Blog

My I-9 Employment Verification Blog includes timely, regular I-9 discussions.

• The Comlexities of Immigration Law
  

  The former Director of the United States Citizenship and Immigration Services (USCIS) has testified immigration law is the most complex area of law in the United States—bar none, even more complicated than tax law. Since then many new immigration laws have been passed, layered through the INA, and complicated interpretation of the immigration laws. And, as the immigration laws change, enforcement changes, too. The Department of Homeland Security (DHS) was created in 2002 in response to the terrorist attacks on September 11, 2001 and the former INS was brought under DHS and revamped into the United States Citizenship and Immigration Services (USCIS).

  Immigrants must be eligible, adhere to U.S. laws, and correctly apply for visas, permanent residency, and citizenship. Most immigrants need legal guidance from an experienced North Carolina immigration attorney to obtain the status they seek.

  Immigration law involves a complex maze of agencies. DHS is not the only U.S. Executive Department involved in immigration law and the visa process. The Department of Justice operates the Immigration Court system. The Department of State handles all issuances of visas. The Department of Labor is involved in employment-sponsored permanent residence applications and H-1B visa applications. Each agency has its own appeals and review structure. All agency decisions are discretionary. Immigration laws are constantly changing which serves to further complicate the immigration process.

  Three Major Steps Towards Immigration

  For immigrants who wish settle permanently, the transition from immigrant to U.S. citizen involves three major steps:

  1. Obtaining an immigrant visa. While the most common immigrant visas are family-based and employment-based visas, many other options are also available, such as business and executive visas, physicians and healthcare professionals visas, and fiancé visas.
  2. Applying for adjustment of status or permanent residency (green card). Permanent residents enjoy more privileges than immigrant visa holders and may have the opportunity to become U.S. citizens.
  3. Naturalization (citizenship). An immigrant who successfully goes through the naturalization process becomes a U.S. citizen. U.S. citizens enjoy many freedoms, such as the right to vote, hold government positions, and the ability to reside outside the U.S. for longer time periods than green card holders.

  Each of the basic three steps to acquiring citizenship involves compliance with numerous, specific requirements administered by a complicated layer of immigration agencies. Seeking legal guidance from an experienced immigration lawyer can help you achieve your immigration and citizenship goals and avoid pitfalls you do not realize exist. At the Goulder Immigration Law Firm, our experienced immigration lawyers will help your with immigration and naturalization in North Carolina and throughout the United States.

• What is a "Public Charge" for Purposes of Immigration Law and Green Cards?
  

  Inadmissibility refers to those individuals not permitted to enter the United States. Applicants for adjustment of status to permanent resident (Form I-485, or “green card”) are regarded as applicants for admission, even though they are physically in the United States. Concerns over immigration-related consequences are raised when a non-citizen applies for certain pubic benefit programs, even though otherwise eligible to do so.

  Public charge inadmissibility applies to non-citizens who receive only certain public benefits. Non-citizens may receive certain public benefits without being a “public charge”. Some non-citizens and their families are eligible for public benefits, including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs, without being found to be a public charge.(Public charge inadmissibility is addressed in the Affidavit of Support, Form I-864.)

  In my practice as a North Carolina immigration lawyer (with clients throughout the U.S. and the world) I frequently counsel clients about the public benefits that do not trigger ”public charge” inadmissibility. Many public assistance programs do have immigration-related consequences on eligibility.

  Definition of Public Charge

  The Department of Homeland Security (DHS) United States Citizenship and Immigration services (USCIS) Adjudicator’s Manual defines ‘public charge’ as “an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” The Department of State applies a similar definition of public charge inadmissibility. Because the inadmissibility is based on whether the non-citizen is “likely” to become a public charge, a number of factors must be considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support if required, determines whether an individual is a public charge.

  Benefits Subject to Public Charge Consideration

  A non-citizen’s receipt of the following cash assistance for income maintenance programs may establish the public charge inadmissibility:

  • Supplemental Security Income (SSI);
  • Cash assistance from the Temporary Assistance for Needy Families (TANF);
  • State or local cash assistance programs for income maintenance, often called “General Assistance” programs; and,
  • Medicaid used to support aliens residing in an institution for long-term care (and not short-term care), for example a nursing home or mental health institution, may be determined to be general assistance.

  If a non-citizen accepts these forms of public cash assistance it could make the non-citizen inadmissible as a public charge, if all other criteria are met. Receipt of these public benefits will certainly raise issues in an application to adjust status to permanent resident (“green card”). However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds. The determination is required to be made on a case-by-case basis in the context of the totality of the circumstances.

  Benefits Not Subject to Public Charge Consideration

  Non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration; these include: Such benefits include:

  • Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care, and emergency medical services) other than support for long-term institutional care
  • Children's Health Insurance Program (CHIP);
  • Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
  • Housing benefits;
  • Child care services;
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP);
  • Emergency disaster relief;
  • Foster care and adoption assistance;
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education;
  • Job training programs;
  • In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter);
  • Non-cash benefits under TANF such as subsidized child care or transit subsidies;
  • Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans' benefits, among other forms of earned benefits, do not support a public charge determination;
  • Unemployment compensation is also not considered for public charge purposes.

  The key distinction between programs and create public charge inadmissibility and those that do not is the purpose of the benefit. Public benefits that are not for income maintenance but rather to avoid the need for on-going cash assistance for income maintenance, do not give rise to the public charge inadmissibility. The fact that a non-citizen may have experienced a temporary need does not necessarily indicate that s/he is likely to become primarily dependent upon the U.S. government for subsistence. Each application is reviewed on a case-by-case basis, using a totality of circumstances analysis.

  Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law. He represents clients in North Carolina, and throughout the United States and the world because immigration law is a federal law practice not limited attorneys in a particular state. Goulder has been a licensed attorney and counselor at law for 30 years and guarantees personal service to every client. Clients receive one-on-one direct access to immigration attorney Gerald Goulder on phone calls, emails, or letters. If you are seeking guidance, experience and knowledge of immigration and visa laws involving family-based or employment-based permanent residence and green cards, visas, or citizenship, do not hesitate to contact Goulder Immigration Law Firm through the website or by phone toll free at 1-866-US VISAS.

• Form I-9 and Hiring Process Reviews and Training Are Critical to Avoid Fines and Criminal Sanctions
  

  The Obama administration is absolutely committed to continue to increase employment eligibility verification worksite enforcement and I-9 compliance resources in an effort to crack down on employers who hire undocumented immigrants. Department of Homeland Security’s (DHS) employment eligibility verification, or Form I-9, enforcement agency is Immigration and Custom Enforcement (ICE). ICE received substantial enforcement budget increases in FY 2009 and FY 2010.

  ICE has launched hundreds of investigations nationwide. ICE and other federal agencies have hired hundreds of new investigators to inspect your I-9 records.

  In one week in 2009 more business were hit with I-9 fines than in all of 2008!Recently, an internal ICE memorandum from April of 2009 detailing ICE’s enforcement strategy was made public. ICE’s worksite enforcement priorities emphasize continuing worksite investigations, including “criminal cases against employers who hire and use illegal workers.”

  The memo specifies the ICE enforcement strategy will include: penalizing employers who knowingly hire unauthorized workers; deterring employers who are inclined to hire unauthorized workers; and encouraging employers to make sure that they are in compliance with immigration regulations.

  ICE’s enforcement guidelines require ICE officers to “obtain indictments, criminal arrests, or search warrants or commitment from a U.S. Attorney’s Office to prosecute target employers before arresting employees for civil immigration violations at a worksite.” (emphasis added).

  ICE encourages agents to use informants, cooperating witnesses, undercover agents, consensual searches and I-9 audits as investigative tools.

  The memo states that ICE’s “most important administrative tool” in conducting investigations is the Notice of Inspection, or NOI. ICE inspections include a comprehensive review of the employer’s entire employment eligibility verification process, including its I-9 forms and training and recordkeeping procedures.

  You are liable as an “employer” if you are an owner, executive, supervisor or manger. I-9 employment eligibility enforcement may involve either civil fines or criminal prosecutions.

  Civil fines range from $110 to $1,100+ per occurrence—an occurrence is a single I-9 Form. Criminal penalties include imprisonment, asset forfeiture and forfeiture of profits. (Not to mention the lawyer’s fees you pay along the way to defend the company and company executives, officers, managers and supervisors pay to defend themselves.) Any business owner, executive, supervisor or manger can face multiple federal criminal charges including Harboring Illegal Aliens, Inducing Aliens to Enter the United States for Commercial Purposes, Making False Statements on a Form I-9, Aiding or Abetting an employee’s false statement, and Conspiracy to commit immigration law violations.

  Liability is assessed for constructive knowledge, not actual knowledge. Constructive knowledge can be based on errors in I-9 Forms whether or not in the employee’s Section 1 or the employer’s Section 2. Form I-9 compliance is becoming more complicated. Last year alone there were more than 80 changes to the I-9 laws.

  Faced with federal criminal prosecution and possible imprisonment companies, executives, managers and supervisors are pleading guilty and agreeing to fines and less jail time rather than fighting costly, time consuming and what would ultimately be losing battles in federal criminal court. Businesses are pleading guilty to I-9 violations in record numbers. Employers are paying record fines for I-9 errors and violations. Employers are forfeiting assets and “profits” made from employing workers who are not authorized for employment.

  Company owners, executives, managers, supervisors and human resources managers have no effective defense for improper I-9 compliance practices. The Department of Justice’s Office of Chief Administrative Hearing’s Officer (OCAHO) recently ruled that a “good faith” defense was unavailable in a paperwork violation case. The ruling suggests that employers will not be able to avoid significant fines based on cooperation after the fact, good faith or ignorance of the law.

  Employers must ensure that they do not hire or continue to employ workers they know to be ineligible for employment. Employers must also ensure that they are in full compliance with all regulatory requirements in case of government investigation.

  Every employer, regardless of size, must regularly review its Forms I-9 compliance practices. It is quite simply negligence not to regularly review your I-9 compliance practices and training.

  Goulder Immigration Law Firm in North Carolina assists clients throughout the United States with their I-9 and employment eligibility verification practices, procedures and training. These Form I-9 services assist companies to develop I-9 compliance best practices, including preparing written policies and procedures, training human resources or other staff who handle your I-9s, conducting regular internal company I-9 audits, and preparing you to properly respond to an ICE I-9 investigation or ICE worksite enforcement action. These recommended best practices will help ensure that only persons lawfully authorized to work are allowed access into your workplace. As part of our services, we will work with you to make any corrections required on your employees' I-9 Forms.

  Gerald Goulder is a North Carolina immigration lawyer with clients throughout the United States and the world. His services assist employers to avoid substantial civil and criminal penalties that may be assessed for I-9 employment eligibility violations. His services include training company personnel on properly completing and retaining Forms I-9, creating company policies for all aspects of proper Form I-9 compliance and conducting internal company I-9 audits of its Forms I-9. His I-9 and worksite enforcement blog and I-9 employment eligibility verification website provide additional information on employer liabilities for Forms I-9. Contact Gerald Goulder at 1-866-US VISAS

• An Independent Contractor or Subcontractor May Be Your Employee for Form I-9 Compliance and Liabilities
  

  Employers are required to complete Forms I-9 for “employees”. Employers are not required to complete Forms I-9 for bona fide independent contractors. Calling a worker an “independent contractor” or designating a worker an independent contractor for IRS tax withholding does not necessarily make the worker an independent contractor under the Form I-9 employment eligibility verification and employer sanctions laws.

  The definition of an independent contractor depends on many factors that focus on how independent the worker really is. The Form I-9 employment eligibility verification and employer sanctions laws definition of an independent contractor draws upon, but is not the same as, the IRS definition of an independent contractor for tax and withholding purposes. The fact that the IRS considers a worker to be self-employed does not necessarily mean that the worker will be considered an independent contractor or subcontractor for I-9 verification purposes.

  An Independent Contractor or Subcontractor May Be Your “Employee” for Form I-9 Compliance and Liabilities

  Even though the employer is using a bona fide independent contractor or subcontractor, the employer may have I-9 liability if it uses the subcontractor or independent contractor with the constructive knowledge that the workers are unauthorized for employment.

  "Independent contractors" are not limited to the construction industry. Workers in many types of work can be "independent contractors": Gardeners, janitorial workers, computer programmers, computer techs, clerical and secretarial workers, consultants, accountants, lawyers, and almost any "temporary" worker may be an "employee" for purposes of the employer's responsibility for the I-9.

  Constructive Knowledge

  The employer’s actual knowledge that its independent contractor or subcontractor is using workers who are unauthorized for employment is not required for ICE to establish employer I-9 violations and liabilities.

  The employer’s constructive knowledge that an independent contractor or subcontractor is using unauthorized workers is a sufficient basis for an employer to have I-9 compliance responsibility and liability, and to have properly completed and retained the worker’s Form I-9. The employer’s constructive knowledge is determined in the “totality of circumstances”, and failure to properly complete or retain an employee’s Form I-9 may support constructive knowledge that the employee was not authorized for employment.

  Increasingly, Department of Homeland Security’s (DHS) I-9 enforcement arm Immigration and Customs Enforcement (ICE), as well as some state agencies, are aggressively looking beyond the mere label of "independent contractor" to inquire whether an employer had knowledge of its contractors' hiring and employment practices.

  Prudent employers who do not want to be the target of a federal investigation, audit or prosecution will review their Forms I-9 and other immigration law compliance efforts and make sure that their owners, officers, executives, managers, supervisors and human relations managers are not aware of I-9 violations by their contractors.

  Employers must establish procedures to remain in lawful compliance with I-9 and employer sanctions laws for indirect workers, independent contractors and subcontractors, indeed any workers it allows on its jobsite. In my practice, I recommend a written agreement providing who has Form I-9 compliance responsibility and liability for workers, i.e., the general contractor, the independent contractor or the subcontractor has the responsibility for employment eligibility verification of the independent contractor’s or subcontractor’s employees or workers.

  When I review a client’s Form I-9 compliance practices and procedures I always discuss who has access to the worksite(s) and office(s). I do not want to rely on whether a worker is classified for tax withholding purposes as an independent contractor or subcontractor. Rather, but I focus on the functional circumstances. As appropriate, I generally recommend inserting one or more clauses into written contractor agreements and specify (and, sometimes, indicating desired language):

  • The contractor is responsible for employee employment eligibility verification, and compliance with immigration laws for its employees, and subcontractors;
  • The contractor is responsible for completing Forms I-9;
  • The contractor is responsible for an I-9 compliance program;
  • Indemnification for penalties or liabilities assessed due to its violations;
  • Possible termination of the contract;
  • Contractor responsibility to maintain photocopies of supporting employment eligibility and identity documents;
  • Contractor responsibility to provide copies of Forms I-9;
  • Contractor provides a certification letter stating it has complied with the employment eligibility verification requirements in the contract;
  • Contractor will cooperate in the event of an audit by the general contractor or the government;
  • Contractor will participate in IMAGE or E-verify.

  Gerald Goulder is a North Carolina immigration lawyer with clients throughout the United States and the world. His services assist employers develop recommended Forms I-9 compliance procedures and practices, and avoid substantial civil and criminal penalties that may be assessed for I-9 employment eligibility violations. His services include training company personnel on properly completing and retaining Forms I-9, creating company policies and procedures for all aspects of proper Form I-9 compliance, and conducting internal company I-9 audits of its Forms I-9. His I-9 and worksite enforcement blog and I-9 employment eligibility verification website provide the most authoritative and extensive information on the Internet concerning Form I-9 compliance and employer sanctions laws. Contact Gerald Goulder through his websites (www.gouldervisa.com or www.I-9employmenteligibility.com) or by phone at 1-866-US VISAS.

• DHS Test for Employer's "Constructive Knowledge" A Worker Is Not Authorized for Employment Is Totality of Circumstances--Actual Knowledge Is NOT Required For I-9 Liability
  DHS Test for Employer "Constructive Knowledge" of Form I-9 Violation or Unauthorized Employment—Totality of Circumstances
  
  

  Employers are liable for Form I-9 errors and violations of the I-9 employer sanctions laws.  The new ICE I-9 workplace enforcement strategy targets employers.  Employers must complete a Form I-9 for every new hire.  Thus, employers must have a Form I-9 properly completed and on file for every employee on its payroll (hired after 1986).   Employers are required to make its Forms I-9 available for inspection on three days' notice.

  Employers are subject to civil money penalties for failure to properly complete and retain Form I-9 for every employee.  The I-9 violation civil fines range from $100 to $1,100 per violation. The civil penalties are on a per Form I-9 or per occurrence basis.

  Employers are also subject to criminal fines and imprisonment for I-9 violations and employment of unauthorized workers.  Owners, executives, managers and supervisors are subject to this criminal liability.

  The employer (and its executives, managers and supervisors) are liable for employing unauthorized workers.  The employer's actual knowledge that a worker is not authorized for employment is not required for liability.  The employer (and its executives, managers and supervisors) are liable if they have "constructive knowledge" a worker is not authorized for employment.

  According to the DHS "the totality of the circumstances" determines the employer’s "constructive knowledge" in a given case. DHS’ position is that a reasonable employer would act prudently if it has any notice of circumstances that suggest an employee is not employment authorized. DHS' specific guidance states that an employer’s receipt of a No-Match letter (Social Security Number No-Match letter) may support a finding of constructive knowledge in the totality of circumstances.  

  DHS has been silent on what it considers “good faith” compliance with Form I-9 and employer sanctions laws.

  In many cases employer liability is derived from errors in completing its Forms I-9, "Employment Eligibility Verification".

  I am reminded on an almost daily basis in my immigration law practice that there has been a cultural shift in the United States concerning compliance with laws and regulations.  Virtually every day a client lets me know that a law or regulation doesn't make sense. [Of course, more often than not this can be a reasonable reaction in immigration law.]  Many very responsible folks make a self-determination that when a law doesn't make sense to them, that there will be leniency in enforcement.  Trust me, there is no employer above the law when it comes to Forms I-9 compliance, regardless of how picayune a Form I-9 error may seem.

  Clearly, if ICE contacts one of my clients concerning specific Forms I-9 matters then I am extremely concerned that notice, in and of itself,  may trigger constructive knowledge liability for Form I-9 violations and employment of unauthorized workers. 

  Currently, it is almost impossible for me to overstate to my clients their need to conduct internal I-9 company audits and provide regular training on I-9 compliance. 

  
  Quite honestly, I recently recommended that a public company revamp its internal I-9 systems and told them it was probably negligent to not conduct I-9 internal company audits and regular I-9 training.  Public companies face Sarbanes-Oxley issues and shareholder liability issues when they management fails to act prudently.

  Errors on Forms I-9 may be innocent.  But even simple errors on Forms I-9 will result in costly civil penalties on a per Form I-9 and per occurrence basis—from $110 to $1,100 per I-9 Form.  An erroneous Form I-9 is the employer’s liability and supports a finding that the employer had actual or constructive knowledge that the employee was not authorized for employment. 

  When ICE comes knocking on doors for Forms I-9 the employer has only three days to produce all Forms I-9 and I-9 documents for inspection.  It is likely ICE will also want additional information concerning: employees terminated within the last six months with SSNs; all correspondence with the Social Security Administration; all correspondence with the Department of Labor and state wage and Hour Division(s); quarterly wage and hour statements; and, your tax returns.

  Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law for North Carolina clients and for clients throughout the United States, and the world because immigration law is a federal law practice not limited attorneys in a particular state.

  Gerald Goulder has been a licensed attorney and counselor at law for 30 years. His practice is exclusively immigration, visa and citizenship law.

  His broad professional background includes working as a special state prosecutor, owning and operating a business, serving on boards of non-profit organizations, religious organizations and private corporations, and taking political leadership roles. Mr. Goulder has also worked as an Assistant Attorney General of Ohio, and Ohio Special Prosecutor in law enforcement and prosecution, and he was appointed Special Counsel to the Attorney General of the State of Ohio. Although his private practice initially involved commercial, business, and corporate/commercial real estate matters, he now practices exclusively immigration, visa and citizenship law.

  Goulder Immigration Law Firm also assists employers consulting on Form I-9 best practices and Form I-9 consulting, including I-9 and employer sanctions compliance training, developing a company I-9 and employer sanctions compliance manual, and employment eligibility compliance auditing services.  Written I-9 compliance policies and regular Forms I-9 internal audits will help protect employers from government fines and penalties, and help ensure that all I-9 Forms comply with I-9 and employer sanctions laws. 

  Gerald Goulder, managing partner of Goulder Immigration Law Firm, is a North Carolina immigration lawyer with clients throughout the world, guarantees personal service to every client. Clients receive one-on-one direct access to immigration attorney Gerald Goulder on phone calls, emails, or letters. If you are seeking guidance, experience and knowledge of immigration and visa laws involving family-based or employment-based permanent residence and green cards, visas, or citizenship, do not hesitate to contact Gerald Goulder through his website or by calling 1-866-US VISAS.