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.

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 11 immigration mistakes employers made in 2011:

1.  The $5.9 million Error: Failing To Properly Pay H-1B Workers

In March, the U.S. Department of Labor Wage and Hour Division assessed over $1.7 million in civil money penalties and ordered the payment of over $4.2 million in back wages against Maryland's Prince George's County Public Schools for illegally reducing the wages of 1,044 foreign H-1B teachers when it required the teachers to pay H-1B filing fees.

2.  I-9 Document Abuse

Farmland Foods Inc. agreed to pay $290,000 to settle claims that it required non-U.S. citizens to present specific work authorization documents, such as permanent resident cards or employment authorization cards, rather than allowing the employee to choose a document from the list of acceptable documents on the Form I-9.

On December 7, 2011, the Department of Justice filed a lawsuit against the University of California, San Diego Medical Center for allegedly engaging in a pattern and practice of I-9 document abuse by improperly requesting that employees produce more documents than are required by Form I-9 to establish an employee’s identity and employment authorization.  

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

DOL ordered Ganze & Company to pay $156,000 in back pay to an H-1B worker terminated before the H-1B employment period started because 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 home country.

4.  Visa Fraud

In April 2011, the owners of Worldwide Software Services were sentenced to more than 3 years in prison after pleading guilty to a $41 million scheme using a software company as a front to bring foreign workers into the U.S. illegally.

5.  Citizenship Status Discrimination

DOJ recently settled a case against the American Academy of Pediatrics for its alleged practice of posting employment opportunities on its website for doctors, nurses and other professionals specifying that only U.S. citizens and certain visa holders could apply.

6. Employing Unauthorized Workers

A Michigan dairy farm and its owners pleaded guilty to charges of employing illegal immigrants and agreed to pay over $2.7 million in fines.  The dairy farm failed to fully and accurately complete I-9 forms for the workers, concealed unauthorized workers from ICE, and encouraged or induced the unauthorized workers to reside in the U.S.

7.  Failure to Abide by State Immigration Laws

Employers are often unaware of the myriad of state immigration requirements.  See http://www.laborlawyers.com/show-compliance.aspx?State-Survey-of-Immigration-Laws&Show=11579
 
8.  Failing to Abide by 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
 
Alyn Industries was ordered to pay $43,000 for 62 I-9 violations, including failing to present I-9s for 2 employees, failing to ensure that Section 1 of the Form I-9 was completed for 1 employee, and failing to complete Section 2 of the I-9 Form for 59 employees.

10. Taking Adverse Actions Against Employees Based on E-verify Tentative Nonconfirmations

If the E-Verify system issues a tentative non-confirmation (TNC) in response to a query, the employer must provide the employee with a notice generated by E-Verify and information on how to contest the TNC. If the employee elects to challenge the TNC, the employer is required to provide the employee with a referral letter containing instructions and contact information for the agency that triggered the TNC. Employers cannot terminate or take any other adverse action against an employee who contests a TNC while the TNC is in process. The employee is allowed eight federal government work days to contact the appropriate federal agency.

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 2011.  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.  

In order to avoid the above-listed errors, your company’s resolutions for 2012 should include ensuring immigration compliance programs are in place, up-to-date, and followed.