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I-9 E-Verify Immigration Compliance

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  1. Sheriff Arpaio’s Unlawful Actions Lead Court to Find Frimmel Has No Liability

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC




    Just when you thought Sheriff Joe Arpaio could not cause further trouble because he’s out of office, he strikes again in an immigration case.

    This case centers on a Notice of Inspection (NOI) that was delivered to Frimmel Management after Sheriff Arpaio’s police force, Maricopa County Sheriff’s Office (MCSO), conducted raids of two Uncle Sam’s restaurants and the owner’s home. MCSO seized employment records based on suspicion that the restaurants’ workers committed identity theft and forgery. During the State of Arizona’s prosecution of Frimmel, the state court found the affidavits supporting the search warrant for the raids were “unreasonable and reckless.” Therefore, the Court dismissed the charges against Frimmel.

    One day after MCSO’s raids, MCSO sent a memorandum to ICE summarizing the results of the unlawful raid. Thereafter, MCSO issued press releases publicizing their raids and stated some of the workers had been put on ICE holds.

    About two and one-half weeks after the raids, ICE served a NOI/subpoena on Frimmel. After Frimmel timely produced the restaurants’ I-9 forms, ICE issued a Notice of Intent to fine (NIF) and a complaint for the case to be heard by an OCAHO Administrative Law Judge.

    In response to Frimmel’s objections, this ALJ found that how Frimmel had come to the attention of ICE was “irrelevant” to the OCAHO case. Frimmel also argued the I-9 forms must be suppressed under the fruit of the poisonous tree doctrine. The ALJ disagreed and found ICE had not relied on any “evidence directly obtained from MCSO’s unlawful conduct.” Since the primary goal of suppressing evidence based on illegal conduct is to deter future unlawful police conduct, this was not a factor in question in the ICE’s NOI of Frimmel. Thus, the ALJ upheld the $347,000 penalty.

    On appeal to the 9th Circuit Court of Appeals, the Court initially reviewed MCSO’s conduct. It found that MCSO’s omissions and distortions in the affidavits for the search warrant were “reckless and immaterial.” Thus, this finding led the 9th Circuit to find the raids violated the 4th Amendment to the Constitution.
    Furthermore, the Count found MCSO’s conduct to be egregious.

    Despite those findings, DHS argued the “ICE investigation was too attenuated from MCSO’s illegal conduct” Under the attenuation doctrine, evidence is admissible when “the connection between the illegality and challenged evidence has become so attenuated as to dissipate the taint caused by the illegality.”

    The Court rejected that argument and found there was a causal connection between MCSO’s unlawful search and the ICE audit. The identity evidence – Frimmell and his restaurants – resulted from MCSO’s raid, which “significantly directed the subsequent ICE investigation.” Thus, the I-9 forms which ICE seized were fruit of MCSO’s illegal search.

    In conclusion, the 9th Circuit found for Frimmel because ICE used the fruit of the poisonous tree – the I-9 forms. Thus, Frimmell did not owe the $347,000 that OCAHO had found as penalties.

    Although very few cases get litigated to the Court of Appeals, companies continue to have some success in appeals to the Courts of Appeal. Several years ago, the 5th Circuit Court of Appeals reversed OCAHO’s $227,000 penalty against Employer Solutions Staffing Group II, LLC.

    If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  2. DOL Cites Another Win for Trump’s Hire American Executive Order

    By: Bruce Buchanan, Sebelist Buchanan Law


    The U.S. Department of Labor’s Wage and Hour Division (WHD) has debarred Christopher Lee Smith, owner of Christopher Lee Smith Farms in Glasgow, Kentucky, from applying for certification to request temporary foreign workers under the H-2A agricultural worker visa program for three years. WHD also assessed the employer a $35,755 civil penalty for violating the labor provisions of the H-2A program and found Smith owed $58,820 in back wages to 14 employees.

    The DOL investigation found Smith violated the requirements of the H-2A visa program by failing to reimburse foreign workers for their transportation expenses to and from their home countries, as the law requires; failing to reimburse employees for expenses related to obtaining their visas; failing to keep required time and pay records; failing to pay employees their wages when due; and failing to pay the required minimum wage to H-2A visa workers, as required by law.

    And in a continuing trend with each resolution of an immigration-related case by a federal agency, the DOL pointed to safeguarding American jobs pursuant to Trump’s Buy American, Hire American Executive Order. Specifically, Karen Garnett, Wage and Hour Division District Director in Louisville, said “This case demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and protect vulnerable workers from being paid less than they are legally owed.”

    The H-2A temporary agricultural program establishes a means for agricultural employers, who anticipate a shortage of domestic workers, to bring non-immigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.

  3. DOJ Settles National Origin Discrimination Claim Against New York Restaurant

    By: Bruce Buchanan, Sebelist Buchanan Law

    The Division’s Immigrant and Employee Rights Section (IER), within the Department of Justice has reached a settlement with Food Love 125 Inc., d/b/a Ichiba Ramen, a New York City restaurant, to resolve an investigation into whether the restaurant violated the Immigration and Nationality Act’s (INA) anti-discrimination provision.

    The investigation was initiated by a worker, who filed a complaint with IER, alleging Ichiba Ramen’s former chef discriminated against a job applicant when it refused to hire him as a server because he was not Korean or Japanese. The investigation also revealed that prior chefs had not placed such limitations on the restaurant’s hiring of servers. The INA’s anti-discrimination provision prohibits employers with four to 14 employees from discriminating against individuals because of their national origin.

    Under the settlement agreement, Ichiba Ramen will pay a civil penalty of $2000, undergo training on the INA’s anti-discrimination provision, and post notices informing workers about their rights under the INA. The restaurant previously paid $1,760 in back pay to the affected applicant.

    This national origin settlement with the IER is fairly rare as the IER only has jurisdiction on national origin claims involving employers with four to 14 employees. Most national origin claims are filed with the EEOC, who has jurisdiction on national origin claims involving employers with 15 or more employees.

    For answers to many other questions related to the IER, national origin discrimination, and 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.
  4. IER Settles Immigration-Related Discrimination Claim for $100,00 Against Vegetable Processing Plant

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Immigrant and Employee Rights Section (IER) of the Justice Department has reached a settlement agreement with Washington Potato Company of Pasco, Washington, which will cost the employer $100,000. The agreement resolves the IER’s investigation into whether Washington Potato discriminated against work-authorized immigrants in violation of the Immigration and Nationality Act (INA).

    The investigation revealed that Washington Potato routinely requested work-authorized non-U.S. citizens present specific documents to confirm their status, such as Permanent Resident Cards or Employment Authorization Documents while verifying their authorization to work at the plant. However, they did not subject U.S. citizens to such requests. The anti-discrimination provision of the INA prohibits employers from subjecting employees to different or unnecessary documentary demands based on the employees’ citizenship, immigration status, or national origin. This is commonly referred to as document abuse or unfair documentary practices.

    This is the second settlement agreement in 2017 between the IER and Washington Potato as a May 2017 settlement resolved similar discriminatory conduct by Washington Potato at another facility in Pasco, Washington. See blog entry of May 22, 2017 - Fruit and Vegetable Processor Agrees to Pay $225,000 to Settle Discrimination Lawsuit. http://blogs.ilw.com/entry.php?9904-...nation-Lawsuit.

    Under the settlement, Washington Potato will pay a civil penalty of $100,000 to the United States, train its staff by viewing an IER webinar presentation and USCIS webinar on E-Verify for Existing Users, review and revise any existing employment policies that relate to the employment eligibility verification process so that they prohibit discrimination on the basis of citizenship, immigration status, or national origin, post notices informing workers about their rights under the INA’s antidiscrimination provision, and be subject to departmental monitoring and reporting requirements for 30 months.

    The allegation of having different standards for U.S. citizens than non-U.S. citizens is a fairly common error by employers. However, with training by an immigration attorney, well-versed in employer compliance, these errors can easily be avoided. For more information on this issue and many others related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.
  5. DOJ Settles Immigration-Related Discrimination Claim Against Rustic Inn Crabhouse

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Justice Department, through the Immigrant and Employee Rights Section (IER), has reached a settlement agreement with Ark Rustic Inn LLC d/b/a Rustic Inn Crabhouse (Rustic Inn), a restaurant located in Fort Lauderdale, Florida. The agreement resolves the IER’s investigation into whether Rustic Inn discriminated against work-authorized immigrants when verifying their employment authorization.

    The investigation revealed Rustic Inn routinely requested that work-authorized non-U.S. citizens present specific documents, such as Permanent Resident Cards or Employment Authorization Documents, to verify their citizenship status information; however, it did not subject U.S. citizens to the same verification. The anti-discrimination provision of the Immigration and Nationality Act (INA) prohibits employers from subjecting employees to different or unnecessary documentary demands based on employees’ citizenship, immigration status or national origin.

    Under the settlement, Rustic Inn will pay a civil penalty of $4000 to the United States; review and revise any existing employment policies that relate to nondiscrimination on the basis of citizenship or immigration status and national origin so that it prohibits such discrimination in regard to the I-9 verification process; train its staff by viewing a free IER Employer/HR representative webinar; post notices informing workers about their rights under the INA’s anti-discrimination provision; shall ensure that all individuals, who are responsible for formulating and carrying out its hiring/firing, and employment eligibility verification policies, have available the most current version of the Form 1-9, USCIS Employment Eligibility Verification Handbook for Employers (M-274), and be subject to departmental monitoring for three years.

    The allegation of having different standards for U.S. citizens than non-U.S. citizens is a fairly common error by employers. However, with training by an immigration attorney, well-versed in employer compliance, these errors can easily be avoided. For more information on this issue and many others related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.
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