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I-9 E-Verify Immigration Compliance

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  1. Restaurant Owner Going to Prison for Harboring Undocumented Workers

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    An owner of two restaurants in Ukiah, California, Yaowapha Ritdet, was sentenced to serve 24 months in prison for harboring for profit and corruptly endeavoring to obstruct the internal revenue laws. According to documents filed with the court, Ritdet hired Thai nationals who were illegally present in the United States to work at her restaurants, Ruen Tong Thai Cuisine and Walter Café. Ritdet underpaid these employees, paid them in cash, and instructed them not to speak to anyone about their immigration status. Ritdet also did not pay employment taxes on the cash wages. Ritdet filed false individual income tax returns for 2007 through 2011 that underreported the gross receipts, sales, and income she received from her two restaurants.

    In addition to prison, Ritdet was ordered to serve three years of supervised release and to pay approximately $567,755.65 in restitution, including $70,768 to underpaid employees and $496,987 to the Internal Revenue Service.
  2. H-1B Employer Allowed to Deduct Attorney Fees in This Case

    By Bruce Buchanan, Sebelist Buchanan Law

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    A Department of Labor Administrative Law Judge (ALJ) ruled that an employer who deducted an H-1B visa holder’s attorney’s fees from the employee’s accrued vacation time did not violate the Immigration and Nationality Act (INA). Administrator, Wage and Hour Division, Department of Labor v. Woodmen of the World Life Insurance Society.

    Woodman Life hired Oscar Garcia initially under TN non-immigrant visa status. Later, Woodmen Life submitted an H-1B visa to the USCIS, which was approved. After approval, Woodmen Life and Garcia entered into an agreement whereby Garcia would repay certain expenses, including attorney’s fees, related to the H-1B petition. When Garcia’s employment ended, based upon Garcia’s resignation, he received a final paycheck which deducted $5,800 for attorney’s fees from $9,644 which was owed for accrued but unused vacation.

    The DOL Administrator filed suit against Woodmen Life alleging $4,575 was unlawfully deducted from Garcia’s wages. (DOL determined $1,225 for premium processing was included in the $5,800 and was an allowable expense to be paid by Garcia.) The Administrator stated the $4,575 deducted from Garcia’s last paycheck was not allowed because it took his wages below the required wage. Woodmen Life asserted Garcia’s final paycheck did not fall below the required wage because Garcia’s vacation pay was accrued and did not affect the required wage. Under Woodmen Life’s vacation policy, if an employee resigns or is terminated, “accrued but unpaid vacation leave” will be paid in the final paycheck. Furthermore, Woodmen Life stated it treated Garcia the same as other employees who owed money to the company, such as for a tuition repayment plan.

    Under the statute, employers are prohibited from seeking repayment of H-1B attorney’s fees and expenses from the required wage. However, the ALJ found in this case the $4,575 was not deducted from the required wage; rather, it was deducted from Garcia’s benefits. The ALJ found the statute allowed this type of deduction, especially where it was consistent with Woodmen Life’s policy of repayment for certain expenses from accrued but unused vacation time.
  3. Pizzerias, LLC Pays $140,000 to Settle Immigration-Related Discrimination Claim

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Immigrant and Employee Rights Section (IER) of the Justice Department’s Civil Rights Division has reached a settlement agreement with Pizzerias, LLC, a pizza restaurant franchisee with 31 locations in Miami, Florida, where Pizzerias will pay a $140,000 civil penalty. The agreement resolves the IER’s investigation into whether Pizzerias violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants when checking their work authorization documents.

    The investigation concluded Pizzerias routinely requested that lawful permanent residents produce a specific document – a Permanent Resident Card (green card) – to prove their work authorization, while not requesting a specific document from U.S. citizens. This is referred to as document abuse. Lawful permanent residents may choose acceptable documents other than a Permanent Resident Card to prove they are authorized to work. The antidiscrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on citizenship or national origin.

    Under the settlement, Pizzerias must pay a civil penalty of $140,000 to the United States, post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements for two years.

    The first two settlements by IER in Trump administration seem to reflect that the IER will continue to aggressively pursue employers that violated the INA.
  4. OSC Settles Immigration-Related Discrimination Claim Against J.E.T. Holding

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) (just renamed the Immigrant and Employee Rights Section of the Civil Rights Division of the Department of Justice) reached a settlement to resolve claims that J.E.T. Holding Co. Inc. discriminated against U.S. citizens, lawful permanent residents, and certain work-authorized immigrants in violation of the Immigration and Nationality Act (INA). J.E.T. is a company based in Saipan, Commonwealth of the Northern Mariana Islands (CNMI), where it operates a restaurant, bowling alley and amusement center.

    The investigation found evidence that for approximately the first five months of 2016, J.E.T. engaged in a pattern or practice of refusing to hire U.S. citizens, lawful permanent residents, and other work-authorized individuals for several dishwasher positions. OSC concluded that J.E.T. failed to consider qualified U.S. citizen applicants and others based on their citizenship or immigration status because of a preference for hiring non-immigrant foreign workers with CW-1 visas. The CW-1 visa grants temporary work authorization to its beneficiaries and is only available in the CNMI.

    Under the terms of the settlement, J.E.T. will pay a civil penalty of $12,000, establish a backpay fund of $40,000 to compensate qualified claimants for any lost wages through a claims process, train its workers on the anti-discrimination provision of the INA, and be subject to department monitoring.
  5. Mary’s Gone Crackers Inc. Agrees to Pay $1.5 Million for Immigration Allegations to

    By Bruce Buchanan, Sebelist Buchanan Law
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    Mary’s Gone Crackers Inc., a natural food company based in Gridley, California, has agreed to pay $1.5 million and to establish a corporate compliance program under a non-prosecution agreement reached with the U.S. Attorney’s Office following an investigation into potential criminal violations of federal immigration laws.

    According to the agreement, in March 2012, Immigration and Customs Enforcement (ICE) audited Mary’s Gone Crackers’ I-9 forms for its employees. Thereafter, ICE provided a Notice of Suspect Documents (NSD) stating that 49 of Mary’s Gone Crackers’ employees appeared not to be authorized to work in the United States. After one employee provided corrected documentation, Mary’s Gone Crackers informed ICE that the other 48 had all resigned or been terminated.

    However, within less than a month, Mary’s Gone Crackers rehired at least 13 employees that it claimed had been terminated or resigned, all of them under new names. One of those 13, an operations supervisor, never stopped working for Mary’s Gone Crackers at all, but instead continued to work under a new assumed name and received payment as an independent contractor, rather than through the company’s ordinary payroll. Several other Mary’s Gone Crackers employees knew that the operations supervisor was not eligible to work in the United States. When a search warrant was executed at the company’s Gridley facility in January 2013, at least 12 of the 13 rehired individuals were still working at Mary’s Gone Crackers.

    During the course of the I-9 audit and its rehiring of individuals, Mary’s Gone Crackers had at times consulted with an outside counsel. After the search warrant, Mary’s Gone Crackers cooperated with the government’s investigation and took remedial measures, including terminating employees, stopping use of the outside counsel involved, and taking various steps to ensure compliance with immigration laws and I-9 regulations, including use of E-Verify and the Social Security Number Verification Service.
    The company also established an anonymous tip line so that employees can report any potential I-9 issues. The non-prosecution agreement requires Mary’s Gone Crackers to establish a corporate compliance program covering its I-9 procedures and its use of the E‑Verify system, and requires timely and complete disclosure of violations of immigration laws or regulations within 24 hours of discovery. It also requires Mary’s Gone Crackers to provide corporate compliance reporting to the United States Attorney’s Office for two years. No federal criminal charges will be brought against Mary’s Gone Crackers for the investigated conduct if the company complies with the terms of the non-prosecution agreement.
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