Florida Employment Law Blog : Florida Employment Lawyer & Attorney : Epstein Becker Green Law Firm : Immigration, Discrimination, Labor, FLSA : Serving Miami, Fort Lauderdale, Florida

U.S. Citizenship and Immigration Services (USCIS) today posted an

informational video on its Web site that provides an overview of the agency’s Systematic Alien Verification for Entitlements (SAVE) program. The new video describes the immigration status verification process and explains how federal, state, and local benefit-granting agencies can apply to participate in the program. USCIS encourages agencies to view the video to determine if the SAVE program is appropriate for their immigration status verification needs. The SAVE program is an intergovernmental initiative that assists benefit-granting agencies in determining an applicant’s immigration status. The program ensures that only entitled applicants receive federal, state or local public benefits and licenses. Additionally, SAVE offers eligible agencies an efficient, secure and cost-effective method of immigration status verification. Specifically, the program checks the applicant’s information against millions of federal database records. Currently, more than 300 agencies are enrolled in the SAVE program. The video, along with additional information about the SAVE program, is available at www.uscis.gov/SAVE or by submitting a request to SAVE.help@dhs.gov (write “SAVE Informational Video” in the subject line.

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On October 6, 2009, the Department of Homeland Security (DHS) announced that it will issue a final rule, to be published in the Federal Register on October 7, 2009, rescinding the embattled “No-Match” regulation.  As we have previously reported, DHS is of the opinion that the receipt of a “No-Match” letter provided constructive knowledge to an employer that an employee may not be authorized to work. This rule would have created a “safe-harbor” procedure for employers to respond to “No-Match” letters, thus clearing employers from any knowing hire liability for that worker. 

DHS first announced its intention to rescind the “No-Match” rule on August 19, 2009, through the publication of a proposed rule. This action was the culmination of months-long federal litigation concerning whether or not the rule had been lawfully promulgated and whether or not it was constitutional.

In taking this step, effectively abandoning the litigation, DHS stated as follows: “After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.”

Employers beware, upon publication of the rule we fully expect the Social Security Administration to begin issuing new “No-Match” letters and DHS will still consider the receipt of a “No-Match” letter as an indicator of unauthorized employment.  Although there will be no “safe-harbor,” employers should have a plan and procedure in place to address the receipt of a “No-Match” letter. Having a proper plan in place not only helps an employer maintain the integrity of its workforce from an immigration perspective, but also assists an employer in meeting its W-4 reporting requirements with respect to Social Security withholdings.

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On September 3, Hector A. Chichoni will be teaching the webinar Employers Targeted in Immigration Crackdown: How to Audit Policies Before ICE Does. 

Hector has counseled employers on the proper use of the new I-9, work site enforcement, "no-match" problems, and compliance with state and federal immigration laws

Thursday, September 3, 2009
11:00 a.m. to 12:30 p.m. Eastern
10:00 to 11:30 a.m. Central
9:00 to 10:30 a.m. Mountain
8:00 to 9:30 a.m. Pacific

On July 1, 2009, U.S. Immigration and Customs Enforcement informed hundreds of U.S. businesses that agents would be auditing their I-9s and other hiring records. And just this April, the Obama administration issued new guidelines for ICE agents to change the enforcement focus to employers.

Learn what action you can take NOW to keep ICE from targeting your organization and your first course of action if your company is audited by participating in the all-new HR Hero audio conference, Employers Targeted in Immigration Crackdown: How to Audit Policies Before ICE Does.

Hector A. Chichoni will show you the specific red flags agents are looking for in ICE audits, as well as:

The tell-tale signs ICE may be targeting your organization
Your first recourse if enforcement agents arrive on site
The potential consequences when ICE agents audit your records
Typical fines and other actions immigration enforcement agents are taking against violators
Your legal options if fines are levied against your organization
Your first course of action if you have workers who can’t prove they’re authorized to work in the United States
How ICE's new audit strategy could impact whether E-Verify becomes mandatory for all employers
What employers can expect from future immigration compliance and enforcement initiatives
What every employer needs to know about immigration reform efforts

All receiving this information will be entitled to a 20% discount on the audio conference. To receive the discounted rate, you will need to call HR Hero customer service department at 800-274-6774 and mention code M899.

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WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire. USCIS will update Form I-9 when the extension is approved. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.

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On January 30, 2009, U.S. Citizenship and Immigration Services ("USCIS")announced that the effective date of the new Form I-9 (Employment Verification Form) has been delayed for 60 days, until April 3, 2009.

The new Form I-9 was scheduled to take effect on February 2, 2009. The comment period on the new form now runs until March 4, 2009. The temporary extension is designed to provide the DHS with an opportunity to further consider the interim final rule: “Documents Acceptable for Employment Verification” which was published by the USCIS on December 17, 2008. The USCIS has also announced that the old Form I-9 should continue to be used until at least March 4, 2009.

All employers and HR personnel should take note.  Once in effect, old versions of the form cannot be used.

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Today we received the new employment verification From I-9, edition date 06/16/08. Be aware that no previous edition of the same form will be accepted. Please, also note there are several important changes made to the Form I-9 process:

• Five documents have been removed from List A of the List of Acceptable Documents: Certificate of U.S. Citizenship (Form N-560 or N-561), Certificate of Naturalization (Form N-550 or N-570), Alien Registration Receipt Card (I-151), Unexpired Reentry Permit (Form I-327), Unexpired Refugee Travel Document (Form I-571);
• One document was added to List A of the List of Acceptable Documents: Unexpired Employment Authorization Document (I-766);
• All Employment Authorization Documents with photographs have been consolidated as one item on List A: I-688, I-688A, I-688B, I-766;
• Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number in Section 1 of the Form I-9, unless he or she is employed by an employer who participates in E-Verify;
• Employers may now sign and retain Forms I-9 electronically. See instructions on page 2 of the Form I-9.

All employers in Florida should switch to the new form ASAP and used moving forward regardless of any time line provided by the government.  This Will avoid any confusion later on.  The new Form I-9 can be downloaded by clicking here.

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This week, the House Immigration Subcommittee will hear comments and discuss the challenges and problems that mandatory nation-wide EEVS program could pose.

EEVS, a deeply flawed program, is the core center of the “SAVE Act.” The SAVE Act  was introduced in Congress in November of 2007 by Reps. Heath Schuler (D-NC) and Tom Tancredo (R-CO).

The EEVS proposal would require every employer in the United States to verify the employment eligibility of their workers through the EEVS database. More importantly, the EEVS proposal requires both citizens and non-citizens alike to obtain and present newly proposed documents such as a Social Security Card and Driver’s License that are compliant with the Real ID Act in order to work or continue working in the US. In practical terms, it means that everyone in the US would have to obtain “permission” from the government to get a job. Further, EEVS would require every person in America to carry a new and improved biometric Social Security card containing biometric information that could include fingerprints, retina scan and even, DNA. Unfortunately, the hopes of many government officials is that EEVS will serve as a magic solution to undocumented immigration.

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Between February 21 and 22 of 2007 three executives of Rosenbaum-Cunningham International, Inc. (“RCI”), a Florida-based national cleaning contractor, were charged with conspiracy to defraud the United States and to harbor illegal aliens for profit. They were also charged with evading payment of federal employment taxes.

The 23-count indictment charged that these individuals operated a cleaning and grounds-maintenance service that contracted with theme restaurant chains and hospitality venues throughout the United States and staffed the cleaning crews with undocumented foreign nationals. According to the indictment, the federal authorities charged the three janitorial company executives of embezzling more than $18.6 million by failing to collect and pay federal income, Social Security, Medicare and federal employment taxes on the wages paid to its workforce, hundreds of illegal immigrants from Mexico, Central America, and Haiti. RCI allegedly hired illegal immigrants, paid them in cash and never required them to provide identification or fill out job applications or tax forms.

RCI’s president, vice president and controller were arrested along with more than 200 of the Florida-based company’s employees at 64 locations in 18 states and the District of Columbia, in a sweep by Immigration and Customs Enforcement (“ICE”). The employees were arrested as they were starting or leaving their shifts. According to ICE leadership, the sweep resulted from a 20-month investigation conducted by ICE agents sparked by the arrest of an illegal alien in Grand Rapids, Michigan.

One of the most interesting aspects of this case is that RCI clients (2001-2005) included House of Blues, Planet Hollywood, Hard Rock Café, Dave and Busters, Yardhouse, ESPN Zone and China Grill. It appears there is no evidence that any of the companies were complicit. In the mean time, RCI has ceased operations as of February 22, 2007.

Until recently, employers who were targeted for a raid usually faced only civil fines and deportation of their illegal workers. However, since 2006, ICE has focused more and more on enforcing criminal penalties including felony charges that have lead to huge fines and asset seizures. Additionally, employers have been charged with criminal violations such as money laundering, alien harboring, illegal alien employment and wire fraud. The DHS has also stated that it hopes increasing the harshness of the penalties encourages employers to comply with laws against hiring illegal workers.

The years 2006 and 2007 have not only seen an increase in the scope of employer liability, but also an effort by the government to clarify employers’ duties when it comes to resolving discrepancies in an employee’s eligibility to work in the United States. Specifically, ICE proposed a rule in June 2006 that expanded the notion of constructive knowledge as it relates to an employer’s liability that is found to have hired illegal workers. It also described “safe-harbor” procedures for employers who receive a “no-match letter” from the SSA or DHS.

Related to the notion of constructive knowledge, there appears to be a trend towards seeking employer liability even where its contractors or sub-contractors hire illegal workers. Current regulations state that an employer who knowingly or with reckless disregard contracts to obtain the labor of an unauthorized alien will be considered to have hired the employee. Incredibly, in terms of raids already conducted by ICE, in spite of the many industries targeted by ICE existing in our state (i.e. construction, agriculture, hospitality, retail, etc.) Florida has not been an “active” place. We do not hear much about ICE in Florida. But, just as RCI, simply put, employers should not make the mistake of assuming that ICE will not come and raid them.  Employers should be prepared for when it comes. Our state has too many industries which are the focus of ICE’s interest. Given the focus on employer liability for hiring illegal workers, there are various ways employers can proactively protect themselves against not only government investigations and ensure compliance with potential new laws and regulations, but also from service providers who may be hiring undocumented workers. Employers cannot afford neglecting these important tasks.

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