Immigration Compliance


By: Dawn M. Lurie, Alexander Madrak and Greg Morano*

United States Citizenship and Immigration Services (USCIS) issued automatic extensions of Employment Authorization Documents (EADs) for Temporary Protected Status (TPS) beneficiaries from Nicaragua, Honduras, Haiti, and most recently, El Salvador. Employers should be prepared to recognize these automatically extended EADs and correctly handle the resulting influx of Form I-9 updates.

What’s the Latest on TPS?

While the government is back in business, the path to immigration reform seems as tumultuous as ever. The chances to reverse the termination of TPS are slim, and the impact is slowly beginning to sink in for TPS beneficiaries and employers alike. An Immigration Forum Fact Sheet on TPS notes: “Recent data estimate that TPS holders from El Salvador, Honduras, and Haiti contribute a combined $4.5 billion in pre-tax wages or salary income annually to our nation’s gross domestic product.”

What Do Employers Need to Know?

Continue Reading Auto Extension Influx: Automatic Extension of El Salvador TPS EADs

  1. By: Mahsa Aliaskari

Update: At midnight the federal government shut down.  We will keep employers updated as details of immigration related closings and the negotiations in Congress become available.

Seyfarth Synopsis: As we wait to hear the fate of yet another temporary extension to continue funding the government after midnight on Saturday January 20th – employers should know how a shutdown may impact processing of immigration petitions and immigration programs.

Continue Reading Déjà vu – Government Shutdown and Impacts on Immigration

By: Dawn M. Lurie

Seyfarth Synopsis: “ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”  Referring to Immigration and Customs Enforcement’s (ICE) early morning raids at nearly a hundred franchisee convenience stores across the nation, the ensuing public comments from agency officials confirm that 2018 will be a year of increased immigration enforcement.  ICE investigations can result in the arrest of employers and employees and the imposition of large-scale fines; under the current Administration, though, it’s not only ICE that companies need to consider.  Following the “Buy American, Hire American” Executive Order, a myriad of reinvigorated agencies that span all parts of the government have increased immigration-related oversight.  Employers should proactively prioritize addressing immigration compliance. 

Continue Reading Following a Long Thaw, ICE Returns with Increased Worksite Enforcement

Seyfarth Synopsis: With a record $95 million plea deal for I-9 immigration violations following a six year investigation, the outcome for a Pennsylvania company with operations nationwide serves as a reminder of the federal government’s unwavering commitment to investigating and enforcing of immigration laws. A look at the facts behind the headlines helps us understand where, when and why company general counsel and the C-suite should take a proactive approach to immigration compliance. If nothing else a judgment of $95 million solidifies that the Form I-9 is not really “just” a simple form, and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).

Following a six year investigation, the U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) unit issued a statement confirming a guilty plea on September 28, 2017 by Asplundh Tree Experts, Co. (Asplundh) for unlawfully employing undocumented workers. As part of the plea agreement, Asplundh received a sentence to pay a forfeiture money judgment in the amount of $80 million dollars, abide by an ICE HSI Administrative Compliance Agreement, and pay an additional $15 million dollars to satisfy civil claims arising out of their failure to comply with immigration law. Prior to this, the often touted “record settlement” included IFCO Systems North America Inc.’s (IFCO) $20.7 million dollars from 2006.

While the facts of this case reveal the company to be an egregious violator, there are parts of this story that may ring true for many companies. The story of Asplundh, similar to the stories of IFCO, Abercrombie and Fitch, Chipotle and many others, should serve as both an informative and cautionary tale. While each of these companies faced different challenges and immigration violations, the lessons in each should help general counsel and the C-suite at companies appreciate the importance of taking stock of their own practices and putting into motion an action plan designed to mitigate risks and liabilities where possible. If nothing else, a judgment of $95 million solidifies that the Form I-9 is not really “just” a simple a form and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).

We also cannot bury our proverbial heads in the sand and ignore recent Executive Orders changing ICE’s immigration priorities-, and promoting “Buy American, Hire American” policies. While we have not yet seen the worksite raids we experienced under the Bush Administration or widespread “desk audits” or “silent raids” of Forms I-9 under the Obama administration, ICE is here for the long haul and future worksite investigations, on-site visits and Form I-9 audits can be expected. This will be especially true as we see an increase in resources allocated to meet the current administration’s priorities in this arena.

The Story Behind Asplundh

Described as one of the largest privately-held companies in the United States, and headquartered in Willow Grove, Pennsylvania, Asplundh is now also known as the company that pled to the largest civil settlement agreement ever levied on an immigration case – how did they get here?

ICE’s six – year investigation found that Asplundh employed a scheme where employees were hired and re-hired even when lower level managers were aware of the fact that the employees were not authorized to work in the United States. But more importantly, the charges noted that “the highest levels of Asplundh management remained willfully blind.” Even before the September 28th announcement of the settlement agreement following the guilty plea, the Department of Justice (DOJ) U.S. Attorney’s Office announced on September 19, 2017 that three employees, including supervisors and a Vice- President, had already entered guilty pleas to felony counts of conspiracy to commit fraud and misuse visas in connection with this case, with each defendant facing prison time and fines.

ICE Acting Director Thomas Homan stated in its September 28th announcement that “[t]oday’s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet” (emphasis added).

The charge was for one count of unlawfully employing aliens. Statements from ICE and the (DOJ) U.S. Attorney’s Office describe a company practice where a decentralized hiring practice reinforced and supported the acceptance of fraudulent documentation presented to company representatives by new hires and re-hires in regions across the United States. More specifically, as noted in ICE’s statement, the six year investigation revealed that from 2010 to 2014, “the company decentralized its hiring so Sponsors (the highest levels of management) could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers, including unauthorized aliens, in the field. Hiring was by word of mouth referrals rather than through any systematic application process. This manner of hiring enabled Supervisors and General Foremen to hire a work force that was readily available and at their disposal.” The purported motivation for this national industry leader in tree trimming and brush clearance for power and gas lines – a motivated workforce willing and able to relocate at a national level as needed to respond to weather related events requiring Asplundh crews.

While details of the Administrative Compliance Agreement have not yet been released, given the charges and facts disclosed it is likely the company will be required to take action on a number of fronts. As noted in the company’s own statement, Asplundh has already taken some corrective action, including:

  • Appointing a Compliance Specialist trained in fraudulent document identification in each Asplundh region nation-wide.
  • Revising hiring procedures to verify each identification examination for every new hire.
  • Investigating every complaint of potentially undocumented workers.
  • Retaining a third party consultant to review actions and procedures.
  • Presenting the company compliance program to ICE for review.

These corrective actions are reminiscent of what we saw with IFCO and changes that IFCO made in 2006 as part of its agreement with ICE. Recent history has shown us ICE’s unwavering commitment to its investigations and enforcement of immigration laws regardless of the name or party controlling the Oval Office.

What Does This Mean for Your Operations?

The key for all employers is to take all necessary and possible steps that will protect the company from a charge and a subsequent finding of knowingly or intentionally hiring undocumented workers. While all employers may not be able to guarantee full compliance, everyone can and should take steps that will provide an affirmative defense against charges and allegations of willfully employing undocumented workers or simply being careless to the point that a good faith defense cannot be made. From addressing proper form completion, document retention, remote hires, electronic I-9 vendors and detecting fraudulent documents, there are steps every company can and should take with minimal disruption to operations that can provide an affirmative defense in showing good-faith compliance with Form I-9 IRCA requirements.

Compliance with Form I-9 requirements should be a priority – not an option – for any U.S. employer. All employers, regardless of industry or size, must make a concerted effort to understand the importance of compliance, and make strategic business decisions to limit liability. Investing the time and resources necessary to develop and implement proper immigration compliance policies and protocols should be on the agenda. Businesses can begin taking a proactive approach and action on the following fronts:

  • Preventative Audits – Guided internal audits of I-9 documents, processes and procedures. Do this sooner rather than later and with guidance from experienced immigration compliance counsel. Whether you choose to conduct the audit yourself or retain counsel, the results of the audit will go a long way toward assessing exposure and limiting liability either in a “desk audit” or a full on investigation. Remember, if the company has been audited once, you are on the government’s radar with secondary inspections and active investigations a possibility.
  • Train, Train, Train – Human Resource teams and their delegates need to consistently and accurately complete Form I-9s. Provide them with basic knowledge of the process and the tools to recognize fraudulent identity and work eligibility documents. To become and remain compliant with IRCA and other state and federal immigration regulations training and investment in the people responsible for this function is critical.
  • Improve or develop policies and procedures – Often we see issues relating to immigration compliance handled ad hoc, with larger entities taking a more “decentralized” approach. Time and again we see that leaving immigration compliance at the lowest rung of priorities increases risks and liabilities. When the process is identifiable, then accountability can be, too.
  • Manage compliance – Policies and procedures do not mean anything without proper implementation and monitoring. Lack of compliance where immigration and IRCA mandates are concerned carries fines and penalties that includes prison terms for individuals. For the company it can also mean a PR nightmare. Dedicating top management level resources to oversee a company’s immigration compliance program should be a top consideration.
  • Prepare for possible workplace disruptions – Whether the current Administration steps up enforcement actions is not really the motivating factor. As depicted in the excerpt below from the Department of Homeland Security – U.S. ICE Worksite Enforcement FY 2014 annual report, we have continually seen ICE conduct long, exhaustive investigations, with an increase in audits and related fines and penalties. The following table reflects the number of opened and closed worksite enforcement investigations, criminal and administrative employee and employer arrests and the assessed fines and collections for each fiscal year from the annual report.

For more than sixteen years, since the infamous worksite raids under the Bush administration, we have watched enforcement actions increase regardless of the party controlling the executive branch. Whether a paticular form of enforcement action becomes more prevalent or not, should your company be investigated, severe losses could occur and planning for potential impacts on workforce availability in advance can prove to be critical to limiting disruption to ongoing operations.

As ICE investigations continue and potentially expand under Presidential Executive Orders or future Presidential Proclamations, it is more important than ever for employers to protect themselves by ensuring that proper immigration compliance policies are in place and in-house audits are conducted on a regular basis to detect potential issues and irregularities. As demonstrated in Asplundh, the stakes are high, employer responsibilities as well as liabilities under IRCA should be taken very seriously.

By Dawn Lurie, Mahsa Aliaskari, and Jason Burritt

Seyfarth Synopsis: USCIS released a revised version of Form I-9 that employers must use to verify identity and employment authorization of new hires effective September 18, 2017. There are no substantive changes from the current Form I-9, which USCIS issued in November 2016 and considered a major overhaul.  Employers are urged to utilize the roll out of the new Form I-9 as an opportunity to offer I-9, E-Verify and Antidiscrimination training, to assess their state of immigration compliance and to address necessary remediation.  

As expected, the U.S. Citizenship and Immigration Services (USCIS)  released a revised version of Form I-9, Employment Eligibility Verification, on July 17.  Employers can use this new Form I-9 or continue using the  Form I-9 with a revision date of 11/14/16 N through September 17.  As of September 18, employers may only use the new form with a revision date of 07/17/17 N; no other versions will be acceptable.  The issuance of the new form does not necessitate employers  “redoing” previously completed Form I-9s, this is going forward only.

What’s New?

In the Form I-9 instructions:

  • Updated the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) to Immigrant and Employee Rights Section (IER). Given the lack of any true substantive updates, it appears this name change is the main reason for the form update.
  • Removed “the end of” from the phrase “the first day of employment.”

In the List of Acceptable Documents:

  • Added the Consular Report of Birth Abroad (Form FS-240) to List C and made it easy to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3 (in the dynamic Form I-9) and to identify it in E-Verify.
  • Combined the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
  • Renumbered all List C documents except the Social Security card into an easier format.

In the new M-274, Handbook for Employers:

  • USCIS reflected these changes and endeavored to simplify the format.

What’s the Same?

No changes to storage – which means that employers may still keep Form I-9s in a single format or a combination of formats, such as paper, microfilm or microfiche, or electronic.  For paper I-9s, we continue to recommend a three “binder system” consisting of Active, Reverifications and Terminated I-9s.  Employer should keep all of the forms separate from personnel folders and safeguarded due to privacy concerns.

For electronic users, this version’s updates should not be as difficult as the one released in November of 2016.  However, it is important to note that keeping up with version changes, as well as USCIS directives on how to record certain status updates or other bits and pieces of information,  is clearly an issue for some Electronic I-9 vendors.  For those employers considering electronic systems, or already using an electronic I-9, it is critical to conduct due diligence to ensure that the product complies with the regulations and guidance.  Not all systems meet the electronic I-9 regulations, and the mere fact a large vendor sells the product does not necessarily render the product compliant.  We expect that Immigration and Customs Enforcement (ICE) will begin to develop and showcase an expertise in this area in the near future.

No changes to retention – which means that employers should retain all Form I-9’s for active employees as well as all Form I-9’s for terminated employees for three years from the date of hire or one year from the date of termination, whichever is later.

No relief for employers with remote workforces – which means that the person who completes Section 2 must see the new hire in person, the original documents presented for Section 2, and record the documents in Section 2.  No Skype, no Facetime, no WhatsApp, no Instagraming, no scanning and no faxing.

What Should We Do Now?

The 60 day transition period for employers and electronic I-9 vendors provided by the government should be used for more than deprecating the old Form and introducing the 7/17/17 version before September 18, 2017.  In fact, we recommend that companies immediately begin to use the new Form and notify their HR and other staff of the change.  This is an excellent opportunity to also offer I-9, antidiscrimination and E-Verify related trainings as well as to review immigration related policies and handbooks (or to start thinking about developing them).  Given the focus on compliance by the new administration, immigration related efforts should prove time and money well spent.  There is speculation that increased worksite enforcement, greater scrutiny and less tolerance for companies with I-9 related issues is on the horizon.  Now is the time to schedule experienced immigration compliance counsel for an on-site proactive I-9 review, including access to those that own the I-9 “process” on the ground.  This review should include observations focusing on the implementation of well-intended standard operating procedures.  Site visits and /or direct discussions are critical to assessing and identifying potential I-9 related  liabilities.  The chance to remediate on your own timeline, and not that of the government, is priceless; proactive remediation is key.

Interested in an immigration compliance assessment?  Contact the authors or your relationship partner at Seyfarth.

Seyfarth Synopsis: As the Department of Homeland Security, as well as the administration generally, signals increases in immigration enforcement activity, businesses are advised to implement clear protocols for the conduct of key personnel in the event of a visit by a federal officer, particularly Special Agents of the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”).   This guidance identifies the likely purposes of an ICE visit and sets forth critical steps for key personnel should such a visit occur.  Businesses are advised to work with legal counsel to tailor this general guidance to their specific industry and business processes.

In light of the Trump Administration’s promises of increased immigration enforcement, employers and employees are growing more concerned about the prospect of government worksite visits either to effectuate arrests or to conduct investigations and audits.  To be clear, the Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement  (“ICE”) agency has clarified that there has been no directive to initiate worksite enforcement (aka raids) against employers. Notwithstanding, it does appear that recent ICE arrests have swept not only individuals either alleged to have committed a crime or for whom an immigration warrant is outstanding, but also others accompanying the intended arrestee who are found to lack legal status in the U.S.

In addition to arrests, other investigative and audit activity looms on the horizon. Chatter continues about a possible increase in Form I-9 audits by ICE’s Homeland Security Investigations Unit (HSI), and similar activity by the U.S. Citizenship and Immigration Services Fraud Detection National Security Unit [1] as well as it’s E-Verify Monitoring and Compliance branch [2]. Additionally, the Department of Justice’s newly named Employee and Immigrant Rights Office (legacy Office of Special Counsel), will continue to pursue investigations into citizenship, national origin discrimination and document abuse matters. This Alert focuses on a visit by the folks at HSI, a separate Alert will be focused on USCIS site visits and investigative visits by other agencies.

Continue Reading Quick Guidance: What To Do In The Event of a Visit By The DHS-ICE Agents