Garfinkel Immigration Law Firm

U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton today announced the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country associated with critical infrastructure-alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws.

“ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces,” said Assistant Secretary Morton. “We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules.”

The 1,000 businesses served with audit notices this week were selected for inspection as a result of investigative leads and intelligence and because of the business’ connection to public safety and national security-for example, privately owned critical infrastructure and key resources. The names and locations of the businesses will not be released at this time due to the ongoing, law enforcement sensitive nature of these audits.

Audits involve a comprehensive review of Form I-9s, which employers are required to complete and retain for each individual hired in the United States. I-9 forms require employers to review and record each individual’s identity and work eligibility document(s) and determine whether the document(s) reasonably appear to be genuine and related to that specific individual.

Protecting employment opportunities for the nation’s lawful workforce and targeting employers who knowingly employ an illegal workforce are major ICE priorities, for which ICE employs all available civil and administrative tools, including audits. Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law.

In April, DHS issued updated worksite enforcement guidance emphasizing ICE’s major enforcement priorities-specifically focusing on dangerous criminal aliens and employers who cultivate illegal workplaces by breaking the country’s laws and knowingly hiring illegal workers. In this strategy, ICE identified form I-9 audits as the most important administrative tool in building criminal cases and bringing employers into compliance with the law.

Statistics since implementation of new ICE worksite enforcement strategy on April 30:

* 45 businesses and 47 individuals debarred;

0 businesses and 1 individual were debarred during same period in FY 2008.

* 142 Notices of Intent to Fine (NIF) totaling $15,865,181;

ICE issued 32 NIFs totaling $2,355,330 in all of FY 2008.

* 45 Final Orders totaling $798,179;

ICE issued eight Final Orders totaling $196,523 during the same period in FY 2008.

* 1,897 cases initiated;

ICE initiated 605 cases during the same period in FY 2008.

* 1,069 Form I-9 Inspections;

ICE initiated 503 Form I-9 Inspections in all of FY 2008.

In July, ICE issued 654 NOIs to businesses nationwide in the largest operation of its kind before today - part of ICE’s effort to audit businesses suspected of using illegal labor.

Statistics resulting from the 654 audits announced in July:

* ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents - approximately 16 percent of the total number reviewed.
* To date, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are currently being considered for Notices of Intent to Fine (NIFs).
* ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.

Dear Garfinkel Immigration Law Firm Client,

The U.S. Citizenship and Immigration Services (USCIS) recently started conducting worksite visits at U.S. companies and other entities that employ foreign workers through the H-1B and L-1 visa programs. The USCIS’ Division of Fraud Detection and National Security (“FDNS”) has engaged outside contractors to undertake investigations to verify the information contained in the employer’s petition submitted to the government. This initiative is funded through the $500 fraud fee that petitioning employers pay with the initial petition on behalf of an H-1B or L-1 worker.

The Department of Homeland Security has placed petitioning employers on notice of the possibility of such investigations and has stated that it has the right to verify any information submitted to establish eligibility for an immigration benefit based on language contained in the instructions to the Petition for Nonimmigrant Worker (Form I-129).

In addition, the U.S. Immigration and Customs Enforcement (ICE) recently announced that it is launching an initiative to audit the I-9 records of businesses across the United States. ICE is conducting this campaign of increased enforcement to ensure that the hiring records of U.S. businesses are in compliance with the laws and regulations that pertain to employment eligibility.

These inspections by USCIS and ICE investigators typically come in the unannounced appearance of an FDNS investigator at a place of business, or in the receipt of a Notice of Inspection (NOI) from ICE informing the employer of the agency’s intention to conduct an I-9 audit.

Below please find a Question and Answer that is intended as guidance in the event an FDNS investigator visits your business’s premises, or in the event that your company receives a Notice of Inspection with regard to your I-9 records.

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Effective June 30, 2008, those applicants who have filed a Form I-485 Application to Register Permanent Residence or Adjust Status (the last step of the green card process) that has yet to be adjudicated because an immigrant visa number is not currently available, may obtain Employment Authorization Documents (”EAD”) valid for two years. Other EADs will continue to be issued with a one-year validity period. An immigrant visa number will be considered unavailable where an applicant’s visa number has retrogressed and is unavailable. Otherwise, where the Department of State Visa Bulletin shows an employment-based preference category is current or the applicant’s priority date is current, the U.S. Citizenship & Immigration Services (”USCIS”) will issue an EAD valid for one year.

In light of the current state of the economy and financial difficulties facing companies, the Department of Labor (”DOL”) has recently stated that it will be focusing its attention on companies in certain industries that are negatively impacted by the economic downturn, including those hit by the “domino effect.” DOL will review all reports available to them, including WARN (The Worker Adjustment and Retraining Notification (WARN) Act Guide to Advance Notice of Closings and Layoffs) notices, reports in the media, trade notices, etc.

DOL data created by other DOL entities is also available to the Office of Foreign Labor Certification (OFLC). If DOL finds that a company that is filing PERM applications has been laying off employees or downsizing, DOL will look at U.S. worker availability, especially if the position is for a “roving” employee who is not locally based. These cases will be reviewed with extra scrutiny. DOL may require “supervised recruitment” (application-specific recruitment directed and approved by the DOL) as a result.

DOL urges employers to exercise diligence with regard to the recruitment report and to demonstrate clearly good faith in recruitment efforts. DOL must document that a decision to certify a PERM application is justifiable, especially if the company has had layoffs in the occupation or generally. If a company has had layoffs within six (6) months leading up to filing a PERM application involving the occupation for which certification is sought or in a related occupation, the company must be prepared to document it has notified and considered all potentially qualified laid off U.S. workers of the job opportunity. Note that a related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought. DOL will also look at the existence of industry layoffs, which can affect U.S. worker availability generally, in scrutinizing whether recruitment reports prepared in connection with PERM applications are credible.

In light of this increased scrutiny, we recommend employers:

1. Consider delaying the filing of PERM applications, if possible, if the job offer is in an industry negatively impacted by the economic downturn.
2. Gather and maintain documentation of shortage occupations in your industry to be presented to the DOL in the event of a PERM application audit.

Please contact our firm with any questions regarding this matter and to discuss case specific strategies and timing issues.

E-Verify is an Internet-based system operated by the U.S. Department of Homeland Security (”DHS”) in partnership with the Social Security Administration (”SSA”). Registration with E-Verify enables employers to electronically verify the employment eligibility of newly hired employees. It is voluntary, with limited exceptions as addressed below. Once registered, an employer may begin using the system by submitting a query that includes information from sections 1 and 2 of the new employee’s I-9 Employment Eligibility Verification form. Such a query must be initiated within three business days of the employee’s start date. Employers participating in E-Verify must verify all newly hired employees including citizens and non-citizens (existing employees may not be verified). Employers may terminate participation in E-Verify at any time upon proper notice to DHS.

Why Register?

DHS claims that E-Verify is the best means available to verify employment eligibility of newly hired employees because it virtually eliminates Social Security mismatch letters, improves wage and tax reporting accuracy, protects U.S. worker jobs and helps employers maintain a legal workforce. And although E-Verify does not provide safe harbor from worksite enforcement, employers who verify work authorization using the system are presumed to have not knowingly hired an unauthorized worker.

Another reason to register is to take advantage of the U.S. Citizenship & Immigration Services’ (USCIS) interim rule that permits foreign students to request a seventeen (17) month extension of Optional Practical Training (”OPT”) beyond the twelve (12) months previously available. In order to qualify for such an extension, the foreign student must (among other requirements) be working for, or have accepted employment with, an employer enrolled in E-Verify.

Further, some states now require employers to register with E-Verify (i.e., Arizona, Colorado, Georgia, Oklahoma) making what was intended by the federal government to be a voluntary program mandatory in those states. Penalties for non-compliance include loss of public contracts (GA), bars from claiming deductible expenses for state income purposes (GA) and loss of business licenses (AZ). We anticipate much litigation over such state legislation.

Why Not Register?

Although some states now require employers to register with E-Verify, at least one, Illinois prohibits employers from such registration because it questions the accuracy of the information contained in the database. The system also cannot always detect instances of identity theft so an employee may present valid documents that do not belong to him or her.

If the information in the database is incorrect for a particular employee (including U.S. citizens), an employer may be restricted from continuing to employ that person if the issue is not resolved within a set time frame. Employees have eight (8) federal government workdays from notification of the issue to contact USCIS or SSA to resolve the discrepancy. This can result in employees missing work.

Finally, administration of the system can be somewhat cumbersome. Employers may only accept a Form I-9 List B document if it bears a photograph and employees must possess a Social Security Number.

For more information about E-Verify, please contact Jennifer Cory or Steve Garfinkel.