Montana Passes E-Verify Mandate for All Employers

Posted on May 21, 2013 by D Mathew

The Montana Senate passed with amendments House Bill 297, “An Act Making Employment of Unauthorized Aliens Unlawful under State Law”, which will require all employers to verify the work eligibility of new hires through the federal E-Verify system beginning October 1, 2013.

Employers would not be required to verify the work eligibility of independent contractors.

While the bill does not authorize a penalty against employers who do not register with and use the E-Verify system, it does provide penalties for employers who knowingly employ an unauthorized worker. Those penalties include suspension of the employer’s business license.

Employers that used the E-Verify system to verify worker eligibility have an affirmative defense against a charge that they knowingly employed an unauthorized worker.

(Montana HB 297, transmitted to Governor for signature on April 26, 2013)

 


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House Proposes Piecemeal Immigration Approach

Posted on May 16, 2013 by T Alex

The U.S. House of Representatives has begun rolling out its immigration-reform legislation one issue at a time as the Senate announced that its comprehensive approach (S. 744) is scheduled to begin committee markup May 9, 2013, the first step toward a vote.

Rep. Robert Goodlatte, R-Va., the chairman of the House Judiciary Committee, which handles immigration-reform legislation, announced on April 26 the first two of a proposed series of immigration-related bills. H.R. 1772 mandates employer use of the E-Verify employment verification system, and H.R. 1773 establishes a new temporary agricultural guest worker program.

Changes to E-Verify

The Legal Workforce Act would replace the current paper-based I-9 system of verifying newly hired employees with an electronic system. There is some confusion about the integration language in the Senate proposal. The House bill would make E-Verify mandatory within two years of the measure’s enactment, as opposed to five under the Senate’s plan, although both phase in businesses by size. Unlike the Senate bill, the House legislation would require certain employers to use E-Verify to check existing employees’ work authorization within six months of the bill’s passage. These include employers in federal, state or local government, those that employ workers with security clearances and certain federal contractors. Employers would be granted a safe harbor under the bill if they show they used the E-Verify program in good faith.


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New Immigration Bill Mandates E-Verify

Posted on May 13, 2013 by T Alex

The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, filed April 16, 2013, lays out a 13-year path to citizenship for most of the 11 million people living in the United States illegally, allocates billions of dollars to be spent on border security, creates new legal guest worker programs for low-income jobs and farm labor, mandates the use of E-Verify for most companies hiring new workers and expands overall immigration to the U.S. by 50 percent in the next 10 years.

The bill proposes ways to clears up green card backlogs, raises the cap for H-1B workers and creates a new “W-visa” program for lower-skilled workers among many things.

The bill also requires all employers to use the E-Verify electronic employment verification system, phased in over a five-year period. Large employers with more than 5,000 employees would be phased in within two years.

Every noncitizen would be required to carry a “biometric work authorization card.”

Enhancements to the E-Verify system would include a photo-matching tool and the capability for employees to “lock” their Social Security numbers in the system to prevent others from using them. In order for the noncitizen to be cleared for a job, the picture on the card presented by the employee to the employer will have to match the identical picture the employer has in the E-Verify system. Employers would be required to certify that the photograph presented in person matches the photograph in the system.

The release of the Senate plan is the first shot of what’s expected to be a contentious months-long debate. Hearings have been scheduled before the Senate’s Judiciary Committee and a committee vote is expected in May. The bill would then go on to the full Senate. The prospects in the House are uncertain, even as a bipartisan group of House members are working on their own version of a comprehensive immigration bill.


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USCIS will no longer accept previous versions of Form I-9, Employers must use new I-9

Posted on May 7, 2013 by T Alex

U.S. Citizenship and Immigration Services (USCIS) reminds employers that beginning today 05/07.2013 they must use the revised Form I-9, Employment Eligibility Verification (Revision 03/08/13)N for all new hires and re-verifications. All employers are required to complete and retain a Form I-9 for each employee hired to work in the United States.

The revision date of the new Form I-9 is printed on the lower left corner of the form. Employers should not complete a new Form I-9 for existing employees, however, if a properly completed Form I-9 is already on file.

A Spanish version of Form I-9 (revision 03/08/13)N is available on the USCIS website for use in Puerto Rico only. Spanish-speaking employers and employees in the 50 states, Washington, D.C., and other U.S. territories may use the Spanish version for reference, but must complete and retain the English version of the form.


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Colorado Becomes Ninth State to Prohibits Use of Consumer Credit Information in Employment

Posted on May 3, 2013 by T Alex

Colorado recently became the ninth state to prohibit employers from using credit information for employment purposes. In the last few years, eight other states have also passed laws which, subject to few exceptions, regulate ban employers’ ability to use credit information in making employment decisions. The nationwide trend towards banning employers’ use of credit history is expected to continue at both the state and federal level. Similar legislation has been introduced in several states, including Florida, New Jersey, New York and Pennsylvania.

Under Colorado’s new law, the key question a covered employer will have to ask before requesting and using consumer credit information for an employment purpose is whether the information sought is substantially related to the employee’s current or prospective position. A covered employer cannot require an employee to consent to a background check containing credit information unless: (1) the employer is a bank or financial institution; (2) the report is required by law; or (3) the report is “substantially related to the employee’s current or potential job,” and the employer has a bona fide purpose for such information, and this information is disclosed in writing to the employee. Further, such information can be used only if it is “substantially related to the employee’s current or potential job.”

If an employer relies, in whole or in part, on consumer credit information to take adverse action against the applicant or employee, the employer is to disclose that fact, and the particular information upon which the employer relies, to the applicant or employee. The employer is to make the disclosure to an employee in writing or to an applicant using the same medium as that of the application. Employers should note that these obligations are in addition to the employer’s disclosure and notice requirements under the federal Fair Credit Reporting Act (FCRA). Moreover, nothing in the new Colorado law imposes any liability on a person, including a consumer reporting agency, for providing an employer with consumer credit information.

The law takes effect from  1st of July 2013.


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Stakeholder Teleconference Invitation – Revised Form I-9

Posted on April 29, 2013 by T Alex

U.S. Citizenship and Immigration Services (USCIS) invites interested individuals to participate in a stakeholder teleconference on Tuesday, May 7, 2013 at 2:30 p.m. (Eastern).

On March 8, 2013, USCIS published a Federal Register notice addressing revisions to Employment Eligibility Verification Form I-9 and the form’s instructions. The revisions include:

  • Expanding the form to two pages.
  • A redesign that ensures the form is in line with current design standards.
  • Changes in font and font size, and placing the instructions in a one-column format.
  • Expanded instructions that now more clearly describe:

◦   Information employees must enter in Section 1;

◦   Employers’ responsibilities for Section 2;

◦   Employer responsibilites, including when reverification is necessary, for Section 3.

Beginning May 7, 2013 all employers are required to use the most recent version of the Form I-9. USCIS subject matter experts will discuss and answer questions about the revised Form I-9 during the stakeholder teleconference. For more information about the revised Form I-9, please visit I-9 Central on our website.


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I-9 Audits on the Rise

Posted on April 23, 2013 by T Alex

I-9 audits have seen a rapid increase in number along the years with audits scaling from next to none in 2004 to over 3000 in 2012.Employers should pay attention accordingly, as the fines for substantive and procedural violations of the Immigration Reform and Control Act (IRCA) can add up quickly, Daniel Brown, an attorney with Fragomen in Washington, D.C., said on March 12, 2013, at the Society for Human Resource Management’s 2013 Employment Law & Legislative Conference.

For knowing violations, IRCA penalties range from:

*$375-$3,200 for each unauthorized employee for a first offense.

*$3,200-$6,500 per unauthorized worker for a second offense.

*$4,300-$16,000 per worker for a third offense.

For paperwork violations, the fines range from $110 to $1,100 per violation.

When the government assesses penalties, the biggest factor it examines is the percentage of reviewed I-9 forms that have errors, said Brown, who is a former counselor to the assistant secretary at the U.S. Immigration and Customs Enforcement (ICE). If more than 50 percent have paperwork violations, for example, the paperwork fines typically are $900 per I-9, which may be adjusted up or down, he added.

I-9 audits used to be random, but now they are more often the result of disgruntled former employees complaining to ICE.

Also, ICE likes to go after companies connected with the nation’s critical infrastructure, such as those that run power plants, food-service businesses, those connected to airports, or anything else that seems like “homeland security writ large,” Brown said.


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Justice Department Settles Immigration-Related Discrimination Claim Against Property Management Company

Posted on April 9, 2013 by T Alex

The Justice Department today reached an agreement with a nationwide residential property management firm headquartered in Dallas, resolving claims that the staffing company violated the anti-discrimination provision of the Immigration and Nationality Act (INA).

In a charge filed with the department, a lawful permanent resident alleged that after working for Milestone for three years, the company improperly demanded that he produce an unexpired lawful permanent resident card, despite the fact that he had presented proper work authorization documentation at the time of hire.   The company discharged the worker when he was unable to present the document.   The department’s investigation revealed that the company had also improperly reverified the documentation of other lawful permanent residents when their documentation expired and that it did not reverify expired documentation of U.S. citizens. The anti-discrimination provision generally prohibits treating employees differently in the employment eligibility verification and reverification processes based on citizenship or national origin unless required by law.

In response to the Justice Department’s investigation, the company immediately reinstated the charging party and provided full backpay for his six weeks of lost wages.   Milestone cooperated with the department’s requests for information regarding its employment authorization verification processes throughout the investigation, and took proactive steps in collaboration with the department to provide corrective training for Milestone employees before the investigation had been concluded.

Under the terms of the agreement, the company agreed to pay $20,000 in civil penalties to the United States, undergo Justice Department training on the anti-discrimination provision of the INA and be subject to monitoring of its employment eligibility verification practices for a period of three years.


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Kansas City construction company owners indicted for money laundering, harboring illegal aliens

Posted on April 1, 2013 by T Alex

The owners and managers of a construction framing company in Spring Hill, Kan., were indicted in federal court Monday and charged with a wide variety of criminal violations related to hiring and harboring illegal aliens for the company.

These indictments resulted from an investigation led by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI), in conjunction with the Internal Revenue Service (IRS), the Clay County, Mo., Sheriff’s Office (CCSO), and the Johnson County, Kan., Sheriff’s Office (JCSO).

The indictment alleges that the company knowingly employed illegal aliens to obtain commercial advantage and private financial gain. The company issued checks to illegal alien crew leaders, who in turn cashed those checks and paid their illegal alien crew-members in cash.

“The indictment alleges the defendants devised a scheme to lower their operating costs and boost their profits by employing undocumented workers,” said U.S. Attorney Barry Grissom. “The company did not pay for Social Security, workers compensation or unemployment insurance benefits for those employees.”

The investigation began in March 2012 when criminal investigators with both HSI and CCSO received information the owners employed illegal alien workers. At the beginning of the investigation in March 2012 the company employed between 25 and 30 crews consisting of five or six workers per crew.

Upon conviction, the aforementioned alleged crimes carry the following penalties:

  • Conspiracy to harbor illegal aliens: A maximum penalty of five years in federal prison and a fine up to $250,000.
  • Harboring illegal aliens: A maximum penalty of five years and a fine up to $250,000 on each count.
  • Conspiracy to commit money laundering: A maximum penalty of 20 years and a fine up to $250,000.

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Justice Department Reaches Settlement with Georgia Company to Resolve Immigration-related Unfair Employment Practices

Posted on March 25, 2013 by T Alex

The Justice Department announced today that it reached an agreement with a Georgia based company, resolving allegations that the company violated the anti-discrimination provision of the Immigration and Nationality Act (INA).

The Justice Department’s Civil Rights Division initiated its investigation of the company in 2012, based on a claim by an individual who called a department hotline and complained that the pecan-producing company requested specific documentation from her to establish her work authorization.   The department’s investigation concluded that the company discriminated against work-authorized non-U.S. citizens by requiring specific and more documents than necessary from them when completing the Form I-9, Employment Eligibility Verification, while not imposing similar requirements of U.S. citizens.

Under the terms of the agreement, the company will pay $500 in civil penalties and be subject to monitoring of its employment eligibility verification practices for a period of one year.   Designated company officials have already completed training by the Justice Department on the anti-discrimination provision of the INA.   The case settled prior to the Justice Department filing a complaint in this matter.


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