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I-9 E-Verify Immigration Compliance

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  1. Federal Judge Rules For and Against DOJ in Lawsuit Against California

    By: Bruce Buchanan, Sebelist Buchanan Law



    On July 5, 2018, Federal District Court Judge John Mendez of the Eastern District of California, struck down provisions of AB 450, the Immigrant Worker Protection Act (IWPA), that restricted employers from allowing Immigration and Customs Enforcement (ICE) agents to access nonpublic parts of a workplace without a warrant and re-verifying employee work authorization. However, the Judge upheld AB 450's requirement that employers notify employees within 72 hours of I-9 inspections that have been conducted.

    As you may recall from prior blog entries, AB 450 (IWPA) states California-based employers:


    • Are prohibited from voluntarily granting immigration enforcement agents access to any non-public areas of a worksite unless the agents present a judicial warrant;
    • Are prohibited from voluntarily allowing ICE agents to access, review, or obtain any employee records unless the agents present a Notice of Inspection (NOI) of Forms I-9, an administrative or judicial subpoena, or a judicial warrant requiring compliance;
    • Are prohibited from reverifying the employment eligibility of any current employee unless required by federal law;
    • Are required, if served with an I-9 NOI, to give notice in writing within 72 hours to each current employee at the worksite and any authorized labor union that an I-9 inspection has begun; and
    • Must notify any affected employee or authorized union representative within 72 hours of receiving any subsequent I-9 related federal notices, such as Notice of Suspect Documents.


    In March 2018, the Department of Justice (DOJ) sued California alleging AB 450 and two other new state laws designed to protect certain undocumented immigrants are unconstitutional. "The provisions of state law at issue have the purpose and effect of making it more difficult for federal immigration officers to carry out their responsibilities in California," Justice Department lawyers argue in the suit, further calling the laws an "obstacle to the United States' enforcement of the immigration laws and discriminating against federal immigration enforcement."

    Judge Mendez ruled against a preliminary injunction on the AB 450 Notice requirements because they are not preempted by federal authority over immigration. However, the Judge preliminarily enjoined California authorities from:


    • fining employers or otherwise enforcing the bans on reverifying the employment eligibility of current employees;
    • voluntarily giving immigration enforcement agents access to nonpublic areas of the worksite; or
    • allowing them to access, review, or obtain employee records.


    In doing so, Judge Mendez requested the President and Congress to act and stated:
    This Court has gone to great lengths to explain the legal grounds for its opinion. This Order hopefully will not be viewed through a political lens and this Court expresses no views on the soundness of the policies or statutes involved in this lawsuit. There is no place for politics in our judicial system and this one opinion will neither define nor solve the complicated immigration issues currently facing our Nation.

    Accordingly, this Court joins the ever-growing chorus of Federal Judges in urging our elected officials to set aside the partisan and polarizing politics dominating the current immigration debate and work in a cooperative and bi-partisan fashion toward drafting and passing legislation that addresses this critical political issue. Our Nation deserves it. Our Constitution demands it.

    I will keep you informed of further developments in this litigation.
  2. Company sues Competitor for Employing Undocumented Workers

    By: Bruce Buchanan, Sebelist Buchanan Law


    American Elite Molding LLC (AEM), a manufacturer based in Crestview, Florida, is suing a competitor, Advanced Cable Ties Inc. (ACT), for employing undocumented workers, through Twin City Temporaries, Inc., at a Gardner, Massachusetts, plant.

    The lawsuit, filed in Okaloosa County Circuit Court, Florida, is seeking unspecified monetary damages stemming from ACT's alleged use of workers who are not eligible to work in the United States. It specifically states the company has lost contracts and had to lower its prices as a result of ACT's alleged labor practices. AEM categorizes these actions by ACT as unfair competition.

    AEM CEO Bob Sires said about 60 percent of ACT's labor force - almost all the night workers and some of the day workers are undocumented workers supplied by Twin City Temporaries, which is based in Fitchburg, Massachusetts. He further claims Twin City Temporaries brings in workers from Vietnam and other countries and pays them under the table to avoid taxes and payroll costs.

    Sires said Twin City Temporaries approached him a year to a year-and-a-half ago and proposed a similar arrangement with AEM, claiming it could help cut labor costs. AEM rejected this arrangement. Sires claims after this, he realized AEM started losing a couple of clients' accounts to ACT, after ACT began using Twin City Temporaries.

    "ACT misleads the relevant marketplace by disingenuously attempting to convey a wholesome image of its workforce where, in reality ... over sixty percent of ACT's workforce is ineligible to work in the United States," the lawsuit says. The lawsuit also claims that AEM hires only legal workers and pays them in accordance with applicable labor laws.

    This lawsuit is extremely unusual and is a new twist on what employers, which employ undocumented workers, must fear. I wonder if Immigration & Customs Enforcement reads the newspaper and serves a Notice of Inspection on ACT. I will keep you informed on this lawsuit.

    For answers to many other questions related to immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.
  3. OPT STEM Regulation Survives in Lawsuit

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    A federal judge has ruled for the Department of Homeland Security (DHS) in a lawsuit concerning the promulgation of a 2016 regulation extending Optional Practical Training (OPT) by an additional 24 months for eligible STEM (science, technology, engineering and mathematics) degree holders. (Washington All. of Tech. Workers v. Dept. of Homeland Sec. (D.D.C. Apr. 19, 2017)).

    The Washington Alliance of Technology Workers argued the 2016 regulation exceeded the authority of DHS under several provisions of the Immigration and Nationality Act (INA). Specifically, the Alliance asserted the regulation allows employers to skirt the H-1B temporary visa program for high-skilled workers without providing labor protections for U.S. workers.

    The judge decided the Alliance, which represents U.S. workers who are STEM degree holders, did not show that the DHS had violated the INA in the promulgation of the regulation or the substance of the regulation.

    Despite this favorable ruling in litigation, on a case that has been in the courts for many years, OPT STEM faces uncertainty as to whether the Trump administration will attempt to eliminate or curtail it. Under last week’s “Buy American and Hire American” executive order, the Secretary of DHS “shall propose new rules and issue new guidance… to protect the interests of United States workers.” Since this language is so broad, Secretary of DHS may propose new rules for OPT STEM. Only time will tell so stay tuned.
  4. Immigrant Personal Injury: Do You Have a Case?

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    There are a variety of situations in which you may be injured due to something that was not your fault, such as being involved in a car accident caused by someone else’s negligence, slipping and falling in a grocery store, or being bitten by someone else's dog. One should not have to pay costly medical bills and other expenses that resulted from an accident caused by no fault of your own. It is important to hold people and businesses accountable when they put others at risk.

    However, there might be one curveball in your case: You're an undocumented immigrant.

    Many undocumented immigrants are afraid to take action in these situations. Even though they might be worried about having to pay for their own medical bills or have concerns regarding the financial losses that result when one is unable to work due to an injury, many immigrants are afraid of the alternative: deportation. People in this situation often end up suffering alone without hiring a personal injury lawyer to assist them with their case, which ultimately does not hold the responsible party accountable for their negligence.

    Is this situation fair?

    Usually, becoming a United States citizen or permanent resident is a long, challenging and expensive road. Just because you have not been able to overcome this obstacle does not mean that you shouldn't be able to protect yourself and fight for your rights after an injury.

    Luckily, many United States courts agree with this. New York's highest court, the Court of Appeals, decided on this matter in 2006. In the case, Balbuena v. IDR Realty, a man named Gorgonio Balbuena, a native of Mexico who was in the United States illegally at the time of the accident, was involved in a construction site accident. This accident was pretty serious and left Balbuena with serious head trauma and other injuries, making it impossible for him to work.

    When Balbuena filed a lawsuit, he was asked for proof that he was allowed to legally work in the United States. Since Balbuena was an undocumented immigrant, he unsurprisingly had no such paperwork. Because of this, part of Balbuena’s claim was dismissed, but the New York Court of Appeals ultimately found that he still had a right to a personal injury lawsuit due to the injuries that he sustained while on the job. Once this precedent was set, other courts throughout the nation have had similar decisions.

    So if you’re an undocumented immigrant, you should not be afraid to fight for the compensation you deserve after a personal injury. The last thing one should have to worry about while going through the tough healing process that ensues after a personal injury is their United States citizenship status.

    Of course, these cases may be tricky. Just as with most other personal injury cases, it is usually best to work with a skilled attorney. Your attorney has the qualifications to sort out these complex legal matters. Don't be afraid to fight for yourself; instead, hire a Miami personal injury lawyer who can help you every step of the way.

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ID:	1125Thanks to our friends at Personal Injury Lawyer of Miami for their added insight into personal injury practice.
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