Enforcement Advisor

Your Reliable Source of Worksite Enforcement, Employer Compliance & Business Immigration News
Volume 3, Issue 7July 2010
In This Issue
OCAHA Assesses Penalties for I-9 Violations in New China Case
"We Are Going After Employers," Says ICE Worksite Unit Chief
DHS Issues Final Rule Governing Electronic Signature and Storage of Form I-9s
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OCAHO Assesses Penalties for I-9 Violations in New China Case
 
The Office of the Chief Administrative Hearing Officer (OCAHO), an adjudicative unit within the Executive Office for Immigration Review (EOIR), has jurisdiction over three types of civil penalty cases arising under immigration law: (1) employer sanctions; (2) unfair immigration-related employment practices; and (3) immigration-related document fraud.
 
In recent years, the DHS shifted its focus away from employer sanctions toward criminal prosecution of the more serious violators. Due to this shift in enforcement policy, there have been very few precedent decisions issued in employer-sanctions cases in recent years.
 
OCAHO, however, recently issued a precedent decision in an employer sanctions case in U.S. v. New China Buffet, 10 OCAHO 1133 (May 27, 2010), where seven I-9s for the employees were at issue. Because of the employer's inability to pay the penalties proposed, Administrative Law Judge (ALJ) Ellen K. Thomas lowered the penalty amount due from $935 per violation (for a total penalty of $6,545) to  $450 per violation (for a total penalty of $3150).
 
The ALJ found that New China was a small business and that this cut in its favor. She also found that the violations were serious, that good faith was appropriately treated as a neutral factor in this case, and that New China's lack of any history of previous violations should also be treated as a neutral factor. Because the only evidence on the issue of the presence of unauthorized workers showed that the restaurant's owner had knowledge of the immigration status of the people who worked there, and none were actually unauthorized, ALJ Thomas viewed this as a factor weighing somewhat in New China's favor. She also recognized that New China suffered financial difficulties and no longer existed, so it was unable to pay the fine assessed. These findings led the ALJ to exercise favorable discretion and lower the penalty due.

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 "We Are Going After Employers," Says ICE Worksite Unit Chief 
 

On July 2, 2010, at the the American Immigration Lawyers Association's Annual Conference, ICE Open Forum,  ICE Worksite Enforcement Unit Chief Brett Dryer confirmed that ICE's focus is now on criminal prosecution of employers for immigration violations. Dryer noted that Congress appropriated $134 million for worksite enforcement in 2010, and that "we fully intend to spend it on worksite enforcement."
 
Consistent with the ICE strategy outlined in its April 30, 2009 memo, Dryer emphasized that ICE's focus is on employers, not employees. "We are going after employers" and "ICE worksite operations target employers," Dryer said. "If we go to a worksite, it is in the context of criminal investigation of the employer. If we arrest (undocumented) workers, it is in support of the criminal investigation of the employer, in order to demonstrate to the jury that the employer in fact employed unauthorized workers, and to get statements from the workers to support the conviction." Dryer stated that "there will not be hundreds of arrests of workers, because you do not need hundreds to prosecute the employer" and "Worksite arrests of workers are at the tail end-of the carefully conducted criminal investigation of the employer."
 
ICE defines employers as "CEOs, managers, supervisors, and others in a business' hiring network."  ICE will not only pursue employers for monetary fines, but will also pursue executives, managers and supervisors in criminal prosecutions. ICE uses  I-9 audits primarily to lay the foundation for criminal prosecution of employers, and encourages its investigators to seek evidence of "harboring, identification document fraud, money laundering and other criminal conduct." 
 
ICE notes that I-9s alone are no longer considered "best efforts" for employers to comply with the law. Dryer urged employers to use IMAGE, a voluntary program through which employers agree to monitoring by ICE. Dryer, however, acknowledged that ICE is able to handle only a limited number of employers through the IMAGE program. Therefore, employers may instead adopt as many practices as possible from the ICE Best Employment Practices list, including E-Verify, annual I-9 administrator training, annual I-9 self-audits, SSN no-match letter resolution procedures, nondiscrimination and contractor compliance procedures.
 
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DHS Issues Final Rule Governing Electronic Signature and Storage of Form I-9s 
 
The Department of Homeland Security (DHS) issued a final rule providing that employers and recruiters or referrers for a fee who are required to complete and retain the Form I-9, Employment Eligibility Verification, may sign the form electronically and retain it in an electronic format. In 2006, DHS published an interim final rule to permit electronic signature and storage of the Form I-9. DHS received nine comments from trade associations and agencies and organizations involved in human resource management, and in response, made some changes to the regulation to clarify that:
 
1. Employers must complete a Form I-9 within three business (not calendar) days;
 
2. Employers may use paper, electronic systems, or a combination of paper and electronic systems;
 
3. Employers may change electronic storage systems as long as the new system meets the performance requirements of the regulations;
 
4. Employers need not retain audit trails of each time a Form I-9 is electronically viewed, but only when the Form I-9 is created, completed, updated, modified, altered, or corrected; and
 
5. Employers may provide or transmit a confirmation of a Form I-9 transaction, but are not required to do so unless the employee requests a copy.
 
The final rule was published in 75 Fed. Reg. 42575 (June 22, 2010), and is effective August 23, 2010. The regulation finalizes the requirements for employers who wish to electronically complete, sign, and store the Form I-9  instead of completing and retaining the paper forms.