A Southern California fence-building company and two executives have agreed to plead guilty and serve jail time for knowingly hiring illegal immigrants and pay a combined penalty of $5 million. Read more...
Six Swift & Company meat processing plants are shut down today as officials from the U.S. Office of Homeland Security’s Immigration and Customs Enforcement division raided the facilities. Reports are the action is the result of a year-long investigation into the theft of identification and Social Security numbers which were allegedly used to secure employment at the company. Read more...
Monday, December 18, 2006
Tuesday, December 05, 2006
Form I-9 Compliance, LLC Announces New Technology to Enhance Its Comprehensive Managed Solution for Industry Leading Form I-9 Administration
December 5, 2006. Newport Beach, CA – Form I-9 Compliance, LLC, the first federally approved Designated Agent of the Department of Homeland Security (DHS) and the Social Security Administration (SSA) for web-based employment verification through the Basic Pilot Program, today announced the development of three technological advancements to significantly improve the following:
- Automated submission of employer payroll records to the Social Security Number Verification Service (SSNVS) to identify employees with “No Match” problems;
- Outsourced auditing of I-9 Forms to help ensure full compliance with the requirements of the Immigration Reform and Control Act (IRCA) and its subsequent amendments;
- Scanning and indexing of paper I-9 Forms into an electronic database to create a completely paperless Form I-9 repository.
These advances, coupled with Form I-9 Compliance’s already highly technologically advanced and secure web-based electronic error-detecting Form I-9, and the most user friendly direct interface with the Basic Pilot Program, provide employers with an unparalled Managed Solution for all of their needs for legally defensible Form I-9 administration and proactive Social Security “No Match” protocols. As employers are increasingly aware, the creeping scope of Sarbannes-Oxley has created a need to be compliant in all legal arenas and places a new focus on the proper administration of Form I-9 processes.
SSN “No Match” Protocols
Employers will now have access to Form I-9 Compliance’s SSNVS web application (http://www.weverifyssn.com/) which preemptively identifies an employer’s exposure in this critical area. Form I-9 Compliance has developed software that provides a “Pre-Process Scan” quality check to help ensure that employer submitted data is 100% accurate. This “Pre-Process Scan” allows an employer to correct any formatting or content errors before Form I-9 Compliance’s submission to SSA of the employer’s relevant data. After submitting a simplified upload file in Microsoft Excel, Form I-9 Compliance reformats these data elements into the 13 specific fields required by the SSA record layout. Within 48 hours, if SSA detects any errors or “no matches”, Form I-9 Compliance will e-mail the employer the number of errors/ “no matches” along with instructions for downloading the errors/ “no matches” report from its secure web site.
Vulnerability Assessment Audits
Employers will now also have access to Form I-9 Compliance’s non-provisional patent pending computerized program that identifies and records all Form I-9 errors, omissions, and/or discrepancies. This program, with its unique auditing applications, identifies specific weaknesses in the employer’s Form I-9 processes and makes targeted recommendations for corrective actions for each I-9 Form that is audited. At the conclusion of a Vulnerability Assessment Audit, a comprehensive “Confidential Report” is prepared for the client that details post audit findings and again makes specific recommendations for corrective action on each deficient I-9 Form. It will also identify those I-9 Forms that are missing. These audits will become more important as employers begin to plan for the increased scrutiny that will inevitably arise from new federal immigration legislation.
Scanning and Indexing of Paper I-9 Forms
Employers can achieve a totally paperless Form I-9 process by scanning and indexing their current paper I-9 Forms and electronically storing them on the same database that Form I-9 Compliance maintains for the creation of electronic I-9 Forms for newly hired employees. This scanning process includes the capture of expiration dates for documents that require renewal. Thus, an employer will have the added benefit of receiving 90, 60 and 30 days advance e-mail alerts from Form I-9 Compliance that an employee’s work authorization documents are about to expire, minimizing the potential for an employer to lose valued employees.
“With the leveraging of technology for these three services, Form I-9 Compliance has created the most user friendly, cost effective and comprehensive Managed Solution for employers to adopt “Best Practices” protocols for all of their Form I-9 administration needs”, said John M. Hermann, Chief Executive Officer of Form I-9 Compliance. “This unique application of technology in all of our service offerings is not duplicated by any other provider”, added Mr. Hermann. “We are now able to clearly demonstrate to any employer that an investment in our Managed Solution will lead to a significant return to the employer in terms of increased cost efficiencies and significantly reduced vulnerabilities to potential fines and negative publicity.”
Commenting on the “Human Element” in Form I-9 Compliance’s suite of services, Mr. Hermann stated that “in addition to the latest industry leading technology applications announced today, we have assembled a highly qualified and knowledgeable staff of in-house senior auditors. Each of these individuals has more than 20 years of Form I-9 auditing experience. They are available to conduct on-site or off-site Vulnerability Assessment Audits, correct or make recommendations for correcting flawed I-9 Forms prior to scanning and indexing, and to conduct focused training in proper Form I-9 administration. This nation-wide cadre of senior auditors gives Form I-9 Compliance a significant edge over any other single provider in terms of its web-based technology applications and its auditing capabilities.”
Mr. Hermann continued his remarks by saying, “proactive employers who want to legitimately and objectively assess their ‘legal exposure’ as far as Form I-9 compliance is concerned, and simultaneously understand the degree of exposure with which the organization is confronted, should seriously consider placing their organization in a proactive position by utilizing our electronic applications. It will be tragic to watch the frenzied reactions of those employers who ultimately discover that 25%-35% of their workforce are blatantly illegal and there is no plan in place to backfill these employees. Now, employers can use the technology created by Form I-9 Compliance as an accurate and timely “early warning system.” In concluding his comments, Mr. Hermann stated that, “by being proactive, employers will be able to realistically plan for deployment of future resources in order to mitigate the benign indifference that has existed in the post IRCA era.”
About Form I-9 Compliance, LLC
With the passage of IRCA, Mr. Hermann worked closely with the DHS’ predecessor agency, the Immigration and Naturalization Service (INS), to assist in the development of the original Form I-9 and has been providing comprehensive Form I-9 consulting and auditing services for over 20 years.
In 2005, Form I-9 Compliance announced its patent pending proprietary web-based Form I-9 software solution that is fully electronically integrated with DHS’ Basic Pilot Program. In its official role as a Designated Agent approved by DHS, Form I-9 Compliance served as DHS’s beta test partner for its then newly developed web-based program. In June of 2006, Form I-9 Compliance announced that it had been formally certified by DHS to process Basic Pilot queries through the federal government’s web services protocols.
Contacts
Ken Sekella
Vice President, Operations
O- 866.359.4949
F- 949.720.4933
Web Site- www.formi9.com
Thursday, November 16, 2006
I-9 Checklist - Tips For Employer Compliance
by Angelo Paprelli
The Form I-9 (Employment Eligibility Verification) - issued by U.S. Citizenship and Immigration Services - must be maintained by all employers. Since November 1986, every new hire, whether the employee is a U.S. citizen or a foreign national, must complete section 1, attesting to the individual's identity and employment eligibility, on the first day of employment. Within the first three days of hire, employers must complete section 2 of the I-9 by examining original documents of identity and employment authorization, recording the starting date of employment, noting the document(s) number(s) on the form, and certifying by signing under penalty of perjury that the documents examined appear to be genuine and relate to the employee. Employers must also refrain, however, from engaging in prohibited acts of discrimination against new hires and applicants for employment, such as, by basing employment decisions on citizenship or national origin status, or insisting that employees provide only specific types of identity documents or work permits.
Recently, the federal government has refrained from pursuing civil penalties and instead has used the avenue of criminal law enforcement to prosecute employer violations of immigration laws requiring that businesses refrain from hiring or continuing to employ workers whom the employer knows or should know lack the right to work in the United States. For this reason, prudent employers should follow a set of steps to confirm that their compliance obligations under the immigration laws are fulfilled. This is especially important in the post-Enron era when Sarbanes-Oxley Act compliance and damage to reputation are of heightened concern. This checklist can therefore serve as a starting point for employer immigration compliance.
Current I-9s
As long as no formal enforcement proceedings are pending or likely, employers should remove from their files and discard original I-9s no longer subject to the I-9 "retention rule" (I-9s may be destroyed after three years from date of hire or one year from date of termination, whichever is later)
Employers should perform voluntary audits of all or a representative sample of retained I-9s to measure compliance practices;
As a measure of good faith compliance and to mitigate potential fines, employers should correct I-9s with errors and missing information, keeping original I-9s and initialing changes with the date of correction.
Establish a tickler system for the timely "reverification" of employment eligibility for foreign-national employees who have time-limited work permission.
Employers should take prompt action if notified by the Social Security Administration that a discrepancy exists between employer-provided records on specific workers and the agency's own data (the so-called SSA "no-match letter"). An employer acts appropriately in this situation by checking the employer's records, providing the employee an opportunity to seek an official correction, or if unable to verify and reconcile the discrepancy, considering (on advice of counsel) whether termination of employment is required.
If numerous no-match letters are received, employers should consider reverifying the entire workforce but take precautions to avoid unlawful immigration-related employment discrimination.
Employers should decide whether to:
Copy or refrain from copying original documents of identity and employment eligibility. On the one hand, copying creates a paper trail making it easier for the employer and the government to review prior compliance actions, and for the employer to make corrections to I-9s, if required. On the other, maintaining added paperwork is burdensome and costly, and requires that employers act uniformly by copying all original documents reviewed on all employees for I-9 purposes and keeping the copies with the I-9s.
Maintain I-9s in paper, microfiche or electronic format. Employers should consider whether to maintain required records in paper format or use alternative technology. Immigration regulations now allow electronic storage and electronic signatures for I-9s. While using digital technology has its advantages in reducing paper storage costs, the regulations pose added requirements for assuring data integrity, facilitating audits and easing the government's investigative burden.
Participate in the new U.S. Citizenship & Immigration Enforcement ("ICE") Programs, the Electronic "Basic Pilot" Verification and/or "IMAGE". The Basic Pilot allows an employer to check the employment eligibility of foreign nationals (new hires only) through the government's immigration database. The signing of a Memorandum of Understanding is required. IMAGE is the ICE Mutual Agreement between Government and Employers, a plan for voluntary self-policing and the submission of annual immigration audits first by the government and then by qualified third-party entities. See: http://www.ice.gov/partners/opaimage
Future Hires
Set up a system for handling future I-9s.
Complete Section 1 of the I-9 on the first day of work for all new hires.
Complete the rest of the I-9 within three days of the first day of work.
Consider pre-completing Employer's Business Name and Address in Section 2 and pre-fill Employer Authorized Representative's Name and Title if it is always the same person completing the Employer Certification.
Do not accept copies of work or identity documents.
Make sure all new hires complete I-9s in person before a company official (in order to confirm identity) or an authorized agent (with respect to whom the employer must take full responsibility for any I-9 mistakes or omissions.)
Company Practices
Engage in regular training for employees handling I-9 completion.
Establish an I-9 routine and follow it consistently for every employee.
Create a system for tracking dates of hire and termination of employment in order to purge I-9s from current storage to minimize liability (assuming no actual or threatened government investigation exists or is likely).
Consider establishing policies (in consultation with employment law counsel) for future compliance and ongoing voluntary audits.
The Form I-9 (Employment Eligibility Verification) - issued by U.S. Citizenship and Immigration Services - must be maintained by all employers. Since November 1986, every new hire, whether the employee is a U.S. citizen or a foreign national, must complete section 1, attesting to the individual's identity and employment eligibility, on the first day of employment. Within the first three days of hire, employers must complete section 2 of the I-9 by examining original documents of identity and employment authorization, recording the starting date of employment, noting the document(s) number(s) on the form, and certifying by signing under penalty of perjury that the documents examined appear to be genuine and relate to the employee. Employers must also refrain, however, from engaging in prohibited acts of discrimination against new hires and applicants for employment, such as, by basing employment decisions on citizenship or national origin status, or insisting that employees provide only specific types of identity documents or work permits.
Recently, the federal government has refrained from pursuing civil penalties and instead has used the avenue of criminal law enforcement to prosecute employer violations of immigration laws requiring that businesses refrain from hiring or continuing to employ workers whom the employer knows or should know lack the right to work in the United States. For this reason, prudent employers should follow a set of steps to confirm that their compliance obligations under the immigration laws are fulfilled. This is especially important in the post-Enron era when Sarbanes-Oxley Act compliance and damage to reputation are of heightened concern. This checklist can therefore serve as a starting point for employer immigration compliance.
Current I-9s
As long as no formal enforcement proceedings are pending or likely, employers should remove from their files and discard original I-9s no longer subject to the I-9 "retention rule" (I-9s may be destroyed after three years from date of hire or one year from date of termination, whichever is later)
Employers should perform voluntary audits of all or a representative sample of retained I-9s to measure compliance practices;
As a measure of good faith compliance and to mitigate potential fines, employers should correct I-9s with errors and missing information, keeping original I-9s and initialing changes with the date of correction.
Establish a tickler system for the timely "reverification" of employment eligibility for foreign-national employees who have time-limited work permission.
Employers should take prompt action if notified by the Social Security Administration that a discrepancy exists between employer-provided records on specific workers and the agency's own data (the so-called SSA "no-match letter"). An employer acts appropriately in this situation by checking the employer's records, providing the employee an opportunity to seek an official correction, or if unable to verify and reconcile the discrepancy, considering (on advice of counsel) whether termination of employment is required.
If numerous no-match letters are received, employers should consider reverifying the entire workforce but take precautions to avoid unlawful immigration-related employment discrimination.
Employers should decide whether to:
Copy or refrain from copying original documents of identity and employment eligibility. On the one hand, copying creates a paper trail making it easier for the employer and the government to review prior compliance actions, and for the employer to make corrections to I-9s, if required. On the other, maintaining added paperwork is burdensome and costly, and requires that employers act uniformly by copying all original documents reviewed on all employees for I-9 purposes and keeping the copies with the I-9s.
Maintain I-9s in paper, microfiche or electronic format. Employers should consider whether to maintain required records in paper format or use alternative technology. Immigration regulations now allow electronic storage and electronic signatures for I-9s. While using digital technology has its advantages in reducing paper storage costs, the regulations pose added requirements for assuring data integrity, facilitating audits and easing the government's investigative burden.
Participate in the new U.S. Citizenship & Immigration Enforcement ("ICE") Programs, the Electronic "Basic Pilot" Verification and/or "IMAGE". The Basic Pilot allows an employer to check the employment eligibility of foreign nationals (new hires only) through the government's immigration database. The signing of a Memorandum of Understanding is required. IMAGE is the ICE Mutual Agreement between Government and Employers, a plan for voluntary self-policing and the submission of annual immigration audits first by the government and then by qualified third-party entities. See: http://www.ice.gov/partners/opaimage
Future Hires
Set up a system for handling future I-9s.
Complete Section 1 of the I-9 on the first day of work for all new hires.
Complete the rest of the I-9 within three days of the first day of work.
Consider pre-completing Employer's Business Name and Address in Section 2 and pre-fill Employer Authorized Representative's Name and Title if it is always the same person completing the Employer Certification.
Do not accept copies of work or identity documents.
Make sure all new hires complete I-9s in person before a company official (in order to confirm identity) or an authorized agent (with respect to whom the employer must take full responsibility for any I-9 mistakes or omissions.)
Company Practices
Engage in regular training for employees handling I-9 completion.
Establish an I-9 routine and follow it consistently for every employee.
Create a system for tracking dates of hire and termination of employment in order to purge I-9s from current storage to minimize liability (assuming no actual or threatened government investigation exists or is likely).
Consider establishing policies (in consultation with employment law counsel) for future compliance and ongoing voluntary audits.
Sunday, November 05, 2006
INFOLINK SCREENING SERVICES ROLLS OUT VASTLY EXPEDITED AND IMPROVED ELECTRONIC
With a click, companies can easily pre-populate the Form I-9 enabling faster completion. This electronic I-9 Form virtually eliminates human error while simultaneously creating a completely paperless I-9 process.
E-Sign Act compliant click-to-sign solution
Chatsworth, Calif., October 17, 2006 – InfoLink Screening Services, a subsidiary of Kroll Inc., working closely with Form I-9 Compliance, LLC, today announced that it has rolled out a new version of InfoLink's 'Form I-9 eSolutions' process which greatly expedites compliance with the Immigration Reform and Control Act (IRCA) – the government mandated employment eligibility program designed to identify unauthorized illegal workers. Highlights include the ability to pre-populate the Form I-9 with one click, an electronic signature using an E-Sign Act compliant click-to-sign solution, and verifying the employment eligibility of each new hire.
The Form I-9 eSolutions service substantially fills gaps in earlier processes via sophisticated error detection and 'smart form' technology. The process not only enables employers to confidently hire new employees in full compliance with the law, but also complies with existing and pending comprehensive immigration reform legislation. The negative consequences to businesses in violation of these laws are increasing.
Key highlights of InfoLink's new process include:
"Aside from the important legal compliance aspects of the new electronic process, employers will find a number of benefits including less time demands on human resources staff, improved accuracy of payroll and tax reporting, and the ability to form a more stable workforce," says Barry Nadell, President of InfoLink Screening. "Additionally, this system protects jobs for individuals who have a legal right to work in the U.S."
About InfoLink Screening Services: InfoLink Screening Services is a leading provider of employment background checks, drug testing, physical exams and Form I-9 eSolutions. Thousands of companies nationwide rely on InfoLink before they finalize their hiring decisions. InfoLink's exceptional service, fast turnaround, legal compliance and accuracy enable companies to Hire with Confidence®. InfoLink operates as part of the Background Screening division of Kroll, the global risk consulting company. For more information, visit www.infolinkscreening.com or call 800-990-HIRE (4473).
About Kroll: Kroll, the world’s leading risk consulting company, provides a wide range of investigative, intelligence, financial, security and technology services through offices in more than 65 cities in over 25 countries. Kroll’s Background Screening division is comprised of InfoLink Screening Services, based in Chatsworth, Calif., Kroll Background America, Inc., based in Nashville, Tenn., and other Kroll subsidiaries in Canada, the United Kingdom, Poland, India and South Africa. In the United States, the Background Screening division provides employee and vendor background investigations and identity theft services. It serves a wide range of corporate, government and non-profit clientele, most notably those in financial services and highly regulated industries such as health care and transportation. For more information, visit www.kroll.com.
E-Sign Act compliant click-to-sign solution
Chatsworth, Calif., October 17, 2006 – InfoLink Screening Services, a subsidiary of Kroll Inc., working closely with Form I-9 Compliance, LLC, today announced that it has rolled out a new version of InfoLink's 'Form I-9 eSolutions' process which greatly expedites compliance with the Immigration Reform and Control Act (IRCA) – the government mandated employment eligibility program designed to identify unauthorized illegal workers. Highlights include the ability to pre-populate the Form I-9 with one click, an electronic signature using an E-Sign Act compliant click-to-sign solution, and verifying the employment eligibility of each new hire.
The Form I-9 eSolutions service substantially fills gaps in earlier processes via sophisticated error detection and 'smart form' technology. The process not only enables employers to confidently hire new employees in full compliance with the law, but also complies with existing and pending comprehensive immigration reform legislation. The negative consequences to businesses in violation of these laws are increasing.
Key highlights of InfoLink's new process include:
- Error-detecing electronic Form I-9 which virtually eliminates processing errors;
- Fast processing – InfoLink's e-Form includes automatic pre-population of sections, allowing completion, electronic signature, and electronic submission within seconds;
- Secure, paperless Form I-9 storage allowing for anytime, anywhere access for updating or government inspection;
- Automated Management alerts for expiring work authorizations enabling employees to renew and legally continue working without interruption;
- An 'Add eDocuments' feature which allows employers to attach related I-9 documents to stored I-9 Forms;
- Extensive Multi-level Management reports including pending and archived I-9 Forms, pending and archived right to work verifications, expiring work authorizations, and re-verifications;
- Optional features which instantly transmits employee data to the Social Security Administration and Department of Homeland Security to verify if that employee has a right to work in the United States.
"Aside from the important legal compliance aspects of the new electronic process, employers will find a number of benefits including less time demands on human resources staff, improved accuracy of payroll and tax reporting, and the ability to form a more stable workforce," says Barry Nadell, President of InfoLink Screening. "Additionally, this system protects jobs for individuals who have a legal right to work in the U.S."
About InfoLink Screening Services: InfoLink Screening Services is a leading provider of employment background checks, drug testing, physical exams and Form I-9 eSolutions. Thousands of companies nationwide rely on InfoLink before they finalize their hiring decisions. InfoLink's exceptional service, fast turnaround, legal compliance and accuracy enable companies to Hire with Confidence®. InfoLink operates as part of the Background Screening division of Kroll, the global risk consulting company. For more information, visit www.infolinkscreening.com or call 800-990-HIRE (4473).
About Kroll: Kroll, the world’s leading risk consulting company, provides a wide range of investigative, intelligence, financial, security and technology services through offices in more than 65 cities in over 25 countries. Kroll’s Background Screening division is comprised of InfoLink Screening Services, based in Chatsworth, Calif., Kroll Background America, Inc., based in Nashville, Tenn., and other Kroll subsidiaries in Canada, the United Kingdom, Poland, India and South Africa. In the United States, the Background Screening division provides employee and vendor background investigations and identity theft services. It serves a wide range of corporate, government and non-profit clientele, most notably those in financial services and highly regulated industries such as health care and transportation. For more information, visit www.kroll.com.
Monday, October 30, 2006
I-9s Made Easy: New electronic completion and storage options save time and headaches
By Jennifer Arnold, October 2006
[From the SHRM Online HR Technology Focus Area]
It’s not often that a government regulation makes your job easier. But according to experts, Public Law 108-390, which allows businesses to complete, sign and store I-9 forms electronically, does just that.
These Department of Homeland Security (DHS) forms, intended to verify new hires’ eligibility to work in the United States, have been an administrative and storage nightmare for many employers since they were mandated in 1986. It’s easy to see why: immigration documentation laws are complex and ever-changing; retention rules mandate that employers keep completed I-9s for as long as three years, and fines for violations run as high as $1,100 per flawed or missing form.
Thanks to the 2005 law and a new interim rule issued by DHS in June 2006, employers can use technology to address some or all of these issues.
Electronic storage can alleviate storage challenges and allow for quick retrieval.
Employers can scan completed paper I-9s and store them as PDF files on their company server.
Acceptance of electronic signature technology allows the process to become entirely paperless. Now, new hires and the verifying staff member can “sign” their portion of the I-9 by electronic means. Options include electronic signature pads, biometrics, “click to accept” dialog boxes, and entry of personal identification numbers and/or passwords.
As the interim rule states, there is no single U.S. government-wide electronic recordkeeping standard. Instead, the rule tells employers to use electronic storage and signature technologies that are compliant with the Internal Revenue Service’s (IRS) electronic recordkeeping standards for taxpayers (outlined in IRS Rev. Proc. 97-22 and Rev. Proc. 98-25).
Most employers probably won’t need new equipment to take advantage of these new I-9 options. All that is required for electronic storage is a scanner, a PC with Adobe Acrobat and minimal server space (each completed I-9 PDF takes up less than 2 MB of RAM). Soon, electronic signature capability will be available for free: DHS says it is developing an I-9 PDF with electronic signature capability that will be available free online at www.uscis.gov/graphics/formsfee/forms/index.htm.
But some companies are choosing to take it one step further, contracting with an application service provider (ASP) to obtain a comprehensive web-based I-9 management system. Employers say these systems, offered by a small number of vendors, build on the new regulations.
In addition to electronic storage and signature capabilities, I-9 management systems have built-in edits that reduce errors. For example, drop-down menu box selections are based on previous choices: If the box for “U.S. Citizen” is checked in Section 1, the document list in Section 2 will show only applicable documents.
Experienced HR professionals say these edits make a big difference, particularly in multi-location environments. Diana Peirano, director of administration for Western Golf Properties, a Lake Forest, Calif.-based golf management firm, says her firm's paper-based I-9 system was hard to control. The company has nearly 1,000 employees scattered among 15 properties around the country.
“Consistency was really hard to achieve,” says Peirano.
In May 2005, Western began using a web-based system provided by Newport Beach, Calif.-based ASP Form I-9 Compliance. “[The system] is self-correcting,” says Peirano. “It will point out where you missed documentation or make sure you’re not over-documenting.”
I-9 systems can be stand-alone, or they can be incorporated into a larger system for new hires. At ATMI, a San Jose, Calif., semiconductor materials supplier, management chose to incorporate electronic I-9 processing into its new web-based onboarding site, provided by Hunt Valley, Md.-based ASP RealLife HR.
“There were all sorts of issues: How do we make sure [the I-9 is] collected and accurate? How do we know where it is, particularly if an employee is transferred to another location? We don’t have an internal audit team, and the expense of hiring an outside one is prohibitive,” says Laura McKay, PHR, former compensation and benefits analyst at ATMI and leader of implementation team for the new system. Now, I-9s can be transferred from one location to another with a few clicks, and built-in reporting and auditing features make tracking easy.
These applications can help employers track the expiration of non-citizen documentation. At Plano, Texas-based industrial waste management services provider Safety-Kleen, a “significant portion” of the company’s 4,500 employees are non-citizens, according to senior director of HR Christian Camp. That reality, coupled with the company’s 200-plus locations across the country, made expired documentation a major administrative challenge. In January 2005, Safety-Kleen began using a web-based system provided by West Covina, Calif.-based i9check. Now, the system administrator receives e-mail alerts listing documents set to expire in 30, 60 and 90 days.
“The follow-up on expired documents is one of the biggest advantages,” says Camp.
Vendors offer a variety of pricing models, with sliding scales based on the size of the company. On a transaction basis, the service may cost roughly $13 per I-9; an annual flat fee may run close to $1,000 or more. Vendors and experienced employers say employers can realize a net savings over the labor hours, paper and storage costs required by a paper-based system.
“Sure, it’s a monthly bill we didn’t used to pay,” says Regina Partain, SPHR, president of Innovative Staffing Solutions LLC, a Perryton, Texas-based staffing company that places 500 people per year. “But when you look at risks associated with [I-9 compliance], to me it’s a no-brainer.” In March 2006, Innovative began using Form I-9 Compliance’s system.
Although not addressed in the new regulations, electronic I-9 management systems are linked with another growing trend: automatic verification of new hire documentation through the federal government’s Employment Verification Pilot Program, commonly known as Basic Pilot. This free program, now available to employers in all 50 states and the District of Columbia, allows employers to verify the validity of a new hire’s documentation immediately against the DHS and Social Security Administration (SSA) databases.
Employers can choose to use Basic Pilot on their own at no charge; after registering at www.vis-dhs.com/EmployerRegistration, users are guided through a web-based tutorial and then given access instructions. The only prerequisites are an Internet-enabled PC with Internet Explorer 5.5 or Netscape 4.7 or higher. However, the Basic Pilot program has been controversial, in part because of its relatively high error rate.
Some ASPs are registered with the federal government as “designated agents,” meaning that they can build a seamless Basic Pilot interface into their I-9 systems. Western Golf Properties, Innovative Staffing Solutions and Safety-Kleen all use a Basic Pilot interface in their systems. Experts expect that the Basic Pilot interface will soon become a required step in the employment verification process; recent proposed immigration legislation in the House and the Senate included automatic interface provisions.
In addition, experts predict increased enforcement of basic I-9 regulations in the years to come. New technology tools can help employers tighten their control of the I-9 process. “We know that the world is tightening; we know that we will be audited at some point,” says Partain. “It helps me sleep at night knowing that no one is falling through the cracks.”
Jennifer Arnold is a Baltimore, Md.-based technology writer.
[From the SHRM Online HR Technology Focus Area]
It’s not often that a government regulation makes your job easier. But according to experts, Public Law 108-390, which allows businesses to complete, sign and store I-9 forms electronically, does just that.
These Department of Homeland Security (DHS) forms, intended to verify new hires’ eligibility to work in the United States, have been an administrative and storage nightmare for many employers since they were mandated in 1986. It’s easy to see why: immigration documentation laws are complex and ever-changing; retention rules mandate that employers keep completed I-9s for as long as three years, and fines for violations run as high as $1,100 per flawed or missing form.
Thanks to the 2005 law and a new interim rule issued by DHS in June 2006, employers can use technology to address some or all of these issues.
Electronic storage can alleviate storage challenges and allow for quick retrieval.
Employers can scan completed paper I-9s and store them as PDF files on their company server.
Acceptance of electronic signature technology allows the process to become entirely paperless. Now, new hires and the verifying staff member can “sign” their portion of the I-9 by electronic means. Options include electronic signature pads, biometrics, “click to accept” dialog boxes, and entry of personal identification numbers and/or passwords.
As the interim rule states, there is no single U.S. government-wide electronic recordkeeping standard. Instead, the rule tells employers to use electronic storage and signature technologies that are compliant with the Internal Revenue Service’s (IRS) electronic recordkeeping standards for taxpayers (outlined in IRS Rev. Proc. 97-22 and Rev. Proc. 98-25).
Most employers probably won’t need new equipment to take advantage of these new I-9 options. All that is required for electronic storage is a scanner, a PC with Adobe Acrobat and minimal server space (each completed I-9 PDF takes up less than 2 MB of RAM). Soon, electronic signature capability will be available for free: DHS says it is developing an I-9 PDF with electronic signature capability that will be available free online at www.uscis.gov/graphics/formsfee/forms/index.htm.
But some companies are choosing to take it one step further, contracting with an application service provider (ASP) to obtain a comprehensive web-based I-9 management system. Employers say these systems, offered by a small number of vendors, build on the new regulations.
In addition to electronic storage and signature capabilities, I-9 management systems have built-in edits that reduce errors. For example, drop-down menu box selections are based on previous choices: If the box for “U.S. Citizen” is checked in Section 1, the document list in Section 2 will show only applicable documents.
Experienced HR professionals say these edits make a big difference, particularly in multi-location environments. Diana Peirano, director of administration for Western Golf Properties, a Lake Forest, Calif.-based golf management firm, says her firm's paper-based I-9 system was hard to control. The company has nearly 1,000 employees scattered among 15 properties around the country.
“Consistency was really hard to achieve,” says Peirano.
In May 2005, Western began using a web-based system provided by Newport Beach, Calif.-based ASP Form I-9 Compliance. “[The system] is self-correcting,” says Peirano. “It will point out where you missed documentation or make sure you’re not over-documenting.”
I-9 systems can be stand-alone, or they can be incorporated into a larger system for new hires. At ATMI, a San Jose, Calif., semiconductor materials supplier, management chose to incorporate electronic I-9 processing into its new web-based onboarding site, provided by Hunt Valley, Md.-based ASP RealLife HR.
“There were all sorts of issues: How do we make sure [the I-9 is] collected and accurate? How do we know where it is, particularly if an employee is transferred to another location? We don’t have an internal audit team, and the expense of hiring an outside one is prohibitive,” says Laura McKay, PHR, former compensation and benefits analyst at ATMI and leader of implementation team for the new system. Now, I-9s can be transferred from one location to another with a few clicks, and built-in reporting and auditing features make tracking easy.
These applications can help employers track the expiration of non-citizen documentation. At Plano, Texas-based industrial waste management services provider Safety-Kleen, a “significant portion” of the company’s 4,500 employees are non-citizens, according to senior director of HR Christian Camp. That reality, coupled with the company’s 200-plus locations across the country, made expired documentation a major administrative challenge. In January 2005, Safety-Kleen began using a web-based system provided by West Covina, Calif.-based i9check. Now, the system administrator receives e-mail alerts listing documents set to expire in 30, 60 and 90 days.
“The follow-up on expired documents is one of the biggest advantages,” says Camp.
Vendors offer a variety of pricing models, with sliding scales based on the size of the company. On a transaction basis, the service may cost roughly $13 per I-9; an annual flat fee may run close to $1,000 or more. Vendors and experienced employers say employers can realize a net savings over the labor hours, paper and storage costs required by a paper-based system.
“Sure, it’s a monthly bill we didn’t used to pay,” says Regina Partain, SPHR, president of Innovative Staffing Solutions LLC, a Perryton, Texas-based staffing company that places 500 people per year. “But when you look at risks associated with [I-9 compliance], to me it’s a no-brainer.” In March 2006, Innovative began using Form I-9 Compliance’s system.
Although not addressed in the new regulations, electronic I-9 management systems are linked with another growing trend: automatic verification of new hire documentation through the federal government’s Employment Verification Pilot Program, commonly known as Basic Pilot. This free program, now available to employers in all 50 states and the District of Columbia, allows employers to verify the validity of a new hire’s documentation immediately against the DHS and Social Security Administration (SSA) databases.
Employers can choose to use Basic Pilot on their own at no charge; after registering at www.vis-dhs.com/EmployerRegistration, users are guided through a web-based tutorial and then given access instructions. The only prerequisites are an Internet-enabled PC with Internet Explorer 5.5 or Netscape 4.7 or higher. However, the Basic Pilot program has been controversial, in part because of its relatively high error rate.
Some ASPs are registered with the federal government as “designated agents,” meaning that they can build a seamless Basic Pilot interface into their I-9 systems. Western Golf Properties, Innovative Staffing Solutions and Safety-Kleen all use a Basic Pilot interface in their systems. Experts expect that the Basic Pilot interface will soon become a required step in the employment verification process; recent proposed immigration legislation in the House and the Senate included automatic interface provisions.
In addition, experts predict increased enforcement of basic I-9 regulations in the years to come. New technology tools can help employers tighten their control of the I-9 process. “We know that the world is tightening; we know that we will be audited at some point,” says Partain. “It helps me sleep at night knowing that no one is falling through the cracks.”
Jennifer Arnold is a Baltimore, Md.-based technology writer.
Friday, October 27, 2006
Prepare Now for Stepped-Up Immigration Enforcement
By Elise A. Healy, Texas Lawyer
October 23, 2006
For the past 20 years, government investigations of immigration compliance in the nation's workplaces were relatively rare, and fines for noncompliance were low. Say goodbye to all that.
The U.S. Department of Homeland Security last November announced the Secure Border Initiative, which it vows will include a robust worksite enforcement element. From October 2005 to May 2006, Immigration & Customs Enforcement (ICE), part of DHS, conducted 592 on-site investigations of workplaces and 219 criminal investigations of employers, according to a June 16 ICE fact sheet. As a result, the government has indicted employers on criminal felony charges, including money laundering, fraud and harboring and transporting unauthorized aliens, and also is threatening forfeiture of company assets and fines in the tens of millions on serial offenders that it dubs "egregious employers."
Corporate counsel should plan now for how their organizations will respond to these developments to avoid such negative scrutiny. Three crucial elements of their response should be:
ensuring full compliance with an eventual government-mandated Employment Eligibility Verification Service (EEVS);
taking steps to address Social Security mismatch letters and avoid the egregious-employer stigma; and
considering participation in the new ICE Mutual Agreement Between Government and Employers (IMAGE) self-policing program.
A mandatory EEVS program, which would require employers to verify Social Security numbers of new hires, has strong support in Congress and seems almost certain to become law in the near future. The pending House version (H.R. 4437) applies not only to employers but also to for-profit and nonprofit recruiters, temporary agencies, labor contractors, day labor sites, job search Web sites and job placement or referral organizations.
The pending House bill would require organizations to verify Social Security numbers of new hires beginning two years after the bill's enactment. Three years after enactment, verification of all current employees will become mandatory for all federal, state and local government employees, and all workers on military bases, nuclear energy sites, weapons sites, airports and other critical infrastructure. Six years after enactment, EEVS will be mandatory for all employees nationwide.
The voluntary EEVS available today is known as Basic Pilot, and it is an Internet-based system used by about 10,000 employers. DHS hopes to expand this system to accommodate all 7 million U.S. employers. About 80 percent of Basic Pilot inquiries are accurately handled within three minutes, said DHS Verification Division Chief Gerri Ratliff at an August briefing.
But the system is not perfect: In June, the Society for Human Resource Management pegged Basic Pilot's success rate at 85 percent. "False negatives" under Basic Pilot or other verification systems damage productivity and morale as new hires spend weeks untangling errors in government databases.
Mandatory EEVS will clearly affect large employers and those with high turnover the most, as they will need to hire staff to handle verification. Training on the proper use of EEVS to avoid discrimination in hiring will also add significant costs for employers. Imposter fraud will likely increase, although DHS wants to incorporate photos or other biometrics into its databases to combat it.
SAFE HARBOR
The next action item for corporate counsel involves Social Security mismatch letters and the proposed safe harbor rule.
The Social Security Administration sends mismatch letters to employers that report employee name and Social Security number combinations that do not match SSA records. Two developments in this area deserve in-house lawyers' attention.
First, employers must establish and enforce protocols for logging in mismatch letters and responding to them in a timely fashion. Following the April arrest of seven managers and more than 1,100 employees at one manufacturer, a top DHS official announced in June that her agency regards large numbers of Social Security mismatches as a sign of an "egregious violator" -- an employer that violates immigration compliance as a cost of doing business. ICE targets such employers for audits and criminal investigation. Corporate counsel should take steps now to require that managers at all locations take documented steps to respond to SSA mismatch letters.
Second, corporate counsel must be aware that ICE has proposed a safe harbor rule on SSA mismatch letters that reflects the advice DHS has been giving employers for years.
The rule requires employers to check their records for clerical mistakes within 14 days of receiving a mismatch letter to correct the error and verify the resolution with SSA. If the mistake is not in the employer's records, the employee must be told to resolve the discrepancy within 60 days. If the employee does not resolve the matter, the employer has three more days to complete new paperwork using only documents issued with a photo and not containing the questioned Social Security number, or to terminate the employment. Even if the employee turns out to be an unauthorized worker, the government will not deem employers that follow this procedure to have "constructive knowledge" of that fact.
ICE also wants to convince employers to police themselves. In July, ICE announced the "ICE Mutual Agreement Between Government and Employers" program, or IMAGE.
Employers that sign up for IMAGE agree to an ICE audit and to implement a series of best practices. These include using Basic Pilot for all hires; establishing training programs and using only trained staff to conduct verifications; engaging an outside auditor to test the integrity of the verifications system semiannually; developing protocols for handling SSA mismatch letters and avoiding discrimination; establishing a tip line for employees to report unauthorized hiring; and self-reporting violations to ICE.
The government's new immigration compliance programs targeting workplaces are not yet finished. Employers with robust audit and training programs may not want to participate in the Basic Pilot program yet; the IMAGE program could also use some polishing. Nonetheless, the government has become increasingly serious about workplace immigration enforcement, and so too should corporate counsel.
Elise A. Healy is an immigration partner in Epstein Becker Green Wickliff & Hall in Dallas. She represents employers and investors in immigration matters and is board certified in immigration law by the Texas Board of Legal Specialization.
October 23, 2006
For the past 20 years, government investigations of immigration compliance in the nation's workplaces were relatively rare, and fines for noncompliance were low. Say goodbye to all that.
The U.S. Department of Homeland Security last November announced the Secure Border Initiative, which it vows will include a robust worksite enforcement element. From October 2005 to May 2006, Immigration & Customs Enforcement (ICE), part of DHS, conducted 592 on-site investigations of workplaces and 219 criminal investigations of employers, according to a June 16 ICE fact sheet. As a result, the government has indicted employers on criminal felony charges, including money laundering, fraud and harboring and transporting unauthorized aliens, and also is threatening forfeiture of company assets and fines in the tens of millions on serial offenders that it dubs "egregious employers."
Corporate counsel should plan now for how their organizations will respond to these developments to avoid such negative scrutiny. Three crucial elements of their response should be:
ensuring full compliance with an eventual government-mandated Employment Eligibility Verification Service (EEVS);
taking steps to address Social Security mismatch letters and avoid the egregious-employer stigma; and
considering participation in the new ICE Mutual Agreement Between Government and Employers (IMAGE) self-policing program.
A mandatory EEVS program, which would require employers to verify Social Security numbers of new hires, has strong support in Congress and seems almost certain to become law in the near future. The pending House version (H.R. 4437) applies not only to employers but also to for-profit and nonprofit recruiters, temporary agencies, labor contractors, day labor sites, job search Web sites and job placement or referral organizations.
The pending House bill would require organizations to verify Social Security numbers of new hires beginning two years after the bill's enactment. Three years after enactment, verification of all current employees will become mandatory for all federal, state and local government employees, and all workers on military bases, nuclear energy sites, weapons sites, airports and other critical infrastructure. Six years after enactment, EEVS will be mandatory for all employees nationwide.
The voluntary EEVS available today is known as Basic Pilot, and it is an Internet-based system used by about 10,000 employers. DHS hopes to expand this system to accommodate all 7 million U.S. employers. About 80 percent of Basic Pilot inquiries are accurately handled within three minutes, said DHS Verification Division Chief Gerri Ratliff at an August briefing.
But the system is not perfect: In June, the Society for Human Resource Management pegged Basic Pilot's success rate at 85 percent. "False negatives" under Basic Pilot or other verification systems damage productivity and morale as new hires spend weeks untangling errors in government databases.
Mandatory EEVS will clearly affect large employers and those with high turnover the most, as they will need to hire staff to handle verification. Training on the proper use of EEVS to avoid discrimination in hiring will also add significant costs for employers. Imposter fraud will likely increase, although DHS wants to incorporate photos or other biometrics into its databases to combat it.
SAFE HARBOR
The next action item for corporate counsel involves Social Security mismatch letters and the proposed safe harbor rule.
The Social Security Administration sends mismatch letters to employers that report employee name and Social Security number combinations that do not match SSA records. Two developments in this area deserve in-house lawyers' attention.
First, employers must establish and enforce protocols for logging in mismatch letters and responding to them in a timely fashion. Following the April arrest of seven managers and more than 1,100 employees at one manufacturer, a top DHS official announced in June that her agency regards large numbers of Social Security mismatches as a sign of an "egregious violator" -- an employer that violates immigration compliance as a cost of doing business. ICE targets such employers for audits and criminal investigation. Corporate counsel should take steps now to require that managers at all locations take documented steps to respond to SSA mismatch letters.
Second, corporate counsel must be aware that ICE has proposed a safe harbor rule on SSA mismatch letters that reflects the advice DHS has been giving employers for years.
The rule requires employers to check their records for clerical mistakes within 14 days of receiving a mismatch letter to correct the error and verify the resolution with SSA. If the mistake is not in the employer's records, the employee must be told to resolve the discrepancy within 60 days. If the employee does not resolve the matter, the employer has three more days to complete new paperwork using only documents issued with a photo and not containing the questioned Social Security number, or to terminate the employment. Even if the employee turns out to be an unauthorized worker, the government will not deem employers that follow this procedure to have "constructive knowledge" of that fact.
ICE also wants to convince employers to police themselves. In July, ICE announced the "ICE Mutual Agreement Between Government and Employers" program, or IMAGE.
Employers that sign up for IMAGE agree to an ICE audit and to implement a series of best practices. These include using Basic Pilot for all hires; establishing training programs and using only trained staff to conduct verifications; engaging an outside auditor to test the integrity of the verifications system semiannually; developing protocols for handling SSA mismatch letters and avoiding discrimination; establishing a tip line for employees to report unauthorized hiring; and self-reporting violations to ICE.
The government's new immigration compliance programs targeting workplaces are not yet finished. Employers with robust audit and training programs may not want to participate in the Basic Pilot program yet; the IMAGE program could also use some polishing. Nonetheless, the government has become increasingly serious about workplace immigration enforcement, and so too should corporate counsel.
Elise A. Healy is an immigration partner in Epstein Becker Green Wickliff & Hall in Dallas. She represents employers and investors in immigration matters and is board certified in immigration law by the Texas Board of Legal Specialization.
Monday, September 18, 2006
Colorado Employers Faced With the Nation's Strictest Employment Verifications Requirement
by Franklin A. Nachman, Michael A. Freimann, Bonnie Gibson and Rodney A. Malpert
Faced with mounting political pressure, the Colorado Legislature convened a special legislative session and passed several new immigration laws. This article outlines two of these laws which require employers to verify the legal status of its employees, and impose fines and loss of state government contracts as penalties for noncompliance.
Beginning January 1, 2007, HB1017 Imposes Employment Verification Requirements for New Hires in Colorado
Requirements in Colorado for New Hires
Governor Owens signed HB 1017 on July 31, 2006. The law, adds Section 8-2-122 to the Colorado Revised Statutes, and applies to employees hired on or after January 1, 2007. It does not apply to existing employees.
HB 1017 creates affirmation and document retention requirements that expand on the federal Immigration Reform and Control Act (IRCA) and its I-9 requirements. The bill requires employers, within twenty (20) days after hiring a new employee, to:
1. affirm that the employer has examined the legal work status of the newly acquired employee;
2. affirm it has retained copies of the employee's work documents;
3. affirm that the employer has not altered or falsified the new employee's identification documents; and
4. affirm that it has not knowingly hired an unauthorized alien.
Additionally, the new bill requires that the employer keep a written or electronic copy of the affirmation and all documents required under the IRCA for the term of employment for each employee. The law applies to newly hired employees and most likely does not apply to reverification of employees transferred into Colorado.
It is important to note, that like the Fair Labor Standards Act (FLSA), the statute defines "employer" as "a person or entity" who "has control of the payment of wages for such services, or is the officer, agent, or employee of the person or entity having control of the payment of wages." The law, unlike the Colorado Wage Claim Act, Section 8-4-101, et. seq. of the Colorado Revised Statutes, contemplates personal liability for violation of its provisions.
The statute does not require employers to submit the required affirmation documents to any state agency. Instead, employers are required to make the documentation available upon request by the Colorado Labor and Employment Department. The Director of that department is authorized to conduct random audits of employers to obtain the documentation.
Liability and Penalties
Section 8-2-122(4) provides that an employer, who with "reckless disregard," fails to submit documentation when requested by the Director, or with "reckless disregard," submits false or fraudulent documentation, shall be subject to a fine of not more than $5,000 for the first offense and not more than $25,000 for a second and any subsequent offense. The standard for liability is greater than ordinary negligence, but lesser than intent to violate the law.
Compliance Recommendations
I-9 administrators can integrate the process to ensure compliance under HB 1017 if they regularly sign the 1017 affirmation when they sign the attestation in Section 2 of the Form I-9. The attestation in Section 2 already expressly or implicitly contains the HB 1017 affirmations, except for the affirmation of retention of the I-9 documents.
Additionally, while copying and retaining the I-9 documents is optional under IRCA, it is mandatory under HB 1017. For administrative convenience both the Affirmation and the I-9 Documents should be kept in a consolidated file for HB 1017 compliance.
HB 1017 differs from the IRCA in that it requires retention of the affirmation and I-9 documents only for the term of employment, as opposed to three years from date of hire or one year after termination, whichever is later, by the IRCA. Nevertheless, for administrative convenience, employers may want to retain 1017 documentation for the same period as the I-9 documentation.
Effective August 9, 2006, HB 1343 Imposes New Requirements on State Contractors
Contractors from Inside or Outside Colorado Must Comply with 1343
HB 1343 adds Section 8-17.5-101 and 102 to the Colorado Revise Statutes. It regulates persons who have public contracts for services with a state agency or political subdivision of Colorado. Effective August 9, 2006, HB 1343 makes it illegal for a state agency or political subdivision to enter into or renew a contract for services with a contractor who "knowingly employs or contracts with an illegal alien to perform work under the contract or who knowingly contracts with a subcontractor who knowingly employs illegal aliens." While the statute defines "services" as "[the] furnishing of labor, time and effort by a contractor or subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance," the Attorney General's office has indicated that it will issue an opinion that the definition is to be broadly construed to include such activity as construction within the definition of services.
The statute prohibits state agencies from entering into or renewing contract agreements with contractors who knowingly employ illegal aliens. The legislation requires that each public contract include provisions that the prospective contractor shall not knowingly employ or contract with an illegal alien to perform work under the contract; and will not enter into a contract with a subcontractor that fails to certify to the contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the contract. Furthermore, the law requires such a contract for services to include a provision requiring the contractor to verify the status of its employees working under the contract. A state contractor must certify that it has verified the legal status of all new hires using the federal government's Basic Pilot Program.
If the contractor discovers that a subcontractor is knowingly employing an illegal alien, the contractor must alert the contracting Colorado state agency/political subdivision within 3 days. The contractor is also required to terminate the subcontract within three days of receiving the notice required by law, unless during that time period the subcontractor provides information to establish that it has not knowingly employed an illegal alien.
Like HB 1017, the statute authorizes the Department of Labor to investigate whether a contractor is complying with the provisions of the public contract, including on-site inspections and requests and review of documentation. The law also authorizes the Department to receive complaints of suspected violations, and contemplates promulgating procedures for investigation of such complaints.
HB 1343 Does Not Apply to Contracts Existing Before August 9, 2006.
Although effective on August 9, 2006, HB 1343 imposes only prospective responsibilities. The obligations are imposed only in new or renewed agreements. Further, if a government contractor fails to make the required certification, Colorado state agencies and political subdivisions are prohibited from entering into or renewing a public contract with the contractor. The state agency or political subdivision may also terminate an existing agreement for breach of contract in the event of a violation of any contract provision. If the contract is terminated, the contractor shall be liable for actual and consequential damages that the state agency/political subdivision suffers as a result of the termination. In the event of a violation and termination, the state agency must notify the Office of the Secretary of State who publishes a list of terminated contractors on its website for two years, absent a court ruling that the contractor did not violate the statutory requirements.
General Overview of the Basic Pilot Program
The Basic Pilot Program uses an automated system to verify the employment status of all newly hired employees. Specifically, it accesses the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases.
To participate in the Program, an employer (or a qualified representative agent) must sign a Memorandum of Understanding (MOU) with the DHS and SSA. The employer agrees to: (1) display notices supplied by DHS in a prominent place clearly visible to prospective employees; (2) provide to the SSA and DHS the names, titles, addresses, and telephone numbers of the employer representatives; (3) become familiar and comply with the Basic Pilot Manual (training material provided by the Program); (4) require that all employer representatives performing employment verification queries complete the Basic Pilot Web-Based Tutorial; and (5) comply with established Form I-9 procedures.
An initial inquiry mandates that an employer provide the following information for all newly hired workers within three days of hire: employee's last name, first name, social security number, date of birth, hire date, citizenship status, alien or I-94 number if required, document type, and document expiration date, if required. An employer will enter the data into a form accessible on the DHS website and transmit it to DHS. DHS in turn, forwards the information to SSA, which will verify the validity of the worker's Social Security number, name, date of birth, and citizenship. The SSA will confirm the date on noncitizens, then refers its findings to DHS to verify work authorization according to that agency's immigration records.
If neither the DHS or SSA can confirm work authorization within 24 hours, the employer receives a tentative non-confirmation response. The employer is supposed to check the accuracy of the information it submitted and either re-enter the information to DHS or ask the employee to resolve the issue with SSA or DHS. If the worker does not contest or resolve the non-confirmation finding within 10 days, the Program issues a final non-confirmation notice, and an employer is required either to terminate the employee immediately or notify DHS that it is continuing to employ the person. Employers can continue to employ the employee during the 10 day period, during which the employee is allowed to correct the data or contest the finding.
Conclusion
While enacted with great fanfare and touted as the strictest and toughest laws in the country, it remains to be seen how effective these new laws will be. They create additional burdens on employers above and beyond I-9 compliance, with substantial penalties for noncompliance. What remains to be seen is the effect of any new federal immigration legislation, which until now, has been stalled in Congress, and to what extent, if any, these laws may be preempted by existing federal legislation.
About The Author
Franklin A. Nachman is a shareholder in Littler Mendelson's Denver office.
Michael A. Freimann is an associate in Littler Mendelson's Denver office.
Bonnie Gibson and Rodney A. Malpert of Littler Global also contributed to the article.
Faced with mounting political pressure, the Colorado Legislature convened a special legislative session and passed several new immigration laws. This article outlines two of these laws which require employers to verify the legal status of its employees, and impose fines and loss of state government contracts as penalties for noncompliance.
Beginning January 1, 2007, HB1017 Imposes Employment Verification Requirements for New Hires in Colorado
Requirements in Colorado for New Hires
Governor Owens signed HB 1017 on July 31, 2006. The law, adds Section 8-2-122 to the Colorado Revised Statutes, and applies to employees hired on or after January 1, 2007. It does not apply to existing employees.
HB 1017 creates affirmation and document retention requirements that expand on the federal Immigration Reform and Control Act (IRCA) and its I-9 requirements. The bill requires employers, within twenty (20) days after hiring a new employee, to:
1. affirm that the employer has examined the legal work status of the newly acquired employee;
2. affirm it has retained copies of the employee's work documents;
3. affirm that the employer has not altered or falsified the new employee's identification documents; and
4. affirm that it has not knowingly hired an unauthorized alien.
Additionally, the new bill requires that the employer keep a written or electronic copy of the affirmation and all documents required under the IRCA for the term of employment for each employee. The law applies to newly hired employees and most likely does not apply to reverification of employees transferred into Colorado.
It is important to note, that like the Fair Labor Standards Act (FLSA), the statute defines "employer" as "a person or entity" who "has control of the payment of wages for such services, or is the officer, agent, or employee of the person or entity having control of the payment of wages." The law, unlike the Colorado Wage Claim Act, Section 8-4-101, et. seq. of the Colorado Revised Statutes, contemplates personal liability for violation of its provisions.
The statute does not require employers to submit the required affirmation documents to any state agency. Instead, employers are required to make the documentation available upon request by the Colorado Labor and Employment Department. The Director of that department is authorized to conduct random audits of employers to obtain the documentation.
Liability and Penalties
Section 8-2-122(4) provides that an employer, who with "reckless disregard," fails to submit documentation when requested by the Director, or with "reckless disregard," submits false or fraudulent documentation, shall be subject to a fine of not more than $5,000 for the first offense and not more than $25,000 for a second and any subsequent offense. The standard for liability is greater than ordinary negligence, but lesser than intent to violate the law.
Compliance Recommendations
I-9 administrators can integrate the process to ensure compliance under HB 1017 if they regularly sign the 1017 affirmation when they sign the attestation in Section 2 of the Form I-9. The attestation in Section 2 already expressly or implicitly contains the HB 1017 affirmations, except for the affirmation of retention of the I-9 documents.
Additionally, while copying and retaining the I-9 documents is optional under IRCA, it is mandatory under HB 1017. For administrative convenience both the Affirmation and the I-9 Documents should be kept in a consolidated file for HB 1017 compliance.
HB 1017 differs from the IRCA in that it requires retention of the affirmation and I-9 documents only for the term of employment, as opposed to three years from date of hire or one year after termination, whichever is later, by the IRCA. Nevertheless, for administrative convenience, employers may want to retain 1017 documentation for the same period as the I-9 documentation.
Effective August 9, 2006, HB 1343 Imposes New Requirements on State Contractors
Contractors from Inside or Outside Colorado Must Comply with 1343
HB 1343 adds Section 8-17.5-101 and 102 to the Colorado Revise Statutes. It regulates persons who have public contracts for services with a state agency or political subdivision of Colorado. Effective August 9, 2006, HB 1343 makes it illegal for a state agency or political subdivision to enter into or renew a contract for services with a contractor who "knowingly employs or contracts with an illegal alien to perform work under the contract or who knowingly contracts with a subcontractor who knowingly employs illegal aliens." While the statute defines "services" as "[the] furnishing of labor, time and effort by a contractor or subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance," the Attorney General's office has indicated that it will issue an opinion that the definition is to be broadly construed to include such activity as construction within the definition of services.
The statute prohibits state agencies from entering into or renewing contract agreements with contractors who knowingly employ illegal aliens. The legislation requires that each public contract include provisions that the prospective contractor shall not knowingly employ or contract with an illegal alien to perform work under the contract; and will not enter into a contract with a subcontractor that fails to certify to the contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the contract. Furthermore, the law requires such a contract for services to include a provision requiring the contractor to verify the status of its employees working under the contract. A state contractor must certify that it has verified the legal status of all new hires using the federal government's Basic Pilot Program.
If the contractor discovers that a subcontractor is knowingly employing an illegal alien, the contractor must alert the contracting Colorado state agency/political subdivision within 3 days. The contractor is also required to terminate the subcontract within three days of receiving the notice required by law, unless during that time period the subcontractor provides information to establish that it has not knowingly employed an illegal alien.
Like HB 1017, the statute authorizes the Department of Labor to investigate whether a contractor is complying with the provisions of the public contract, including on-site inspections and requests and review of documentation. The law also authorizes the Department to receive complaints of suspected violations, and contemplates promulgating procedures for investigation of such complaints.
HB 1343 Does Not Apply to Contracts Existing Before August 9, 2006.
Although effective on August 9, 2006, HB 1343 imposes only prospective responsibilities. The obligations are imposed only in new or renewed agreements. Further, if a government contractor fails to make the required certification, Colorado state agencies and political subdivisions are prohibited from entering into or renewing a public contract with the contractor. The state agency or political subdivision may also terminate an existing agreement for breach of contract in the event of a violation of any contract provision. If the contract is terminated, the contractor shall be liable for actual and consequential damages that the state agency/political subdivision suffers as a result of the termination. In the event of a violation and termination, the state agency must notify the Office of the Secretary of State who publishes a list of terminated contractors on its website for two years, absent a court ruling that the contractor did not violate the statutory requirements.
General Overview of the Basic Pilot Program
The Basic Pilot Program uses an automated system to verify the employment status of all newly hired employees. Specifically, it accesses the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases.
To participate in the Program, an employer (or a qualified representative agent) must sign a Memorandum of Understanding (MOU) with the DHS and SSA. The employer agrees to: (1) display notices supplied by DHS in a prominent place clearly visible to prospective employees; (2) provide to the SSA and DHS the names, titles, addresses, and telephone numbers of the employer representatives; (3) become familiar and comply with the Basic Pilot Manual (training material provided by the Program); (4) require that all employer representatives performing employment verification queries complete the Basic Pilot Web-Based Tutorial; and (5) comply with established Form I-9 procedures.
An initial inquiry mandates that an employer provide the following information for all newly hired workers within three days of hire: employee's last name, first name, social security number, date of birth, hire date, citizenship status, alien or I-94 number if required, document type, and document expiration date, if required. An employer will enter the data into a form accessible on the DHS website and transmit it to DHS. DHS in turn, forwards the information to SSA, which will verify the validity of the worker's Social Security number, name, date of birth, and citizenship. The SSA will confirm the date on noncitizens, then refers its findings to DHS to verify work authorization according to that agency's immigration records.
If neither the DHS or SSA can confirm work authorization within 24 hours, the employer receives a tentative non-confirmation response. The employer is supposed to check the accuracy of the information it submitted and either re-enter the information to DHS or ask the employee to resolve the issue with SSA or DHS. If the worker does not contest or resolve the non-confirmation finding within 10 days, the Program issues a final non-confirmation notice, and an employer is required either to terminate the employee immediately or notify DHS that it is continuing to employ the person. Employers can continue to employ the employee during the 10 day period, during which the employee is allowed to correct the data or contest the finding.
Conclusion
While enacted with great fanfare and touted as the strictest and toughest laws in the country, it remains to be seen how effective these new laws will be. They create additional burdens on employers above and beyond I-9 compliance, with substantial penalties for noncompliance. What remains to be seen is the effect of any new federal immigration legislation, which until now, has been stalled in Congress, and to what extent, if any, these laws may be preempted by existing federal legislation.
About The Author
Franklin A. Nachman is a shareholder in Littler Mendelson's Denver office.
Michael A. Freimann is an associate in Littler Mendelson's Denver office.
Bonnie Gibson and Rodney A. Malpert of Littler Global also contributed to the article.
Friday, September 08, 2006
New immigration rules could force mass firings
Even if Congress fails to pass immigration reform legislation, new regulations and public pressure may make it harder for employers to keep hiring illegal aliens.
The Department of Homeland Security has issued proposed regulations that could force businesses to fire hundreds of thousands of workers if they can't resolve discrepancies between the Social Security numbers reported by employees and government records.
The agency also plans a major marketing push for its Basic Pilot program, a voluntary electronic system that employers can use to verify whether a new hire is eligible to work in the United States. Both the House and Senate immigration reform bills would require employers to participate in this program. Even if the program doesn't become mandatory, however, the public will question the motives of any business that doesn't participate, says Mark Krikorian, executive director of the Center for Immigration Studies.
"If you're not doing that, what's your problem?" he asks.
Krikorian, whose think tank favors strict enforcement of immigration laws, expects more companies to follow the lead of Dunkin' Donuts, which requires all of its franchisees to sign up for the Basic Pilot program.
U.S. Immigration and Customs Enforcement (ICE) also is rolling out a new program, called Image, that will reward companies that participate in Basic Pilot and follow other good hiring practices.
The number of employers participating in the Basic Pilot program has more than doubled this year to around 11,000. Gerri Ratliff, chief of DHS' verification division, says the program can verify the eligibility of 80 percent of new hires in three seconds.
Most of the businesses that have signed up are in industries that employ a lot of immigrants, she says.
"If they think they might be targeted for ICE enforcement, they're running right to us to sign up," Ratliff says.
Businesses: Wait for Congress
Business groups, meanwhile, hope to persuade DHS to hold off on issuing a regulation that outlines what employers should do when they receive letters notifying them that workers' Social Security numbers don't match government records.
Under the proposed regulation, employers would have 14 days to see if a clerical error caused the discrepancy and contact DHS or the Social Security Administration to correct it. If the employee says the number is correct, the employee should contact the agency. If the employee's eligibility to work can't be verified within 60 days, the employer should terminate the employee. Otherwise, it runs the risk of being prosecuted for knowingly employing an unauthorized worker.
The comment period on the proposed regulation ended Aug. 14. Business groups urged DHS to postpone the new rule until Congress acts on immigration reform.
"Taking a new regulatory position when Congress has proposed alternative approaches may needlessly confuse employers on what to do when no-match notices are received," the National Restaurant Association contends.
Most experts doubt the House and Senate will be able to resolve their differences on immigration reform, but Laura Reiff, an immigration attorney who co-chairs the Essential Worker Immigration Coalition, says there is "a move afoot" for a compromise.
She thinks the proposed "no-match" regulation is part of the Bush administration's effort to prove it is enforcing immigration laws and pressure Congress to create a legal mechanism for employers to hire now-undocumented workers. EWIC contends the U.S. economy needs these workers.
DHS now is filing criminal charges -- instead of seeking administrative fines -- against employers who knowingly hire illegal aliens. This year, the department has made arrests in about 450 cases.
"We've made some very dramatic strides over the last year with respect to interior enforcement," says DHS Secretary Michael Chertoff.
Turnaround time 'unrealistic'
Business groups, however, says "no-match" letters shouldn't be used to prosecute employers because of widespread errors in the Social Security Administration's database.
"Many of our members conduct background checks or utilize other means to verify an employee's Social Security number ... but nonetheless receive no-match letters on those very same employees," states the Building Service Contractors Association International.
Business groups also say the proposed regulation doesn't give employers enough time to resolve discrepancies.
"A 60-day turnaround time from a federal agency on a routine basis is optimistic," states the American Hotel & Lodging Association. "A 60-day turnaround to correct a discrepancy in paperwork when the processing system will most likely be overwhelmed by the heavy volume of requests is unrealistic."
Best hiring practices
- Use the electronic Basic Pilot employment verification program for all hiring
- Establish an internal training program on how to complete I-9 employment eligibility forms and detect fraudulent documents
-Arrange for external I-9 audits
- Establish a procedure for reporting violations
- Establish a protocol for responding to no-match letters from the Social Security Administration
- Establish a tip line for employees to report employment of unauthorized aliens
- Establish safeguards against use of the verification process for unlawful discrimination
- Establish protocol to assess adherence to hiring guidelines by contractors and subcontractors
Source: U.S. Immigration and Customs Enforcement
© American City Business Journals Inc. All rights reserved.
Thursday, July 27, 2006
Two Companies and Company Officials Indicted for Harboring Illegal Alien Workers
The Conservative Voice, by Jim Kouri - A federal grand jury in Cincinnati has returned a 40-count criminal indictment charging two temporary labor companies, the president of these companies and two of their corporate officers with violations related to a large-scale illegal alien employment and money laundering scheme.
The defendants named in the indictment are: Garcia Labor Company, Inc, a temporary labor service company incorporated in Morristown, Tennessee; Garcia Labor Company of Ohio, Inc, a temporary labor service company based in Wilmington, Ohio; Maximino Garcia, president and co-owner of the two companies; Dominga McCarroll, sister of Garcia and former vice president of the two companies; Gina Luciano, director of Human Relations for Garcia Labor Company in Tennessee.
The indictment alleges that the Garcia Labor Company Inc. and Garcia Labor Company of Ohio, Inc (together known as Garcia Labor Companies) entered into a contract in December 1999 to provide temporary workers to sort freight for ABX Air, Inc., an independent and publicly traded company that provides air cargo transportation services nationwide from its base in Ohio and 18 hubs throughout the country. As part of its contract, Garcia Labor agreed that it all workers would be in compliance with applicable laws.
According to the indictment, Garcia Labor and the other defendants instead knowingly employed illegal aliens and provided them as contract workers to ABX Air and other companies. From December 1999 until about January 2005, the defendants caused more than 1,000 illegal workers to be employed sorting freight at ABX Air, knowing that these employees were not authorized to work in this country.
“Companies that utilize cheap, illegal alien labor as a business model should be on notice. ICE is dramatically enhancing its enforcement efforts against employers that knowingly employ illegal aliens,” said Julie Myers, Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE). “Criminal indictments like the one unsealed today are the future of worksite enforcement.”
As part of the conspiracy, the indictment alleges that Maximino Garcia provided rental housing at two apartment buildings he owned in Wilmington, Ohio, for the illegal aliens he employed for contract work.
The Social Security Administration notified Garcia in May 2003 and April 2004 that several hundred of his employees were using Social Security numbers that were invalid or did not match SSA records, but he and his companies continued to employ these same workers, the indictment alleges. In addition, a former employee of Garcia Labor notified defendant McCarroll that the employees were working in the country illegally, but the defendants continued to employ the illegal aliens.
In January 2005, the Transportation Security Administration conducted a regulatory compliance audit and inspection of ABX Air and the Wilmington Air Park. As a result of that inspection, virtually every Garcia Labor employee working at ABX Air under the contract to sort freight in the sort/ground department was terminated after it was determined that each employee was using a Social Security account number that was invalid or otherwise did not match records of the SSA.
The indictment alleges that most of the aliens were Mexican citizens and that 90 percent of the aliens presented fraudulent Resident Alien cards and Social Security cards in order to complete the I-9 Employment Eligibility Verification Form for employment by Garcia Labor Companies.
In addition, the indictment alleges that defendants Garcia and McCarroll conducted financial transactions in the amount of more than $12 million that represented proceeds of harboring, transporting, and inducing aliens to reside and remain in the United States illegally.
All defendants are charged with one count of conspiracy to induce illegal aliens to reside in the United States and one count of conspiracy to commit money laundering. In addition, Maximino Garcia is charged with 16 counts of inducing illegal aliens to remain in the United States and 19 counts of harboring illegal aliens. Luciano is charged with 14 counts of inducing illegal aliens to remain in the United States, three counts of transporting illegal aliens, and three counts of harboring illegal aliens.
Each of the immigration charges carries a maximum punishment of ten years imprisonment and a fine of $250,000. Money laundering conspiracy has a maximum punishment of 20 years imprisonment and a fine of up to $500,000. Upon conviction, actual sentences will be determined by the judge. Actual sentences are often less than the statutory maximum, according to the circumstances of the conviction.
The Conservative Voice, by Jim Kouri - A federal grand jury in Cincinnati has returned a 40-count criminal indictment charging two temporary labor companies, the president of these companies and two of their corporate officers with violations related to a large-scale illegal alien employment and money laundering scheme.
The defendants named in the indictment are: Garcia Labor Company, Inc, a temporary labor service company incorporated in Morristown, Tennessee; Garcia Labor Company of Ohio, Inc, a temporary labor service company based in Wilmington, Ohio; Maximino Garcia, president and co-owner of the two companies; Dominga McCarroll, sister of Garcia and former vice president of the two companies; Gina Luciano, director of Human Relations for Garcia Labor Company in Tennessee.
The indictment alleges that the Garcia Labor Company Inc. and Garcia Labor Company of Ohio, Inc (together known as Garcia Labor Companies) entered into a contract in December 1999 to provide temporary workers to sort freight for ABX Air, Inc., an independent and publicly traded company that provides air cargo transportation services nationwide from its base in Ohio and 18 hubs throughout the country. As part of its contract, Garcia Labor agreed that it all workers would be in compliance with applicable laws.
According to the indictment, Garcia Labor and the other defendants instead knowingly employed illegal aliens and provided them as contract workers to ABX Air and other companies. From December 1999 until about January 2005, the defendants caused more than 1,000 illegal workers to be employed sorting freight at ABX Air, knowing that these employees were not authorized to work in this country.
“Companies that utilize cheap, illegal alien labor as a business model should be on notice. ICE is dramatically enhancing its enforcement efforts against employers that knowingly employ illegal aliens,” said Julie Myers, Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE). “Criminal indictments like the one unsealed today are the future of worksite enforcement.”
As part of the conspiracy, the indictment alleges that Maximino Garcia provided rental housing at two apartment buildings he owned in Wilmington, Ohio, for the illegal aliens he employed for contract work.
The Social Security Administration notified Garcia in May 2003 and April 2004 that several hundred of his employees were using Social Security numbers that were invalid or did not match SSA records, but he and his companies continued to employ these same workers, the indictment alleges. In addition, a former employee of Garcia Labor notified defendant McCarroll that the employees were working in the country illegally, but the defendants continued to employ the illegal aliens.
In January 2005, the Transportation Security Administration conducted a regulatory compliance audit and inspection of ABX Air and the Wilmington Air Park. As a result of that inspection, virtually every Garcia Labor employee working at ABX Air under the contract to sort freight in the sort/ground department was terminated after it was determined that each employee was using a Social Security account number that was invalid or otherwise did not match records of the SSA.
The indictment alleges that most of the aliens were Mexican citizens and that 90 percent of the aliens presented fraudulent Resident Alien cards and Social Security cards in order to complete the I-9 Employment Eligibility Verification Form for employment by Garcia Labor Companies.
In addition, the indictment alleges that defendants Garcia and McCarroll conducted financial transactions in the amount of more than $12 million that represented proceeds of harboring, transporting, and inducing aliens to reside and remain in the United States illegally.
All defendants are charged with one count of conspiracy to induce illegal aliens to reside in the United States and one count of conspiracy to commit money laundering. In addition, Maximino Garcia is charged with 16 counts of inducing illegal aliens to remain in the United States and 19 counts of harboring illegal aliens. Luciano is charged with 14 counts of inducing illegal aliens to remain in the United States, three counts of transporting illegal aliens, and three counts of harboring illegal aliens.
Each of the immigration charges carries a maximum punishment of ten years imprisonment and a fine of $250,000. Money laundering conspiracy has a maximum punishment of 20 years imprisonment and a fine of up to $500,000. Upon conviction, actual sentences will be determined by the judge. Actual sentences are often less than the statutory maximum, according to the circumstances of the conviction.
Tuesday, June 20, 2006
DHS Announces Federal Regulations to Improve Worksite Enforcement and Asks Congress to Approve Social Security “No Match” Data Sharing
For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010
June 9, 2006
President Bush recently announced that the Federal government would make it easier for employers to verify employment eligibility and continue to hold them to account for the workers they hire. To that end, the Department of Homeland Security (DHS) announced today the release of two Federal regulations to help businesses comply with current legal hiring requirements intended to reduce the employment of unauthorized aliens.
The first proposal would permit U.S. businesses to digitize their I-9 employment forms, which are used to verify eligibility to work in the United States. The other proposed regulation would set forth guidance for U.S. businesses when handling no-match letters from the Social Security Administration (SSA) concerning submitted employee Social Security numbers or from DHS concerning documents submitted by employees during the I-9 process.
“Most businesses want to do the right thing when it comes to employing legal workers,” said Homeland Security Secretary Michael Chertoff. “These new regulations will give U.S. businesses the necessary tools to increase the likelihood that they are employing workers consistent with our laws. They also help us to identify and prosecute employers who are blatantly abusing our immigration system.”
Typically, when a worker’s Social Security number does not match the worker’s name on tax or employment eligibility documents, the Federal government sends out a “no-match” letter asking them to resolve the discrepancy. In fact, out of 250 million wage reports the Social Security Administration (SSA) receives each year, as many as ten percent belong to employees whose names don’t match their Social Security numbers.
Employers have also expressed their frustration with being required to keep paper forms or to store the forms on microfilm or microfiche when all other aspects of their record-keeping have been computerized. The interim regulation would give employers the option to sign and store Forms I-9 electronically. It is expected that many employers will experience cost savings by storing these forms electronically rather than using conventional filing and storage methods. In addition, because of the automated way in which electronic forms are completed and retained, they are less likely to contain errors. Finally, electronically retained forms are more easily searchable, which is important for verification, quality assurance and inspection purposes.
The “no match” regulation reviews the legal obligations of an employer, under current immigration law, when the employer receives a no-match letter from the SSA or DHS. It also describes “safe-harbor” procedures for employers to use in dealing with such a letter. If followed in good faith, these procedures would provide certainty that DHS will not find, based on a receipt of a “no-match” letter, the employer in violation of their legal obligations.
These proposed regulations are now subject to a 60-day public comment period, although the I-9 regulation will become effective on an interim basis as soon as it is published.
As Congress continues to consider comprehensive immigration reform, DHS continues to urge them to increase the authority of the SSA to share information about Social Security “no match” letters with DHS worksite enforcement agents. This information would allow DHS to learn which employers had received “no match” letters from SSA. It also assists investigators in identifying companies with the highest rate of immigration fraud.
“Identifying businesses that are habitually flagged for submitting mismatched Social Security numbers would bolster our worksite enforcement efforts,” added Secretary Chertoff. “Congressional approval of this legislation is critical to ensuring that U.S. businesses hire legal workers.”
Chertoff also noted that fixing the problem of illegal immigration requires a comprehensive solution that must include a temporary worker program. A temporary worker program would replace illegal workers with lawful taxpayers, help us hold employers accountable, and let us know who is in our country and why they are here.
###
Note: The no-match letter can be a letter to the employer from the Social Security Administration stating that the combination of name and social security account number submitted for an employee does not match the agency records, or a letter from the Department of Homeland Security notifying employer that the immigration–status or employment-authorization documentation presented or referenced by the employee is not consistent with DHS records.
Office of the Press Secretary
Contact: 202-282-8010
June 9, 2006
President Bush recently announced that the Federal government would make it easier for employers to verify employment eligibility and continue to hold them to account for the workers they hire. To that end, the Department of Homeland Security (DHS) announced today the release of two Federal regulations to help businesses comply with current legal hiring requirements intended to reduce the employment of unauthorized aliens.
The first proposal would permit U.S. businesses to digitize their I-9 employment forms, which are used to verify eligibility to work in the United States. The other proposed regulation would set forth guidance for U.S. businesses when handling no-match letters from the Social Security Administration (SSA) concerning submitted employee Social Security numbers or from DHS concerning documents submitted by employees during the I-9 process.
“Most businesses want to do the right thing when it comes to employing legal workers,” said Homeland Security Secretary Michael Chertoff. “These new regulations will give U.S. businesses the necessary tools to increase the likelihood that they are employing workers consistent with our laws. They also help us to identify and prosecute employers who are blatantly abusing our immigration system.”
Typically, when a worker’s Social Security number does not match the worker’s name on tax or employment eligibility documents, the Federal government sends out a “no-match” letter asking them to resolve the discrepancy. In fact, out of 250 million wage reports the Social Security Administration (SSA) receives each year, as many as ten percent belong to employees whose names don’t match their Social Security numbers.
Employers have also expressed their frustration with being required to keep paper forms or to store the forms on microfilm or microfiche when all other aspects of their record-keeping have been computerized. The interim regulation would give employers the option to sign and store Forms I-9 electronically. It is expected that many employers will experience cost savings by storing these forms electronically rather than using conventional filing and storage methods. In addition, because of the automated way in which electronic forms are completed and retained, they are less likely to contain errors. Finally, electronically retained forms are more easily searchable, which is important for verification, quality assurance and inspection purposes.
The “no match” regulation reviews the legal obligations of an employer, under current immigration law, when the employer receives a no-match letter from the SSA or DHS. It also describes “safe-harbor” procedures for employers to use in dealing with such a letter. If followed in good faith, these procedures would provide certainty that DHS will not find, based on a receipt of a “no-match” letter, the employer in violation of their legal obligations.
These proposed regulations are now subject to a 60-day public comment period, although the I-9 regulation will become effective on an interim basis as soon as it is published.
As Congress continues to consider comprehensive immigration reform, DHS continues to urge them to increase the authority of the SSA to share information about Social Security “no match” letters with DHS worksite enforcement agents. This information would allow DHS to learn which employers had received “no match” letters from SSA. It also assists investigators in identifying companies with the highest rate of immigration fraud.
“Identifying businesses that are habitually flagged for submitting mismatched Social Security numbers would bolster our worksite enforcement efforts,” added Secretary Chertoff. “Congressional approval of this legislation is critical to ensuring that U.S. businesses hire legal workers.”
Chertoff also noted that fixing the problem of illegal immigration requires a comprehensive solution that must include a temporary worker program. A temporary worker program would replace illegal workers with lawful taxpayers, help us hold employers accountable, and let us know who is in our country and why they are here.
###
Note: The no-match letter can be a letter to the employer from the Social Security Administration stating that the combination of name and social security account number submitted for an employee does not match the agency records, or a letter from the Department of Homeland Security notifying employer that the immigration–status or employment-authorization documentation presented or referenced by the employee is not consistent with DHS records.
Thursday, May 25, 2006
Senate passes immigration bill
WASHINGTON (CNN) -- The Senate approved a wide-ranging overhaul of immigration laws Thursday, voting 62-36 to bolster security at the Mexican border and to grant many illegal immigrants a path toward citizenship. Read more...
Wednesday, April 26, 2006
Georgia Immigration Bill Signed by Governor
Georgia governor Sonny Perdue has signed an immigration bill, which includes provisions affecting Georgia employers. The bill requires that public employers and contractors or subcontractors of public employers register in the federal work authorization program (the BASIC pilot program) to verify information of all new employees. The provision is effective July 1, 2007 for public employers, contractors, or subcontractors with 500 or more employees, July 1, 2008 for those with 100 or more employees, and July 1, 2009 for those with fewer than 100 employees.
The law will also prohibit employers from claiming $600 or more of wages paid to any undocumented employee hired on or after January 1, 2008 as a deductible business expense for state income tax purposes. Effective July 1, 2007, employers will be required to withhold state income tax at a rate of 6% from nonresident aliens for whom a 1099 has been filed when the nonresident alien has (1) failed to provide a taxpayer ID number; (2) failed to provide a correct taxpayer ID number; or (3) provided a nonresident taxpayer ID number. Any employer who fails to comply with the withholding requirements is liable for the taxes that should have been withheld. (S.B. 529, Laws 2006, approved April 17, 2006, effective as noted above.)
The law will also prohibit employers from claiming $600 or more of wages paid to any undocumented employee hired on or after January 1, 2008 as a deductible business expense for state income tax purposes. Effective July 1, 2007, employers will be required to withhold state income tax at a rate of 6% from nonresident aliens for whom a 1099 has been filed when the nonresident alien has (1) failed to provide a taxpayer ID number; (2) failed to provide a correct taxpayer ID number; or (3) provided a nonresident taxpayer ID number. Any employer who fails to comply with the withholding requirements is liable for the taxes that should have been withheld. (S.B. 529, Laws 2006, approved April 17, 2006, effective as noted above.)
Tuesday, April 25, 2006
Department of Homeland Security unveils comprehensive immigration enforcement strategy for the nation's interior
U.S. Immigration and Customs Enforcement – News Release
April 20, 2006
Department of Homeland Security unveils comprehensive immigration enforcement strategy for the nation's interior
WASHINGTON , D.C. - Homeland Security Secretary Michael Chertoff and Julie L. Myers, Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE) today unveiled a comprehensive immigration enforcement strategy for the nation's interior.
The new interior enforcement strategy represents the second phase of the Secure Border Initiative (SBI), which is the Department of Homeland Security's multi-year plan to secure America 's borders and reduce illegal migration. The first phase of the SBI remains focused on gaining operational control of the nation's borders through additional personnel and technology, while also re-engineering the detention and removal system to ensure that illegal aliens are removed from this country quickly and efficiently.
April 20, 2006
Department of Homeland Security unveils comprehensive immigration enforcement strategy for the nation's interior
WASHINGTON , D.C. - Homeland Security Secretary Michael Chertoff and Julie L. Myers, Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE) today unveiled a comprehensive immigration enforcement strategy for the nation's interior.
The new interior enforcement strategy represents the second phase of the Secure Border Initiative (SBI), which is the Department of Homeland Security's multi-year plan to secure America 's borders and reduce illegal migration. The first phase of the SBI remains focused on gaining operational control of the nation's borders through additional personnel and technology, while also re-engineering the detention and removal system to ensure that illegal aliens are removed from this country quickly and efficiently.
The interior enforcement strategy will complement the Department's border security efforts by expanding existing efforts to target employers of illegal aliens and immigration violators inside this country, as well as the many criminal networks that support these activities. The primary objectives are to reverse the tolerance of illegal employment and illegal immigration in the United States . To meet these objectives, the strategy sets out three primary goals or courses of action that will be carried out simultaneously:
- The first is to identify and remove criminal aliens, immigration fugitives and other immigration violators from this country.
- The second is to build strong worksite enforcement and compliance programs to deter illegal employment in this country.
- The third is to uproot the criminal infrastructures at home and abroad that support illegal immigration, including human smuggling / trafficking organizations and document / benefit fraud organizations.
Homeland Security Secretary Michael Chertoff said, "Illegal immigration poses an increasing threat to our security and public safety, and hard-hitting interior enforcement will reinforce the strong stance we are taking at our borders. With the interior enforcement strategy of the Secure Border Initiative, we will aggressively target the growing support systems that make it easier for aliens to enter the country and find work outside of the law. This department will counter the unscrupulous tactics of employers with intelligence-driven worksite enforcement actions and combat exploitation by dangerous smuggling organizations with the full force of the law."
ICE Assistant Secretary Myers said, "This strategy lays down a detailed roadmap for ICE and Homeland Security to pursue in addressing the massive illegal alien problem in this country. Reversing growing tolerance for the employment of illegal aliens and for illegal immigration in general is critical to achieving success in this task."
Goal one: identify and remove criminal aliens, fugitives and other immigration violators
Identify and remove incarcerated criminal aliens -- The prisons and jails in this country are estimated to book roughly 630,000 foreign-born nationals on criminal charges annually. Too often, the criminal aliens among this population are not removed from the country upon completion of their criminal sentences, but released into society. To combat this problem, ICE will expand its Criminal Alien Program to ensure these aliens are properly identified while in jail and removed immediately after serving their sentences.
Locate and remove immigration fugitives -- There are more than 590,000 aliens at large in this country who are fugitives that have been ordered removed by an immigration judge. This number is increasing at a rate of more than 40,000 each year. ICE Fugitive Operations teams are charged with tasked with locating and arresting these fugitives. Since ICE was created in March 2003, these teams have arrested more than 42,000 aliens, of which 31,000 were fugitives. More than 29,000 of these individuals have been removed from the country. To help combat this problem, ICE will expand the number of Fugitive Operations teams from the existing 35 teams to 52 teams by the end of this fiscal year, with an additional 1,000 arrests projected per team, per year. The goal for ICE Fugitive Operation team arrests this fiscal year is approximately 25,000 arrests. ICE also plans to open a Fugitive Operation Support Center to assist field agents and officers in record checks and processing real-time leads from national computer databases.
Target and remove visa violators - A substantial portion of the illegal aliens in this country are visa violators, with an estimated 165,000 new visa violations occurring annually. ICE created the Compliance Enforcement Unit in June 2003 to focus on high-risk visa violators by using new computer systems such as the Student and Exchange Visitor Information System (SEVIS) to flag violators. Since its inception, this unit has sent more than 10,000 leads to ICE field offices resulting in 2,100 arrests. ICE will be expanding the capacity of this unit and other visa compliance efforts of its field offices. The Fiscal Year 2007 budget request seeks an additional $10 million for ICE compliance enforcement efforts. Last year, ICE arrested more than 6,000 visa violators nationwide.
Target and remove aliens that pose criminal / national security threats - There are numerous illegal aliens at large in this country that pose criminal and/or national security threats. ICE has created several programs to combat this problem. ICE's Operation Community Shield targets foreign-born gang members and has resulted in the arrest of 2,400 gang members since its inception in 2005. ICE also launched Operation Predator in 2003 to target, among others, illegal alien child sex offenders. This effort has resulted in more than 7,500 arrests, most of whom were alien child sex offenders. ICE also has more than 200 agents assigned to the nation's Joint Terrorism Task Forces. Last year, these agents made roughly 270 arrests for criminal or administrative immigration charges.
Provide real-time information to law enforcement officers - The ICE Law Enforcement Support Center (LESC) in Vermont provides real-time assistance 24 hours-per-day, 365 days-a-year to federal, state, and local law enforcement officers who are investigating or who have arrested foreign-born nationals involved in criminal activity. The LESC has responded to more than 1.3 million such requests in the last two fiscal years and has lodged more than 7,000 immigration detainers in response to such requests this fiscal year. ICE will be expanding the capacities of the LESC.
Goal two: build strong worksite enforcement and compliance programs to deter illegal employment
Punish knowing and reckless employers of illegal aliens - Employers that knowingly and recklessly employ illegal aliens must be punished. ICE has already initiated a strategic shift in the way it approaches such employers by bringing criminal charges against them and seizing their illegally-derived assets -- rather than relying on the old tactic of administrative fines as sanctions. Last fiscal year, this new approach resulted in 127 criminal convictions, up from 46 the previous fiscal year. More employers are also being charged with money laundering violations, which can result in prison sentences of up to 20 years. Last year, a single ICE worksite enforcement investigation resulted in a settlement and forfeiture of $15 million, an amount that represented the largest worksite enforcement penalty in U.S. history and surpassed the sum of all administrative fines from the previous eight years. ICE seeks to enhance its worksite enforcement investigations with proposed additional funding. The Administration's Fiscal Year 2007 budget request seeks $41.7 million in new funds and 171 additional agents to enhance ICE's worksite enforcement efforts.
Eliminate Social Security abuses that support illegal immigration - Hundreds of thousands of workers in this country have registered "000-00-000" as a Social Security number. Millions have supplied social security numbers to their employers that do not match their names. This Social Security abuse provides a gateway for illegal aliens to obtain jobs. Currently, ICE does not have access to Social Security data to investigate these abuses. DHS is currently seeking a legislative fix in Congress that would provide ICE investigators with access to such data to combat this rampant fraud.
Work with Congress to build employer compliance systems - Employers who want to stay within the law need a clear set of rules to follow. ICE and DHS will seek to develop an administrative regulatory program to provide clearer guidance to employers.
Goal three: uproot the criminal infrastructure that supports illegal immigration
Target and dismantle human smuggling and trafficking organizations -- ICE investigations into human smuggling and trafficking organizations have resulted in 2,358 criminal convictions over the past two fiscal years. The number of ICE investigations launched into these organizations has increased from 2,564 in FY 2004 to 3,348 in FY 2005. ICE has begun applying its financial expertise to these investigations to target the illicit proceeds of these criminal organizations. ICE will continue to enhance its human smuggling and trafficking investigations and tighten its focus on the financial infrastructures of these organizations. One critical component of this effort will be the use of new Border Enforcement Security Task Forces (BEST) along the Southwest border to pool intelligence information from numerous agencies to better attack these organizations. The Department of Homeland Security created a BEST in Laredo , TX , last summer that has had considerable success in targeting cross-border criminal organizations and related violent crime. Another BEST has been launched in Arizona and others are scheduled to be created in Southwest border locations. ICE will also be harnessing the resources of its Attaché offices in more than 50 foreign nations to target human smuggling and trafficking organizations overseas in partnership with foreign law enforcement.
Detect and deter immigration-related document and benefit fraud -- In recent years, the problems of document and benefit fraud have surged, becoming increasingly sophisticated and lucrative. ICE established an Identity and Benefit Fraud Unit in 2003 to help address this problem. Over the past two years, the number of document and benefit fraud investigations launched by ICE has increased from 2,334 in FY 2004 to 3,591 in FY 2005. Criminal convictions in these cases have increased from 559 to 992 during this period. Earlier this month, ICE teamed up with officials from the Department of Justice, Department of Labor, Department of State and other agencies to create new "Document and Benefit Fraud Task Forces" in 10 major U.S. cities to combat this growing problem. Led by ICE, the task forces will build on existing partnerships to bring investigators together from a variety of agencies with expertise in different aspects of document and benefit fraud.
-- ICE --
U.S. Immigration and Customs Enforcement (ICE) was established in March 2003 as the largest investigative arm of the Department of Homeland Security. ICE is comprised of four integrated divisions that form a 21st century law enforcement agency with broad responsibilities for a number of key homeland security priorities.
Thursday, April 20, 2006
Companies using illegal workers to be targeted
Immigration arrests 9 IFCO bosses along with 1,000 workers
WASHINGTON (CNN) -- The Bush administration unveiled Thursday what it said is a new strategy aimed at companies employing illegal immigrants, illustrating it with a crackdown on the German-based firm IFCO Systems.
Law enforcement officials will "use all the tools we have, whether it be criminal enforcement or immigration laws to break the back" of businesses that exploit undocumented immigrants, said Homeland Security Secretary Michael Chertoff at a news conference. Read more.
WASHINGTON (CNN) -- The Bush administration unveiled Thursday what it said is a new strategy aimed at companies employing illegal immigrants, illustrating it with a crackdown on the German-based firm IFCO Systems.
Law enforcement officials will "use all the tools we have, whether it be criminal enforcement or immigration laws to break the back" of businesses that exploit undocumented immigrants, said Homeland Security Secretary Michael Chertoff at a news conference. Read more.
Friday, March 31, 2006
Congress Debates Immigration Reform
The House has passed legislation that would require companies to check the legal status of all employees with Homeland Security Department databases. It also would allow enforcement officials to see Social Security wage data and increase civil and criminal penalties for employing undocumented immigrants. The Senate too is debating compulsory worker checks, along with proposals to boost the number of work-site investigators and raise penalties for hiring undocumented workers. Read more.
DHS expects companies will have to verify workers' immigration status - The Department Homeland Security, Citizenship and Immigration Services expects Congress to pass a temporary worker program this year and to make it mandatory for employers to check the immigration status of employees. Read more.
DHS expects companies will have to verify workers' immigration status - The Department Homeland Security, Citizenship and Immigration Services expects Congress to pass a temporary worker program this year and to make it mandatory for employers to check the immigration status of employees. Read more.
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