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I-9 E-Verify Immigration Compliance

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  1. IER Settles Discrimination Claims Against Carrillo Farm

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    The Immigration and Employee Rights Section (IER) of the Department of Justice reached a settlement agreement with Carrillo Farm Labor, LLC, an onion farm in Deming, New Mexico, resolving an investigation of complaints that Carrillo Farm discriminated against U.S. citizens due to a hiring preference for foreign visa workers. This settlement is part of a Department of Justice enforcement initiative dedicated to combatting employment discrimination against U.S. workers.

    After investigating complaints filed on behalf of two U.S. citizens, IER determined that Carrillo Farm denied U.S. citizens employment in 2016 because it wanted to hire temporary foreign workers under the H-2A visa program. Under the anti-discrimination provision of the Immigration and Nationality Act (INA), it is unlawful for employers to intentionally discriminate against U.S. citizens because of their citizenship status.

    The settlement agreement requires Carrillo Farm to pay a civil penalty of $5000 to the United States, undergo IER-provided training on the anti-discrimination provision of the INA, and comply with departmental monitoring and reporting requirements for two years. In a separate agreement with workers represented by Texas RioGrande Legal Aid, Carrillo Farm agreed to pay a total of $44,000 in lost wages to affected U.S. workers.

    This is an interesting twist on discrimination – finding an employer discriminated against U.S. citizens. This settlement fits in well with DOJ’s recent announcement warning employers not to discriminate against U.S. citizens.
  2. DOJ Settles Immigration Claim Against Another Staffing Agency

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    The Justice Department’s Immigrant and Employee Rights Section (IER) (formerly known as OSC) has reached a settlement agreement with Provisional Staffing Solutions, a temporary staffing agency located in Cranston, Rhode Island. The agreement resolves the IER’s investigation into whether Provisional Staffing discriminated against non-U.S. citizens in violation of the Immigration and Nationality Act (INA).

    The investigation concluded Provisional Staffing routinely requested non-U.S. citizens present specific identity documents, such as a Permanent Resident Card, to prove their work authorization while not requesting a specific identity document from U.S. citizens. The antidiscrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on the employees’ citizenship or national origin.  Lawful permanents residents and other work-authorized non-U.S. citizens often have the same identity and work authorization documents available to them as U.S. citizens, and may choose from among the acceptable documents to prove they are authorized to work.

    Under the settlement, Provisional Staffing must pay a civil penalty of over $16,000 to the United States, provide a copy of Lists of Acceptable Documents to employees simultaneously with the request for employees to complete their I-9 forms, revise company policies in order that they prohibit discrimination on the basis of citizenship status or national origin, post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, through the viewing of an IER webinar, on immigration compliance issues, and be subject to departmental monitoring and reporting requirements for the next three years.

    Staffing companies appear to be more likely to violate the antidiscrimination provision of the INA. In the past year, IER has settled with at least five staffing companies concerning allegations of discrimination due to citizenship status.
  3. Employer’s Argument for Electronic Signature Fails

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In U.S. v. Agri-Systems (ASI), 12 OCAHO no. 1301 (Apr. 2017), the Office of Chief Administrative Hearing Officer (OCAHO) found ASI’s argument, that typing in the company name in Section 2 of an I-9 form equaled an electronic signature, was “spirited but contrary to both law and evidence.” However, OCAHO agreed with ASI that a question of whether 23 Form I-9s were timely presented to Immigration and Customs Enforcement (ICE) is a factual dispute, which cannot be decided without a hearing where witnesses will testify concerning the delivery or non-delivery of those I-9 forms.

    This case started almost six years ago with the service of a Notice of Inspection (NOI) by ICE. Thereafter, ASI delivered 159 Form I-9s to ICE. Two years later, ICE served a Notice of Suspect Documents (NSD), Notice of Discrepancies, and Notice of Technical Errors on ASI. As a result, ASI terminated the 46 employees on the NSD and 22 of the 28 employees on the Notice of Discrepancies plus it provided new I-9 forms on the other six employees listed in the Notice of Discrepancies.

    Two and one-half years later, ICE issued a Notice of Intent to Fine (NIF) alleging in Count I – ASI failed to present 23 Form I-9s and failed to prepare five Form I-9s – and Count II – 82 instances of ASI’s failure to ensure Section I was properly completed or failed to properly complete Sections 2 or 3. As a result, ICE sought a penalty of $103,645 for the 110 alleged violations.

    Many of the Section 2 allegations concerned whether an “electronic” signature was utilized by ASI to sign the certification in Section 2. ASI asserted its “signature” was through the use of “word processing” that “efficiently demonstrates the attestation was read as it comes immediately below the attestation itself.” However, what ASI referred to as a signature was in actuality the typed company name and address on some of the I-9 forms.

    OCAHO found ASI’s action did not equal a signature on a paper I-9 form or an electronic I-9 form. ASI conceded it did not use electronic I-9 forms but argued the typing of its name equaled an electronic signature. OCAHO found this assertion was contrary to both law and evidence. As OCAHO stated: “The relevant statute requires a signature in the attestation in Section 2, and merely pre-printing or typing the company’s name is not the equivalent of a signature.” And without a signature, OCAHO stated “the mandated attestation is patently not complete.”

    ASI also argued it did not violate the law concerning many of the allegations because it timely presented 23 Form I-9s, which ICE denied receipt of. Each party presented affidavits, which were in conflict. ASI officials said they mailed the I-9 forms in dispute and the ICE agent denied receipt. Based on a clear dispute on the factual allegations, OCAHO stated it would set the matter for a hearing, where each party could present their witnesses. (This will be a very rare occasion for live testimony in an OCAHO case.)

    OCAHO determined ASI committed 87 of the 110 allegations. However, because 23 allegations were still in dispute, it declined to find the appropriate penalty until after a decision is rendered on the 23 allegations.
  4. Janitorial Companies Settle Immigration-Related Discrimination with IER

    By Bruce Buchanan, Sebelist Buchanan Law

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    Two related janitorial companies, Paragon Building Maintenance, Inc. and Pegasus Building Services Company, Inc., of Long Beach, California have settled claims with Immigrant and Employee Rights Section (IER) (formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practice) of the Department of Justice by agreeing to pay a penalty of $115,000 and to create a back pay fund of $30,000 to compensate eligible workers who lost pay due to these documentary practices. The settlement resolves the IER’s investigation into whether the companies violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants when checking their work authorization documents.

    The IER concluded Paragon and Pegasus routinely requested that lawful permanent residents show their permanent resident cards (green cards) to prove their work authorization while not requesting specific documents from U.S. citizens. Lawful permanents residents often have the same work authorization documents available to them as U.S. citizens, and may choose other acceptable documents besides the Permanent Resident Card to prove they are authorized to work. The investigation further revealed that the companies required lawful permanent resident employees to re-establish their work authorization when their permanent resident cards expired, even though federal law prohibits this practice.

    Under the settlement, the companies also have agreed to 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.

    This settlement is one of the first for the IER since President Trump took office. It will be interesting to see if the IER is as aggressive toward employers under the new president as they were in the last few years of the Obama administration.
  5. OCAHO Reduces Restaurant’s Penalty

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In one of its last decisions of 2016, the Office of Chief Administrative Hearing Officer (OCAHO) reduced the penalty of a restaurant from $96,398 to $58,850 for 107 violations. See U.S. v. Pegasus Family Restaurant, Inc.,12 OCAHO no. 1293 (Dec. 2016).

    This case stated almost three years ago – in December 2013 – when Immigration and Customs Enforcement (ICE) served a Notice of Inspection (NOI) on Pegasus, a small restaurant in Hamburg, New York. Pegasus provided approximately 81 Form I-9s. Thereafter, ICE filed a Notice of Intent to Fine (NIF) alleging Pegasus failed to prepare and/or present 31 Form I-9s and failed to properly complete 76 Form I-9s - it failed to record any documents in section 2, only recorded a List B document, a driver’s license or state ID card, or failed to ensure the completion of Section 1 with a signature or attesting to the employee’s status, U.S. citizen, permanent resident, etc. Pegasus admitted liability on all the I-9 violations. Thus, the only issue before OCAHO was the amount of the penalty.

    In seeking a penalty of $96,398, ICE used a baseline penalty of $935 per violation due to Pegasus having a violation rate of over 90%. ICE found Pegasus’s small size and the individuals in Count I as eligible for employment to be mitigating factors while the seriousness of the violations to be an aggravating factor. The remaining statutory factors of history of violations and good faith were considered neutral.

    Pegasus asserts its lack of history of violations and no conclusive evidence that any of the employees were unauthorized to work were mitigating factors. Furthermore, it asserts the following non-statutory factors warrant mitigation – general public policy of leniency toward small businesses, company’s high turnover rate, its cooperation with ICE during the investigation, including enrollment in E-Verify, and its inability to pay the proposed penalty.

    OCAHO agreed with Pegasus that the government failed to prove any of the employees were unauthorized to work. In an unusual finding, OCAHO stated this was a mitigation factor, rather than a neutral factor, although it recognized that it could have been accepted as a neutral factor. However, OCAHO declined to find the lack of a history of I-9 violations as a mitigating factor.

    Concerning its inability to pay, OCAHO found it failed to show it could not pay the penalty, but found the proposed penalty was “unduly punitive.” Thus, OCAHO considered the company’s financial situation.

    Although OCAHO found an employer’s post – inspection remedial measures may support mitigation, it declined to final such in this case. Furthermore, it declined to view a high turnover rate as a mitigating factor.

    In conclusion, OCAHO found the penalty should be reduced from between $888 and $935 per violation to $550 per violation. Thus, this total penalty was $58,850. As the facts demonstrate, if Pegasus would have performed an internal I-9 audit before ICE arrived with the NOI, many of the I-9 violations could have been corrected and not subject to a penalty.
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