Give your company the gift of an immigration audit this year – it may just keep your company off the government’s naughty list.  Here are the top 12 immigration mistakes employers made in 2012:

1.  Failing To Properly Pay H-1B Workers

USDOL debarred a Washington information technology consulting services company from participating in the H-1B program for two years, assessed $405,175 in civil money penalties, and ordered payment of $983,039.12 in back wages for numerous H-1B violations, including willful failure to pay required wages by demanding workers pay H-1B government filing fees.

2.  Employing Unauthorized Workers

Two Houston companies each forfeited $2 million and agreed to adhere to revised immigration compliance programs for employing unauthorized workers.  Both companies received multiple "no-match letters" from the Social Security Administration (“SSA”), which indicated employee names and Social Security numbers did not match SSA records. ICE completed an I-9 audit of both companies in 2011, revealing that from 2005 to 2009 about 44 percent of the workforce of one company was undocumented, many individuals were employed with numerous "egregiously suspect" identification documents, including misspellings of agency names and/or containing the words "novelty item."  Similarly, an I-9 audit of the second company revealed that about 269 of its 451-person workforce consisted of undocumented aliens.

3.  Failing to Properly Notify USCIS of an H-1B Worker’s Termination

USDOL has repeatedly held that H-1B workers are entitled to back pay for the entire period of the H-1B approval where the company failed to promptly withdraw the H-1B with USCIS and pay for the reasonable cost of the H-1B worker's return transportation to his or her home country.

4.  Visa Fraud

The head of a Los Angeles law firm was sentenced to 10 months in prison for his role in orchestrating a lengthy employment visa fraud scheme where he and other members of the firm set up nearly a dozen shell companies in order to file at least 137 fraudulent employment-based visa petitions for nearly 100 foreign national clients in exchange for payments of $6,000 to $50,000.

5.  Citizenship Status Discrimination

USDOJ reached an agreement with a manufacturer of semiconductor structures and advanced solar cells based in Illinois to resolve allegations that the company violated the anti-discrimination provision of the Immigration and Nationality Act (“INA”), when it placed six online job postings that explicitly stated citizenship status preferences or requirements that excluded certain work-authorized non-citizens from consideration.  The company will pay $12,000 in civil penalties. 

6. I-9 Document Abuse

In October, USDOJ settled a lawsuit against a Las Vegas Casino for $49,000 in civil penalties and full back pay to a former employee for unfair documentary practices.  The complaint alleged the casino required non-citizen employees to provide more or different documents or information than it required from citizen employees during the initial employment eligibility verification process.  The company then allegedly used the information gathered to impose improper document requests on non-citizens during the reverification process as a condition of continued employment.  The complaint further alleged that the casino subjected non-citizen employees’ documents to a heightened review process by senior human resources representatives that was not applied to documents presented by U.S. citizens.   

7.  Failure to Comply with State Immigration Laws

Employers are often unaware of the myriad of state immigration requirements.  A Survey of Immigration Laws is available on our website.

8.  Failing to Comply with the Deemed Export Rule

 The Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) impose licensing requirements on the export, reexport, and in-country transfer of a wide variety of items that are controlled for national security, foreign policy, and other reasons. The requirements include an obligation for U.S. persons, including corporate employers, to seek and receive a U.S. Government license before releasing in the U.S. to foreign persons, including foreign person employees from certain countries, various types of technology controlled by these regulations. This obligation is referred to by the Commerce Department as the “deemed export” rule because releases of controlled technology to foreign persons in the U.S. are “deemed” to be an export to the person’s country or countries of nationality.

9.  Failure to Properly Complete Form I-9s
 
A construction company with no history of previous I-9 violations was assessed fines in the amount of $17,200 for 103 I-9 violations, including failure to present I-9 forms for 10 employees, failure to list the proper List A document in Section 2 of the I-9, and twenty-seven I-9s with procedural or technical violations. 

10. Failing to Follow Proper E-verify Procedures

USDOJ reached a settlement with a provider of janitorial and facilities maintenance services based in Tampa to resolve allegations that the company violated the anti-discrimination provision of the INA when it failed to fully reinstate an employee in retaliation for asserting her right to work in the U.S.  The company has agreed to pay $6,800 in monetary relief to the charging party, which included back pay and interest, along with a $2,000 civil penalty.  The charging party alleged that the company failed to provide the employee with proper notice and instructions for contesting an initial data mismatch in E-Verify, resulting in E-Verify issuing an erroneous final response that she was not work authorized.    

11.  Taking Adverse Actions Against Employees Based Solely on SSA No-Match Letters

There is no clear guidance from the government on how an employer should respond to No-Match Letters received in 2012.  Employers should take the following steps upon receipt of a SSN No-Match letter:

• Check your records to make sure your Human Resources department accurately recorded the employee’s information.  If an error was made, provide the SSA with any corrections;
• If your records are correct, promptly notify the employee that you received a SSN No-Match letter and ask the employee to go to SSA to address any discrepancy;
• Do not take any adverse action against the employee based solely on the SSA No-Match letter;
• Apply any procedure developed to respond to the SSA No-Match letters in a non-discriminatory way; and
• Give the employee a reasonable amount of time to correct any discrepancy.  If the employee indicates that he visited SSA and the situation is resolved, please note the actions you and the employee took to resolve the discrepancy in the event of an audit. 

12. Not Preparing for an ICE Raid

In the chaos of an intrusive ICE raid, companies should ensure that their representatives are instructed not to volunteer statements to ICE agents or allow themselves to be interviewed or interrogated without an attorney present who represents the organization.
 
Last fiscal year, employers nationwide were ordered to pay nearly $10.5 million in civil fines for hiring violations. In addition, criminal charges were filed against a record-breaking 221 owners, employers, managers and/or supervisors – up from 196 in fiscal year 2010.  Once the final statistics for 2012 are tallied, 2012 is expected to be another record-breaking year for enforcement.  In order to avoid the above-listed costly errors, your company’s resolutions for 2013 should include ensuring immigration compliance programs are in place, up-to-date, and followed.

On Friday, November 4, 2011, Vermont Governor Peter Shumlin and the Department of Public Safety issued a new policy for the Vermont State Police which impacts when the State Police are allowed to question a person’s immigration status.

The policy makes clear that State Police cannot inquire into a person’s immigration status during a civil investigation, such as a routine traffic stop.  The new policy explains it is not the law enforcement priority for the Vermont State Police to detect or apprehend individuals whose only violation is that they are in the U.S. without authorization.  Further, the policy provides that in a criminal investigation, State Police can only inquire into a person’ s immigration status if it is relevant to the criminal investigation or the person is under arrest. 

The new policy, designed to reaffirm the Vermont State Police’s commitment to unbiased policing, stemmed from an incident in September of this year where a State Police officer questioned a  passenger in a car about his immigration status during a routine traffic stop.  The passenger in the car was a Mexican farm worker who has since been detained as a suspected illegal immigrant.  The detainment of this migrant farm worker prompted protest from the migrant worker community, who believed that the state trooper should not have questioned the passenger about his immigration status during a routine traffic stop. 

In a television interview following the incident, Vermont Gov. Shumlin said, “Vermont farmers can’t survive without workers from outside America. That’s just the way it is.  We’ve got to keep our dairy farms strong, we’ve always had a policy in Vermont where we kind of ‘look the other way’ as much as we can.”

Although it was determined that the state trooper’s action was proper, Gov. Shumlin stated that “we owe it to our troopers to provide them clear guidance about state law enforcement priorities and parameters.”  The new policy for State Police clarify the circumstances under which an individual’s immigration status may be considered by the State Police. 

Vermont’s new policy to the State Police is yet another example of how states are continuing to enact immigration-related legislation and policy.  Despite state policy, it is still the Federal Government’s job to enforce our nation’s immigration laws, and the U.S. Immigration and Customs Enforcement (ICE) continues to audit the I-9 forms of employers across the nation. 
Will Vermont’s new policy act as an invitation for ICE to investigate employers in the state, especially dairy farmers, regarding the immigration status of their workers?

U.S. Immigration and Customs Enforcement (ICE) continues to make good on its promise to audit employer’s I-9 forms to ensure compliance with federal immigration laws.  ICE served another round of I-9 Notices of Inspection (NOIs) to 1,000 businesses nationwide.   Employers receiving a NOI will be given three days to prepare for a meeting with federal officials in which the company's I-9 forms will be reviewed.  In addition to properly completed I-9 forms for all current and recently terminated employees, employers may be asked to turn over payroll documentation and other employee documentation.               

According to ICE, this round of NOIs “will touch on employers of all sizes and in every state in the nation, with an emphasis on businesses related to critical infrastructure and key resources.”  These businesses include those associated with agriculture and food, financial services, commercial nuclear reactors, drinking water and water treatment, postal and shipping, healthcare, and transportation.   Additionally, employers may be targeted for an audit based on specific leads and information regarding allegations of hiring unauthorized workers, exploiting workers, and paying unfair wages.

This round of NOIs continues ICE’s trend to investigate employer’s compliance with federal immigration law through I-9 audits. The last round of NOIs was issued in February to 1,000 businesses.  ICE has reported issuing over 2,300 NOIs to businesses this year.  This is an increase from the reported 2,196 audits issued in fiscal year 2010 and the 1,444 audits in fiscal year 2009. 

It is clear from recent events that ICE will continue auditing employer’s I-9 forms.  Auditing your company's I-9 forms before another round of NOIs are issued is the best way to minimize your company's risk for administrative fines ranging from $110 to $1100 per violation. Employers face higher fines for the knowing employment of unauthorized workers.  In order to prepare for an audit, employers should conduct in-house I-9 audits, retain outside counsel to review their I-9 forms and assess their company's exposure for administrative fines, and correct any errors on I-9 forms. 

The Social Security Administration (SSA) has resumed sending out No-Match letters to employers. This ends a long break that started when the Department of Homeland Security's now-rescinded 2007 No-Match regulation was blocked by a court.

SSA's new letter says that the recipient is not required to respond and that the letter alone should not be the basis for taking any adverse action against the employee listed.  If the employer responds to the letter, the SSA may share the information with the Internal Revenue Service or the Department of Justice (DOJ).  If you receive a SSA No-Match letter, the SSA instructs you to:

• Check your records to see if there is a discrepancy in the records submitted to SSA;

• Ask the employee to check to determine whether the information was accurate;

• Instruct the employee to contact the SSA to resolve any discrepancy;

• Provide the employee a reasonable amount of time to resolve the discrepancy; and

• Document your efforts to resolve the matter.

The SSA, Immigration and Customs Enforcement (ICE), and the DOJ's Office of Special Counsel provide no additional guidance for an employer’s obligations upon receipt of a No-Match letter.  These agencies all appear to take the position that a No-Match letter is not evidence that the employee is unauthorized to work.  They do not offer any clarification of what would be considered “a reasonable amount of time” to resolve the discrepancy, or what to do if the employee is unable to resolve the discrepancy. 

ICE Notices of Inspection for I-9 audits generally request copies of any correspondence received from SSA, including No-Match letters.  It is unclear whether merely documenting an employee’s inability to resolve a discrepancy without taking further action will satisfy ICE in the event of an I-9 audit.  The rescinded No-Match regulation outlined “safe harbor” procedures to demonstrate that an employer had acted reasonably to a No-Match letter, including allowing the employee 90 days within which to resolve the discrepancy and completing a new I-9 form with updated documents.  We recommend that you develop policies and procedures to address issues raised in SSA No-Match letters and implement them in a non-discriminatory way.