On December 15, 2009, U.S. Rep. Luis Gutierrez (Illinois) introduced the Comprehensive Immigration Reform for America’s Security and Prosperity (CIR ASAP) Act of 2009.  Among many other provisions, CIR ASAP would repeal the 287(g) program only allowing the federal governments to enforce federal immigration law.

Section 287 (g) was added to the Immigration and Nationality Act by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996.  287(g) authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, provided that the local law enforcement officers receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers.

Since its beginning, the 287(g) has been surrounded by a whirlwind of controversy with accusations of the program encouraging racial profiling.  Although many support the program, it has come under intense criticism more recently, with over 500 organizations, including the ACLU and the Congressional Hispanic Caucus, calling on the government to end the program.

So, what will happen with 287(g)?  Only time will tell.  It will at least have to wait until Immigration Reform hits Congress’ front burner.

With an escalation in employer inspections by United States Immigration and Citizenship Services (USCIS), Immigration and Customs Enforcement (ICE), and the Department of Labor (DOL), it has become vital that employers with H-1B employees have their H-1B Public Access Files in order. 

What Documents Should be in a H-1B Public Access File?

To avoid potential costly fines, payment of back wages and/or disbarment from participation in key immigration programs, it is our recommendation that employers keep the following documents within each H-1B applicant’s separate public access file:

• A copy of the relevant certified Labor Condition Application (LCA) including all pages and cover sheet;
• Documentation which provides the wage rate to be paid to the non-immigrant (updated when/if wage rate increases/decreases);
• A clear explanation of the system use by the employer to set the “actual wage” the employer has paid or will pay workers in the occupation;
• Documentation which the employer used to establish the “prevailing wage” for the occupation sought;
• A copy of the notice of posting including dates of posting, and a statement identifying the two posting locations;
• A statement confirming that a copy of the approved LCA was provided to the H-1B worker;

We work closely with H-1B employers to ensure that their H-1B Public Access Files are created and maintained correctly to avoid liability.  If you have questions about H-1B Public Access Files, or any other immigration or employment related issue, please contact our offices.

On November 19, 2009, at a program titled “2009 Government and Employers: Working Together to Ensure a Legal Workforce,” USCIS’ Fraud Detection and National Security (FDNS) office’s Chief of Staff, Ronald Atkinson, clarified the three types of employer site visits/inspection programs currently being conducted.  The following types of employer site visits/inspections programs are funded through the mandatory $500 “Anti-Fraud” Fee, one of the government fees that employers pay when sponsoring an H-1B specialty occupation worker nonimmigrant visa: 

1. Risk Assessment Fraud Study – Part of a joint program between USCIS and Immigration and Customs Enforemcent (ICE), this study will be applicable to all family and employment-based petitions.  Post-approval Applications/petitions will be chosen at random.  The purpose of the study is to assist USCIS in designing profiles of potential fraud. No advance notice is required to be given to either the employer or counsel.  
2. Targeted Site Visits – When fraud by an employer is expected, the targeted site visits are being utilized to ask questions of the employer.  Advance notice to both the employer and counsel is supposed to be provided.
3. Administrative Site Visits – These site visits are conducted by contractors (usually with no knowledge of immigration law) who ask a set of specific questions provided by USCIS.  The questions should be aimed at ascertaining whether the employment exists, the employer is aware that the petition/application exists, whether the employee is performing the job indicated at the salary specified on the application/petition.  No advance notice is required to be given to either the employer or counsel.  

So, how can employers be prepared for a visit from USCIS?  In light of these latest efforts by USCIS/DHS, in addition to escalated I-9 employment eligibility enforcement measures being taken by ICE, it is imperative that employers seek adequate immigration counsel.  Many of the requirements for both immigration applications/petitions and I-9 compliance are highly technical and carry tremendous liability for both employers and HR executives and staff.�
For more information, please contact our offices.

On September 23, 2009, Ms. Maria Refugia Camarillo, a 72-year-old grandmother, was sentenced to serve 44 months in federal prison for operating a marriage fraud ring from 1980s until 2008.  Ms. Camarillo had been investigated by U.S. Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), the Social Security Administration’s Office of Inspector General (SSA OIG), Texas’ Health and Human Services Commission’s Office of Inspector General (HHSC OIG), and the Department of Homeland Security’s Office of Inspector General (DHS OIG).

For years, foreign nationals who wanted to become U.S. permanent residents (green card holders), paid Ms. Camarillo as much as $12,000 to arrange marriages between them and U.S. Citizens.  The foreign nationals then used their marriage to a U.S. citizen as basis for obtaining U.S. permanent residency and often citizenship. 

Ms. Camarillo recruited her children, grandchildren, nieces, and nephews (all U.S. citizens) into the conspiracy.  Each was paid a portion of Camarillo’s $12,000 fee for agreeing to marry foreign nationals.

On August 7, 2009, U.S. Immigration and Customs Enforcement (“ICE”) announced that Shipley Do-Nut Flour and Supply Company, Inc. (“Shipley”) was sentenced to court supervision, forfeiture of $1.334 million to ICE, and a criminal fine of $250,000 for conspiring to harbor illegal aliens.  In addition, three company managers and the company owner were sentenced to six months probation and each received a hefty fine.

According to the company’s website, Shipley supplies baking materials and provides logistical support to retail stores, and to 120 franchises in Texas, Alabama, Arkansas, Louisiana, Mississippi and Tennessee. Trouble for Shipley arose from a criminal investigation initiated by ICE in January of 2008 which included interviews with former employees and a thorough review of Shipley’s I-9 records and SSA No-Match letters.  In April of 2008, an enforcement action was taken by ICE agents that resulted in the administrative arrest of 27 unlawful workers employed by the company.

The I-9 system of employment verification, created by the Immigration Reform and Control Act of 1986, is the nation’s sole mandatory employment eligibility verification program. All U.S. employers are responsible for the completion and retention of Form I-9 for each individual hired for employment in the United States, including citizens and non-citizens.  The penalties, both civilly and criminally, are becoming too severe to ignore.  Civil fines for employers can range from $3200 (per violation) for a first offense to $16,000 (per violation)  for a third or subsequent offense.  All company representatives verifying employment eligibility of employees are potentially liable, both criminally and civilly, for errors in completing I-9 Forms.

In light of this case and ICE’s issuance of over 650 audit requests last month, it is imperative now, more than ever, that employers heed the warning.  You may be asking, “what can my company do to avoid criminal and civil penalties related to I-9 compliance?”  Employers must implement I-9 Compliance Programs that include proper training, internal audits, and third-party audits.  The voluntary E-Verify, an online system operated jointly by the Department of Homeland Security and the Social Security Administration (SSA), also provides employers with a “safer harbor” within which to operate.

For more information on effective I-9 compliance programs, see my post entitled “Employers: How not to lose your shirt (and everything else)” or contact me at obranch@sandsanderson.com.

Today, August, 6, 2009, U.S. Immigration and Customs Enforcement (“ICE”) has announced an overhaul of the current immigration detention system.  Currently, when foreign nationals are arrested for immigration violations or other offenses that affect their immigration status, they are detained in one of over 350 decentralized, penal institutions.  The institutions are either jails operated by local governments or privatized detention centers.

Over the past several years, there have reports of insufficient medical care and poor treatment of foreign nationals held by ICE.  Earlier this year, the NY Times published an article about a computer engineer from China who died from a lack of proper medical care while he was detained in a contracted detention center in Rhode Island. 

So, what will the new overhaul include?  According to John Morton, Assistant Secretary of ICE, the next three to five years will bring facilities located and operated solely for immigration detention purposes.  These facilities will be run by ICE and, according to Assistant Secretary Morton, will address many of the issues regarding oversight and medical care. 

What will the cost be?  Will it cost more or less than contracting with public and private facilities?  The data isn’t in or at least it hasn’t been yet.

U.S. Immigration and Customs Enforcement (‘ICE’) has launched a new effort to audit the Form I-9 employment eligibility verification records of businesses nationwide.  According to the Los Angeles Times, ICE  issued audit notices to more than 650 businesses around the nation on July 1, 2009. 

The I-9 system of employment verification, created by the Immigration Reform and Control Act of 1986, is the nation’s sole mandatory employment eligibility verification program. All U.S. employers are responsible for the completion and retention of Form I-9 for each individual hired for employment in the United States, including citizens and non-citizens.

This newest enforcement effort by ICE follows a recent Department of Homeland Security (DHS) announcement that ICE will focus its resources on criminal prosecution of employers who knowingly hire illegal workers and that the agency “will use all available tools, including civil fines and debarment, to penalize and deter illegal employment.” 

“Knowingly hiring” can be a tricky legal concept.  Employers can also be held liable if they had “constructive knowledge”  that a worker wasn’t eligible for employment.  Constructive knowledge means that the employer “should have known.”  Constructive knowledge has been found where employers did not complete I-9 forms or completed I-9 forms incorrectly. 

Many errors on forms result from inadvertent mistakes pertaining to preparation, storage, and retention that can result in civil fines, and even criminal charges.  Civil fines for employers can range from $3200 (per violation) for a first offense to $16,000 (per violation)  for a third or subsequent offense.  All company representatives verifying employment eligibility of employees are potentially liable, both criminally and civilly, for errors in completing I-9 Forms. 

So what can U.S. businesses do to mitigate exposure stemming from their I-9 programs?  It is imperative, now more than ever, that employers implement I-9 Compliance Plans that include proper training, internal audits, and third-party audits.  The voluntary E-Verify program (formerly the Basic Pilot/Employment Eligibility Verification Program), an online system operated jointly by the Department of Homeland Security and the Social Security Administration (SSA), also provides employers with a “safer harbor” within which to operate.

As an immigration attorney, I spend a great deal of time working with employers to achieve Form I-9 Compliance.  As of February 2, 2009, all employers must begin using the newly released I-9 form to verify the employment eligibility of all new hires.

What is an I-9 Form and why should you care?

All U.S. employers are responsible for the completion and retention of Form I-9 for each individual hired for employment in the United States, including citizens and non-citizens.

In an age when Immigration and Customs Enforcement (ICE) is ramping up audits, raids and even criminal indictments against corporations suspected of employing unauthorized workers, the ability to competently navigate the employment eligibility minefield has become utterly imperative.  Many errors on forms result from inadvertent mistakes pertaining to preparation, storage, and retention that can result in civil fines, and even criminal charges.  Civil fines for employers can range from $3200 (per violation) for a first offense to $16,000 (per violation)  for a third or subsequent offense.  All company representatives verifying employment eligibility of employees are potentially liable, both criminally and civilly, for errors in completing I-9 Forms.

Besides using the newly updated form, what can U.S. businesses do to mitigate exposure stemming from their I-9 programs?  It is imperative, now more than ever, that employers implement I-9 Compliance Plans.  In my next blog, I will delve further into what your I-9 Compliance Plan should include.

You can find the new I-9 form here!