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I-9 E-Verify Immigration Compliance

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  1. IER Settles Claim of Discrimination of U.S. Workers by Triple H Services, Landscaping Company

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC



    The Immigrant and Employee Rights Section (IER), a part of the Civil Rights Division of the Justice Department, reached a settlement agreement with Triple H Services LLC, a landscaping company based in Newland, North Carolina. The agreement resolves an investigation into whether Triple H discriminated against qualified and available U.S. workers based on their citizenship status by preferring to hire temporary workers with H-2B visas, in violation of the Immigration and Nationality Act (INA).

    The IER’s investigation found that although Triple H went through the motions of advertising over 450 landscape laborer vacancies in five states, it did so in a manner that misled U.S. workers about the available positions and prevented or deterred some from applying. The IER found Triple H did not consider several qualified U.S. workers who applied for positions in Virginia during the recruitment period, instead it hired H-2B visa workers. In several states where jobs were available, Triple H prematurely closed the online job application process for U.S. worker applicants, filled positions with H-2B visa workers without first advertising the jobs to U.S. workers in the relevant locations, or advertised vacancies in a manner that did not make the postings visible to job seekers using state workforce agency online services.

    The IER concluded that in taking these actions, Triple H effectively denied U.S. workers access to jobs based on its preference for hiring temporary H-2B visa workers to fill the positions. Refusing to consider or hire qualified and available U.S. workers based on their citizenship status violates the INA’s anti-discrimination provision, regardless of whether an employer has complied with other rules governing the use of temporary employment-based visa programs.

    The Justice Department touted this settlement agreement as part of the Division’s Protecting U.S. Workers Initiative, which is aimed at targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of temporary visa workers. Acting Assistant Attorney General John Gore said, “The Department will continue to fight to ensure that U.S. workers are not disadvantaged because of their citizenship status.”

    Under the settlement, Triple H must establish a backpay fund, with a cap of $85,000, to compensate certain individuals who were harmed by its practices; pay $15,600 in civil penalties to the U.S. government; engage in enhanced recruitment activities to attract U.S. workers; revise any existing employment policies so that they prohibit discrimination based on citizenship, immigration status, and national origin in the recruitment and hiring processes; train its Human Resources personnel on their legal obligations to not discriminate by viewing a free online IER webinar presentation; and be subject to departmental monitoring and reporting for a three-year period.

    This settlement is the second in the last week related to discrimination against U.S. workers. For answers to many other questions related to the IER 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.
  2. IER Settles Immigration-Related Discrimination Claims Against J.C. Penney

    By: Bruce Buchanan, Sebelist Buchanan Law



    The Immigrant and Employee Rights Section (IER), a Division of the Justice Department, has reached a settlement agreement with J.C. Penney Corporation, Inc. The agreement resolves two investigations, one into whether J.C. Penney unlawfully rejected a lawful permanent resident’s valid work authorization documentation, and the other into whether J.C. Penney violated the Immigration and Nationality Act (INA) by unlawfully reverifying the work authorization of certain non-U.S. citizens.

    The first investigation was prompted by a lawful permanent resident’s charge alleging J.C. Penney violated the INA’s anti-discrimination provision when J.C. Penney fired her in August 2016. The investigation found J.C. Penney had improperly rejected the worker’s unexpired Permanent Resident Card as proof of her work authorization. The second investigation found J.C. Penney had unlawfully reverified the work authorization of certain non-U.S. citizens solely based on their citizenship status, even though those non-citizens had presented the same type of valid work authorization documents as U.S. citizens when first hired.

    The IER also found J.C. Penney unlawfully requested specific immigration documents from certain workers during the process of reverifying their work authorization because of their immigration status. Among other things, the INA prohibits employers from (1) rejecting valid work authorization documents, (2) limiting a worker’s choice of documentation to present for employment verification or reverification purposes, and (3) subjecting employees to different or unnecessary documentary demands, based on the employee’s citizenship, immigration status, or national origin.

    Under the terms of the settlement, J.C. Penney will pay a civil penalty of $14,430 to the United States; pay $11,177.60 in back pay to the worker who filed the charge; train its staff and corporate human resources personnel on their legal obligations to not discriminate on the basis of citizenship, immigration status, and national origin; require HR personnel to take an open book multiple choice test on the I-9 process; revise any existing employment policies so that they prohibit discrimination based on citizenship, immigration status, and national origin; honor employees’ documentation that appears genuine and relates to the person; not request more of different documents than required by law; post notices informing workers about their rights under the INA’s anti-discrimination provision; and be subject to departmental monitoring and reporting requirements for two years.

    It appears the IER is requiring more and more from employers entering into settlements. For example, HR personnel at J.C. Penney will be required to pass a test. This is a method to make sure that the law as relates to the I-9 process will be followed in the future. For answers to many other questions related to the IER 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 available at http://www.amazon.com/dp/0997083379.
  3. IER Settles with Setpoint Systems Over Discrimination Against Non-Citizens

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC



    The Immigrant and Employee Rights Section (IER), a Division of the Justice Department, has reached a settlement with Setpoint Systems Inc., an Ogden, Utah, engineering company. The settlement resolves an investigation into whether the company engaged in hiring discrimination against non-U.S. citizens protected under the Immigration and Nationality Act’s (INA) anti-discrimination provision.

    The investigation found that from 2015 to 2017, Setpoint Systems had an unlawful policy of hiring only U.S. citizens for professional positions and refusing to consider otherwise qualified non-U.S. citizens based on the company’s erroneous understanding of the International Traffic in Arms Regulations (ITAR). ITAR regulates specific exports of defense articles and services and limits the access of certain sensitive information to U.S. citizens, U.S. nationals, lawful permanent residents, asylees, and refugees. ITAR does not authorize employers to only hire U.S. citizens. The anti-discrimination provision of the INA makes it unlawful for an employer to discriminate against an individual in the recruitment and hiring process based on citizenship status, unless authorized by law.

    Under the settlement agreement, Setpoint Systems will pay $17,475 in civil penalties to the United States for the alleged unfair immigration-related employment practices; train its Human Resources personnel on their legal obligations to not discriminate by viewing a free online IER webinar presentation; review and revise, if necessary, any existing employment policies that relate to nondiscrimination based on non-U.S. citizenship status; ensure all job advertisements have been reviewed by legal counsel or an employee who is trained on anti-discrimination laws; post notices informing workers about their rights under the INA’s anti-discrimination provision; and be subject to departmental monitoring and reporting requirements for three years.

    This settlement is another indication that the federal government is serious about cracking down on discrimination based on whether one is or is not a U.S. citizen. For answers to many other questions related to the IER 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. ICE Raids Continue with Raids at Fresh Mark in Ohio

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC



    In the third raid in the past two and a half months and the largest to date, Immigration and Customs Enforcement (ICE), on June 19, 2018, raided Fresh Mark, a large meat supplier. As many as 100 agents from ICE and Customs and Border Protection (CBP), descended upon Fresh Mark’s four facilities in Salem, Massillon and Canton, Ohio. This was the largest ICE raid in over 10 years.

    Although ICE raided four of Fresh Mark’s facilities with federal criminal search warrants, only the Salem facility was the site of arrests. The detained 146 workers are suspected of using stolen/fraudulent identification to gain employment and/or reentry into the United States after deportation.

    Steve Francis, special agent in charge of ICE's Homeland Security Investigations Michigan/Ohio unit, said the raid was the result of more than a year-long investigation into Fresh Mark and its employees, and whether the company knowingly hired and harbored undocumented workers. "It's important that companies know not to willingly participate in the hiring of illegal aliens," said Francis.

    According to Francis, some of the workers who were arrested were taken to detention centers in Michigan and Ohio, while others may be deported immediately. ICE said those who are detained will await removal proceedings. Other workers could potentially be released on humanitarian grounds and given a Notice to Appear (NTA) at an immigration court.

    Fresh Mark, a family-owned company, which employs more than 1,000 employees, sells meat products, such as bacon, deli ham, lunch meats and sausages to restaurants, delis, grocers and stadiums nationwide. The company said it participates in E-Verify, a federal program to ensure employees have proper documentation and conducts an annual internal audit of its I-9 forms. It should be noted if an employee engages in identity theft, E-Verify may not be able to detect the theft and will issue work-authorized verification.

    This raid is further evidence that ICE is dramatically increasing their enforcement actions through raids and ICE audits of employee’s I-9 forms. Furthermore, ICE is now arresting/detaining employees at the raids/audits. In December 2017, ICE's acting director Tom Homan said, "We're not just talking about arresting the aliens at these work sites, we are also talking about employers who knowingly hire people who are unauthorized to work." So far this year, ICE has arrested more than 600 workers that it alleges were working without proper authorization. That number far exceeds the 172 arrests made in 2017, according to ICE.

    To date in FY 2018, there have been 2,282 ICE audits of employers’ I-9 forms. Derek Benner, head of ICE's Homeland Security Investigations unit, said another nationwide wave of audits, like the ICE audits of 7-Eleven in January 2018, planned this summer, would push the total number of audits to "well over" 5,000 by September 30, 2018. If so, that would be almost a 400% increase from fiscal year 2017 and the highest number of ICE audits ever. According to Brenner, ICE has developed a plan to conduct as many as 15,000 I-9 audits a year if it can receive appropriate funding and support from other areas of the Trump administration. The plan calls for creation of an Employer Compliance Inspection Center to perform employer audits at a single location instead of at regional offices around the country.

    It is clear that employer raids will be a frequent tool of ICE. Every employer should be vigilant in their immigration compliance. I would advise employers to meet with their immigration counsel, or obtain immigration counsel, to conduct an internal I-9 audit and draft or review an immigration compliance policy. Though it should be noted, Fresh Mark said it conducts annual I-9 audits.

    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.
  5. Honduran nationals sentenced for wire fraud, illegally employing workers

    By: Bruce Buchanan, Sebelist Buchanan Law



    Two unlawfully present Honduran nationals, Anyi Artica-Romero and Milton Noel Romero were sentenced to 18 months in federal prison and 14 months (time served), respectively, for conspiracy to commit wire fraud for their roles in a scheme that created shell companies to mask the unauthorized employment of workers in the construction industry. Additionally, the defendants were also ordered to forfeit more than $800,000 in illegal proceeds from the scheme and pay more than $31,000 in restitution.

    According to court documents, the defendants facilitated the illegal employment of unlawfully present foreign nationals in the construction industry. Construction contractors and subcontractors entered into agreements with shell companies controlled by the defendants to provide workers, most of whom were undocumented aliens, for the contractors and subcontractors. By obtaining and paying the workers through the shell companies, the contractors and subcontractors could disclaim responsibility for ensuring the workers were legally authorized to work in the U.S., state and federal payroll taxes were paid and workers compensation insurance was provided.

    After creating the shell companies, the defendants applied for workers compensation insurance policies covering a period from September 2015 through July 2017. The defendants represented in the applications that the policies would cover up to 19 employees with estimated annual payrolls of no more than $410,800. The insurance companies issued policies based on this fraudulent information in the applications, which the defendants then “rented” to numerous construction contractors and subcontractors employing hundreds of workers with more than $20 million in annual payroll as purported proof of workers compensation insurance required under Florida law.

    The contractors and subcontractors wrote payroll checks to the shell companies for work performed by the workers. The defendants cashed the checks and distributed the cash to construction crew leaders, who then paid the workers in cash. No state or federal payroll taxes were deducted from the workers’ pay, in violation of Florida and federal law.

    The defendants kept approximately four percent of each payroll check as a “rental” fee. During the period of the scheme, they cashed more than $20 million in payroll checks, with the four percent fee totaling more than $800,000 in illegal proceeds.
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