Category: I-9 Compliance

When an Employee Lies on the I-9 Form

 

Can an employer fire an employee when they find out that information provided in the I-9 process was falsified?

Hi, I’m Jim Hacking, immigration lawyer practicing law throughout the United States out of our office here in St. Louis, Missouri. Employers contact us from time to time wondering what they should do when they find out that an employee has lied in the I-9 employment verification process. Most people who have been through the hiring process and have completed the paperwork that goes along with starting a new job are familiar with the I-9.

The I-9 is a form that the Immigration Service uses to require employers to document that an employee is who they say they are, and that they have authorization to work in the United States. You may recall that there is various columns of documents, identifying documents and documents that show that you have work authorization to allow you to be employed in the United States. Almost everybody who has ever had a job would have filled out one of these I-9s. The question then becomes, what happens when an employer finds out that the employee has lied or provided false documents and what should the employer do in that situation? Many wonder, “Can I fire the employee? Do I have to fire the employee?”

We’re shooting this video to try to explain to you what’s going on in these situations. We were doing research recently for a local company that had found out that one of their employees had lied on the I-9, and we came across a case that we found very instructive on this point. In the case that we found, there was an older Hispanic woman who had worked for a grocery store for many, many years, and she had provided false documents at the time of her hiring, and later on, when she got actual work authorization to be employed in the United States, she brought that documentation to her employer.

Here we have an employer who’s been provided two different sets of identifying documents, two different sets of work authorization cards, and the employer was really left scratching their head as to what to do. They were worried that if they fired the employee, that they could get in trouble, but they went ahead and terminated her because they had a firm-wide policy, not just with I-9s, that if you lied at all during the hiring process, it could be about a crime or your identity or any other kind of issue, if you had lied about any of that prior to your starting the work, then the employer had a blanket policy of firing those employees. The employer went ahead and fired the employee.

The employee brought a claim through the union grievance procedure against the employer saying that she was being discriminated against because of her Hispanic heritage and that now that she had proper work authorization, that that should end the inquiry, that the employer should not look back to the documents that were provided previously. Now, this case went on for a while. Both sides exchanged documents. There were depositions taken, and the case was sent to the OCAHO for review, and that agency determined that the employer had properly terminated the employee.

They found that because the company had a blanket wide policy of firing people when they are caught lying during the hiring process, that it was okay for the employer to terminate the employee at this time, even though she had valid work authorization. We conveyed that information to our client here, and they’re going to make their own determination as to whether or not they terminate this employee. These are the things that you have to keep in mind.

You need to be consistent in how you treat employees. You need to be consistent with your I-9 recording procedures. You need to make sure that your I-9s are properly documented and that you have all the Ts crossed and the Is dotted. You don’t want to do anything that messes up your I-9 system.

If you find an error on your I-9, you need to document it. You don’t ever want to erase the old I-9 information. You don’t want to destroy old I-9 information. You want to document for this particular employee everything that’s happened from start to finish so that if you ever get audited by ICE that you’re going to be able to explain adequately what it is that you did with this particular employee. I would not terminate an employee without speaking with a legal counsel and making sure that you make sure everything, do everything correctly.

If you have any questions about this, be sure to give us a call at 314-961-8200, or you can email us at jim@hackinglawpractice.com.

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St. Louis Employment Immigration Attorney Jim Hacking Discusses DOJ Settlement of Discriminatory Documents Case

Earlier this week, the Department of Justice announced that it has reached an agreement with the SK Food Group, Inc, regarding allegations that the company had required immigrant workers to provide more documentation of their ability to work than the law required.

U.S. Citizenship & Immigration Services (“USCIS”) had referred the case to the DOJ after finding that SK Food required work-authorized non-U.S. citizens to provide specific work authorization documents without making similar requests to U.S. citizens.  The Immigration & Nationality Act prohibits such unfair and discriminatory practices.

As part of the settlement, SK Food agreed to pay $40,500 in civil penalties to the DOJ, to provide back pay to workers who lost wages due to the discriminatory documentary practices, to undergo training on how to not violate the INA’s anti-discrimination policies and to be subject to monitoring of its I-9 employment verification process for one year.  A copy of the settlement appears here.

The I-9 employment verification process is a sometimes murky, complicated process.  If you have questions about the I-9 process or would like assistance in auditing your I-9 forms, feel free to give us a call at (314) 961-8200.

 

St. Louis I-9 Attorney Jim Hacking Discusses Tricky I-9 Rules

An interesting article by Claudia Martorell on ILW.com points out that, as the business world continues to get smaller with growing technological connections, it is inevitable that companies sponsor foreign nationals for intermittent employment in the U.S. With these assignments becoming more and more common, it becomes harder for employers to keep track of individuals and their presence in the U.S. which puts them at risk of I-9 non-compliance.

Employers must comply with tricky I-9 rules

Visa assignments to individuals working for companies may come in regular intervals or more sporadically and may vary in duration from days, weeks or months. Intermittent employees can be assigned to work off-site and may be able to remain on a foreign payroll while working in the U.S. The Internal Revenue Code requires that American businesses be held liable for reporting all of their workers receiving a salary while employed in the U.S. even if they are also on a foreign payroll. Foreign nationals, as well as businesses, are advised to consult tax professionals because the implications could cause U.S. companies to go out of business. As part of the regulations, U.S. companies are required to keep an I-9 on file for all people working in the U.S. for the employer. This requirement applies to all workers regardless of the amount of time the worker spends in the U.S. or the type of job. Even if the employer doesn’t consider the individual a U.S. employee, if they are working in the U.S. with a work visa sponsored by the employer, then they count as a U.S. employee for I-9 purposes.

Issues with the I-9 procedure

The I-9 causes several problems for U.S. companies because of the intricate details needed in order not to have an infraction as well as the difficulty to keep track of every single employee. Many times, the employees spend a short time working in the U.S. or they enter with little notice so the company doesn’t have enough time to complete it or even run the file through an E-Verify system.

Another issue employers have when hiring intermittent foreign employees is the timeliness of reverifying their employment authorization which expires while they are out of the country. In these instances the employee’s I-9 form would say that they are absent from the country, but this is not always acknowledged. The company must continue to track the employee’s next trip into the U.S. so they can reverify the employment.

Moreover, companies tend to neglect the verificationprocess of employment eligibility. The challenge is that the employees are treated differently as foreign based employees so U.S. requirements are easily overlooked. The issue usually comes up when ICE is conducting an audit and finds something wrong with the company tax records. Companies are trying to develop better policies for Human Resources to run so that the number of I-9 and E-Verify violations are decreased.

If you have questions regarding the I-9 process in St. Louis, Missouri, contact us at 314-961-8200 or visit our contact page.

Iowa Plant Manager Pleads Guilty to Conspiring to Harbor Undocumented Immigrants for Profit

One of the nation’s largest kosher slaughterhouse managers has admitted to conspiring to harbor and recruit immigrants who entered into the country illegally. After federal agents raided the slaughterhouse, Hosam Amara fled to Israel but was recently expected to plead guilty to a count of conspiring to harbor undocumented immigrants for profit under the terms of his new plea deal.

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Amara encouraged undocumented immigrants to stay in U.S.

Hosam Amara managed the second shift on the poultry side of the Agriprocessors Inc. plant. His conspiracy charge will give him a maximum of 10 years in prison although he may be subject to federal sentencing which will call for a shorter sentence. Amara fled to Israel weeks after federal agents descended on the plant and arrested 389 workers. Amara was arrested and taken to the U.S. to face charges after unsuccessfully challenging extradition. Amara finally decided to sign a plea agreement after he admitted to conspiring with the CEO Sholom Rubashkin and other executives for at least five years prior to the raid. He had knowledge of the harboring of immigrants “knowing and in reckless disregard of the fact” that they had come to the country illegally. Furthermore, Amara admitted to encouraging and inducing them to stay in the U.S.

Desperate measures included fleeing the country

Amara reportedly complained to the CEO that there was a shortage of American workers needed to work in the plant. Amara encouraged existing foreign workers to tell their family members to come illegally to work at the plant, and they were put on a separate payroll to make it look as though they worked for a different company. Rubashkin gave Amara $4,000 to leave the country and told him to “Just go ahead and leave and forget about everything here.” Amara’s attorneys are still going to argue over several ambiguous issues such as whether Amara obstructed justice, how many immigrants he personally harbored, and what responsibility he had in the larger conspiracy between the executives of the company. While several other executives have already been prosecuted, many others fled the country as fugitives. The raid continues to be a point of outrage in the small Iowa town of 2,000 people. The immigrants were arrested and bused to a makeshift courtroom for hearings. Most pleaded guilty to identity theft charges and spent five months in prison or were deported.

If you are looking for a licensed immigration attorney, have questions regarding deportation or immigration raids, applying for a visa or attaining legal status, contact us at 314-961-8200 or visit our contact page.

Enforcement, Enforcement and …. Enforcement

The United States spent more money on immigration enforcement in Fiscal Year 2012 than on budgets for the FBI, the ATF, the DEA and the Secret Service combined. A recent report issued by the Migration Policy Institute pointed out that nearly $18 billion was spent on programs run by Immigration and Customs Enforcement (“ICE”), the U.S. Visit program, and Customs & Border Protection (“CBP”), which includes border patrol. Despite these significant expenditures, lawmakers continue to claim that the border is not safe.  At the same time, the U.S. immigration system remains broken.

As we remind our clients, President Barack Obama has deported people at a much faster rate (32,886 per month) than his two predecessors, George W. Bush (20,964 per month) and William J. Clinton (9,059 per month).  President Obama has come to be known as The Deporter In Chief for having deported more people in four years of office than George W. Bush deported in eight.  These numbers should dispel any argument that Mr. Obama is “soft on illegal immigration,” but those claims continue to be levied against the President.

Another new report provides insight into the Obama Administration’s enforcement policies.  According to an AP story, the number of ICE I-9 audits has skyrocketed under the current administration.  An I-9 is the form that employers use to make sure they have properly identified and documented their new hires.  Audits of I-9 forms have increased from 250 in 2007 to 3000 in 2012. The number of company managers arrested has also increased dramatically over the past few years.  The fines ranged from a low of $90 to a high of $394,944.  The median fine was $11,000.

Certainly, the fines associated with the ICE audits can be problematic, especially for smaller businesses.  But the larger consequences of an ICE investigation include (1) criminal prosecution of company personnel, (2) legal fees incurred while responding to the audit and (3) the potential loss of key employees.  The key ways to prevent getting ensnared in an ICE audit include proper recordkeeping, thoroughness in verifying the accuracy of documents and timely review of I-9 paperwork.

DOJ reaches settlement with SC company accused of violating anti-discrimination provisions of INA

The Department of Justice announced that they have reached a settlement with Centerplate Inc., a South Carolina based Food Service Provider. Centerplate Inc. had allegedly violated the anti-discrimination provisions of the Immigration and Nationality Act (INA). The company is one of the largest hospitality companies in the world employing over 10,000 employees nationwide.

U.S. Citizenship and Immigration Services (USCIS) referred the company to the Justice Department which began an investigation under a memorandum of agreement between the Civil Rights Division. Once the Justice Department began its investigation, they found that Centerplate had engaged in a pattern of treating work-eligible non-U.S. citizens differently than U.S. citizens. There are various processes involved in the employment eligibility verification process including E-Verify that requires specific documents from non-U.S. citizens. The company did not make the same requests for U.S. citizens therefore not treating them equally.

Once a settlement had been reached, Centerplate has agreed to pay $250,000 in civil penalties  with this being “the third highest amount paid through settlement since enactment of the INA’s anti-discrimination provision in 1986.” Centerplate has also agreed to fully compensate any victims who had low wages because of the unfair practices that had been done. They will also be under the Justice Department’s monitoring for the next three-years and must undergo anti-discrimination training. The law prohibits discrimination of workers stating, “Work-eligible applicants – citizens and non-citizens alike – deserve fair and equal treatment in the eligibility verification process,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division.  “Therefore, we will continue to vigorously enforce the anti-discrimination provision of the INA.”

More companies are being audited and penalized for discriminating against immigrants. Despite the immigration process happening now with Congress working on a new comprehensive reform plan, workers are still expected to be treated fairly and make the same wages as citizens in companies both large and small. Lawsuits by the justice department show how important it is for companies to comply with regulations and know that they will be heavily fined if they participate in any discrimination. This shows the direction in which the country is heading as the government stands firm against discrimination and wants to ensure each worker gets a fair opportunity to work their living.

If you have questions regarding applying for a visa or immigration laws, contact us at 314-961-8200 or visit our contact page.

Chipotle Mexican Grill CEO Calls for Comprehensive Immigration Reform After Becoming ICE Target

Marty Moran, co-CEO of Chipotle Mexican Grill, has begun a push for comprehensive immigration reform after the company was targeted by an Immigration and Customs Enforcement (ICE) investigation. The investigation, aimed primarily at Chipotle’s Minnesota operations, found that the more than half of the nearly 900 employees were undocumented immigrants. As a result, Chipotle fired more than 500 undocumented immigrants that had been working at the company.

After the firings, Moran has lobbied members of Congress on both sides of the aisle to change the immigration laws.  He said that the mass firings left his restaurants understaffed and that the rate of turnover at his restaurants has skyrocketed since the government investigation. He also stated that finding qualified workers has become hard after the increase in government scrutiny. Moran noted that he did not go to Congress looking for any particular solution. Rather, he just wanted a stronger legal immigrant work force for his company to choose from.

The ICE investigation of Chipotle was likely the Obama Administration’s highest visibility raid under a new, tougher enforcement policy for businesses employing undocumented immigrants. This sort of investigation, known as an I-9 audit, allows government agents to examine the records of a business to determine if the business is employing undocumented immigrants. If the business is employing undocumented immigrants, those immigrants will be fired and the business could be subject to a fine.

At the Hacking Law Practice, our immigration specialists work with employers to ensure that they understand and comply with federal immigrant employment laws. We also work with clients who have been contacted by authorities in connection with purported violations of immigrant employment laws. Get in touch with the Hacking Law Practice today at 314-961-8200 or by filling out the online contact form.

ICE Caught in Middle of Pizza Maker’s Labor Battle

Palermo Pizza, which supplies pizzas to some of the nation’s largest retailers such as Costco has found itself in a bitter dispute with an ongoing I-9 investigation and a battle with workers who are trying to form a union. In May 2012, Palermo received a petition from workers that they wanted to form a union. Meanwhile, ICE was doing an I-9 audit of the company. After a month, ICE sent Palermo a notice claiming that 89 workers needed to reverify their work authorization documents. Palermo agreed and sent out a notification to those workers and gave them 28 days to comply. Only ten days later, 75 employees were fire.

The NLRB declared that “Palermo’s conduct constituted Unfair Labor Practices (i.e.: union-busting activities) by prematurely firing those workers.” Immigration attorneys commented that this case is interesting because it is the first time when ICE has stayed an investigation. It shows the interchange between the collective bargaining unit and the ICE enforcement. There is a memorandum that exists between the U.S. Department of Labor and ICE that indicates ICE has a duty to enforce action such as I-9 inspection, but not during an ongoing labor dispute.

The effects of this case are unclear so far. It might not be very beneficial for an ICE stay of enforcement. An issuance of a notice of suspect documents is usually the last step of an ICE audit. Furthermore, because this document tells employers the people who are no longer considered authorized to work, it puts employers in a difficult situation because they have been possibly given a “sufficient notice” Under the law.

Unions are fighting back against this case especially because many fear that the firing of employees is an intimidation tactic being used by Palermo to prevent the unionizing. “Part of the labor union’s request is for the employer to reinstate the fired workers.” The problem lies with the fact that neither the union nor the NLRB has the legal authority to force the employers to comply and rehire the terminated workers.

According to some immigration analysts, while regular employees who are fired due to union activities would be entitled to reinstatement with back pay, these employees are in a different situation if they are undocumented. Undocumented workers are not entitled to anything so the NLRB would only be able to fine the employers. To continue with struggles within the labor dispute, the NLRB cannot truly determine in a fair election over whether or not to unionize because a large number of employees who would vote have been fired. Most likely this will result in Palermo Pizza being mandated to negotiation with the union for a collective bargaining agreement. This may be no more than a slap on the wrist for Palermo Pizza because the worst that could result is them being forced to allow their employees to unionize.

Employers who have relations with unions in their workplace should seek legal counsel in order to avoid labor disputes. Many regular audits may create issues that arise the questioning of legal work status of employees. In order to be informed of the risks associated with unions and the NLRB, it is important to find a lawyer knowledgeable in both immigration and labor laws. If you have further questions, contact us at 314-961-8200 To discuss your particular situation.

Audits of businesses for hiring undocumented workers on the rise | St. Louis Employment Immigration Attorney Jim Hacking

As a result of one of the Obama Administration’s new policies in aiming to approach immigration reform, more companies are being audited by Immigration and Customs Enforcement (ICE) for failing to verify the legal work status of employees. Audits of I-9 forms have increased from 250 in 2007 to 3000 in 2012. The number of company managers arrested has also increased dramatically over the past few years.

President Obama will be working with Congress on a new immigration plan. In the meantime, the president believes that companies who knowingly hire undocumented workers should be fined.” Our goal is compliance and deterrence,” said Brad Bench, special agent in charge at ICE’s Seattle office. “The majority of the companies we do audits on end up with no fines at all, but again it’s part of the deterrence method. If companies know we’re out there, looking across the board, they’re more likely to bring themselves into compliance.” While the Administration uses these record high numbers in fines and audits as a sign if their effort in managing immigration, many business owners are reluctant to jump on board with the idea as these audits are costly and time consuming for them.

First off, there is no method when choosing which companies get audited. ICE does not consider region, business or number of employees. This is a negative for businesses such as Belco Forest Products as their production is decreased and they lose several days of production as ICE audits them over other businesses that serve as their competition. Belco’s chief financial officer believes the way audits are conducted is unfair. “Why do some companies get audited and some don’t? Either everyone gets audited or nobody does. Level the playing field.”

Next comes the problem of accountability and how much are employers really responsible. According to government regulations employers are required to make each employee fill out an I-9 form that declares the employees are authorized to work in the U.S. whether or not these documents match social security cards or other information puts employers in an unreasonable situation to be required to verify correct identities.  Many small businesses do not have the time nor resources to verify each employee that applies. They are technically working within restrictions of the law by rightfully completing the I-9 form and hoping for the honesty of the employees they hire. The audits “don’t make any sense before a legalization program,” said Daniel Costa, an immigration policy analyst at the Economic Policy Institute, a Washington, D.C., think tank. “You’re leaving the whole thing up to an employer’s eyesight and subjective judgment, that’s the failure of the law. There’s no verification at all. Then you have the government making a subjective judgment about subjective judgment.”

With ICE fining large and small companies alike, the largest fine was $394,944 and the lowest was $90 with a median fine of $11,000. Franchise owners have issued statements to require hiring according to the law, but it is difficult to verify workers when an immigration system is in place that allows undocumented workers to have forged documents and no real system that is easily accessible to employers to be able to check. Business owners suggest the responsibility of proving legality of workers be left in the government’s hands. If an E-verify program was implemented in addition to the I-9 forms, audits would result in lesser fines and less employers hiring unauthorized workers. While Congress debates over the proper way to address a new immigration system, businesses are left to fend on their own and hope their workers have filled out the I-9 forms truthfully to prevent an expensive and time consuming audit from ICE.

If you have questions regarding workplace immigration audits, contact us at 314-961-8200 or visit our contact page.

DHS fines college for requiring aliens to provide too much immigration paperwork.

One of the nation’s largest community colleges is in legal trouble after allegations that Houston Community College violated the anti-discrimination provisions of the Immigration and Nationality Act (INA). The college recently entered into a settlement with the U.S. Department of Justice (DOJ)  in order to resolve the allegations. The details of the violations are related to the way that HCC completed Form I-9s when hiring non-U.S. citizens. The Department of Justice will be checking other colleges nationwide to verify that these practices are not occurring frequently.  It is unclear as to whether this scrutiny has spread to the immigration practices of colleges and universities in St. Louis.

The Department of Justice alleged that HCC required non-U.S. citizens who were applying for a job to produce specific work authorization papers that they did not require from U.S. citizens. The college will be required to pay $83,600 in civil penalties and $20,000 to a back pay fund to compensate the victims it has employed. Additionally, HCC will be on probation for two years which will include monitoring its employment eligibility practices and its training requirements.

Over the past several years, the Department of Homeland Security has dramatically increased the number of I-9 audits and the fines for technical and substantive violations. Because of spending cuts and loose implementation efforts, enforcement of INA’s anti-discrimination provisions have been ignored. Instead, the focus was on the employers’ obligations to turn away hires looking for a job without any documentation and deceptively completing the Form I-9. The HCC case represents a recent trend of enforcement of the anti-discrimination provisions. Stricter regulations, enforcements and more frequent audits will be taking place to protect non-citizen employees from being unduly targeted. The I-9 compliance program is complicated and well-meaning employers can find themselves on the wrong side of the law.  Working with an experienced immigration attorney can help you navigate these complex laws and regulations.

If you have questions regarding applying for a visa or immigration laws, contact us at 314-961-8200 or visit our contact page.