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I-9 E-Verify Immigration Compliance

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  1. Arizona and Maryland Become 9th and 10th States to Join E-Verify RIDE

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Arizona and Maryland have become the ninth and tenth states to join the Records and Information from DMVs for E-Verify (RIDE) Program. RIDE is an E-Verify initiative, in conjunction with the American Association of Motor Vehicle Administrators, linking the E-Verify system with participating state driver’s licensing agencies. The prior states joining RIDE were Florida, Idaho, Iowa, Mississippi, Nebraska, North Dakota, Wisconsin, and Wyoming.

    RIDE allows E-Verify to validate the authenticity of driver’s licenses and state identification cards presented by employees as I-9 form identity documents. The RIDE program attempts to mitigate the risk of fraud by comparing the data from the card with data supplied by states’ motor vehicle agencies. If E-Verify is not able to match the license or ID card to data within the DMV, the employer will receive a Tentative Non-confirmation (TNC) indicating the issue and must give the employee a Further Action Notice and opportunity to meet I-9 demands. In this manner, RIDE is designed to boost the accuracy of employment eligibility verification in E-Verify
  2. Wyoming Becoming 8th State to Join E-Verify RIDE

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Wyoming will soon become the eighth state to join the Records and Information from DMVs for E-Verify (RIDE) Program. RIDE is an E-Verify initiative, in conjunction with the American Association of Motor Vehicle Administrators, linking the E-Verify system with participating state driver’s licensing agencies. The prior states joining RIDE were Florida, Idaho, Iowa, Mississippi, Nebraska, North Dakota, and Wisconsin.

    RIDE allows E-Verify to validate the authenticity of driver’s licenses and state identification cards presented by employees as I-9 form identity documents. The RIDE program attempts to mitigate the risk of fraud by comparing the data from the card with data supplied by states’ motor vehicle agencies. If E-Verify is not able to match the license or ID card to data within the DMV, the employer will receive a Tentative Non-confirmation (TNC) indicating the issue and must give the employee a Further Action Notice and opportunity to meet I-9 demands. In this manner, RIDE is designed to boost the accuracy of employment eligibility verification in E-Verify.
  3. Staffing Company and IER Settle Immigration-Related Discrimination Claim

    By: Bruce Buchanan, Sebelist Buchanan Law, PLLC

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    The Immigrant and Employee Rights Section (IER), formerly known as the OSC, has reached an agreement with Sellari’s Enterprises, Inc., a staffing company in Orlando, Florida. The settlement agreement resolves an investigation into whether Sellari’s violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants. The IER concluded Sellari’s requested that non-U.S. citizens present specific documents to prove their work authorization, such as a Permanent Resident Cards or Employment Authorization Documents, while not requesting specific documents from U.S. citizens. All work-authorized individuals, whether citizens or non-citizens, have the right to choose which valid documentation to present to prove they are authorized to work. The anti-discrimination provision of the INA prohibits employers from subjecting employees to different or unnecessary documentary demands based on employees’ citizenship, immigration status or national origin.

    Under the settlement, Sellari’s will pay a civil penalty of $120,000 to the United States, post notices informing workers about their rights under the INA’s antidiscrimination provision, undergo IER-provided training to HR employees on proper I-9 and E-Verify practices, revise employment policies and practices to be in compliance with the law, and comply with departmental monitoring and reporting requirements for three years.
  4. OCAHO Finds No Document Abuse

    By Bruce Buchanan, Sebelist Buchanan Law

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    An individual’s claim of document abuse by a company was dismissed by Office of Chief Administrative Hearing Officer (OCAHO) because the company was abiding by E-Verify laws in declining a List B document without a photograph. See Johnson v. Progressive Roofing, 12 OCAHO no. 1295 (Jan. 2017).

    Michael Johnson was hired by Progressive Roofing and thereafter presented his documents in the process of completing his I-9 form – voter registration card (List B document) and two List C documents- a birth certificate and a social security card. Progressive Roofing told Johnson that the documentation was insufficient because the voter registration card did not contain a photograph. Although unclear whether Progressive Roofing explained the insufficiency, the company was enrolled in E-Verify which requires a List B document, if presented, to contain a photograph. (Alternatively, an employee may present a List A document.)

    Johnson filed a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) (since renamed the Immigrant and Employee Rights Section) alleging document abuse for the company’s failure to accept his List B and C documents. OSC dismissed the charge for insufficient evidence of a violation but advised him of the right to file his own complaint with OCAHO. Johnson did so, alleging the same violation. Thereafter, Progressive Roofing filed an Answer and Motion for Summary Decision asserting it did not violate the law because it was following E-Verify practices and procedures by requiring a List B document containing a photograph or List A be presented. Johnson did not respond to the company’s motion.

    OCAHO explained document abuse occurs when an employer requests more or different documents than necessary or rejects valid documents and does so for the purpose of discriminating on the basis of citizenship status or national origin. Thus, document abuse takes two elements, an act and intent. It has not been a strict liability offense since the amendments to 8 U.S.C. §1324b(a)(b) in 1996.

    OCAHO found Johnson did not establish a prime facie case of discrimination because Progressive Roofing was an enrolled participant in E-Verify, which requires any List B document presented to contain a photograph, and did not request more or different documents than required by law. Assuming arguendo, Johnson established a prime facie case, Progressive Roofing met its burden by showing it had a legitimate nondiscriminatory reason for requesting a List B document with a photograph – to be in compliance with federal law. Finally, Johnson did not allege this defense was pretextual. Therefore, OCAHO dismissed Johnson’s complaint.

    This decision reminds employers that the use of E-Verify requires following certain rules, including only accepting List B documents with a photograph. In rejecting Johnson’s List B document, Progressive Roofing was merely following the applicable law.
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  5. OSC Files Lawsuit Against Two Washington Companies Alleging Discrimination

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), an agency within the Department of Justice, recently filed a lawsuit against two Washington-based companies, Washington Potato Company and Pasco Processing LLC, alleging that they violated the Immigration and Nationality Act (INA) by discriminating against immigrants during the employment eligibility verification process because of their citizenship status.

    According to the complaint filed with the Office of the Chief Administrative Hearing Officer (OCAHO), from at least November 2013 until at least October 2016, Washington Potato and Pasco Processing hired over 2,000 U.S. citizens (USCs) and approximately 800 lawful permanent residents (LPRs). Of the LPRs hired, 99.5% produced a List A document – their green card - to establish their work authorization while only 2% of the USCs hired produced a List A document, such as a U.S. passport or U.S. passport card. This information was gleaned by the Department of Homeland Security’s Monitoring and Compliance branch by reviewing data from E-Verify, which the two companies used.

    The companies asserted the high rate of List A documents for LPRs was because these employees did not possess List B or C documents. However, the OSC alleged many LPR employees presented List B and C documents but the companies requested a specific document, the LPRs’ green card, for the Form I-9 and/or E-Verify from non-U.S. citizen employees, but allowed USCs the flexibility to present a variety of documents. Thus, the OSC alleged the companies treated LPRs and non-citizen employees differently than USCs and this treatment was intentional and discriminatory.

    Under the INA, all workers, including non-U.S. citizens, must be allowed to choose freely from among the valid documentation that proves their work authorization. The INA prohibits employers from discriminating by unlawfully limiting some workers’ choices based on their citizenship status. I will keep you updated on the outcome of this litigation.

    This complaint is an example of the downside of using E-Verify – the data entered by the employer is scrutinized by the Department of Homeland Security, who may refer the case to the OSC for investigation and litigation.
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