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Industrial Strength Immigration Compliance Auditing with Attorney Charles Miller

I recently interviewed Attorney Charles (“Chuck”) Miller, co-author of Immigration Law in the Workplace (Aspen). You’re probably already familiar with Mr. Miller’s latest book, published by the American Bar Association, Immigration Compliance Auditing for Lawyers. In light of the enforcement efforts DHS has put into focusing on worksite enforcements through inspection of U.S. employer records and business processes I wanted to get Mr. Miller’s take on the enforcement climate. In fact, Mr. Miller strongly suggests that certain employers need an “industrial strength” approach to I-9 and E-Verify compliance. You can read his most recent article here.

Has there been a shift of enforcement focus from I-9 compliance to E-Verify compliance?

It’s clear that DHS has a “short game” based on the I-9 platform and ICE inspections. The “long game” is promoting Congressional legislation mandating E-Verify nationwide. My observation is that E-Verify program termination and debarment and suspension enforcement activities are being ramped up. DHS is already ranked as the fourth agency with the most non-procurement FAR debarments. High profile employers need to treat this new enforcement activity very seriously because it will only get more resources year-to-year.

What is the primary focus of the E-Verify Monitoring and Compliance Branch and how is that different than the I-9 audits that ICE conducts of employer records?

The E-Verify program requires employer to agree to certain conditions upon enrollment into the program via the Memorandum of Understanding (MOU). These are additional responsibilities that employers must carefully examine to determine how it affects their business risks and processes.

The concern that the E-Verify Monitoring and Compliance Branch mission is to ensure that employers who are enrolled are using the system and using it accurately and properly.

I-9 inspections, on the other hand, are conducted by ICE to ensure that employers are not only completing the necessarily paperwork, but ensuring that the paperwork is prepared properly in a way that uncovers unauthorized workers.

How does the “Self-Assessment Guide” recently released by USCIS help employers and does it obviate the utility of having legal counsel?

The E-Verify Self-Assessment Guide is a good reference point for employers for guidance on navigating the E-Verify system. The Guide provides the USCIS’ definition of what it means to be in compliance with the E-Verify MOU.

The danger in relying on this Guide alone, without the assistance of experienced legal counsel, is that your staff may be lulled into a false complacency that use of the checklists alone represents adequate E-Verify program compliance, ultimately risking serious penalties from DHS, including debarment and E-Verify program termination. One problem with self-assessment is “who is assessing who”? While the Guide contains an excellent series of checklists, there are few answers for the company that discovers errors that need to be addressed. An external attorney auditor will be able to address those problems and solve them.

Moreover, an independent, competent audit by an expert attorney preserves attorney-client privilege and will institute the training that large employers need for an effective immigration employment compliance program. Without such an independent audit a company cannot be sure that risks are being discovered, let alone averted.

You specifically mention that employers need an effective “industrial strength” immigration compliance auditing solution. Can you elaborate a bit more?

In this climate, it’s not enough for employers, particularly large employers, to rely on an “off-the-shelf” compliance approach, especially in the realm of electronic I-9 and E-Verify systems. High profile employers require an “industrial strength” immigration compliance program that addresses the assessment and correction of important E-Verify compliance risk factors. An independently audited immigration compliance program could protect employers from debarment or involuntary termination from the E-Verify program.

The “state of the art” is an Immigration Compliance Audit, consisting of an I-9 audit, a Compliance Program audit, Liability auditing and Anti-Discrimination auditing. Once you have such an audit you will be able to correct or “remediate” errors in your I-9 population, which reduces your exposure to potential penalties if ICE inspects. At that point, migration to an electronic I-9 system is the next logical step.

Thanks to Mr. Miller for his valuable insights in today’s interview. Please be sure to read his detailed article, “E-Verify Self-Assessment: The Beginning of an ‘Industrial Strength’, Audited Immigration Compliance Program©,” which is based on a section of the 2012 supplement to his book, Immigration Law in the Workplace (co-authored with Marcine A. Seid and S. Christopher Stowe, Jr. by Aspen Publishers).

Mr. Charles M. Miller formerly served as General Attorney for the Immigration and Naturalization Service (predecessor to ICE). He later founded the Miller Law Offices in 1979 and is a California State Bar Certified Specialist in Immigration Law. He has been recognized in Super Lawyers, Corporate Counsel Edition, and The Best Lawyers in America (1991 to the present) and served as Chair of the Compliance Auditing Standards Task Force established by the American Immigration Lawyers Association (AILA). Mr. Miller served as Co-Director of the 2nd Annual Worksite Immigration Compliance Symposium held at Stanford University Law School (2012).  You can read Mr. Miller’s immigration blog here.

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