U.S. ICE raids Poultry Plants, Doughnut Factory, Mexican Restaurants and Arrests Managers and Hundreds of Workers

I’ve previously posted about the issue of undocumented workers and talked about it a bit at our Annual Employment Law Seminar yesterday, so the AP story in today’s Wilmington News Journal is especially timely. The article
describes the latest raids by the Immigration and Customs Enforcement (ICE) branch of the Department of Homeland Security on workplaces with large numbers of illegal alien employees. The raids included arrests of an owner and 10 managers of one company.

As I said yesterday, one reason that business owners and managers should be paying close attention to this issue is to stay out of jail!

ICE arrested 300 workers for identity theft, document fraud and immigration violations at Pilgrim’s Pride chicken processing plants in five states. The company itself reported identity theft issues to ICE and cooperated in the enforcement action. It uses the E-Verify online database to check the documentation of new employees, and fires employees who do not correct documentation problems. But, as a company spokesperson pointed out, that doesn’t help with cases of outright identity theft. This is at least the fourth round of raids and arrests on poultry plants since 2005.

No charges were filed against the company itself. On the other hand, yesterday’s arrests included the owner and 10 managers of a chain of Mexican restaurants located in four states (New York, Pennsylvania, Ohio and West Virginia), who were charged with employing illegal immigrants. Forty-five restaurant workers were also arrested on immigration charges.

30 people were arrested in a raid of a Houston doughnut factory. Many of the individuals who were arrested were housed in a company dormitory. No word yet on whether owners or managers of the factory will face criminal prosecution.

The article concluded with a report that a grand jury in Atlanta had indicted 10 people from employment agencies there for placing illegal aliens at locations in six states. The agencies were charged with developing a network to “recruit and exploit” illegal workers.

My previous posts on this topic include, “The Safe-Harbor Rule for No-Match Letters,” Parts 1, 2, and 3, as well as “Get the Jump on No-Match Letters and Suspicious Documents.” Those articles provide you with comprehensive explanations of what No-Match Letters are and how they can impact your business.

The moral of this story is that employers must be proactive in protecting themselves from this type of situation.

If you know or suspect that your workers are using false documents, don’t just sit on your hands and hope for the best. You should sign up for and start using E-Verify for new hires, and use the Social Security Number Verification System (SSNVS) provided by the Social Security Administration to find out the extent to which your current workers’ social security numbers and names do not match Social Security Administration records. Develop a policy for dealing with this issue, including terminating all employees (whether they “appear” to be illegal immigrants or not) who fail to straighten out no-match issues within a reasonable time.

Employers must tread carefully when creating a policy to avoid discrimination issues. Contact me if you’d like some help.

U.S. Citizenship and Immigration Services (USCIS) today conducted the computer-generated random selection processes on H-1B petitions, to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication. If approved these H-1B petitions will be eligible to receive an H-1B visa number.

USCIS conducted two random selections, first on petitions qualifying for the 20,000 “master’s or higher degree” (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.

The approximately 163,000 petitions received in the first five days of the eligible filing period for FY 2009 (April 1 through April 7, 2008) were labeled with unique numerical identifiers. USCIS has notified the appropriate service centers which numerical identifiers have been randomly selected, so each center may continue with final processing of the petitions associated with those numerical identifiers.

Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives. As previously announced, duplicate filings will be returned without the fee. The total adjudication process is expected to take approximately eight to ten weeks.

For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period begins today (April 14), the day of the random selection process.

USCIS has “wait-listed” some H-1B petitions, meaning they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS will send a letter to the wait list petitioners to inform them of their status.

USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees within six to eight weeks.

~From USCIS Press Release

For background about the quickly developing H-1B events, see our prior posts here and here.

U.S. Citizenship and Immigration Services (USCIS) today made a preliminary estimate that approximately 163,000 H-1B petitions were received during the filing period. More than 31,000 were for the advanced-degree category.

The lottery-based selection process will begin next week with the selection of the 20,000 petitions under the advanced degree exemption. Those petitions not selected from the advanced-degree category will join the random selection process for the cap–subject to the 65,000 limit.

As expected, the US Citizenship and Immigration Service (USCIS) announced yesterday that it has received enough H-1B petitions, which are issued to temporary workers, to meet the cap for fiscal year 2009. The cap was reached just one week after the application period opened. The 20,000 H-1B cap for holders of advanced degrees has also been reached.

Before running the random selection process, USCIS will complete initial data entry for all filings received during the filing period ending on April 7, 2008. Due to the high number of petitions, USCIS is not yet able to announce the precise day on which it will conduct the random selection process. USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless found to be a duplicate. USCIS will handle duplicate filings in accordance with the interim final rule published on March 24, 2008 in the Federal Register.

The agency will conduct the selection process for “advanced degree” exemption petitions first. All “advanced degree” petitions not selected will be part of the random selection process for the 65,000 limit.

The United States Citizenship and Immigration Services (USCIS) announced yesterday that all H-1B temporary worker petitions filed between April 1, 2008 and April 7, 2008 “will be subject to a random selection process.” Of course, petitions that are not selected and approved through this process will be returned, along with the accompanying filing fees.

USCIS only began accepting H-1B petitions on April 1, 2008 for new employment in fiscal year 2009, which begins on October 1, 2008. The announcement of the random selection process means that employers who were not able to submit their H-1B petition by April 1st still have a chance to secure employment authorization, provided the petitions are submitted by April 7.

It’s important to remember that not all H-1B petitions are subject the visa cap. For example, petitions renewing H-1B status, or “porting” a worker currently on an H-1B from one employer to another are, in most instances, not subject to the cap. However, the H-1B visa cap does have a tremendous impact on your ability as an employer to hire foreign students or persons presently in foreign countries for employment in the united States. As such, it should be considered in any recruitment conducted by your organization.

This is the third in a series of posts about the new Safe-Harbor rule issued by the Department of Homeland Security. For the 1st and 2nd posts in the series, go here and here.

What’s An I-9 Form?
The I-9 form is used to enforce the part of IRCA that prohibits employment of non-work-authorized aliens. All U.S. citizens, all lawful permanent resident aliens, all refugees and all asylees are allowed to work in the U.S. by virtue of their status. There are also some other categories of immigrants who are legally permitted to work here. All employers are required to prepare an I-9 form for each new employee to show that the employer has examined documents that demonstrate that the employee is legally authorized to work in the U.S. Employers are supposed to accept the documents only if they appear to be genuine (not counterfeit) and to relate to the person who provided them. Most U.S. citizens meet the document requirement by showing a driver’s license and a social security number card, but on the back of the I-9 form there are lists of other documents that can be used to prove identification and authorization to work.

Back To The Safe Harbor Rule
Under the new rule, if the employee has not provided corrected SSN information by the 90th day and the employee had relied on an SSN card as proof of work authorization, the employee must provide some other evidence of work authorization. The employee may not use documents that include the disputed SSN. The employee may not rely on an application for replacement work authorization documents, either. The employee also may not use non-photo identification.

What If The Employee Can’t Provide Acceptable Documents?
The employer has to either fire the employee or put itself at risk of prosecution for knowingly employing illegal aliens.

Is This Rule In Effect Now?
The rule was supposed to go into effect in September, but the AFL-CIO, the ACLU, the National Immigration Law Center and others filed a lawsuit [(AFL-CIO, et al. v. Chertoff, et al. (N.D. Cal. Case No. 07-CV-4472 CRB)] in the U.S. District Court of the Northern District of California to prevent the government from enforcing the rule. On August 31, 2007, the court issued a temporary restraining order preventing DHS and the SSA from implementing the rule. The SSA had planned to send about 140,000 no-match letters containing a DHS insert that would affect about 8 million workers to employers. The order stopped the SSA from sending those letters, so currently there are no pending no-match letters for employers to deal with.

What Is The Current Status Of The Regulations?
Implementation is on hold pending new rulemaking. DHS has just published a “supplemental proposed rule” in which it addresses problems the court identified. One problem was that DHS had stated that employers that complied with the rule would not get into trouble for citizenship status discrimination, even though OSC, not DHS, is the agency charged with enforcing IRCA’s citizenship status discrimination provisions. Another issue was DHS’s failure to explain and justify the change from its prior position on what social security number mismatches imply. Finally, DHS had failed to make a “regulatory flexibility analysis.”

DHS has not changed any of the provisions of the original rule. After the notice of the “supplemental proposed rule” is published in the Federal Register, there will be a 60-day period for the public to submit comments, and then DHS will review the comments, consider revising the rule, and then issue a final rule. It seems likely that the final rule will be the same as the rule published in August 2007.

Will The Safe Harbor Rule Be Mandatory?
DHS says it will be voluntary, but the court disagreed, noting that employers that receive a no-match letter must follow the rules to avoid being accused of knowingly employing illegal immigrants. At least employers who follow the rule will not have to worry about being accused of discrimination — the OSC has just issued a statement assuring employers that if they follow the rule in a careful, uniform manner, it will not find reasonable cause to believe that they have terminated employees because of their citizenship status. You can read the entire OSC statement here.

Bottom Line
This rule may provide some temporary relief to employers caught between a rock and a hard place trying to comply with competing laws, but I predict that it will ultimately result in a decrease in counterfeit SSN cards with made-up SSNs and an increase counterfeit SSN cards using stolen identities to avoid getting caught up in the no-match net. The government currently has no useful mechanisms in place to deal with identity theft that I know of but will end up having to create them. I see universal fingerprints or retinal scans on the horizon.

Last week I posted a couple of items about the Department of Homeland Security’s (DHS) “Safe-Harbor Rule,” which gives employers a method for avoiding prosecution for intentionally employing undocumented workers who have been listed in “no-match letters.” As you know if you read those items, the latest batch of “no-match letters” from the Social Security Administration (SSA) is on hold for an indefinite period. In the meantime, if you have received a no-match letter in the past, or suspect that you might be getting one in the future, is there anything you can do now to minimize future problems?

The answer to that question is yes. Employers now have two methods for finding out the extent of their no-match problem and of weeding out undocumented workers. One is the SSA’s Social Security Number Verification System (SSNVS), and the other is DHS’s “E-Verify” program. Both are free web-based programs.

The SSA program simply looks for mismatches between its records and your, the employer’s, records, and can be used for your entire workforce at any time. If you find a mismatch between your records and the SSA’s records as a result of using the SSNVS, the SSA tells you to check with the employee to find out whether you have the correct information in your records, and to resubmit the inquiry if you find an error. If that doesn’t end the problem, the SSNVS Handbook gives the following caution:

Remember

• A mismatch is not a basis, in and of itself, for you to take any adverse action against an employee, such as laying off, suspending, firing or discriminating.

• Company policy should be applied consistently to all workers.

• Any employer that uses the failure of the information to match SSA records to take inappropriate adverse action against a worker may violate State or Federal law.

• The information you receive from SSNVS does not make any statement regarding a worker’s immigration status.

What the SSA program really does, then, is give you an opportunity to reduce the number of clerical errors in your payroll database. It also will give you an idea of whether you might be of interest to DHS, since DHS is now using SSN mismatches as a method for identifying employers with a high number of undocumented workers. If you find out that you have at least 10 unresolved mismatches and those mismatches constitute at least 0.5% of your workforce, you should take additional steps now to avoid possible future liability. At least one of those steps should be signing up for the DHS E-Verify program.

E-Verify is a free Web-based system that electronically verifies the employment eligibility of newly hired employees, and can be used for new hires only. To use E-Verify, first the employer must register as a participant and sign a “Memorandum of Understanding” (MOU) that will outline the responsibilities of the employer, the SSA and DHS. Your employees who administer the program will be trained in how to use it.

E-Verify works by allowing you to electronically submit employee information taken from the Form I-9. That information is then compared to the more than 425 million records in SSA’s database and the more than 60 million records in DHS immigration databases. Results are returned in seconds.

According DHS, E-Verify is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. They claim that it will virtually eliminate Social Security mismatch letters, improves the accuracy of wage and tax reporting, protect jobs for authorized U.S. workers, and help U.S. employers maintain a legal workforce.

Once you are registered for E-Verify, you start the process after an individual accepts an offer of employment and after you and the employee complete the Form I-9. Under the terms of the MOU, the employer must initiate the query no later than the end of three business days after the new hire’s actual start date. If there is no problem, the confirmation should come through in seconds, according to the DHS/SSA website. If there is a tentative “nonconfirmation,” the employer prints out the tentative nonconfirmation notice generated by the E-Verify program and gives a copy to the employee. The employer also checks its input to make sure it did not make an error in submitting information to the system.

The employee decides whether to contest the tentative nonconfirmation and tells the employer his or her decision. If the employee decides not to contest the tentative nonconfirmation, the employer treats the employee as non-work-authorized and terminates employment.

If the employee decides to contest the nonconfirmation, the employer gives the employee a referral letter and tells the employee to visit the local SSA office, if the nonconfirmation was from the SSA, or to call the DHS toll-free hotline, if the nonconfirmation was from the DHS or when the employer finds a non-match between a non-citizen and a document generated by the E-Verify system for that employee. The employee has to follow up with SSA or DHS within 8 federal government business days. On the tenth business day, the employer queries the system to find out whether the SSA or DHS have issued a confirmation or a final nonconfirmation. If there is a final nonconfirmation, the employee should be terminated.

An employee should not face any adverse employment consequences based upon an employer’s use of E-Verify unless a query results in a final non-confirmation. The biggest downside of the E-Verify program is the lengthy list of responsibilities (15 items) that the employer must agree to take on. You can get more information about E-Verify on the DHS website here.

The Department of Homeland Security (”DHS”), has issued new procedures for employers who receive “no-match” letters. In Part 1 of this post, I talked about the state of the law before the new “Safe-Harbor” rule was issued. In this post, I’ll discuss the potential impact of the Safe-Harbor rule and why it is so important for employers.

Why Do Employers Need A Safe Harbor?
Over the past 2 or 3 years, DHS has developed evidence that most cases of social security number mismatches involve undocumented workers. However, in the text of its mismatch letters and on its website, the SSA cautions employers not to take any adverse action against employees based on a mismatch issue because there could be many innocent reasons for a mismatch. Another branch of the government, the U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), also cautioned employers not to take action against employees based on SSN mismatch issues because OSC might interpret such action as discrimination in violation of the anti-discrimination provisions of Immigration Reform and Control Act of 1986 (“IRCA”).

Nevertheless, in the past 2 years, Immigration and Customs Enforcement (“ICE”), has been raiding employers that received no-match letters. ICE has even arrested and criminally prosecuted individual managers, accusing them of recruiting, harboring and knowingly employing illegal aliens. For example, in April 2007, DHS raided 40 plants in 26 states of a company called IFCO, apprehending 1,187 undocumented workers. DHS also arrested a plant manager and a regional manager on charges of conspiring to transport, harbor, and encourage undocumented workers to reside in the United States. The penalty for conviction is up to 10 years in prison. DHS intends to increase the fines for knowingly employing illegal aliens by 25%. Right now the fines are $2500 for a first offense and up to $10,000 for repeat offenses.

The number of criminal prosecutions for knowing employment of undocumented workers is rising and that will continue. There were 716 criminal arrests in fiscal year 2006, and the number increased in fiscal year 2007. In 1999 there were only 24 arrests.

What Does The New Rule Say To Do?
The first step the employer takes is to check its records for typos and similar errors. If any errors are discovered, the employer contacts the SSA to make sure that the correct name and social security number match the SSA records. Employers have 30 days from receipt of the no-match letter to take this step.

The next step is to ask the employees on the list about the discrepancies. If the employee says the information in the employer’s records is incorrect, the employer corrects its records and contacts the SSA to make sure the corrected information matches its records.

If the employee says the information in the employer’s records is correct, the employer has 30 days to ask the employee to contact the SSA about the discrepancy. The employee has 90 days from the date of receipt of the no-match letter to provide new information to resolve the discrepancy. If the employee does not provide new information, the employee has three days from the 90th day to provide new documentation that will enable the employer to prepare a new I-9 form as if the employee were a new hire.

Even split into two posts, this is still a long entry, but it’s better than reading the even longer document ( (44 pages!) on this issue.

Employers & Illegal Immigrants
The U.S. Department of Homeland Security (“DHS”) is the agency that issues “no-match” letters. If you’re an employer and you have never received a “no-match” letter from the Social Security Administration (“SSA”), consider yourself lucky and read on anyway. If you have gotten one or more of these letters, or if you suspect that at least 0.5% of your workforce consists of undocumented workers, read on.

In June 2006, DHS issued a notice that it intended to issue a rule designed to interfere with the ability of illegal immigrants to get jobs in America. Currently there are between 11 and 12 million illegal immigrants living in the U.S., and about 8 million illegal immigrants working here. Agriculture, service and construction are the industries that are believed to have the highest number of undocumented workers, but any company that has received mismatch letters from the SSA or a DHS “notice of suspect document” in the past should be paying close attention to this safe-harbor rule, issued by DHS in August 2007.

The rule is called “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.”

What’s A No-Match Letter?
Employers file W-2 reports with the IRS every year reporting their employees’ wages and withholdings. The reports include employees’ names and social security numbers (“SSNs”). The Social Security Administration (“SSA”) issues SSNs and has a database of the numbers, and the name and earnings associated with each number. Each year, the SSA sends letters to employers who have at least 10 employees whose names and social security numbers don’t match the names and numbers in the SSA’s database, if the mismatches constitute more than 0.5% of the W-2s in the employer’s annual wage report.

That letter is called a “no-match” letter.

What Was The No-Match Process Before The New Rule?
Action by the employer to correct mismatches was voluntary. In the no-match letters, the SSA simply asked the employer to check its own records for accuracy and report back if it found the reason for the problem. If the employer did not find a discrepancy in its own records, the employer was advised to tell the employee that there was a problem and encourage the employee to go to the social security administration to get the problem corrected.

Stay tuned for more. Part 2 will address what the safe-harbor procedure provides and why it’s so important to you.

On April 1, 2008, the United States Citizenship and Immigration Service (USCIS) will begin accepting petitions from employers for H-1B visas for fiscal year 2009. Unfortunately for employers, the H-1B visa category has a yearly maximum of merely 65,000 visas. This limit is also known as the H-1B cap.

Last spring, the H-1B cap was reached on the very first day of filings. USCIS will not accept any additional petitions after the cap is reached. Therefore, employers seeking visas should move quickly to complete and submit form I-129 and the necessary supporting paperwork. (Click here for the forms page on the USICS website)

New Rule on the Use of Multiple Petitions
As part of the gear-up for April 1, USCIS published an interim rule in the Federal Register dealing with the number of petitions that can be filed per employee. The rule was issued on March 19, 2008 and prohibits employers from filing multiple H-1B petitions for the same employee.

Do You Feel Lucky
You might need some luck. The interim rule sets out the process for how petitions that are received after the cap has been hit. USCIS will use a lottery system. A random selection process will determine that it has received enough petitions to reach the cap within the first five business days.