Government Data Sharing- What Employers Need to Know

When it comes to immigration-related discrimination laws, the government has one primary goal: To fine and/or penalize employers who violate the law.  When investigating immigration-related discrimination cases, its interest is solely at odds with the employer being investigated.  This is where data sharing between government agencies poses an important factor for employers to consider.

In the last year, the Department of Justice Civil Rights Division’s Office of Special Counsel (OSC) has played an increasingly larger role in prosecuting employers alleged to have violated the anti-discrimination provisions within the Immigration and Nationality Act (INA).    No employer is immune from the reach of this branch of the government, even if the employer does not (lawfully) hire foreign workers.

OSC’s Official Alliance with NLRB

Yesterday, OSC announced its latest partnership with the National Labor Relations Board (NLRB) which was memorialized via a Memorandum of Understanding (MOU).  The MOUallows both agencies to share information, refer matters to each other and coordinate investigations as appropriate.”

In fact, the NLRB is no stranger to I-9 and E-Verify issues.  Last year, I wrote three separate articles on the NLRB’s increasing role in evaluating the fairness of employment eligibility verification procedures by employers when reviewing labor relations complaints.  The articles involved a pizza maker, a hotel chain and a steel casting industry.  Those cases remain pending and ongoing but highlight how pervasive the issue of immigration compliance has become; permeating multiple government agencies.  The NLRB is just one of many.

The formalized MOU between the OSC and NLRB will “allow the NLRB to make referrals to OSC” in instances where a potential violation of the INA has been raised.  For employers who have a unionized workforce, or workforce seeking collective bargaining rights, this is one issue to stay tuned. Additionally, the OSC has had a longstanding MOU with the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) and Employment Standards Administration (ESA) since the late 1990s.  You can read the MOU here.

OSC’s Relationship with USCIS

Our avid readers won’t be surprised to learn that the US. Citizenship and Immigration Service’s (USCIS) actively refers cases to the OSC.  For employers who hire foreign workers and must apply for visa petitions for those workers, employers are subject to work-site inspections or other documentary inspections, which is a common practice by USCIS.

Attorney Aimee Clark Todd, of Troutman Sanders LLP indicated that the “USCIS may request copies of an organization’s I-9 records in order to verify the company’s active business operations, number of employees, or employment of a specific individual.”  Once the government has been granted access to company documents, that government agency is free to share its findings with any other government agency.

Ms. Todd confirms that “although USCIS is not requesting the I-9 records in order to conduct a compliance review, if the agency identifies errors or deficiencies it could refer the company to ICE for a full I-9 investigation.”  Yet, ICE isn’t the only agency to whom USCIS refers cases.  Aimee Clark ToddIn fact, the latest example was announced by OSC last week.  A Rhode Island company settled allegations of having violated the INA’s anti-immigration discrimination provisions by agreeing to pay $43,092 in civil penalties and setting up a fund for $30,000 to compensate victims for back wages.  The investigation by OSC was referred from USCIS.

The Other Agencies

Although USCIS administers the Form I-9 and E-Verify System, USCIS is closely aligned with U.S. Immigration and Customs Enforcement (ICE).  Issues that arise during USCIS desk review of employer documents, or site visits that raise concerns can easily be referred to ICE for worksite enforcement, or I-9 audits.  USCIS will readily state that its primary goals are to process immigration benefits for applicants and petitioners but from practical experience, as told by employers and immigration attorneys, USCIS has played an important role in referring cases to ICE when necessary.

This can also be said for USCIS officers in charge of Monitoring and Compliance of employers using E-Verify.  Attorney Kristi Taylor, Partner at Berry Appleman & Leiden LLP confirmed these practices.

[T]he Monitoring & Compliance (M&C) branch of Verification definitely shares its findings with ICE and OSC. M&C has confirmed through meeting minutes of the AILA Verification and Documentation Liaison meeting that it shares E-Verify compliance by federal contractors with other federal agencies, when employers continue to employ an employee that received a FNC, and when an employer has a high percentage of recording green cards.

The sharing activities are fairly broad.  Ms. Taylor states, “Additionally, the Administrative Site Visit Verification Program (ASVVP) may share data with ICE as it expands the use of data derived from site visits in an effort to combat fraud.”

Similarly, ICE adopts the same referral principles as its sister agencies.  When conducting Form I-9 audits of large, publically traded corporations, the collateral damage has drawn in other agencies, like the Securities and Exchange Commission (SEC).  Chipotle was one example. Although the SEC has not publicly affirmed that it works in collaboration with ICE on I-9 violations, the SEC has affirmed in an April 3, 2013 Stakeholder Teleconference that it works closely with USCIS on immigration related issues involving foreign investors where an issue of fraud is raised.

The Big Takeaway

With the right leadership in each division, government agencies these days are more attuned to collaboration with each other.  The Department of Homeland Security (DHS) is increasingly modernizing its data through digitization, thus enabling its agencies to easily share data.  The need for employers, whether private or public, whether they hire foreign workers or not, is to implement an employment eligibility verification compliance program and to ensure it is executed in a way that comports with the law.

What may appear to be innocuous interactions with one government agency may easily balloon into a challenging investigation by another sister agency.  Partnering with experienced immigration counselors to help guide employers through various government interactions can be a helpful way to prepare for any collateral inquiries from sister agencies, and to assess and reduce exposure to penalties.

***

Our Experts Today:

Aimee Clark Todd is Of Counsel at Troutman Sanders LLP. She focuses on business immigration for companies in the biotechnology, engineering, hospitality, science and technology industries, colleges and universities, as well as retail establishments.

Kristi Taylor is a Partner in the Dallas office of Berry Appleman & Leiden LLP specializing in corporate immigration matters. She advises and defends employers in sanctions cases; develops workforce reduction strategies; conducts due diligence and management of the immigration process for pre/post M&A; advises on public access file retention and I-9 program improvement and compliance; and defends companies in DOL audits.