From the Office of Special Counsel: Anatomy of an OSC Investigation

Posted by Dawn Lurie on March 15, 2012

The phone rings.

"Hello, this is Attorney Smith with the Office of Special Counsel for Immigration-Related Unfair Employment Practices, may I speak to the Human Resource manager in charge of your Form I-9 process?"

You say to yourself, “This is not good. I have no idea what this government agency is — Office of the Special Counsel for...what?” Your gut confirms: this does not sound good at all.

"This is she. I'm sorry, you are with whom?"

"The Office of Special Counsel for Immigration-Related Unfair Employment Practices...the OSC. I'm calling about a complaint our office received regarding your company re-verifying Permanent Residents, requiring applicants to complete Forms I-9 before you offer them employment and, last but not least, asking certain employees to bring in Social Security cards."

You ask yourself, “Is this as serious as it sounds? What do I do now?”

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act (INA). Investigations by the OSC should be taken very seriously. Our recent GT Alert reviews how the OSC investigates charges - including several examples - and the compliance strategies that companies should consider.

How to Complete the Form I-9 for Employees That Benefit From the Auto-Extension of Temporary Protected Status

Posted by Dawn Lurie on March 14, 2012

In another welcomed measure that clarifies the work eligibility of a class of valued employees, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) announced the launch of an educational video reminding employers that nationals of El Salvador with Temporary Protected Status (TPS) may continue working beyond the March 9, 2012 expiration date on their Employment Authorization Documents (EADs). The video is part of an ongoing educational campaign aimed at employers to ensure that the rights of workers are not violated in the Form I-9 compliance process.

The Department of Homeland Security has automatically extended the EADs for nationals of El Salvador with TPS until September 9, 2012. It is critical that employers know that they may continue to employ workers with TPS from El Salvador until September 9, 2012. OSC anticipates that its guidance will assist employers in avoiding claims of discrimination in the employment eligibility verification process by reminding them that, despite the rule that Employment Eligibility Verification Form I-9 documents must be unexpired, in this case it is permissible to continue to employ a worker with a TPS extension. In the past, employers have not had the benefit of such guidance and often terminated or refused to hire workers that indeed were eligible to work but could not present valid work authorization.

Read our recent GT Alert on this developing issue.

USCIS Redesigns Employment Authorization Document - I-9 Effect

Posted by Dawn Lurie on October 27, 2011

On October 25, Director of United States Citizenship and Immigration Services (USCIS) Alejandro Mayorkas announced the release of a redesigned Employment Authorization Document (EAD or Form I-766) and a redesigned N-560 Certificate of Citizenship. The new documents will be issued on an ongoing basis beginning, respectively, on October 25 and October 30. Our recent GT Alert discusses what employers and human resources professionals charged with completing the I-9 process for new hires, rehires and re-verification for existing employees need to know.

Just When You Were Ready for Summer, ICE Sends a Chill Through the Nation

Posted by Dawn Lurie on June 15, 2011

It was noticeably cooler in Washington this week as House Republicans sent a chill out to U.S. employers with Congressman Lamar Smith (R-TX) introducing an immigration enforcement measure that would make mandatory the currently voluntary E-Verify system, thus requiring immigration status checks for all new workers. But perhaps the biggest chill of the day comes from Immigration and Customs Enforcement’s (ICE) newest worksite enforcement action, which has us expecting over 1,000 Notices of Inspection (NOI) to be served on companies throughout the U.S. starting today - June 15, 2011.

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E-Verify Site Visits Expected Soon

Posted by Dawn Lurie on March 18, 2011

Get ready for a new guest at the dinnertable. Although not formally announced (and not confirmed by the DHS) we understand the Monitoring and Compliance (M&C) branch of E-Verify plans to expand its "outreach" activities.

During the past year M&C sent letters to employers in instances where E-Verify believed there were misuses relating to the system or where they just wanted to help" employers improve compliance. For example, companies that had habitual E-Verify queries completed outside of the 3-day window may have received a friendly note from USCIS. Clearly, M&C wants to be invited to this dinner party. Now the question is, should there be a seat at the table for them? M&C is charged with monitoring non-compliant behaviors including:

  1. Fraudulent use of alien number and social security number by E-Verify users;
  2. Verification of existing employees (as opposed to new hires);
  3. Verification of job applicants, rather than new employees;
  4. Selectively using E-Verify for verifications based on foreign appearance, race/ethnicity, or citizenship status;
  5. Failure to use E-Verify, consistently or at all, once registered; and
  6. Unauthorized use of E-Verify information.

The point is site-visits may assist M&C in determining whether businesses are compliant. So, work with me here, M&C shows up at your door to conduct a site visit, and let's just pretend you are a very-very-very bad company (like one of those egregious employers we hear ICE talk about). What happens? Who punishes you? Are you sent upstairs without dessert? Are you told not to come back to the table until you can behave?

Seriously, is your E-Verify MOU revoked thereby exposing you to other misfortunes? Federal contractors that cannot participate in E-Verify cannot work under certain federal contracts without a waiver. Loss of E-Verify will also be problematic for companies in certain states. This is truly serious business. But that's not all I worry about. As a result of the site visit, could M&C invite other unwanted guests to your party, such as ICE and the Office of Special Counsel?

At this time we are unsure whether advance notice will be provided to companies prior to a site visit and whether counsel may be present during the meeting. Anything's possible, don't be late, dinner is served promptly at 7pm. Call me for your compliance planning including E-Verify review and how to handle an M&C visit, as well as any other type of fraud detection visit from DHS.

ICE's Latest Wave of I-9 Audits

Posted by Dawn Lurie on March 08, 2011

On February 17, ICE issued 1,000 Notices of Inspection (NOI) across the country in a firm demonstration of the Obama administration’s ongoing commitment to a worksite enforcement strategy that focuses on employer compliance and much higher administrative fines. We were contacted by employers across the country to help prepare their responses. We were even contacted by an employer who handed their I-9s to the Agents who came to serve the NOI -- no 3 days, no advice by counsel, no waiver explained, no copies, no time, no receipt. What were you thinking, Mr. ICE agent? Not to worry, we worked it out with like adults. 

Seriously those fortunate companies who did not receive a NOI should take advantage of their good fortune and ensure that they are in compliance now. The coast is not clear. One or two additional rounds of audits are expected during this calendar year. This administration has continued to make it clear that the days when immigration compliance could be ignored and considered the “cost of doing business” are long gone. 

ICE is assertively pursuing companies where tips and leads come in,  These administrative reviews have been quite lucrative. It will be very interesting to track this latest round of audits in terms of timing and outcome.

Feel free to write in and share your own experiences.