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Nov 23, 2012

By Shannon Stevenson

Give your company the gift of an immigration audit this year – it may just keep your company off the government’s naughty list.

Here are the top 12 immigration mistakes employers made in 2012:

1. Failing to properly pay H-1B workers. The U.S. Department of Labor barred a Washington information technology consulting services company from participating in the H-1B program for two years, assessed $405,175 in civil money penalties, and ordered payment of $983,039.12 in back wages for numerous H-1B violations, including willful failure to pay required wages by demanding workers pay H-1B government filing fees.

2. Employing unauthorized workers. Two Houston companies each forfeited $2 million and agreed to adhere to revised immigration compliance programs for employing unauthorized workers. Both companies received multiple “no-match letters” from the Social Security Administration, which indicated employee names and Social Security numbers did not match SSA records.

Immigrations and Customs Enforcement completed an I-9 audit of both companies in 2011, revealing that from 2005 to 2009 about 44 percent of the workforce of one company was undocumented, many individuals were employed with numerous “egregiously suspect” identification documents, including misspellings of agency names and/or containing the words “novelty item.” Similarly, an I-9 audit of the second company revealed that about 269 of its 451-person workforce consisted of undocumented aliens.

3. Failing to properly notify U.S. Citizenship and Immigration of an H-1B worker’s termination. The Labor Department has repeatedly held that H-1B workers are entitled to back pay for the entire period of the H-1B approval where the company failed to promptly withdraw the H-1B with USCIS and pay for the reasonable cost of the H-1B worker’s return transportation to his or her home country.

4. Visa fraud. The head of a Los Angeles law firm was sentenced to 10 months in prison for his role in orchestrating a lengthy employment visa fraud scheme where he and other members of the firm set up nearly a dozen shell companies in order to file at least 137 fraudulent employment-based visa petitions for nearly 100 foreign national clients in exchange for payments of $6,000 to $50,000.

5. Citizenship status discrimination. The U.S. Department of Justice reached an agreement with a manufacturer of semiconductor structures and advanced solar cells based in Illinois to resolve allegations that the company violated the anti-discrimination provision of the Immigration and Nationality Act, when it placed six online job postings that explicitly stated citizenship status preferences or requirements that excluded certain work-authorized non-citizens from consideration. The company will pay $12,000 in civil penalties.

6. I-9 document abuse. In October, the Justice Department settled a lawsuit against a Las Vegas casino for $49,000 in civil penalties and full back pay to a former employee for unfair documentary practices. The complaint alleged the casino required non-citizen employees to provide more or different documents or information than it required from citizen employees during the initial employment eligibility verification process.

The company then allegedly used the information gathered to impose improper document requests on non-citizens during the re-verification process as a condition of continued employment. The complaint further alleged that the casino subjected non-citizen employees’ documents to a heightened review process by senior human resources representatives that was not applied to documents presented by U.S. citizens.

7. Failure to comply with state immigration laws. Employers are often unaware of the myriad of state immigration requirements. A Survey of Immigration Laws is available on the Fisher & Phillips website.

8. Failing to comply with the Deemed Export Rule. The Export Administration Regulations and the International Traffic in Arms Regulations impose licensing requirements on the export, reexport, and in-country transfer of a wide variety of items that are controlled for national security, foreign policy, and other reasons.

The requirements include an obligation for U.S. persons, including corporate employers, to seek and receive a U.S. Government license before releasing in the U.S. to foreign persons, including foreign person employees from certain countries, various types of technology controlled by these regulations. This obligation is referred to by the Commerce Department as the “deemed export” rule because releases of controlled technology to foreign persons in the U.S. are “deemed” to be an export to the person’s country or countries of nationality.

9. Failure to properly complete Form I-9. A construction company with no history of previous I-9 violations was assessed fines in the amount of $17,200 for 103 I-9 violations, including failure to present I-9 forms for 10 employees, failure to list the proper List A document in Section 2 of the I-9, and 27 I-9s with procedural or technical violations.

10. Failing to follow proper E-Verify procedures. The Justice Department reached a settlement with a provider of janitorial and facilities maintenance services based in Tampa to resolve allegations that the company violated the anti-discrimination provision of the Immigration and Nationality Act when it failed to fully reinstate an employee in retaliation for asserting her right to work in the U.S.

The company has agreed to pay $6,800 in monetary relief to the charging party, which included back pay and interest, along with a $2,000 civil penalty. The charging party alleged that the company failed to provide the employee with proper notice and instructions for contesting an initial data mismatch in E-Verify, resulting in E-Verify issuing an erroneous final response that she was not work authorized.

11. Taking adverse actions against employees based solely on SSA “No-Match” letters. There is no clear guidance from the government on how an employer should respond to No-Match letters received in 2012. Employers should take the following steps upon receipt of a SSN No-Match letter:

    • Check your records to make sure your Human Resources department accurately recorded the employee’s information. If an error was made, provide the SSA with any corrections;
    • If your records are correct, promptly notify the employee that you received a SSN No-Match letter and ask the employee to go to SSA to address any discrepancy;
    • Do not take any adverse action against the employee based solely on the SSA No-Match letter;
    • Apply any procedure developed to respond to the SSA No-Match letters in a non-discriminatory way; and
    • Give the employee a reasonable amount of time to correct any discrepancy. If the employee indicates that he visited SSA and the situation is resolved, please note the actions you and the employee took to resolve the discrepancy in the event of an audit.

12. Not preparing for an ICE raid. In the chaos of an intrusive Immigration and Customs Enforcement raid, companies should ensure that their representatives are instructed not to volunteer statements to ICE agents or allow themselves to be interviewed or interrogated without an attorney present who represents the organization.

Last fiscal year, employers nationwide were ordered to pay nearly $10.5 million in civil fines for hiring violations. In addition, criminal charges were filed against a record-breaking 221 owners, employers, managers and/or supervisors – up from 196 in fiscal year 2010.

Once the final statistics for 2012 are tallied, 2012 is expected to be another record-breaking year for enforcement. In order to avoid the above-listed costly errors, your company’s resolutions for 2013 should include ensuring immigration compliance programs are in place, up-to-date, and followed.

This was originally published on Fisher & Phillips Cross Border Employer Law blog.