Articles Posted in I-9 Audit

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The Chicago immigration lawyers of Zneimer & Zneimer follow all immigration cases at the United States Supreme Courts to keep our clients and the public informed.  The U.S. Supreme Court recently heard arguments in a case which will have far-reaching implications for undocumented workers.  Whether a state can prosecute identity theft if a person gives false documents to gain employment, is one of the questions before the United States Supreme Court in the case of Kansas v. Garcia, Court 17-834.  The decision below is State v. Garcia, 401 P.3d 588 (Kan. 2017).

Kansas makes identity theft a crime.  Defendants are foreign nationals who had been convicted of identity theft for using stolen identity to gain employment.  The Defendants’ attorneys maintain that the information on an I-9 form can only be used for employment verification and for no other purpose, including criminal prosecution because federal law limits the use of the information on the I-9 form to federal crimes.  The Defendants’ attorneys state that because the information to gain employment that workers provide on the I-9 form is also on the tax forms that are required at the same time, the State of Kansas cannot prosecute identity theft.  Otherwise, in essence, it would be using the information from the I-9 form to prosecute the crime, and the use of this information from the I-9 form is limited by federal law.  Even if Kansas bases the prosecution on information provided in the tax forms, as long as the tax form are provided at the same time with the I-9 form, and the information on the tax form is the same that the worker provided on the I-9 form, any prosecution will implicate information from the I-9 form, which is preempted by federal law.

As the name and the social security number were listed on the I-9 and the tax forms, by prosecuting identity theft in this scenario, Kansas is attempting to enforce federal immigration law, which cannot be done because federal law preempts such enforcement.  Section 1324a(b)(5)  of 8 U.S.C. states that the form “designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter and  [specific federal provisions].” Continue reading →

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The Chicago attorneys of Zneimer & Zneimer PC reviewed the final regulations entitled Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82398-01, that the that the Department of Homeland Security published on November 18, 2016.  These regulations interpreted several employment-based sections of the Immigration and Nationality Act, including those regulating employment of non-immigrant workers.

The updated regulations made some changes to the rules applicable to E–1, E–2, E–3, H–1B, L–1, or TN.   They added up to 10 days of admission before the authorized work period begins, and up to 10 days of grace period after the work-authorized period ends.  During these extra 10 days on both ends, the foreign worker may not work.

These extra days at the end of the authorized work period will be helpful to foreign workers and their families if they wish to leave the United States.  However, Chicago attorney Sofia Zneimer cautions, that for workers and employers who wish to continue their work relationship in the United States, these additional days may cause issues if not properly monitored.

One thing to keep in mind is that these extra 10 days are not work authorized.  This means that the employee will have an I-94 card that will include the additional grace period even though this period will not be work-authorized.  Thus, unless both the foreign worker and the HR mangers overseeing the I-9s for their companies are mindful of this added grace period,  they both can get in trouble, if the foreign workers inadvertently works during the grace period relying solely on the expiration of the foreign worker’s I-94.   It is important to remember that the the top of the I-797 Approval Notice will reflect the actual work-authorized period, and not the I-94.  An employee relying solely on the expiration of the I-94, who works during these extra days without authorization, can fall out of status for working without authorization.  By permitting unauthorized work during the grace period, the employer will violate the immigration law subjecting itself to fines and penalties.

Important points for HR managers and foreign workers: Continue reading →

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Imagine that a company is in engaged in a labor dispute with a union over the conditions of employment. Soon after a tentative agreement is made, but not signed, Immigration and Customs Enforcement (ICE) sends a subpoena for I-9 forms and notice of inspection.  Based on the ICE inspection, the company disregards its agreement, hires temporary workers, and asks its union workers to train the temporary workers.  Soon thereafter, it begins firing its union worker on the basis of “suspect” work authorization documentation.  The immigration attorneys of Zneimer & Zneimer PC think that if anything is “suspect,” it would be the insertion of ICE in the middle of a labor dispute.

The above story is not hypothetical.  It is happening to union workers in Ruprecht Company in Mundelein, Illinois.  Citing the ICE investigation, Ruprecht disregarded its bargaining obligation to UNITE HERE Local 1 and began firing workers after having them train their replacements.

ICE needs to step out of the fray.  The Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites is not ambiguous.  It states:

Except as noted in paragraph C, ICE agrees to refrain from engaging in civil worksite enforcement activities at a worksite that is the subject of an existing DOL investigation of a labor dispute during the pendency of the DOL investigation and any related proceeding. ICE will continue its existing practice of assessing whether tips and leads it receives concerning worksite enforcement involve a worksite with a pending labor dispute. DOL agrees to assist ICE’s efforts under this paragraph by providing ICE with timely and accurate information to allow for identification of overlapping enforcement activity.

Paragraph C states:

Notwithstanding paragraph A, ICE may engage in worksite enforcement activities at a worksite that is the subject of a pending labor dispute if-

  • the Director or Deputy Director of ICE determines the enforcement activity is independently necessary to advance an investigation relating to national security, the protection of critical infrastructure (e.g., ports, power plants, or defense facilities), or a federal crime other than a violation relating to unauthorized employment;
  • the enforcement activity is directed by the Secretary of Homeland Security; or
  • the enforcement activity is requested by the Secretary of labor, the Solicitor of labor, or
    another Department of labor official designated by the Secretary of labor.

Ruprecht is a meatpacking plant, which does not implicate national security, nor has the Department of Labor requested enforcement activity.   The involvement of ICE is highly suspect as it provides a pretext to the company to fire union workers.  Continue reading →

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