U.S. Department of Justice Increases Fines for Immigration-related Violations, Requires New I-9 Form

The U.S. Justice Department recently announced increases in penalties for immigration-related violations. While the Interim Final Rule spelling out the increases became effective on August 1, 2016, the new penalties will be applied retroactively to violations that occurred on or after November 2, 2015. The increases included violations in the following categories.

Unlawful Employment of Foreign Nationals. The penalty for knowingly hiring or continuing to employ a foreign national without work authorization increased from a minimum of $375 to $539 per unauthorized individual, and the maximum penalty increased from $3,200 to $4,313 per unauthorized individual. The penalty ranges for second and subsequent violations per unauthorized individual are significantly higher.

I-9 Paperwork Violations will now expose employers to penalties from a minimum of $110 to $216 and a maximum of $1,100 to $2,156 per individual.

E-Verify Violations. The penalty range for an E-Verify participating employer’s failure to notify of final non-confirmation of an employee’s employment eligibility, per individual, is now a minimum of $751 and a maximum of $1,502.

Unfair Immigration-related Employment Practices Other Than Document Abuse. Penalties for these practices by an employer (other than document abuse) per individual discriminated against will now be levied in a range of $445 to $3,563 for the first order, up from $375 and $3,200, while penalties for second and subsequent instances of violations will exceed these amounts substantially up to a maximum of $21,563.

Unfair Immigration-related Employment Practices (Document Abuse). Employers that request more or different documents during the I-9 Employment Eligibility Verification process than are required may incur penalties in the range of $178 to $1,782 per individual discriminated against.

Given these significant increases in immigration-related penalties, employers need to adopt and follow best practices when hiring employees and completing I-9 Employment Eligibility Verification forms. Grzeca Law Group is available to answer any questions regarding these requirements, to review I-9 policies and procedures, and to audit I-9 records if requested.

In addition, please note that a new Form I-9 will be released on November 22, 2016. This form will be required for use on all new hires and reverifications completed after January 21, 2017.

Obtaining Green Cards to Solve Staffing Shortages

Companies in a variety of industries are struggling to find solutions to staffing shortages. Every month, more than a quarter-million Americans turn 65, which is a trend that has profound workforce and economic consequences in this country. In addition, unemployment rates continue to fall, dropping to 5% nationwide in March 2016. These changes, along with other factors like slow corporate revenue growth and high labor costs, have resulted in many companies having trouble finding and hiring qualified workers for open positions.

At Grzeca Law Group, we often receive calls from companies asking us to help them solve these labor shortages by hiring a foreign national employee. Because of recent advances in green card availability, it may be possible for employers seeking workers in fields that don’t require a degree to apply for U.S. permanent residence for employees in a relatively short period of time. This could allow companies that desperately need multiple workers, but can wait a year or two, to solve some of their staffing needs. It would involve some work and pre-planning, but could bring in dozens of permanent workers in hard-to-fill positions.

In prior years, employers wishing to sponsor green cards for low-skilled positions had to wait several years. Recently, that process has been significantly decreased. Employers can now take advantage of this situation by filing permanent residence cases for groups of foreign workers. For example, if a transportation company needs a group of 20 truck drivers, they could identify these workers and begin a green card case for all 20 open positions simultaneously. If each step is approved, the employees could be in the U.S. in as little as a year and a half. This approach could be beneficial for industries such as, but not limited to, manufacturing, hospitality, construction, farming, landscaping, maintenance, etc.

Grzeca Law Group is always looking for creative solutions for our clients’ staffing problems. We will hold a free informational webinar on Thursday, July 14, 2016 at 1 p.m. Central Time to further outline this potential immigration option. Please contact our firm to learn more about how these new developments might work for your situation.

Avoiding Citizenship Discrimination: Recent Fines Highlight Need to Review Company I-9 Policies

Last week, a California farm labor contractor agreed to pay the U.S. Department of Justice’s Office of Special Counsel (OSC) a penalty of $320,000 for allegedly discriminating against U.S. permanent residents. The OSC claims that Luis Esparza Services, Inc. required green card holders to present specific documents when verifying their work eligibility because of their citizenship status, in violation of the Immigration and Nationality Act.

Under the law, employers must verify an employee’s identity and work eligibility on Form I-9 within three days of hire. However, employers cannot tell employees which documents to present. Telling employees who are not U.S. citizens that they must present certain documents to show their work eligibility during the hiring process is citizenship status discrimination. For example, when discovering that an employee is a U.S. permanent resident, the employer cannot require that employee to produce his or her green card to establish work eligibility. It’s important to note, though, that only U.S. citizens, permanent residents, refugees and asylees are protected from citizenship status discrimination; this law does not extend to nonimmigrants (such as employees in H-1B status) or individuals who are undocumented.

Although it’s not clear whether Luis Esparza Services, Inc. was enrolled in E-Verify, OSC appears to be stepping up its enforcement efforts in part due to access to E-Verify statistics. Based on a 2010 agreement, U.S. Citizenship and Immigration Services refers discrimination matters to the OSC along with relevant information from the E-Verify system. Therefore, if an employer always indicates that U.S. permanent residents verify their employment eligibility by presenting their green cards, this can raise a red flag in E-Verify prompting an investigation.

Particularly because of this increased enforcement, Grzeca Law Group encourages employers to have a formal I-9 policy in place, as well as standard operating procedures if the company is enrolled in E-Verify. In addition, employers should regularly train everyone who completes I-9s and enters information into E-Verify to ensure that they aren’t inadvertently violating the law. It can be tough to walk the line between ensuring that employees are eligible to work while also being careful not to discriminate through improper document requests. However, having written policies and a track record of training can show an employer’s good faith effort to comply with the regulations.

Please contact us at clients@grzecalaw.com with any questions about I-9 compliance or preventing inadvertent citizenship status discrimination at your company.

How Obama’s Immigration Executive Action Will Affect Your Businesses

by Jerome Grzeca

After President Obama’s immigration executive action announcement last week, companies across the country are wondering how their hiring practices will be impacted in the short and long term. While the turbulent political seas get calmer in the weeks to come, employers should immediately review their internal policies with respect to the employment eligibility verification process.

Frustrated by the legislature’s unwillingness to pass comprehensive immigration reform, President Obama announced last week that he was taking Executive Action to update our country’s immigration policies in various areas. The announced changes will take effect in the next several months and the details will continue to unravel on a daily basis. This Executive Action will have a major impact on U.S. employers, creating more opportunities for some highly skilled immigrants and forcing other businesses to reevaluate their employment policies.

Work Authorization for Undocumented Immigrants

The most sweeping immigration policy change is for individuals who have been in the country for over five years with United States citizen or Lawful Permanent Resident children. They will be allowed to obtain a work permit if they meet certain criteria under a program called Deferred Action for Parents (DAP). This will help shield from deportation up to 5 million undocumented individuals in the United States and allow them to obtain Social Security numbers and, at least in the state of Wisconsin, driver’s licenses. In addition, the current Deferred Action for Childhood Arrivals (DACA) program will be expanded to remove the upper age limitation (which was previously 31-years-old), allowing more adults to qualify.

Some employers are likely to encounter a wave of workers, who previously identified themselves as work authorized, suddenly indicating that they were undocumented and are now applying or have applied for a deferred action program. These workers will want to present new documents to prove their identity and work eligibility. If an employer decides to forgive one such instance and accept the newly presented documents, this will set a precedent for the rest of these cases.

Of course, employers must complete Form I-9 to verify the employment authorization of all new hires. But some employees give false information and present fraudulent documents for I-9 purposes, and this may come to light if workers, who get valid work documents through this Executive Action, want to update or correct their files after receiving their work permits. Businesses should be reviewing their employment policies before they are faced with such predicament, so they can act consistently if they discover that an employee has previously lied on their employment application or has presented fraudulent documents.

Furthermore, since employers are prohibited from employing (or continuing to employ) a worker who they know is not authorized to work in the United States, companies cannot continue to employ workers who indicate that they are undocumented, even if they are applying or intend to apply for a deferred action program. Until they have their work permit in hand, companies must terminate the employment of any individual found to lack work authorization. However, the company can probably hire the employee back once he or she receives their work permit. Again, businesses should review their internal policies and contact an attorney to navigate complex situations.

Other Business Immigration Changes

Several other positive and long overdue immigration changes are also being rolled out, many of which will affect employment-based petitions. The changes to be implemented by the President that will help businesses include:

  • Helping individuals who are waiting for an employment-based green card to get work and travel documents for themselves and their family members while they are caught in backlogs;
  • Reducing the wait time for employment-based green cards;
  • Expanding the length of time that new graduates can work pursuant to their student status if they are in a STEM (science, technology, engineering or mathematics) field;
  • Updating and clarifying multiple employment-based processes; and,
  • Creating new options for investors and entrepreneurs.

Artesia

When I first agreed to go to Artesia, I had no idea what I was walking into. I knew the background of the facility and what was happening there, but being an attorney there is something completely unique and heartbreaking. The on the ground team faces a myriad of ups and downs every day and still continues to represent clients, fight for their release, and win cases. As I write this, they are currently 10 for 10 in asylum cases that they have represented through to the merits (final) hearing. The woman who won her case this week stopped in to the project headquarters with her two children to say good bye before she went on her journey. Everyone clapped for her and she said “free!” It was a very powerful moment because the project and the volunteer attorney who tried the case was able to give this woman a new life after so many traumas in her home country. After being here for only a few days, I have immense respect for those who have been here for months and still have the energy to keep going.

After a three hour orientation on Sunday night, we were immediately put to work. The previous Thursday, the day that President Obama announced his executive action, eleven clients of the AILA Pro-Bono project were woken up at 11pm and told that they were being transferred to another facility. They were forced to gather their things and their young children and move through processing. There was no notice or directions given. The women were unable to call their attorneys or anyone in their family to let them know that they were being transferred. Many thought they were being deported and were terrified to be sent back to the situations that they had escaped to come to the United States.

The women were eventually not transferred, but not until after a traumatic experience for them and their children. When I arrived, our first job was to help draft declarations for these women to document their experience. Many of the women I met with were completely terrified that at any moment ICE would come and take them away. The detention facility here in Artesia will be closing down by the end of the year, so the reality that many of these women and children will be moved to a different location in Texas is on everyone’s mind. Many of these women have been in the facility since the summer and are scared of moving to a completely new place. They are detained, but at least they were able to connect with others, build relationships, and learn the rules of their detention location in Artesia. Without that familiarity, they felt re-traumatized and scared about their uncertain futures. In response to this pending move, the Artesia Pro Bono Project has focused on bond submissions and scheduling bond hearings in order to help as many women and children bond out as possible before the facility is shut down.

During my time here I have had the pleasure of seeing quite a few clients of the project receiving reasonable bond amounts and being able to leave the facility. Winning a bond hearing and receiving a low amount is not easy, however. The government attorneys frequently offer extensive pushback and it is only through strong advocacy efforts both in and out of the courtroom that individuals are being able to live free while they are waiting for final decisions in their cases. These individuals are not threats to the community. They are women and children who fled their homes and left their entire lives behind because of fear. Fear for their safety and for the safety of their children. The more I interact with these women, the more I realize that the idea of detaining them for coming here looking for safety and security, is outrageous and wrong. Almost all of them have positive credible fear interviews and the struggles they have overcome to leave their countries and terrible situations are astonishing. Instead of locking these women and children up, we should be helping them move forward with their lives and offering them a security that they have never known.

Amber L. Raffeet

Artesia – Los Niños

I think that one of the most difficult things to see at the detention facility in Artesia are the children. There are so many of them there that are sick and ailing while their mothers struggle to continue with their cases and win their claims. I met with one woman who was bawling and told me that she was thinking of just giving up her case because she truly believed that if she did not leave the detention facility soon, her infant daughter would die.

Her daughter had a very high fever and an extremely bad cough. During the meeting, I noticed that her face was red and her hair was wet with sweat. The mother had taken her to the doctors inside the facility several times, but her daughter was not improving and was also refusing to eat. This mother fled horrific conditions in Guatemala where she faced violence and threats on a daily basis. Despite all of the terrible things that happened to her in Guatemala, she was still willing to leave if it meant, in her mind, saving her daughter’s life. We were able to tell her to hold on because her bond packet was almost ready for submission. She has her hearing next week and will hopefully be able to receive a reasonable bond and wait for the conclusion of her case outside of detention.

This story is just one of many that I have heard while I have been in Artesia. Each mother that I spoke with had their own reasons for leaving their countries and making the dangerous journey to the United States. They all had a common theme though; they were hoping to escape violence and save themselves and their children. The stories they have to tell are horrific and the amount of violence that these children have witnessed is unimaginable. During their mothers’ legal meetings, the children watch movies in Spanish that the ICE officers have put on for them. One of the movies in the rotation is “Frozen”. The movie’s most famous song is “Let it go”, which translated into Spanish in the movie is “Libre Soy”. Libre soy in English means “I am free”. I cannot count the number of times I heard this song each day as Frozen is so popular and the kids request it.  How eerily heartbreaking it is to sit one on side of a partition in a windowless area with kids singing that they are free in the middle of a detention facility. 

Amber L. Raffeet

Revision of USCIS I-9 Handbook for Employers

Earlier this year, in conjunction with the release of the new Form I-9, U.S. Citizenship and Immigration Services published a revised version (rev. 3/8/13) of the M-274 Handbook for Employers.  Subsequently, without notice, USCIS released another version of the M-274 with a revision date of 4/30/13, but it is not clear when this new version of the M-274 was made available to the public.  Therefore, when consulting the Handbook to answer questions regarding I-9 Employment Eligibility Verification procedures, be sure to use the 4/30/2013 version, which is available online at http://www.uscis.gov/sites/default/files/files/form/m-274.pdf.

A few changes worth noting in the 4/30/13 version of the Handbook are as follows:

On pages 4 and 5, USCIS has added guidance regarding the entry of full legal names in Section 1 of the I-9, including directions to employees for recording two last names, only one name, and no middle initial, and for completing the “Other Names Used” field.  The new Handbook also clarifies that if an employee attests to being an “Alien Authorized to work,” the employee may provide either the Alien Registration number or the Form I-94 Admission number.  Employees who provide their “A-number” do not need to provide their passport information.

On page 6, USCIS confirms that common abbreviations for document titles and issuing authorities may be used in Section 2 of the I-9, such as “DL” for a driver’s license and “SSA” for the Social Security Administration.

Question 18 on page 43 in the 3/8/13 version of the Handbook that dealt with laminated and unsigned Social Security cards has been eliminated from the 4/30/2013 version.  That Question and Answer read as follows:

Q.  If my employee presents a Social Security card that is laminated or is unsigned, may I accept such a card as evidence of employment authorization?

A.  You may accept a laminated or unsigned Social Security card as long as the card reasonably appears to be genuine and to relate to the person presenting it.  However, the Social Security Administration advises cardholders not to laminate Social Security cards.  Metal or plastic reproductions of Social Security cards are not acceptable for Form I-9 purposes.

Prior versions of the Handbook had stated that employers could accept laminated versions of Social Security cards unless the back of the card stated that it could not be laminated.  However, the removal of this question leaves unclear whether employers may accept unsigned cards.  Therefore, clarification on this issue is being requested from USCIS.

On page 44, the answer to Question 21 in the new Handbook version clarifies that List A under I-9 Section 2 has three sections for employers to provide information, rather than two sections.

If you have any questions regarding Form I-9, please contact our office.