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I-9 E-Verify Immigration Compliance

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  1. California’s New Law Requiring Employee Notification of ICE Audits and More

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The State of California has a new law, “The Immigrant Worker Protection Act” (AB 450), which requires employers to notify its employees by written notice within 72 hours of Notice of Inspection (NOI) of I-9 records and to notify its employees, individually, of the results of the I-9 audit by Immigration and Customs Enforcement (ICE) within 72 hours of receiving the results of the NOI. Concerning these notifications, the Labor Commissioner is required to develop a template.

    The new California law also requires ICE agents to provide a judicial warrant to employers to access non-public portions of worksites. Thus, employers may not simply consent for ICE to have access to non-public portions of the worksite. The new law does not restrict ICE from providing a NOI to an employer demanding the employees’ I-9 forms within three days of service of the NOI and the employer being required to honor it. Additionally, employers are prohibited from sharing confidential employee information, such as Social Security numbers, unless required to do so in a NOI or provided a judicial warrant.

    The penalty for a first offense is $2,000 to $5,000 and for each subsequent violation - $5,000 to $10,000. The enforcement of these penalties is under the exclusive authority of the Labor Commissioner or California Attorney General. Thus, employers or employees may not seek enforcement of the statute.

    The question that I have with this legislation is whether any of it is preempted under federal law, Immigration Reform and Control Act (IRCA). Under federal law, when ICE wants to inspect an employer’s I-9 forms, it issues a Notice of Inspection and usually an administrative subpoena. I don’t believe the portions of the legislation concerning notifying workers would be preempted by federal law. It’s unclear whether restricting access to non-public portions of the worksites is preempted.

    I will keep you updated on any litigation over this new state law. For a review of all employment and immigration-related state laws and other issues 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.
  2. New I-9 Form Must Be Used as of September 18

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    As I previously discussed in my July 19, 2017 blog, the USCIS released a new revised I-9 form on July 17, 2017. It becomes mandatory to use for new hires as of September 18, 2017. In the interim period, July 17 to September 17, use of the new I-9 form was optional. The newest I-9 form has a revision date of 07/17/17 N.

    There are no changes on the I-9 form or the Supplemental page. The minor changes are the addition of Consular Report of Birth Abroad (Form FS-240) to List C Acceptable Documents and minor wording changes in the instructions.

    USCIS has stated it will include these changes in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274). However, to date, the USCIS has not do so. I will keep you advised.

    In order to keep you compliant and answer your questions on completing the I-9 form, using E-Verify, and state immigration laws, I have co-authored a book with Greg Siskind, The I-9 and E-Verify Handbook, available from Amazon at: http://www.amazon.com/dp/0997083379
  3. Another I-9 Form Released by USCIS

    By: Bruce Buchanan, Sebelist Buchanan Law

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    USCIS released a revised I-9 form on July 17, 2017. Employers will be able to use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through September 17, 2017. On September 18, employers must use the revised form with a revision date of 07/17/17 N. As shown below, the changes to the I-9 form are not even on the form but rather in the Lists of Acceptable Documents and instructions. With these changes being so minor, one must question the necessity of issuing a new I-9 form.

    Revisions related to the Lists of Acceptable Documents on Form I-9:


    • Adding the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Section 2 and Section 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9; and
    • Combining all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) into selection 2 in List C.


    Revisions to the Form I-9 instructions will include:


    • Changing the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section; and
    • Removing “the end of” from the phrase “the first day of employment.”


    USCIS will include these changes in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274). It is unclear when this will occur. I will keep you advised.
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  4. 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.
  5. Fruit and Vegetable Processor Agrees to Pay $225,000 to Settle Discrimination Lawsuit

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Washington Potato Company and Pasco Processing, LLC and the Justice Department’s Immigrant and Employee Rights Section (IER) of the Civil Rights Division, have reached a settlement agreement, whereby the companies agreed to pay over $225,000 to resolve a discrimination lawsuit filed by IER in November 2016. The complaint alleged Washington Potato directed and controlled Pasco Processing’s hiring practices, including the alleged discriminatory documentary practices, which violated the antidiscrimination provision of the Immigration and Nationality Act (INA).

    According to the November 2016 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 routinely requested lawful permanent residents (LPRs) hired at Pasco Processing produce a specific document – a Permanent Resident Card (also referred to as a Green Card) – to prove their work authorization, while not requesting a specific document from U.S. citizens (USCs). From November 2013 until October 2016, the complaint alleged the companies hired over 2,000 USCs and approximately 800 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.

    Prior to the settlement, 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 government alleged many LPR employees presented List B and C documents but the companies requested non-U.S. citizen employees provide a specific document, a green card, for completion of the I-9 Form while it allowed USCs the flexibility to present a variety of documents.

    Under the settlement agreement, Washington Potato Company and Pasco Processing are required to pay civil penalties of $225,750, revise policies to eliminate any discrimination in the I-9 form and E-Verify procedures, post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel on the requirements of the INA’s anti-discrimination provision, and be subject to departmental monitoring and reporting requirements for two and one-half years.

    This is another example of the hefty civil penalties imposed by the IER, formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). In this case, it appears the companies decided not to litigate the complaint even though prior negotiations before the issuance of a complaint had been unsuccessful. Although the IER is a much smaller agency than Immigration and Customs Enforcement (ICE), often settlement of their cases involves substantial civil penalties and/or back pay. Thus, it is important that companies understand the antidiscrimination provision of the INA in order that they not face this liability. I recommend regular training on the antidiscrimination provision of the INA by immigration counsel.
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