective. Likewise, ICE does not deliberately target specific industries (although in practice, many low scale/low paying industries are affected). Companies are chosen based on leads and intelligence (public, law enforcement, business competitors, etc.)
Whether an employer subject to an audit, receives a subpoena depends on the employer, the allegations, and other factors. In some situations, employers will simply receive a letter requesting documents whereas in others a formal subpoena will be issued. NOTE: This month over 1000 subpoenas were issued nationwide to employers for I-9 investigations.
Whether ICE forgives errors which are corrected by the employer depends on whether they are technical violations, in that case, ICE will provide the required 10 days to correct them. For substantive violations (e.g., failing to complete an I-9, certain information missing including date signed, date of hire etc), ICE will be less likely to forgive the employer even if remedied after the investigation. The goal of the program is to encourage employers to proactively address the I-9 problem before ICE comes knocking at the door. If substantive violations are corrected after the investigation, it’s generally too late to avoid a fine. ICE is much more sympathetic to the employer who made corrections prior to the investigation.
E-Verify Update – Kathy Lotspeich
After giving a brief overview of how E-Verify works (submitting I-9 information, dealing with TNCs, etc.), Kathy spoke a little about the FAR requirements for federal contractors which went into effect in September 2009. Despite the increase in queries on FAR submissions (many of which involved data from old I-9s), the USCIS reports there was not an excessive number of TNCs (tentative non confirmations). Kathy also discussed the recent Westat report and the increasingly lower number of TNCs during the past few years.
Next, Kathy addressed a frequent concern of some employers – the notion that E-Verify has been expanding its Monitoring and Compliance functions in an effort to “mine” the data. Kathy advised the audience that the 35 Monitoring and Compliance staff in Buffalo, NY are primarily dedicated to reviewing E-Verify transaction data to spot potential abuse or fraud. In particular, the M&C (Monitoring and Compliance) branch looks for cases where companies are routinely submitting employees to E-Verify significantly beyond their hire date or show a high number of uncontested TNCs. They also look for the same ID being run through E-Verify at the same time (to look for fraud). In those situations, E-Verify will contact the employer by sending a compliance letter (essentially a warning). Roughly 14,000 of these letters were sent in FY2010 and 5000 (thus far) were sent this fiscal year.
They are also in the process of opening a Nebraska office, which will include 20 additional M&C analysts.
Kathy also discussed the issue of fraudulent documents and the use of the photo matching process. In addition, E-Verify will be piloting the verification of state driver’s license data (but not photos) in the near future as well. More to come on that soon!
ICE Update – Brett Dreyer
After 25 years the agency’s current strategy involves a 2 prong approach: (1) Criminal prosecution against those employers who are exploiting unauthorized workers, committing document fraud, tax crimes, etc; and (2) Civil tools, including the Form I-9 inspection. They are also committed to outreach and education, which is primarily achieved through the IMAGE program (which promotes 12 best practices, including the use of E-Verify). In addition, ICE is now using the debarment process against companies found to be violating the immigration laws (either criminally or civilly). Debarment
Lastly, E-Verify has offered several programs designed to educate and assist the employee in this process. In particular, they have established an employee hotline, produced several “how to” videos, and are now working closely with the OSC (Office of Special Counsel) to address cases where employees have alleged some form of discrimination in the E-Verify process. Kathy also briefly touched upon E-Verify Self Check.
OSC Update – Jennifer Sultan
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (or simply OSC) is part of the Civil Rights Division of the Department of Justice. OSC enforces the anti-discrimination provision of the Immigration and Nationality Act, which prohibits discrimination in hiring, firing, or recruitment or referral for a fee that is based on an individual’s national origin or citizenship status. The statute also prohibits unfair documentary practices during the Form I-9 process (known as document abuse), and retaliation or intimidation.
OSC enforces the statute in a number of ways, including the filing of lawsuits or through educational/outreach programs such as employee and employer hotlines. This last method, in particular, has been used to address E-Verify issues (which have spiked during the past year or so). In many instances, OSC will get involved when employers are not using E-Verify in a clear/consistent manner. For example, if an employer fires an employee after receiving a TNC, the OSC will often work with the employer and employee so a dispute doesn’t reach the level of a discrimination charge. To see a few examples of this, you can check out the summary of hotline E-Verify interventions on the OSC web site, which also includes the OSC’s E-Verify best practices.
As mentioned above, OSC is also working closely with USCIS to obtain E-Verify transactional data in the event an investigation is warranted. Similarly, OSC will refer accidental misuse of the E-Verify system to USCIS for their compliance objectives.
Jennifer also touched upon potential discrimination issues for employers that receive notification of social security mismatch. Lastly, she mentioned that OSC also will get involved in allegations of prescreening, but not as frequently since employees are often unaware that pre-screening played a role in the employer’s decision not to hire an individual.