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Tips for Ensuring Employer Compliance with I-9 The Immigration Reform and Control Act of 1986

In Immigration on February 2, 2016 at 1:42 PM

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The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an employer to hire or continue to employ any person it knows is not authorized to work in the United States. This law applies to all employers, regardless of the number of employees. Under IRCA an employer has three basic obligations:

  1. See that the new employee completes Section 1 of Form I-9;
  2. Complete the employer’s section ( Section 2) of Form I-9;
  3. Physically examine the documentation presented by the employee that establishes their identity and eligibility for employment.

There are both civil and criminal consequences for violating IRCA. Moreover, a person who engages in a pattern of regular, repeated, and intentional violations of IRCA may be fined up to $3,000 for each unauthorized worker hired, or imprisoned for up to six months. Sometimes both of these penalties are imposed. A fine between $275 to $2,200 can be assessed against a first-time offender. Upon a second offense, the penalties range anywhere from $2,200 to $5,500. For a third-time offender, the fines range anywhere from $3,300 to $11,000. The employer may also be subject to a cease and desist order to stop hiring unauthorized workers. However, before any fines can be imposed by the government, there must be a finding that the employer knowingly hired an undocumented worker.

In cases of repeat offenders, the United States Attorney General can sue employers in federal court. In such instances, the Attorney General can prosecute for harboring, smuggling, concealing, and transportation of illegal aliens for financial gain those who repeatedly disregard the requirements of IRCA. Criminal convictions under these provisions can result in individual liability with a sentence of up to ten years in prison and/or $250,000 in fines per undocumented worker. In some instances, both penalties are assessed.

Under IRCA, the employer’s obligations to prevent the hiring and continued employment of unauthorized workers are clear. The commitment to compliance should be displayed in every office where applicants apply for positions. Further, the employer should require all consultants, independent contractors, vendors, and suppliers to certify their compliance with immigration laws.

Form I-9

Upon first inspection, Form I-9, the form used by the government to verify an employee’s eligibility to work in the United States, seems to be a relatively simple government form. However, looks can be deceiving. In fact, this single page form has so many governmental rules and regulations attached to it, it requires the use of a separate 69 page handbook in order to use the form properly. This book is known as the M-274 Handbook for Employers.

As a result of these numerous rules and regulations, there are many mistakes that can be made by employers when filling out and maintaining Form I-9 records. Moreover, an employer who fails to complete or maintain I-9 documentation according to the handbook can run afoul of United States Immigration and Customs Enforcement (ICE), and may incur civil and criminal liability, including severe financial penalties.

Three Day Rule

ICE rules stipulate that I-9 forms must be completed within three business days of the employee’s first day of work. This means that the employee must complete section one of the form, provide identification documents, and have those documents verified by the employer, all within three business days. Sometimes a new employee will forget to bring documentation within three days of hire. However, if an employer fails to meet the three-day deadline, it could result in hefty fines, so do not allow employees to begin working until the I-9 Form is complete.

It is important to note, however, that IRCA regulations do not require the employer to verify the authenticity of the documents. They only have to examine them to ensure that they reasonably appear to be genuine. Accordingly, under IRCA, an employer who makes a good faith effort to comply with these document verification requirements has a good faith defense that they have not violated the law.

In fact, under IRCA, an employer can even hire an employee prior to checking their employment eligability documents. However, the law does mandate that within three business days of the hire, the employer is required to physically examine the employee’s documentation to verify that the documents appear to be bona-fide and that they belong to the employee.

Penalties for Failure to Complete Form I-9

Failure to properly complete the I-9 Form can result in a fine of $110 to $1,100, per form. Additionally, ICE fines for late completion of Form I-9 range between $300 to $400 per form. A first violation of the knowing employment prohibition can result in a penalty of $275 to $2,200. For a second violation, penalties range between $2,200 to $5,500. Third violation penalties range from $3,300 to $11,000, and the employer is also at risk for criminal pattern or practice liability. The criteria considered in determining the size of the fine include: the size of the business, the good faith of the employer, the seriousness of the violation, whether the individual was an unauthorized alien, and the employer’s history of previous violations.

If an employer fails to obtain the right combination of identifying documents from lists A or lists B and C, then the I-9 documentation will be considered incomplete and the employer becomes subject to fines. If an employer obtains identification that is expired, that can also put them out of compliance.

Social Security Mismatch Letters

When names and social security numbers of employees do not match, the Social Security Administration (SSA) sends a letter to an employer—this is called a “mismatch letter.” ICE will take action against employers who ignore the SSA mismatch letter due to the fact that workers who show up on the SSA mismatch letter repeatedly are presumed to be in the country without work authorization.

Employers should give employees whose names show up on the mismatch letter written notice that they need to try to resolve their problem at the local SSA office. Let employees know that you might have to take further action if they appear on the mismatch list again. Employers should also consider using the free SSA online verification system to reduce the number of people on the SSA mismatch letter in the future.

I-9 Compliance Tips

  • Confirm that staff performing verification is properly trained. Original (not photocopies) of documents, except for a certified birth certificate, should be examined.
  •  Make photocopies of documents. Keep I-9 Forms in a separate file, not in personnel folders. By separating the I-9 files from other employment files, ICE will not be able to look at other documents which could raise other issues for audit.
  • Common I-9 documentation mistakes include incorrect dates, missing signatures, transposed information, and incomplete check boxes.
  • An employer asking for too many identifying documents from list A or lists B and C could expose the employer to discrimination allegations. An employee has the right to use any documents listed on the I-9 form to prove their work eligibility. An employer cannot mandate which forms of identification the employee must use.
  • Make sure to keep track of the expiration date on an employee’s work permit or other document establishing their right to work in the U.S. It is the employer’s responsibility to monitor that date and request new documentation from the employee prior to its expiration.

Self-Audit

Conduct periodic self-audits to confirm that the company has I-9 Forms for all current employees. If you are missing forms, obtain them as soon as possible. If you are missing forms for terminated employees, consider contacting them to obtain a form. Be sure to review the I-9 Form during an exit interview or before an employee is terminated.

During self-audits, examine I-9 Forms to ensure they are properly completed. Check that there is an actual street address, not just a P.O. Box number. If you have photocopies of documents employees presented, you can use them to obtain the missing information. If necessary, contact the employee to obtain the missing information. If the employee neglected to sign or date Section 1, ask the employee to do so. Use correct dates to the extent possible. If you add or revise information in Section 1 of the form, complete the Preparer/Translator certification. Also, consider adding “self-audit” next to any form corrections.

Purge I-9 Forms during self-audits. Follow the retention rule: three years from date of hire and one year from date of termination. When you meet both tests, throw out the form. It’s important to note that if an employer is audited, and has not destroyed outdated I-9 documentation, any errors found on those outdated forms will also be subject to fines.

For assistance with I-9 compliance or other labor and employment or immigration law matters, contact the attorneys at Bustos Law Firm, P.C. at (806) 780-3976.

President Obama’s New Immigration Executive Order – Its Terms and Injunction Against It

In Uncategorized on February 24, 2015 at 11:31 AM

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President Obama recently announced that he will take executive action to shield millions of illegal immigrants from deportation. While President Obama’s executive order will not grant illegal immigrants legal permanent residence (green cards) or citizenship, as only Congress can make that change with legislation, it may prevent up to 5 million immigrants from being deported.

Under this executive order, eligible immigrants will have the opportunity to request temporary relief from deportation if they file an application, and pass criminal and national security background checks and pay a fee. They will also be eligible for work authorization, and must also begin paying taxes.

Here are the some of the most important changes to the nation’s immigration system through this executive order that you need to be aware of.

1. It Removes the Age Cap for “Dreamers.”

Deferred Action for Childhood Arrivals (DACA), the group informally known as “Dreamers,” will be expanded under President Obama’s new executive order. This is the program that allows individuals who meet certain requirements to be deferred from deportation and allowed to work and travel in the U.S.

The current DACA rules require someone to be under the age of 31 on June 5, 2012. Also, eligability under the current DACA program is limited only to those individuals born after June 15, 1981. However, under the new executive order, this birthdate limitation has been lifted, and now anybody who was brought to the U.S. before the age of 16 will be able to apply for DACA as long as they meet the other requirements. The physical presence date has also been advanced to January 1, 2010, and applicants can now qualify for DACA if they were in the U.S. by that date, instead of June 15, 2007, under the current DACA rules.

DACA is also being expanded to three year increments. This change will apply to all first-time applications, as well as all applications for renewal, effective November 24, 2014. Work permits will be valid for three years now as well. USCIS is also considering extending previously issued two-year work permit renewals for the new three year period; however no decision has been made on this yet.

USCIS is advising that they expect these changes to take effect in late February of 2015.

2. It Shields Immigrants’ Parents from Deportation.

One of the biggest changes that will be made by the President’s executive order is the creation of a similar deferred action program for illegal immigrant parents of citizens or green-card holders. This protection will be available regardless of the age of the child. The Deferred Action for Parental Accountability (DAPA) will allow eligible parents to avoid deportation if they have been present in the U.S. since January 1, 2010, and have five years of total presence in the U.S.

Applicants must also not have a lawful immigration status on November 20, 2014, must have been present in the U.S. on November 20, 2014, and at the time of making the request for deferred action. Applicants will be subject to background checks and must not be in an enforcement priority category. Like DACA, deferred action will be granted for a period of three years. DAPA applications should start being accepted in late May of 2015.

Also, if someone is arrested by ICE, CBP or USCIS, they are to be identified as potentially eligible for DAPA, and officers are to seek administrative closure or termination of the case. DHS will review cases currently in removal proceedings to see who might be eligible for relief and those cases will be closed. The estimated population benefit will be 4.4 million under this new program.

3. Waivers.

In January of 2013, the U.S. Department of Homeland Security (DHS) published a regulation setting up a process to allow some people to file I-601A waivers for unlawful presence of the three and ten year overstay/unlawful status bars before leaving the U.S. and potentially facing a 3 or 10 year bar on returning to the U.S. The current rule only applies to spouses and children of U.S. citizens. However, the rule will now be extended to cover all statutorily eligible classes of relatives for whom an immigrant visa is immediately available, including spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents.

It’s important to remember that USCIS is advising that these changes will not take effect until new guidelines and regulations are issued, and it has not provided a timeline for when these new guidelines and regulation are to be issued.

4. Recent Border Crossers will be a Priority for Deportation.

You must have been in the United States for at least five years to qualify for any of these new programs. These executive actions will not benefit immigrants who recently crossed the border, who may cross the border in the future, or who help those who cross in the future. It’s intended to only benefit immigrants who have been living in the United States for many years. By refocusing on border security, the President’s actions have increased the chances that anyone attempting to cross the border illegally now will be caught and then sent back to their home countries.

5. Enforcement Priorities.

Both the DACA and DAPA initiatives may not be available to those who have committed felonies or who have significant misdemeanors (such as DUIs or convictions for domestic violence) on their criminal record. Those eligible for DAPA and DACA must pass a background check, and those who have felony or significant misdemeanors on their record may be deported.

6. You will not be Able to Apply for Several Months.

USCIS will not begin accepting applications until early to mid-2015, depending on the program. But while the government is not accepting applications now, if you believe you are eligible for one or more of the initiatives, you can prepare now by gathering documents that establish your identity, your relationship to a U.S. citizen or lawful permanent resident (if applying on that basis), and that establish you have continuously lived in the United States for at least five years.

Once again, according to U.S. Citizenship and Immigration Services (USCIS), the changes made by the President’s executive order will not go into effect at least until 2015. Specifically:

• DACA changes are projected to take effect in late February 2015;

• DAPA applications should start being accepted in late May 2015; and

• USCIS is advising that the changes on I-601A waivers for unlawful presence will not take effect until new guidelines and regulations are issued, however it has not provided a timeline for when these new guidelines and regulation are to be issued.

7. Fraud.

As with other immigration requests, knowingly misrepresenting or failing to disclose facts will subject applicants to potential criminal prosecution or removal from the United States, so it is critical to provide truthful and accurate information and documentation. USCIS will carefully review each case and if you commit immigration fraud, you will not qualify for any benefits under the new executive order.

8. Be Aware of Scammers.

Once again, these changes have not yet been implemented, so beware of scammers offering to help submit these applications now. Instead, speak to a legitimate immigration attorney about what you can do while waiting for President Obama’s executive immigration order to take effect

9. Stay Informed.

Make sure you remain informed and know when the application process starts. As always, http://www.uscis.gov will be the authoritative source of information about eligibility and you can subscribe to get updates at http://www.uscis.gov/immigrationaction.

10. Legal Challenges to the Executive Order.

Members of Congress and 26 states, including Texas, have challenged President Obama’s executive order, claiming that his actions violate his constitutional duty to faithfully execute the current laws of the United States, and laws previously passed by Congress and prior Presidents, regarding immigration authority. In essence, they argue that President Obama does not have the legal authority to allow illegal immigrants the right to a work permit as only Congress can make that change in the law. They also argue that President Obama should not attempt to confer benefits upon immigration law breakers, and that he should actively enforce immigration law by deporting illegal immigrants eligible for deportation.

The Executive Order was successfully challenged in the United States District Court for the Southern District of Texas, and Judge Andrew Hanen in Texas v. United States issued an injunction against implementation of the Executive Order on February 16, 2015. The Obama Administration plans on appealing the injunction to the Fifth Circuit Court of Appeals. If that court affirms, it is easy to see how the Supreme Court may soon review the case.

Special Immigrant Juvenile Status

In Immigration on July 15, 2014 at 3:46 PM

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Recent actions of the Obama administration in the last two years had the effect of encouraging the parents of tens of thousands of minors to send their children across the United States’ borders illegally. There is great debate about how to stop this flow of illegal immigration, and what to do with those minors now present in the United States. These unaccompanied juveniles, many of whom have been either orphaned, abandoned, suffered domestic violence, or even have been the targets of gang violence or organized crime, are especially vulnerable. Most of these children are also ineligible to receive assistance from their countries of origin, and thus have been sent to the United States for greener pastures, where instead many of them end up being apprehended by local law enforcement or Immigration Customs Enforcement (ICE) who holds them with an immigration detainer in anticipation of removal (deportation) proceedings.

This is a process for these same juveniles who have been neglected, abused, or abandoned by their parents to potentially obtain Permanent Resident status (obtaining a “green card”) through a federal law known as Special Immigrant Juvenile Status (SIJS) wherein the Immigration and Nationality Act (INA) § 203(b)(4) allocates a percentage of immigrant visas to individuals considered “special immigrant juveniles.” This is indeed a relatively quick route to a green card for children who qualify, however, the process IS very complicated and should be done with the assistance of an immigration experienced attorney.

Because the application process must be started while the child is still a juvenile, or minor under state law (18 in most jurisdictions), it is important for people such as teachers, counselors and other people who regularly work with youth to identify potential youth who may qualify for this status, before they reach an age where they are too old to benefit from this special law.

STEP ONE: STATE COURT FINDING OF NEGLECT, ABUSE, OR ABANDONMENT.

A child is eligible for SIJS only if a court in the state where he lives finds the child to be neglected, abused, or abandoned by one of both parents, and that it is not in the child’s best interest to return to his or her home country. The court must either make the child a ward of the state (court dependent) or place the child in the custody of a guardian, state agency, or family member dependent on a juvenile, family, a similar state court or other institution. Court terms, procedures, and legal standards will vary from state to state, as well as which kinds of courts can make such a determination. Also, the legal standard for abuse, neglect, or abandonment is a question of state law and thus differs from state to state. This is just one of many reasons why it is imperative to find an experienced immigration attorney to assist in this process.

STEP TWO: PETITON FOR SPECIAL IMMIGRANT JUVENILE STATUS.

Once a court has found that the child, who is not in removal proceedings, was either abused, neglected, or abandoned, and that it is not in his or her best interest to return to his or her home country, the child may file Form I-360 ( Petition for Ameraisian, Widow(er), or Special Immigrant) with USCIS requesting Special Immigrant Juvenile Status. It is also important to note that the child must file the petition while the court order is still in effect. In many cases, this means that the child must file the petition before turning 18 years old.

USCIS will review the I-360 and the other evidence to determine whether the child qualifies for Special Immigrant Juvenile Status. If USCIS believes that more evidence is needed, it may issue a “request for evidence.” The officer reviewing the file should accept the findings of the judge as to whether the child was abused, neglected, or abandoned. However, the officer may decline to grant SIJS status based on a belief that the court order was obtained only for the purpose of immigration. USCIS is required to make a decision on the petition within 180 days from the time it was submitted.

STEP THREE: APPLICATION FOR PERMANENT RESIDENCY.

Once the juvenile has an approved I-360, they can proceed with an Adjustment of Status application. The Form I-485 (Application to Register Permanent Residence or Adjust Status) may be submitted at the same time as the I-360 Petition, if it is ready at the time. However, USCIS will not make a decision on the I-485 unless and until it grants Special Immigrant Juvenile Status to the child.

Special Immigrant Juveniles may also ask USCIS to waive the application fee. This is done by using form I-912, Request for Fee Waiver. Otherwise, the green card process is similar to the process for family-based adjustment of status cases.

Once the Form I-485 is filed, the juvenile may also apply for employment authorization pursuant to the pending adjustment of status application. Juveniles who adjust status as a result of an SIJ classification enjoy all benefits of lawful permanent residence, including eligibility to naturalize after five years. However, they may not seek to confer an immigration benefit to their natural or prior adoptive parents under this law.