How to defend yourself during an immigration audit

How to defend yourself during an immigration audit

The horrific workplace raids of the Bush years may be over, but instead of sending in armed federal agents to round up hundreds of workers and jail them, the Obama administration has a quieter—and just as ruthless—approach.

Immigration and Customs Enforcement, better known as ICE, investigates employers, requiring I-9 audits to determine whether workers have the correct papers to work in the U.S. The agency tells companies to fire workers who can’t re-verify their status, or be fined. Untold thousands have lost their jobs.

When an I-9 audit is ordered in a union workplace, the union is too often unprepared and ignorant of precedent. Members blame the union for not doing enough, and lose their jobs.

But in Minnesota Service Employees Local 26 is fighting alongside immigrant members and their communities to combat the mentality that immigrant workers are victims. The union has used the contract to win wider protections for immigrant members—and spread those gains to non-union workers—at a time when immigration rules are becoming increasingly strict.

Between 2009 and 2011, two major companies where janitors are represented by Local 26 were faced with I-9 audits. Management in some cases gave workers one week to provide documentation or face immediate termination. Some had first submitted their papers over 12 years ago.

With 1,256 union janitors facing the ax, the union called a full membership meeting that weekend, to get accurate information from members, give them legal counsel, and devise a response. Over half the membership attended—scared, confused, and frustrated.

How to Prepare Your Contract for I-9 Audits

Timing is everything: Make sure the company must notify the employee and union in writing immediately with details about what specifically is wrong when work authorization status becomes an object of inquiry.

The language SEIU Local 26 won includes unpaid time off up to 120 days, with no loss of seniority, in order to correct the identified problem. Name change or correction of Social Security number cannot be cause for a break in employment or a re-hire.

The contract guarantees that an employee terminated over a work authorization issue is placed on the layoff list and will maintain seniority if she can resolve the problem within 12 months.

And when federal immigration reform is finally enacted, union and company will meet and confer on issues arising from work authorization status.

That same week union officials met with the Department of Homeland Security and secured a series of one-week extensions for members to get their papers in order.

On the morning of the last expiration date, when 400 members gathered at the union hall for a march on the boss, they found out they had just won another 90 days to re-verify.

“These audits have far-reaching repercussions for the entire community,” said Local 26 Secretary-Treasurer Greg Nammacher. “Folks needed the union to be something they can trust—to become an extension of their community.”

So Local 26 organized a “Political Brigade” to lobby Congress for immigration reform through card and petition drives and delegations of janitors lobbying in D.C., and an “Apoyo (support) Brigade” to help workers survive if they were laid off.

The Apoyo committee brokered connections with immigration lawyers, who identified 20 members with the possibility of obtaining papers. A time bank was set up, where unemployed workers could trade a few hours of carpentry work for a few hours of babysitting. The committee created a discount card from local retailers who agreed to give struggling union members up to 20 percent off on purchases such as groceries.

Despite the extra time the workers had won, eventually hundreds of janitors lost their jobs. They were then recruited to become associate members of Local 26. They did not pay dues but were welcomed to union meetings and actions. The union continued to work to recover their unpaid vacation pay.

How to defend yourself during an immigration audit

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Javier Morillo, president of SEIU Local 26, said “In an I-9 audit the union is the one entity that members feel has the job to defend them. Although we fought hard together during the audits, many members still experienced the things we won as defeats, because at the end of the day we didn’t do enough to prevent them from losing their jobs.”

DEFEND THE HOMES

Soon talk of foreclosures surfaced at union meetings. The union partnered with neighborhood groups to negotiate better mortgage interest rates for members and even the halting of some foreclosures.

The union intentionally created a social hub for workers to gather around. When times were hardest the union threw parties to celebrate traditional Mexican holidays and held toy drives.

All of these shared struggles and demonstrations of commitment to the community of the fired janitors led to a solid connection to the union.

The network would pay off. In the final quarter of 2009, the union was faced with contract negotiations.

As a result of the audits, the union had lost almost 80 percent of front-line stewards in buildings throughout the Twin Cities. Management at the janitorial contractors demanded a $5-an-hour pay cut and the right to reduce all members to part-time status.

During this fight associate members participated in the contract convention and weekly protest actions and attended the strike vote.

Together they won a contract that not only rejected the concessions but added language to give due process to members attacked with I-9 audits (see box).

SPREAD THE FIGHT

Through the support structure for laid-off members, Local 26 had a base ready for a long-term movement. But they were ready for action now.

They soon had a target. Chipotle, the fast-food company that fancies itself an ethical employer, fired nearly 700 Twin Cities workers in December 2010 after an I-9 audit. Workers said they were denied last paychecks and earned vacation time, and that the company did not honor the 90-day period the Social Security Administration tells employers to offer workers to re-verify documents.

Union members and their community allies, like the Centro de Trabajadores en Lucha worker center, called out Chipotle.

CTUL organized a small committee of recently fired Chipotle workers, and together with the SEIU janitors they organized a sit-in at a Minneapolis Chipotle, supported by solidarity rallies, handbills, and pickets at other locations.

“The timing was perfect, with janitors having the momentum behind the contract language victories and Chipotle’s vulnerable public position as a ‘responsible and ethical employer,’” Nammacher said.

CTUL and the union helped workers recover final wages and vacation pay and pressed Chipotle to publicly announce its support for immigration reform. Instead of the typical Chamber of Commerce position in favor of low-wage “bracero” programs, Chipotle now backs a path to citizenship.

Nammacher said the union found that direct action against employers involved in I-9 audits was an effective tactic to change their position from “we’re just following the law” to “this system is broken.”

In taking on first their employers and then non-union copycats, Local 26 was able to show the union isn’t just a vehicle for defending the members’ bread and butter but can fight for the broader immigrant community.

How to defend yourself during an immigration audit

What Is an I9 Audit?

  • Jun 10 2020

The Immigration Reform and Control Act (IRCA) was passed by Congress in 1986. IRCA prohibits U.S. employers from hiring anyone who does not have legal authorization to work in the country. To confirm that an employee is legally authorized and eligible to work in the U.S., employers are required to fill out Form I-9. While the form itself has changed over the years, it is still a requirement and it still can cause problems for employers who either fail to comply with submitting I-9s or fail to fill out I-9s correctly.

Overview of an I9 Audit

There are a wide variety of I-9 errors that an employer may make and may raise red flags for Immigration and Customs Enforcement (ICE), triggering an audit. Even seemingly small mistakes such as forgetting to sign a section of the form or failing to submit the form in a timely manner can lead to an audit and cost the employer a substantial amount of money. When you are dealing with ICE, everything matters, details included. ICE has increased the number of I-9 audits conducted over the years. Understanding I-9 errors that can lead to an audit and understanding the audit process itself can help protect business owners from incurring substantial penalties.

Form I-9 is officially titled “Employment Eligibility Verification.” Common errors include an employee leaving out required information. In some instances, an employee may fail to sign a section of the form. Failure to check the box indicating citizenship status is also a common error made by employees completing Form I-9. Employers also commonly make mistakes on these forms. An employer may fail to enter the date of hire for the employee. In other instances, an employer may fail to enter an accepted verification document.

All of these errors can trigger an I-9 audit conducted by ICE. The first step in the audit process is the delivery of the “Notice of Inspection” to the employer. The employer is then given as little as three days to produce Form I-9s for all employees. ICE may also request additional documentation such as payroll records. Under the IRCA, employers must maintain Form I-9s for every employee hired. Failure to produce Form I-9s to ICE can lead to a substantial amount of trouble for the employer.

ICE will review all documents furnished by the employer and look for any discrepancies. Simple technical errors, such as a missing date on the form, may be remedied by the employer within ten days. Should larger discrepancies be found, the fix is not so simple. These bigger discrepancies are referred to as “substantive violations” and are usually things that would make it look like an employee was not actually authorized to work in the U.S. Should a substantive violation or technical violation remain uncorrected within the allotted amount of time, fines can quickly pile up. ICE will likely assess additional fines should it be proven that you knowingly hired unauthorized workers.

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How to defend yourself during an immigration audit

U.S. Immigration and Customs Enforcement (ICE) intends to increase its investigation efforts during 2016 to ensure employers have met their obligations to properly verify the identity and employment authorization of its workforce. When investigating compliance, ICE will typically review I-9 Employment Eligibility Verification forms for each employee to see if they have been completed and to confirm the forms’ accuracy. An employer who fails to complete an I-9 or incorrectly completes a form is subject to civil or criminal fines. An employer faces the same liability if an I-9 indicates a particular employee is not authorized to work in the United States.

The best way for an employer to protect itself against potential liability for violations is to periodically review existing I-9s for compliance and to re-train the individuals responsible for completing the forms. In an effort to assist employers in avoiding claims of unfairness, discrimination or retaliation regarding such reviews, on December 16, 2015, ICE and the Office of Special Counsel for Immigration-Related Unfair Employment Practices issued their Guidance for Employers Conducting Employment Eligibility Verification Form I-9 Audits. A link to the guidance can be found here.

Practical guidance for conducting a self-audit

The guidance is very practical. Some valuable recommendations include:

  • If accused or unfairness or discrimination, be prepared to explain the purpose or motivation for your audit.
  • Plan the scope of the audit. An employer may review all I-9s or a sample, so long as the selection is neutral and non-discriminatory.
  • Keep the process transparent. Inform employees you are conducting an internal audit of I-9 forms and the reason for doing so.
  • Provide employees with a way for them to communicate to you any concerns or issues regarding the process or their own I-9s.
  • When a deficient I-9 is found during the audit, inform the employee and provide the employee with a copy of the deficient form.
  • Deficiencies found in Section 1 of a form must be corrected by the employee – not the employer. Do not destroy deficient I-9s. Have an employee correct, initial and date the corrected form.
  • Errors found in Sections 2 or 3 of a form may be corrected by the employer. The same no-destruction and correction rules apply.
  • If you discover an I-9 was not completed or missing, a new I-9 should be competed immediately. Do not backdate the new form, but do attach a signed and dated explanation of what occurred and why.
  • If you discover an employee did not provide sufficient documentation when their original I-9 was completed, an employer may request the employee to present satisfactory documentation. Then include the updated I-9, together with a signed and dated explanation of what occurred and why, with the original form.
  • Employers may only request existing employees to complete a new I-9 if there is evidence the original form was deficient, erroneous or lacked sufficient documentation. In those cases where an employee is required to complete a new I-9, the employer should include the corrected/updated I-9, together with a signed and dated explanation of what occurred and why, with the original form.

Periodic I-9 self-audits and re-training remain advisable for employers wanting to avoid the sting of an ICE enforcement action, and this new guidance offers a roadmap for employers on how to conduct an effective and legal review of its processes.

How to defend yourself during an immigration audit

Immigration and Customs Enforcement (ICE) agents descended on chicken plants and other businesses in Mississippi after an investigation into alleged illegal practices by employers and employees. Part of the raid included the companies Form I-9’s being taken and reviewed by ICE agents to ensure their accuracy and compliance with federal law. Agents from ICE take custody of the employer’s documents by auditing them and assessing criminal charges or monetary fines based on inaccuracies. Employers across the Nation should be familiar with the Form I-9 to protect themselves and their businesses from a potential ICE audit. In 2018, ICE served more than 5,200 I-9 audit notices on businesses in the United States. This was one prong of a nationwide operation that looks to ramp up immigration enforcement in the United States.

The I-9 Form is how businesses ensure the identity and employment authorization for the people they hire. These forms are required to be used for citizens and non-citizens in the United States. Every business in the United States is required to complete and maintain Form I-9’s for their employees. The form itself includes a portion for the employee to enter information and a separate piece in which the employer adds information. Individuals can be prosecuted for knowingly and willfully entering false information on these forms and employers are responsible for retaining completed forms.

Immigration audits are conducted by the Workplace Relations Commission (WRC) in the Republic of Ireland and governed by the Director General under the Workplace Relations Act 2015. WRC inspectors, made up of just under 200 civil servants of the Department of Enterprise, Trade & Employment (DETE)[1] ** visit workplaces to undertake inspections to ensure compliance with employment-related legislation including the Immigration act 2004.

In 2020 there were 7,700 employment rights/RTWS inspections and 40 compliance notices issued to businesses[2]*

From an immigration perspective, with changes in the new normal of our working patterns, greater scrutiny is being placed on ensuring employers are correctly and accurately tracking the immigration permissions of their non-EEA workforce.

Why are inspections instigated?

These visits can be triggered by a number of reasons. These can include a complaint from employees, by order from the labour courts or by the Department that will issue employment permits if they believe there is non-compliance.

What power do the WRC inspectors hold?

The powers of the WRC inspectors can be wide reaching as they apply to equality and employment legislation (beyond looking solely at immigration compliance), therefore, employers should be prepared to grant access to property such as records and documents relating to employment as well as having the ability to organise interviews with current and former employees.

  • To enter premises with reasonable notice given, where employment activities are being carried out
  • To enter premises with reasonable notice, where documents or records are being kept, which is why it is imperative that copies of employee’s immigration documents are stored securely within the island of Ireland
  • To remove any above mentioned documents or records as required for conducting the inspection under the WRA 2015
  • To interview any persons believed to be have been an employer or employee and require them to answer any questions relating to the employment and to make a declaration as to the truth of the statements given.

What to expect during the inspection

Employers will generally be sent an advance written notice of the impending inspection, any challenges to having the inspection on the proposed time should be communicated to the inspector as soon as reasonably possible.

WRC advise that an employer should have employment records for all employees organised and readily available for review of the inspector, including alerting the inspector in advance of the inspection if these records are being held off-site from where employment activities are normally carried out. This is relevant from an immigration perspective where traditionally hardcopy employment permits may be reviewed by the inspector. With advance conversations, there may be agreement to review these as a soft copy where they are stored in a different location.

After an initial high-level inspection of records, the inspector can also request any relevant records for inspection. After review, an inspector may request to interview a sample of employees which is often followed up with a meeting with the employer to present their preliminary findings.
If it is found that the employer has been compliant, a written confirmation will be issued and the inspection will be concluded. If areas of concerned have been found the WRC will follow up with the employer with further questions to investigate further.

Impact of for non-compliance

Where an employer is found to be in breach of a non-compliance, the WRCs can issue legal sanctions which can involve, but is not limited, to compliance notices and fixed penalty fines. The WRC can also prosecute individuals who refuse to comply with the law or to co-operate with the inspection. Generally the WR will allow an employer time to provide further information or remedy the situation where possible. As noted in ‘ILLEGAL EMPLOYMENT OF NON-EU NATIONALS IN IRELAND’ by The Economic and Social Research Institute, although the WRC has the power to prosecute both employers and employees, they will usually focus solely on the employer.[3]

We have seen the reputational impact for companies where they have been found to have employed foreign nationals without the correct permission. It can also have a significant impact in the company being able to hire non-EEA nationals into the company and also apply for or retain trusted partner status (which allows for expedited processing of employment permits)

Employer Call to Action: from an immigration perspective, what can employers do to ensure a compliant inspection?

There are a number of best practice steps that employers can undertake:

  • When on-boarding non-EEA nationals, as they require immigration permission, the employer should ensure that correct and up to date immigration permissions are noted on file. This is generally termed as “right to work” documentation
  • Ensure that copies of these documents (where permitted under GDPR) are kept in an organised fashion and hard copies are kept securely and readily available if an inspection is called
  • To make sure tracking systems are kept up to date, so a renewed permission copy is uploaded onto the system in a timely manner to ensure no immigration permissions fall out of validity
  • To undertake yearly ‘soft’ internal audits to make sure there is no gaps in records
  • At promotion cycles; any changes in job roles, job titles or salaries are reviewed to ensure applicable notifications are made to the immigration authorities• When employees terminate employment, their permission, where applicable, is surrendered to the immigration authorities in a timely manner

The WRC have issued an “Employers Guide to inspections” which is useful resource located here.

In Deloitte, we support clients with health checks on their employee populations and immigration audits to ensure that they maintain compliance when employing non-EEA nationals in Ireland. We can also advise companies as they set up on the processes and systems we recommend to ensure the correct records are retained and the processes set up to support corporate immigration.

We will also support when a WRC inspection is ongoing and we have attended a number of audits with our clients in the past. Finally, we also have developed technology with our clients regarding the right to work onboarding process. We have found that onboarding employees correctly and compliantly at the start has a significant cost and time saving for employers.

Our tool, GoVerify, empowers new hires to self-authorise their right to work, ensuring global compliance for the employer. Through automation and a well thought out experience, gone are the days of photocopying, stamping and delaying the start to work.

Employers must have a completed Form I-9, Employment Eligibility Verification, on file for each person on their payroll (or otherwise receiving remuneration) who is required to complete the form. Employers must also keep completed Forms I-9 for a certain amount of time after their employees stop working for them. Never mail Forms I-9 to USCIS or U.S. Immigration and Customs Enforcement.

Once an employee no longer works for the employer, the employer must determine how much longer to keep the employee’s Form I-9.

To calculate how long to keep an employee’s Form I-9, enter the following:

1. Date the employee began work for pay 1. ________________________
A. Add 3 years to the date on line 1. A. ______________________
2. The date employment was terminated 2. _______________________
B. Add 1 year to the date on line 2. B. _____________________
3. Which date is later; A or B? 3. _______________________
C. Enter the later date. C. _____________________

The employer must retain Form I-9 until the date on Line C.

The employer is required to retain the page of the form on which the employer and the employee entered data. If copies of documents presented by your employees were made, they should be kept with the corresponding Form I-9.

You may also retain the instructions and Lists of Acceptable Documents pages. Forms I-9 may be stored on paper, microfilm, microfiche or electronically.

Completing Form I-9, Employment Eligibility Verification, requires collecting personal information about employees. Employers should keep this in mind when determining how to retain and store completed Form I-9 and any corresponding documentation so that personal information does not get into the wrong hands. You should store completed Form I-9 and any corresponding documentation such as copies of documents in a manner that fits your business needs and the requirement to make Form I-9 available for inspection. Do not mail Forms I-9 to USCIS or U.S. Immigration and Customs Enforcement.

How to store Form I-9:

  • On-site or at an off-site storage facility
  • In a single format or a combination of formats, such as:
    • paper
    • microfilm or microfiche
    • electronic

    Officers from the Department of Homeland Security, employees from the Immigrant and Employee Rights Section (IER) at the Department of Justice, and employees from the Department of Labor may ask to inspect these forms.

    No matter how you choose to store your Form I-9, you must be able to present them to government officials for inspection within 3 business days of the date when the forms were requested.

    Form I-9 contains personal information about employees. When storing these forms (regardless of the format you choose), USCIS recommends that employers provide adequate safeguards to protect employee information.

    Storing the Original Paper Form I-9

    Employers who choose to keep paper copies of the documents their employees present may store them with the employee’s Form I-9 or with the employees’ records. However, USCIS recommends that employers keep Form I-9 separate from personnel records to facilitate an inspection request.

    Storing Form I-9 on Microfilm or Microfiche

    Employers may keep copies of original, signed Form I-9 on microfilm or microfiche. Select film stock that will preserve the image and allow its access and use for the entire retention period.

    Microfilm or microfiche must:

    • Exhibit a high degree of legibility and readability when displayed on a reader (viewer) or reproduced on paper; and
    • Include a detailed index of all data so that any particular record can be accessed immediately.

    If an officer notifies an employer of an inspection, the employer must provide the microfilm or microfiche and a reader-printer that:

    • Provides safety features;
    • Is in clean condition, properly maintained and in good working order; and
    • Is able to display and print a complete page of information.

    Once employers have preserved a Form I-9 on microfilm or microfiche, they may destroy the paper originals.

    Storing Form I-9 Electronically

    Employers may use a paper system, an electronic system or a combination of paper and electronic systems to store Form I-9. An electronic storage system must:

    With risk management increasing in complexity, and consequences for risk management failures escalating, organizations can no longer rely on disparate risk management practices or a single, small team for protection.

    More companies are utilizing the Three Lines or Defense (3LoD) model of risk management. The 3LoD approach emphasizes a collaborative approach to risk management with checks and balances to help prevent missteps, mistakes, and miscommunications.

    Despite its prevalence, the 3LoD model of risk is still poorly understood by many. It’s easy to find variety in the executions, even in very similar organizations following the same guidance. Regardless of the execution, leaders say there are challenges in establishing clearly defined roles and responsibilities within the three lines of defense — risk assessment, oversight, and audit.

    />Risk assessment

    Regular review and evaluation of a company’s foundational processes represent the First Line of Defense (FLoD). FLoD is effective because foundational processes are best understood by the people directly overseeing them.

    A businesses’ processes — ranging from manufacturing and finance to travel and human resources and beyond — are rife with potential losses and negative impacts. It’s important to implement a structured method and set schedule of assessment for your FLoD team. This gives your organization deep insights into the risks you’re exposed to at a foundational level.

    Infographic: Guidelines for Effective Vendor Onboarding

    Mitigate risk while building strong vendor relationships.

    An enterprise risk management (ERM) software solution can assist you and your team in assessing and reporting risk across these operations, applications, and processes. Using role-based access, permissions, notifications, and automated scoring capabilities, ERM systems offer simple configurations to align assessments with the realities of your business. You gain meaningful understanding of the actual and potential issues facing your company.

    />Compliance

    Completing a FLoD assessment provides insight into risks and the efficacy of the controls developed by compliance, but effective and efficient risk management requires expertise of risk management strategies and compliance requirements in a broad context.

    In addition to this inherent need for intelligent strategy and approach, companies are faced with increased scrutiny of businesses and their risk safeguards. Regulators are especially focusing on business interactions with their customers and the protection of customer data. As a result, regulators expect businesses to:

    • Proactively identify potential risks
    • Verify compliance
    • Monitor changes

    To satisfy these regulator expectations, organizations must prove that there is informed oversight of assessments and that they have comprehensive controls to address legal and regulatory requirements. This Second Line of Defense (SLoD) provides that expert review for compliance.

    Companies that don’t comply with consumer laws and other regulations could take a hit to their reputation and incur fines and penalties.

    Fortunately, ERM solutions can provide tracking for SLoD challenges to FLoD assessments and the ability to show oversight on those assessments. The software can also manage all of a business’ policies, procedures, and enterprise documentation for regulatory, legal, and compliance requirements.

    The SaaS solution produces documentation necessary for audits and examinations, links policies to different regulatory requirements and areas of risk across an enterprise, and manages document expirations and updates.

    />Audit

    Audit, the Third Line of Defense (TLoD), is an independent monitor that assesses the effectiveness and accuracy of the first two lines of defense on an ongoing basis. Regular and targeted reviews can be conducted to ensure that risk management practices are adequately designed to effectively meet company goals and regulatory requirements and to ensure they’re properly executed.

    The TLoD’s findings must drive change whenever issues are uncovered by this expert review. It’s essential to the TLoD (and to regulators) to have effective tracking of audits and the remediation of the issues they uncover.

    These audits can be managed and tracked in an ERM solution with the ability to organize programs, work papers, and findings for each risk area. The solution can also enable scheduling of audits, department notifications, and issue management.

    When audits are complete, report findings can be linked to an Issues & Remediations Tracking module to ensure timely follow-up. Reporting capabilities should include calendar views, audit, and issue status-at-a-glance.

    How to defend yourself during an immigration audit

    Mi Pueblo, a Latino supermarket chain with humble roots, faces the prospect of a mass layoff, a boycott and a federal investigation — all because of questions about its employees’ legal status and right to work in the U.S.

    The Northern California grocery chain imports and produces a full spectrum of foods from Mexico. Its 21 stores, and counting, pop up in urban food deserts that stores like Safeway don’t touch.

    Mi Pueblo took some heat recently when the company voluntarily joined E-Verify, a federal program that screens job applicants’ immigration status against a federal database.

    Turns out it wasn’t so voluntary. The company revealed this month that U.S. Immigrations and Customs Enforcement, or ICE, has launched an employee immigration audit. ICE will comb the company’s records to uncover fraudulent information like fake Social Security numbers. It may press criminal charges as well. Joining E-Verify was just a matter of course.

    News of the audit hit hard among Mi Pueblo’s rank-and-file. Rosa Gomez, an immigration attorney based in East Palo Alto, says Mi Pueblo employees are quitting their jobs before they get fired.

    “People who have worked there for five years are leaving in fear and not getting any sort of compensation or anything like that,” says Gomez.

    ICE has done 9,000 audits since President Obama took office. Although immigrants whose work papers don’t add up won’t be deported, they will be fired so Mi Pueblo can protect itself from liability.

    How many employees? As much as 90 percent of Mi Pueblo’s workforce could go, according to Julie Pace, a workplace attorney Mi Pueblo hired earlier this month.

    “The company has no knowledge of anyone being undocumented, but you really don’t know until you get the list,” says Pace.

    All of Mi Pueblo’s employees are bilingual, and the vast majority are Latino. But Pace cautions against making judgments based on that.

    “The government tells us over and over again, don’t think you know who’s undocumented, because you’re usually wrong,” she says.

    ICE wouldn’t confirm that it is indeed auditing Mi Pueblo, based on its policy not to discuss a case until it announces fines or some other legal action. But a spokeswoman says ICE does not target stores or companies, but only investigates when it receives a tip or complaint from the public — or another agency.

    It’s ironic for Mi Pueblo to defend itself from charges of betraying employees and siding with the federal government. The company was founded by Juvenal Chavez, a former janitor who came to the U.S. from Mexico without legal documents.

    Now the grocery chain faces a boycott from the United Food and Commercial Workers Local 5. The union has tried to organize workers at Mi Pueblo for more than a decade.

    “Our interest as a labor union is to represent workers — we don’t really care whether they’re documented or not,” says Mike Henneberry, communications director with United Food and Commercial Workers Local 5.

    The union has won at least two court decisions against Mi Pueblo for violations of the National Labor Relations Act.

    Henneberry says Mi Pueblo hasn’t done enough to try to stop the audit, citing an MOU between the Departments of Homeland Security and Labor that restricts enforcement of labor and immigration laws under certain circumstances, including labor disputes. ICE says the MOU doesn’t apply.

    “The company needs to know that people are not happy with what’s going on out there, and employees are not happy either,” says Henneberry. “We’re asking people to make a statement with their wallets and stop shopping at the stores until the company gets its act together.”

    The boycott had no evident effect on Mi Pueblo’s East Palo Alto store after the audit was announced. Customer Laura Tovar says she’s troubled by what she heard about the company, but won’t stop shopping there.

    “The store is pretty close by, and it’s convenient, and it has everything that I need,” she says.

    Ultimately, this is more than a PR challenge for the grocery chain — it’s a challenge to their business model. The 8 million undocumented workers in this country aren’t just the ones staffing local stores like Mi Pueblo — they’re also reliable customers, driving the bottom line.

    The Department of Immigration and Border Protection has been slammed for its handling of offshore detention centre contracts, some of which were entered into without prices being set first.

    Key points:

    • Immigration Department's approach to offshore contracts criticised
    • Cost of detention more than double estimates, at $573k per asylum seeker
    • Department accepted one contract despite $1b cost blowout
    • Dutton says blame lies with Labor, but Greens say department's gone rogue

    The report from the Australian National Audit Office (ANAO) detailed concerns over the contracting of welfare, security, catering and cleaning services, adding that the department accepted a Broadspectrum contract which had blown out by more than $1 billion without seeking alternative quotes.

    The report stated the department was unable to demonstrate it had secured valued for money in three of the four hiring processes for centres on Nauru and Manus Island.

    For example, the department did not require Transfield to provide a proposal specifying services to be delivered and a price when establishing the centres in 2012.

    "As a result, it was very difficult for the department to demonstrate that it had conducted a robust value-for-money assessment which considered the financial and non-financial benefits of the proposal," the report stated.

    The report went on to say prices were not settled until contracts with service providers were entered into.

    When consolidating contracts for Nauru and Manus Island in 2013 and 2014, the bid for Manus Island exceeded historical costs by between $200 million and $300 million.

    The report went on to state that due to falling numbers of asylum seekers being detained, the cost of said detention was more than double the estimated figure.

    "The Prime Minister had requested that per-head costs be lower as a result of retendering the contracts, but the department did not calculate a per-person cost," it stated.

    "Finance advised the ANAO that under the consolidated contract, the per-person-per-annum cost of holding a person in the offshore processing centres in Nauru and on Manus Island, was estimated at $573, 111, at the time of the Mid-Year Economic and Fiscal Outlook 2015-16.

    "Prior to consolidation, Finance estimated the cost at $201,000."

    Dutton says 'total responsibility' lies with Labor

    Immigration Minister Peter Dutton blamed previous Labor governments for the mishandling detailed in the report.

    In a statement, Mr Dutton said "total responsibility for the problems and processes outlined in the report falls upon Labor".

    "Labor must acknowledge that its incompetent performance placed an impossible burden on the public service which was charged with reopening regional processing centres in Nauru and Papua New Guinea within a matter of weeks," he said.

    Comment has been sought from Labor, which was in government when the centre was reopened.

    The report details issues with the open tender process from 2014 to 2016, saying insufficient consideration was given to the use of benchmarking to determine overall value for money.

    "The value of expanded services was estimated by an external adviser (KPMG) at between $594 million to $835 million above historical costs," it stated.

    "The Government had not provided policy authority to expand the services or increase the funding value of the contract to accommodate service enhancements or adjustments."

    In a statement, the department said the report had to be considered in the context of the "unique operational environment" it faced at the time.

    The statement went on to outline the amount spent on the centres fell over the past four years, "from a peak in early 2012-13 of $698,000 average per person down to $529,000 per person in 2015-16".

    "When capital expenditure is excluded, the average cost per head has been relatively stable, at between $427,000 (2012-13) to $464,000 (2015-16)," it added.

    "Expenditure was consistent with the department's overall policy authority under Operation Sovereign Borders. Funding and appropriation levels were adjusted, in accordance with the cabinet-agreed processes, at the Commonwealth Budget updates over the period in question."

    The department has agreed to both recommendations put forward in the report, which outlined the need to address skill and capability gaps among staff.

    Department's 'clearly gone rogue': McKim

    Greens Senator Nick McKim said he was "genuinely flabbergasted" at the report.

    Senator McKim, the Greens' new immigration spokesperson, said the department had acted in some circumstances without government authority.

    "The Department of Immigration and Border Protection would have terrible trouble organising the efficient purchase of a beer in a brewery," he said.

    "This is a damning and scathing report of an agency which in some aspects of its operations has clearly gone rogue."

    CHICAGO (Reuters) – The government is taking a new approach in its effort to crack down on illegal workers by quietly auditing the employment records of thousands of companies suspected of hiring undocumented immigrants rather than staging high-profile worksite raids, the New York Times reported on Saturday.

    The Times said the Obama administration had conducted such audits at more than 2,900 companies so far — a number it said dwarfed the number of companies affected by the immigration raids at factories and farms during the eight-year administration of Obama’s Republican predecessor, George W. Bush.

    The Immigration and Customs Enforcement agency, known as ICE, has imposed $3 million in fines on businesses found to be in violation.

    The Times said the government forces the businesses to fire every suspected illegal immigrant discovered on their payrolls — not just those who are working during the audit — and makes it much harder for the companies to hire other unauthorized workers as replacements.

    But the Times said most of the workers discovered by the audits were not being deported once they lost their jobs and that the government had moved away from the practice of bringing criminal charges against immigrants who lack legal status but have otherwise clean records.

    ICE chief John Morton told the Times, said the purpose of the audits was to create “a culture of compliance” in which employers would routinely verify the immigration status of their workers. He said ICE was most interested in finding “egregious employers.”

    With congressional elections ahead in November, illegal immigration has become a growing concern. Hispanic have traditionally tended to vote for Democrats but the Republican Party has been recruiting them.

    How to defend yourself during an immigration audit

    WASHINGTON — Senate Democrats and immigration advocates are pushing the White House to end a controversial Trump-era immigration policy enacted during the pandemic that allowed U.S. officials to expel migrants and asylum seekers at the border.

    “I continue to be disappointed, deeply disappointed, in the administration’s response,” Senate Majority Leader Chuck Schumer, a New York Democrat, said during a call with reporters last week.

    The policy, known as Title 42, was enacted by the Trump administration in 2020 as a way to prevent migrants from seeking asylum in the U.S. by citing a health crisis, such as the COVID-19 pandemic. It also expelled migrants to their home countries.

    More than 1 million migrants have been expelled under Title 42, according to U.S. Customs and Border Protection data. Enforcement and Removal Operations, under U.S. Immigration and Customs Enforcement, carried out 36,654 air expulsions, according to a report released by ICE Friday.

    It’s a policy that the Biden administration has kept in place, but amended to prevent unaccompanied children from being expelled.

    Last week, a district court in Texas ruled that the Biden administration could not exempt children from the rule, and an appeals court in Washington, D.C., ruled the Biden administration couldn’t use Title 42 to expel migrant families to countries where they could face persecution.

    The chair of the Senate Foreign Relations Committee, Sen. Bob Menendez, a New Jersey Democrat, said during the Thursday call with reporters that the Biden administration should continue to defend “its original decision to prevent children from being expelled.”

    “Expelling children is not who we are as a nation,” he said, adding that Title 42 “is neither humane, nor effective in managing migration.”

    Top officials at the Department of Homeland Security are planning to tell Mexico that the policy could come to an end as early as April, according to documents obtained by Buzzfeed News.

    Menendez said that he, along with the Congressional Hispanic Caucus, have asked the White House for a meeting with President Joe Biden to discuss Title 42, along with other immigration policies, but have yet to hear back.

    He added that the White House should direct the U.S. Centers for Disease Control and Prevention to not renew the policy, which was enacted as a public health measure.

    The CDC makes the decision every 60 days whether to keep Title 42 in place. The next decision is April 1.

    “Our focus has been on the administration, who has been really relying upon and using the CDC determination to effectuate this policy,” he said. “I have no doubt that if the administration decided that in fact they would no longer seek to use this policy, that the CDC would follow.”

    Before Title 42 was in place, migrants arrested at the border could apply for asylum and wait for their claims to be processed to determine if they could remain in the U.S.

    The chair of the House Homeland Security Committee’s border panel, Nanette Barragán, D-Calif., said during the call that a hearing on Title 42 will be held in the coming weeks. She recently held a hearing that examined another Trump immigration policy that a Texas federal court was forcing the Biden administration to keep in place.

    Lee Gelernt, the deputy director for the ACLU Immigrants’ Rights Project, said on the call that the organization is prepared to take legal action if the Title 42 policy remains in place.

    He said the ACLU is urging the Biden administration to not appeal the D.C. appeals court’s decision and to reject the Texas ruling that would not let unaccompanied minors be exempt from Title 42.

    “The way the administration can deal with both cases is simply by ending Title 42, so we urge the administration to do that,” he said.

    Guerline Jozef, the executive director of the Haitian Bridge Alliance, said that under Title 42, more than 20,000 migrants have been expelled to Haiti. She added that those fleeing unstable countries should be able to seek asylum in the U.S. whether they are from Haiti or Ukraine.

    A woman and three children from Ukraine were turned away at the U.S. Mexican border under Title 42, according to multiple media reports . More than 2 million people have fled Ukraine, following Russia’s attack on the country. The family was eventually allowed into the U.S.

    “It is unacceptable for President Biden and his administration to continue the use of Title 42 to literally deport, expel some of the most vulnerable people,” Jozef said.

    A part of the Immigration and Nationality Act, found at 8 U.S.C. section 1324b, prohibits employers from discriminating against individuals based on their citizenship or immigration status, or their national origin, during the hiring, firing, recruiting, Form I-9, or E-Verify processes. Employers should develop, implement, and enforce nondiscrimination policies, practices, and procedures, and ensure that all employees (and their authorized representatives, such as those completing Form I-9 or creating E-Verify cases on their behalf) understand the rules. Employers should also provide them with adequate training on employer responsibilities and worker rights.

    An employer cannot discriminate when:

    • Announcing a job;
    • Taking applications;
    • Performing interviews;
    • Making job offers;
    • Verifying an individual’s authorization to work;
    • Hiring an individual; or
    • Terminating an individual’s employment.

    Employers also cannot retaliate against a person who:

    • Files a charge of discrimination with the Immigrant and Employee Rights Section (IER);
    • Participates in an investigation or prosecution of a discrimination complaint; or
    • Asserts their rights or the rights of another person under anti-discrimination laws.

    IER investigates charges of employment discrimination related to an individual’s citizenship or immigration status, or national origin. The Equal Employment Opportunity Commission (EEOC) also investigates employment discrimination based on national origin, in addition to other protected bases under Title VII of the Civil Rights Act of 1964. IER generally investigates national origin claims against employers with four to 14 employees, and EEOC generally investigates national origin claims against employers with 15 or more employees.

    Preventing Discrimination in the Form I-9 and E-Verify Processes

    Employers must accept any valid document an employee presents as long as the document reasonably appears to be genuine and to relate to the employee. Most of these documents can be found on the Lists of Acceptable Documents. Employers cannot, based on an individual’s citizenship, immigration status, or national origin:

    • Ask to see employment authorization documents before an individual accepts a job offer;
    • Refuse to accept a document or refuse to hire an individual because a document will expire in the future;
    • Refuse an acceptable receipt;
    • Request a specific document for Form I-9; or
    • Request specific documents to create an E-Verify case or based on an E-Verify Tentative Nonconfirmation.

    Remember: Employers must reject documents that do not reasonably appear to be genuine or to relate to the individual presenting them.

    • Request more or different documents than are required to verify employment authorization and identity;
    • Reject documents that reasonably appear to be genuine and relate to the employee; or
    • Specify certain documents that the worker should present.

    Employers cannot intimidate, threaten, coerce, or retaliate against a person because that person:

    • Files a charge with IER;
    • Participates in an IER investigation or prosecution of a discrimination complaint;
    • Contests action that may constitute discrimination under the law that IER enforces;
    • Asserts their rights under the law that IER enforces; or
    • Asserts another person’s rights under the law that IER enforces.

    The federal government may penalize employers who discriminate against employees.

    You probably don’t think of your cook or housekeeper as a nanny, but these workers may trigger “nanny tax” obligations just the same. Taxes for household employees cover many types of service providers: gardeners, cooks, healthcare workers, babysitters, housekeepers — and, of course, actual nannies. To stay in the good graces of the IRS, it’s important to understand who is covered and learn the “nanny tax” rules.

    Contractor or Household Employee?

    Working in your home doesn’t automatically transform a service provider into a household employee for whom you must pay taxes. Hiring an occasional babysitter, for example, usually doesn’t create nanny tax obligations.

    The relationship between you and your service provider matters more than the specific service. Hiring an independent contractor does not create tax consequences for you. It’s only when the service provider is considered a household employee that nanny taxes come into play.

    However, getting this critical distinction right isn’t always easy. If there’s any question, consult a qualified tax professional to confirm the answer.

    Taxes for Household Workers

    Your obligations for household employees can include up to three different kinds of tax:

    Federal Insurance Contributions Act (FICA) taxes. You must withhold and pay FICA taxes (Social Security and Medicare) if your household employee’s cash wages reach a specified threshold (for 2021 it’s $2,300, rising to $2,400 in 2022). If your total payments during the year reach or exceed the threshold, you must pay the employer’s share of Social Security taxes (6.2%) and Medicare taxes (1.45%) on the employee’s cash wages (but not on meals, lodging, or other noncash wages). You are also responsible for withholding the employee’s share of these taxes (also 6.2% and 1.45%, respectively). Alternatively, you may choose to pay the employee’s share rather than withholding it.

    There’s an exception for some workers, though. If the wages you pay go to certain family members or to employees under 18 whose principal occupation is not working for you (a babysitter who’s in high school, for example), then you are not liable for paying or withholding FICA taxes.

    Unemployment taxes. If you pay total cash wages of $1,000 or more in any quarter in the current or preceding calendar year to household employees (other than certain family members), then you must pay federal unemployment tax (FUTA). The tax applies to the first $7,000 of an employee’s cash wages at a 6% rate, although credits reduce that rate to 0.6% in most cases. Some states also have state unemployment taxes or workers’ compensation insurance requirements for household employers.

    Income tax. If a household employee asks you to withhold federal or state income taxes from their pay, you can agree to do so. In most states, however, you have the option to decline the request. If you do agree to such a request, you’ll need to have the employee complete Form W-4. Then, you should withhold income taxes on both cash and noncash wages (other than certain meals and lodging).

    Reporting and Paying Taxes as a Household Employer

    Generally speaking, you don’t need to file quarterly employment tax returns for household employees the way a business does. Most filers can just report household employment taxes on Schedule H of their personal income tax return each year. If you own a business as a sole proprietor, you may add the taxes for household employees to the deposits or payments you make for your business employees and include household employees on Forms 940 and 941.

    Even if you report household employment taxes on Schedule H, you’re still responsible for paying the tax throughout the year. You can make timely payments either through quarterly estimated tax payments or by increasing withholdings from the wages you pay. If you don’t, you’ll have to pay the tax when you file your return and be subjected to penalties for underpayment of estimated tax.
    Taxpayers who are required to withhold FICA taxes or agree to withhold income taxes for a household employee must also file Form W-2 to report these wages and taxes.

    Other Employer Responsibilities

    As an employer, you may have other obligations in addition to the tax requirements discussed above. These may include complying with minimum wage and overtime requirements, documenting immigration status, and meeting local laws. Contact your CRI tax advisor to make sure you’re in full compliance.

    How to defend yourself during an immigration audit

    The Harper government has hired the accounting firm KPMG to crunch the numbers on the controversial F-35 stealth fighter program — at a cost of $643,535 to taxpayers.

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    The assessment was ordered after a biting report from the auditor general accused the Tories of hiding the real cost of the fighter jets and withholding information. The independent review will inform the National Defence annual update tabled in Parliament.

    F-35 bill just went up (again): Tories spend $600K on KPMG audit of jet program Back to video

    The government promised last spring the review would be complete and tabled in Parliament by June, but it was forced to re-issue the tender last month after the original contract didn’t allow the accountants enough flexibility to complete the work.

    Opposition parties have hammered the Tories, and in particular, Defence Minister Peter MacKay, over the bungled procurement process. MacKay faced repeated calls to resign or be sacked for his role in the controversy and was widely expected to be removed from the defence portfolio in a cabinet shuffle earlier this year.

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    The government initially projected the acquisition of the jets would cost $16-billion, but auditor general Michael Ferguson and the Parliamentary budget officer later indicated the cost was likely much higher.

    Ferguson even accused the Defence Department of low-balling the estimate by not including operating expenses, which could amount to $10 billion over the 30-year life of the aircraft.

    KPMG was hired to complete specific tasks. It will review the National Defence “acquisition and sustainment project assumptions and potential costs for the replacement of the CF-18s.”

    Editor’s Note: At H&R Block, we work to help demystify the complex and confusing and help our clients wherever possible. So here’s what you should do when you are being audited, and when you should call in the experts (that’s us).

    On a scale of 1 to 10 (10 being the worst), being audited by the IRS could be a 10. Audits can be bad and can result in a significant tax bill. But remember – you shouldn’t panic. There are different kinds of audits, some minor and some extensive, and they all follow a set of defined rules. If you know what to expect and follow a few best practices, your audit may turn out to be “not so bad.”

    A little background first. There are three types of IRS audits: mail, office and field audits.

    1. Mail audits

    Mail audits are fairly routine. They require you to mail in documents responding to specific questions or requests for information from the IRS. Mail audits make up 77% of all audits.

    2. Office and field audits

    On the other hand, office and field audits are much more serious. The IRS will not only ask for information to validate your deductions and credits, but it will also look closely at your lifestyle, business activity and income to see whether your tax return is accurate. Most tax evasion cases start from field audits. But don’t worry – the IRS prosecutes few taxpayers for tax evasion (about 2,000 every year). The IRS saves criminal prosecution for the most egregious tax evaders.

    3. CP2000 notice (underreporter inquiry)

    There’s also another way the IRS questions tax returns, but it’s not technically an audit. It’s the underreporter inquiry, or CP2000 notice, and it’s very common. The IRS sends almost 4 million of these every year. The CP2000 is a discrepancy notice that proposes a specific increase in taxes on your return. The IRS automatically sends these notices when there’s a mismatch between income you reported on your return and information that your employer or other payer provided to the IRS through statements, such as Form W-2 and Form 1099. A common example is when taxpayers don’t report Form 1099-MISC income from work they did as an independent contractor during the year.

    How common is being audited?

    Here are some numbers that show how common – or uncommon – the different types of audits can be:

    • About 150 million total federal tax returns are filed each year
    • The IRS audits less than 1% of filers
    • Almost 90% of audits result in a change to the tax return
    • For mail audits, the average amount owed is more than $7,000
    • For office and field audits, the average amount owed is $65,000
    • The IRS sends underreporter notices to about 2.5% of filers
    • About 66% of underreporter notices result in additional taxes owed
    • For underreporter notices, the average amount owed is about $1,500

    As unpleasant as an IRS audit can be, it won’t go away. It’s important to respond. If you don’t, you will get a tax bill for additional taxes, and perhaps even penalties. Learn how to handle an IRS audit.

    Take action!

    Here are a few things you should do to get the best results in an audit:

    Consider hiring a tax professional immediately, especially if you are not fluent in “tax.” Unless you can “speak IRS” and can clearly articulate your tax return position to the IRS, you shouldn’t try to handle it yourself and hope for the best. Tax professionals trained in IRS audits will provide the response needed to clearly communicate your tax position. If there’s an adjustment, a tax professional can help address proposed penalties. Learn about H&R Block Tax Audit & Notice Services.

    Make your responses complete and on time. Most audits and all underreporter inquiries require corresponding by mail with IRS processing centers. There is no specific person assigned to your case, so the person viewing your response will rely on the quality and completeness of your response to interpret your tax position. If you want the best results, reply well before the deadline with an organized and thorough response that explains the items in question. Missed deadlines and incomplete responses lead to more notices and a higher likelihood that the IRS will close your audit and assess you additional taxes.

    For office and field audits, prepare as if the IRS were auditing multiple years and your lifestyle. As the statistics show, office and field audits can result in a very high tax bill. That’s because the IRS looks to see whether there is any unreported income on the return. For example, the IRS can go through your bank statements and question deposits. Unexplained deposits can be considered taxable income if you can’t prove the nontaxable source, such as a gift or nontaxable sale of assets. Be prepared with an answer to these inevitable questions. A tax professional will be extremely valuable to help you prepare for office and field audits. Many taxpayers seek expert representation for these types of audits.

    Assert your appeal rights when needed. Know that the auditor’s decision is not final. The first appeal is made to the auditor’s manager. The second appeal is made to the IRS Office of Appeals. During the appeals process, it’s important to respond by all deadlines or you will lose important appeal rights.

    So, if you are being audited…. how bad is it? Potentially, a 10. But getting help from a tax professional, making timely responses and having thorough documentation mean that you can get through an audit with the best possible outcome.

    Related Tax Terms

    Related IRS Notices

    Get help from an IRS expert

    H&R Block’s experts can solve any IRS problem, no matter how complex.

    Or call 855-536-6504

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    WASHINGTON — U.S. Representative Pramila Jayapal (WA-07) issued the following statement after voting to pass the Fiscal Year 2022 (FY22) budget through the House of Representatives, which includes $730 billion in non-defense funding as well as $13.6 billion to support Ukraine.

    “Tonight, I was proud to vote yes on critical legislation that will make massive investments in our communities, our country, and everyone suffering in Ukraine because of Vladimir Putin’s baseless and illegal aggression.

    “At home, this legislation will help protect our climate by making record investments in renewable energy, help our families by increasing the budgets of federal education programs like Head Start, and bolster our public health capabilities so we’re able to continue to respond to the COVID-19 pandemic and prepare for future crises. I’m thrilled to have secured $4.1 million in federal funding for all 10 community-based projects I’ve fought for on behalf of the seventh district. These programs are all crucial to people’s health and well-being, and will increase affordable housing, reduce gun violence, advance education, support our Tribal communities, and protect our environment. Under the Trump administration, too many domestic programs were woefully underfunded, leaving communities trying to scrape by with just a few resources. I’m thrilled to have voted to make real investments that people will feel in their day-to-day lives.

    “And abroad, this legislation will allocate billions for humanitarian and economic aid, security assistance for Ukraine, and other countries affected by the influx of refugees. The Ukrainian people are suffering a horrible tragedy at the hands of Russia – and we must take every step possible to assist in refugee resettlement and provide humanitarian aid.

    “However, I was unable to vote for legislation containing massive defense spending. The final defense spending number was even more than requested by the Pentagon. This ever-increasing military spending continues despite significant waste, fraud and abuse, and the lack of a full audit. That funding can and should be repurposed for our communities instead of being dumped into the profits of a small number of private defense contractors. As we begin the process of crafting the 2023 budget, I will continue to fight to reduce our Pentagon spending and instead redirect that money to working people, parents, and communities across our country.”

    The $4.1 million in federal funding Jayapal secured will be split between 10 community-based projects that are located across Washington’s Seventh Congressional District:

    Two mentally ill immigration detainees whose deportation cases have languished in a kind of legal limbo for years were released yesterday, four days after the ACLU filed court petitions seeking their freedom.

    Guillermo Gomez Sanchez, 48, and Jose Antonio Franco, 29, were released to family members while they await disposition of their cases, according to lawyers for the men and U.S. Immigration and Customs Enforcement.

    Both men were housed at the Otay Mesa Detention facility, but have been held in a variety of ICE detention centers over the past several years.

    Gomez is a paranoid schizophrenic and legal permanent resident who has been in ICE detention for more than four years after an immigration judge declared he was not competent to participate in deportation proceedings against him.

    Sean Riordan, a lawyer for the ACLU in San Diego, said Gomez was to be deported because he was convicted of assault in 2005. Under immigration laws, that is a deportable offense, he said.

    Gomez went on a strange legal odyssey. At one point, an immigration judge administratively closed his case and told the government to evaluate his competency. No evaluation was done for a year, according to the petition filed last week on Gomez’s behalf.

    At another point, a government official said Gomez was competent, but the ACLU petition says a second psychiatrist came to the opposite conclusion. More than a year went by before the government moved to reopen his case.

    Last year, an immigration judge said Gomez could be released on bond, but the government successfully appealed that decision. Since then, an immigration judge has indicated that the case should be terminated, and ICE lawyers have indicated they might drop the case as a matter of prosecutorial discretion.

    Another hearing is set for Wednesday.

    Lauren Mack, a spokeswoman for ICE in San Diego, said the agency determined it was appropriate to release the men after reviewing their custody status, medical condition and getting assurances from their families.

    Gomez’s family lives in San Bernardino. They have arranged for him to get treatment at a clinic there on an outpatient basis. Franco will be staying with his family in Costa Mesa.

    After years of mounting delays and cost increases, the first formal state audit of the California bullet train project was authorized Tuesday by the legislature’s joint audit committee.

    The decision comes after the rail authority disclosed this month that the cost of building the first 119 miles of track in the Central Valley would cost $10.6 billion, a 77% increase over the original estimate of $6 billion.

    9:40 a.m. Jan. 31, 2018 An earlier version of this story wrongly stated that the audit was estimated to require 26,000 hours of work. It is estimated to require 2,600 hours.

    The construction work underway is about seven years behind schedule and facing challenges acquiring property, designing safety measures and relocating underground utilities.

    State Auditor Elaine Howle last reviewed the project in 2012, reporting a range of problems in management and planning. But she was not tasked for another audit, despite efforts by Republican legislators over the last two years.

    The new request had bipartisan support, introduced by Assemblyman Jim Patterson (R-Fresno), a longtime bullet train critic, and Sen. Jim Beall (D-San Jose), a supporter of the project.

    The committee vote was unanimous. But Republicans and Democrats on the panel disagreed on the scope of the audit.

    Dante Acosta (R-Santa Clarita) asked that the audit include an assessment of whether the future system could operate without a state subsidy, as required by the 2008 bond act that provided $9 billion. Assemblywoman Catharine Baker (R-Dublin) asked whether the audit would examine the alternative economic benefits of other transportation projects.

    Assemblyman Al Muratsuchi (D-Torrance), chairman of the committee, suggested that amending the audit request to include those provisions could delay approval of the audit until a future committee meeting. The subsidy issue will be addressed in the rail authority’s upcoming 2018 business plan, Beall noted, which is expected to be released in March.

    Opponents of the project say it is likely to need hundreds of millions of dollars to billions of dollars in annual operating subsidies, based on California’s high costs and its projected low fares. But rail authority executives have insisted that their ridership models and business plans show a subsidy would not be required.

    Beall reiterated the importance of linking Silicon Valley to the Central Valley in an initial phase of the project, which the rail authority had hoped to complete by 2025 at a cost of $21 billion. But the cost increases and delays have put that plan out of reach unless Gov. Jerry Brown and the Legislature can find new revenue sources or measures to drastically reduce the cost of construction. The linkage to Southern California will be an even more difficult objective.

    In remarks to the committee, rail authority Chairman Dan Richard acknowledged that there have been delays and cost growth. “This is an appropriate time for this body to take a snapshot look at how we are doing,” he said.

    Howle, who sent the committee members a list of tasks that she envisioned for the audit, said at the hearing that the tasks would consume 2,600 hours of work and take about seven months. The cost is estimated at $344,000.

    The audit would examine the rail authority’s contracting practices and procedures, along with how it handles changes to contracts that result in higher prices and how it tracks invoices. In a related task, the audit would examine whether it could move faster and cut costs by cooperating with other transportation or rail agencies.

    The audit would also include an evaluation of the project’s economic impact on communities. Supporters have made the case that it is directly and indirectly creating thousands of jobs in the Central Valley, helping to drive down chronically high unemployment. Assemblyman Joaquin Arambula (D-Fresno), a member of the committee, blamed lawsuits by the project’s opponents for the delays and cost increases.

    Howle’s tasks also include reviewing small and disadvantaged business contracts and the project’s compliance with environmental goals.

    According to a recent survey, about 45% of companies do not have a Chief Information Security Officer (CISO). As West Monroe’s “The Importance of a CISO” observes, it would be terrific for all organizations to have a CISO, but that simply may not be practical for some, particularly smaller organizations. Recent internal audit guidance issued by the federal Department of Labor (DOL), however, directs its investigators to verify the designation of a CISO when auditing retirement plans.

    Nearly a year ago, on April 14, the DOL issued cyber security guidance for retirement plans (Guidance). Shortly thereafter, the Department began to weave its newly-minted cybersecurity guidance into plan audits. Basically, the Guidance has three prongs:

    Cybersecurity best practices for the plan and their service providers

    Exercise of prudence as an ERISA fiduciary when selecting service providers with respect to cybersecurity practices

    Educating plan participants and beneficiaries on basic rules to reduce risk of fraud or loss to their retirement plan accounts

    The DOL offers 12 helpful “best practices” for any cybersecurity program. Number four on its list provides:

    Clearly Defined and Assigned Information Security Roles and Responsibilities. For a cybersecurity program to be effective, it must be managed at the senior executive level and executed by qualified personnel. As a senior executive, the Chief Information Security Officer (CISO) would generally establish and maintain the vision, strategy, and operation of the cybersecurity program which is performed by qualified personnel who should meet the following criteria:

    Sufficient experience and necessary certifications.

    Initial and periodic background checks.

    Regular updates and training to address current cybersecurity risks.

    Current knowledge of changing cybersecurity threats and countermeasures

    Currently, DOL personnel who conduct retirement plan audits are likely to be very familiar with the full range of ERISA requirements for retirement plans. Until recently, however, the DOL had not made clear that cybersecurity was one of those requirements. In an effort to assist its investigators when auditing such plans, the agency provided an investigative guide that closely tracks the Guidance, and offers investigators suggestions for practices to look for during the cybersecurity audit. With regard to number four above, the investigative guide urges investigators to:

    • Evidence verifying the designation of a senior leader as the Chief Information Security Officer (CISO) and demonstrating the CISO’s qualifications and accountability for the management, implementation, and evaluation of the cybersecurity program.

    As DOL investigators grapple with applying the Guidance along with their internal resources, it remains unclear whether they will be fixated on requiring in all cases an express designation of a “CISO” by all retirement plan sponsors and plan service providers. Of course, it will be important for organizations to clearly define and assign information security roles and responsibilities to avoid. The lack of a “CISO” designation alone should not necessarily mean an organization’s data security efforts are rudderless.

    Persons in positions such as Director of IT, Chief Information Officer, or IT manager, all may help to support the organization’s efforts to maintain the privacy and security of plan data. But their roles and expertise may not be sufficient to fully address data security for the organization, the plan, or its service providers. For instance, persons in these positions may be appropriately focused on the organization’s IT systems and equipment for which security is only one issue. While these roles are important as well, the focus should be to make sure there is qualified senior leadership with information security roles and responsibilities. The West Monroe article above identifies nicely the attributes such senior leadership might have to fill this need:

    Executive Presence: The [leader] should have the executive presence to effectively represent the organization’s position regarding information security and the ability to influence executives. They need to be able to identify and assess threats, and then translate the risks into language executives can understand

    Business Knowledge: The [leader] needs to understand business operations and the critical data that organization is trying to protect. She needs to view business operations from a risk versus security perspective and implement controls to minimize risks and business disruptions.

    Security Knowledge: A [leader] must be capable of understanding complex security configurations and reports from the technical perspective, and then be capable of translating the relevant technical details into language that other executives can understand.

    This raises an important question for many organizations struggling to address cybersecurity, and not just for their retirement plans – how does the organization assess the qualifications of candidates for such a position, and then the individual(s)’ performance when in the position(s). Another important question, suggested above, is whether smaller organizations can support a position with this level of expertise and qualifications. The DOL’s investigative guide seems to acknowledge this issue:

    For many plans – especially small plans – IT systems, data, and cybersecurity risks are chiefly managed by third-party recordkeepers and service providers, and these service providers are an appropriate focus for an investigation of cybersecurity practices.

    In doing so, the DOL also brings into focus to the plan’s service providers.

    The key takeaway is to think carefully about your organization’s approach to managing its cybersecurity obligations and requirements, including with respect to employee benefit plans. Organizations should have a qualified member of its senior leadership assigned and accountable for the management, implementation, and evaluation of its cybersecurity program.