Insights from FBA I-9 Worksite Enforcement Conference in Chicago

[Editor’s Note: Today’s blog is courtesy of Bruce E. Buchanan, an Attorney at the Nashville and Atlanta offices of Siskind Susser, P.C.] I recently attended the Worksite Enforcement and Immigration conference presented by the Chicago Chapter of the Federal Bar Association and sponsored by LawLogix. There were several top government officials of immigration-related agencies who spoke at this conference and I would like to share some of their remarks and insights.

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Updates from Immigration and Customs Enforcement (ICE)

Donald Buechner, the Section Chief of Worksite Enforcement at ICE, provided good news and bad news for employers. The good news is ICE has reduced the number of mandated Notices of Inspections (NOIs) to 1500 for FY 2015, which is about a 50% drop from the high point of NOIs over the past several years. The bad news is the reason for the reduction is ICE is conducting more criminal investigations.  Why the change in emphasis? Buechner stated it appeared to ICE that too many companies see I-9 fines as “part of doing business.” Attorney Marketa Lindt, who was also on the panel, spoke up and disagreed with Buechner’s assessment because I-9 fines can be devastating on small companies in particular.

Buechner also emphasized that ICE has been re-auditing employers at a record pace, especially where there were a high percentage of employees listed on a Notice of Suspect Documents (NSD) from the initial NOI. An NSD is a form letter which lists those employees who appear to be unauthorized to work in the United States (e.g., because the documents submitted belonged to other individuals or were otherwise fraudulent). Buechner said if on a re-audit, ICE finds some of the same employees on the new NSD, but working under a different name, ICE will seek criminal prosecution of the company and its management for knowingly hiring undocumented workers.

Even with the reduced number of NOIs, ICE has fined employers $8 million thus far in FY 2015, which puts them on track for about the same amount as FY 2014’s civil fines of $16,679,000. Additionally, ICE has received $5 million for criminal forfeitures and fines to date in this fiscal year.

Buechner also spoke about the merits of IMAGE (the Mutual Agreement between Government and Employers) program that has been slow to take off since its inception in 2006. Employers seeking IMAGE certification must commit themselves to a variety of I-9 obligations including the establishment of a written hiring and I-9 policy that includes an internal Form I-9 audit at least once a year; enrollment in E-Verify within 60 days; and submission to a Form I-9 inspection by ICE. In exchange, ICE will waive potential fines if substantive violations are discovered on fewer than 50% of forms; mitigate fines if the employer has more than a 50% error rate; agree not to conduct another I-9 inspection for 2 years; and provide information and training to the employer.

In touting the IMAGE program, Buechner highlighted the favorable “branding” a company will receive and cited Kelly Staffing, an IMAGE enrollee, as an example. While Buechner noted that an employer could not enroll in IMAGE during an ICE investigation, he did mention that most ICE regions would consider reducing the fines if the company committed to enrolling in IMAGE in the future. He did not specify which regions.

In addition, Buechner stated that even if an employer enrolled in IMAGE before an investigation, they would still only be given the standard 10 days to respond to a NSD.. From an employer’s perspective, enrolling in IMAGE should give an employer additional time to respond to the NSD because the NSD often results in substantial employee discharges and quits, which could have a devastating impact on the employer. Buechner did state an employer could negotiate with an ICE coordinator on the timing of the issuance of the NSD.

Updates from the Office of Special Counsel for Immigration-Related Unfair Employment Practices

Office of Special Counsel (OSC) Deputy Special Counsel, Alberto Ruisanchez, engaged in a lengthy discussion of employer self-audits, including whether they could be viewed as discriminatory by OSC. The key point that Ruisanchez hammered home was self-audits that do not involve targeting employees on the basis of citizenship status or national origin at any point in the process should not be found discriminatory. This includes self-audits where a company uses a sampling of I-9 forms, rather than all I-9 forms; and I-9 forms completed in a specific time period.

An interesting scenario was discussed concerning where an employer chose to have all employees complete a new I-9 form for a variety of reasons – new HR manager, a quick review showed the I-9 forms appear to be filled with errors, and the employer is getting ready to enroll in E-Verify. The question concerned what happens if an U.S. citizen employee refuses to fill out Section 1 of the I-9 form and/or provide appropriate documentation to prove he/she is authorized to work.  Can the employer discharge the employee for insubordination without discriminating against the U.S. citizen employee?

Ruisanchez responded that if an employer excuses this U.S. citizen employee from complying with the self-audit process without any consequences, then all other employees, such as lawful permanent residents, could potentially argue citizenship status discrimination because the employer gave the U.S. citizen a free pass. Thus, discharging this U.S. citizen employee should not be unlawful discrimination. Everyone on the panel, including attorneys Sharon Mehlman and Dan Brown, agreed that one way to hopefully avoid this situation is to communicate with employees before the self-audit commences as to why it is being done, who is required to participate, and the consequences of an employee refusing to do so.

Updates from the Office of the Chief Administrative Hearing Officer (OCAHO)

OCAHO Administrative Law Judge Ellen K. Thomas also spoke at the conference and provided up-to-date statistics from OCAHO. There are currently 61 cases pending at OCAHO with 38 cases involving employer sanctions under Section 1324a and 23 cases of discrimination/retaliation under Section 1324b. There are five cases pending before various circuits court of appeals, including Employer Solutions Staffing v. OCAHO (5th Circuit) – involving an employer’s failure to complete Section 2 certification correctly; Odongo v. OCAHO (5th Circuit) – involving alleged retaliation; M&D Masonry, Inc. v. ICE (D.C. Circuit) – involving whether ICE’s guidelines and matrix needed to go through rule making under Administrative Procedures Act (APA); and Kindred Braintree Hospital, LLC v. U.S. Department of Justice (1st Circuit) – involving whether an employer’s counterclaim is retaliation for the employee filing an OSC charge.

Other I-9 and E-Verify Updates

There were many more insightful remarks in the conference by numerous immigration compliance attorneys (note, this author chose to concentrate this article on the government speakers). In particular, attendees were also able to learn about negotiating I-9 penalties with ICE, counseling corporate compliance, dealing with related Department of Labor investigations; and last but not least, managing remote hires, electronic I-9s, and E-Verify.