Supreme Court's Decision in Kawashima v. Holder and the Hard-Learned Lessons of an Old Tax-Crime Conviction

Posted by Dawn Lurie on March 20, 2012

Small business owners who are green card holders should take note of the U.S. Supreme Court's recent decision in Kawashima v. Holder. The court ruled that making (or assisting in the making of) a false tax return is a crime "involv[ing] fraud or deceit," and is therefore an aggravated felony for purposes of the Immigration and Nationality Act -- making filing a false tax return a deportable offense. Read our recent GT Alert for more information.

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.

California Law Prohibits State from Requiring Employers to Use E-Verify

Posted by Dawn Lurie on October 26, 2011

Perhaps in effort to reign in the rapidly growing number of individualized city and local E-Verify laws and simultaneously stimulate the California economy, Governor Jerry Brown signed the “Employment Acceleration Act of 2011” (AB 1236) which will take effect on January 1, 2012. This bill prohibits the state from requiring employers to use E-Verify. In a nutshell, the new law prohibits the state, cities or counties from requiring employers to use E-Verify, an electronic employment verification system that uses employees’ Social Security numbers to determine work eligibility. The bill makes certain exceptions for city or county workers, and also takes into account that E-Verify is a requirement for particular employers under federal or as a condition for employers receiving federal funds.

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Social Security Administration Resumes Sending 'No-Match' Letters

Posted by Dawn Lurie on April 18, 2011

From Kevin Lashus in GT's Austin office

The Social Security Commissioner announced that as of April 6, 2011, the Administration would resume sending employer decentralized correspondence — "no-match" letters advising employers that their workers have reported a number that does not coincide with an account at the agency (See SSA Notification 1 and SSA Notification 2).

Interestingly, this announcement was posted two days before a scheduled hearing before the House Social Security Subcommittee (Sam Johnson, Chair) on the Administration’s Role in Verifying Employment Eligibility. As identified in the hearing announcement, one of the purposes of the meeting is to review proposals to expand employment verification, including enhancing the Social Security card with tamper-proof, counterfeit-resistant or biometric features and increasing enforcement through the sharing of taxpayer wage information.

Now, our friends at the Administration have never wanted to be in the enforcement business. They consider themselves America’s bankers — owing tax-payers a fiduciary duty to protect the supplemental retirement income it has collected on their behalf during the course of their life. But, it appears the Commissioner has been forced to reconsider whether the SSA should have a role in verification enforcement.

Remember that back in August 2007, DHS proposed regulations that shifted the burden to employers who received these SSA mismatch letters to establish that upon due diligence, they endeavored to rectify the mismatch with the employee’s assistance. In light of the federal litigation surrounding those regulations, the trial court enjoined the SSA from issuing notifications to employers. In July 2009, Secretary Napolitano announced that the proposed regulation was being rescinded, but there was no mention of how the SSA would return to status quo after the withdrawal of the proposed law.

In reaction to the failed litigation, the new version of the employer letter omits any mention of Immigration and Customs Enforcement — including what had been a clause that an employer’s failure to act upon receipt of the SSA notification may be construed as constructive knowledge of a verification violation — and instead returns to a more “banker” approach. SSA now simply notes that — notwithstanding the fact that SSA may provide information on the mismatch resolution to IRS or DOJ (note DHS is excluded) — failure to ameliorate the mismatch prevents the agency from crediting the employee with the correct wage.

In light of the uncertainty, we know one thing for sure: employers must have a standard operating procedure to address the receipt of these notifications. It is best to be proactive: document efforts to assist the employee AND determine what contingencies the employer may consider during the resolution process.

ICE will definitely request these SSA letters during any worksite investigation. Employers must be prepared to not only produce the letters, but also produce any evidence they have that identifies that they attempted to resolve mismatch. So, just another task to add to the list of additional responsibilities: verification police, document expert, part-time bureaucrat...

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.