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I-9 E-Verify Immigration Compliance

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  1. IER Stays Busy Under Its New Name

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    On January 18, 2017, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) changed its name to Immigrant and Employee Rights Section (IER), Civil Rights Division of the Department of Justice. The newly – named government agency has been busy in its first months of existence.

    Since January 18, 2017, the IER has entered into seven settlement agreements and collected over $300,000 in penalties and $75,000 in backpay.

    Besides these settlement agreements, IER has issued 11 Letters of Resolution to employers. IER issues a Letter of Resolution when after an investigation of a charge, there is insufficient evidence of a violation of the anti-discrimination provision, but there is evidence of the employer having deficiencies in their I-9 form and/or E-Verify compliance. Letters of Resolution may also be issued when an employer quickly resolves an issue by hiring or reinstating the individual in question with backpay. In resolving these investigations, employer often agree to participate in IER-sponsored training and to ensure their Human Resources Staff becomes better trained on I-9 and E-Verify compliance.
  2. 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.
  3. 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.
  4. 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.
  5. IER Settles Immigration-Related Discrimination Claim Against Florida Company

    By Bruce Buchanan, Sebelist Buchanan Law
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    The Justice Department’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, reached an agreement with Brickell Financial Services Motor Club, Inc., d/b/a Road America Motor Club, Inc. (Road America), headquartered in Miami, Florida. The settlement resolves the IER’s investigation into whether the company violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants when verifying their work authorization.

    The IER concluded, based on its investigation, that Road America routinely requested that lawful permanent residents show their Permanent Resident Cards to prove their work authorization but did not request specific documents from U.S. citizens. The investigation further revealed that Road America required lawful permanent resident employees to re-establish their work authorization when their Permanent Resident Cards expired, even though federal rules prohibit this practice. The antidiscrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on the employees’ citizenship or national origin.

    Under the settlement, Road America will pay a civil penalty of $34,200 and pay $1,044 to compensate a worker who lost wages due to its unfair documentary practices. Road America has also 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.

    Unfortunately, the errors made by Road America are common among many employers. A good immigration training program could avoid these mistakes.
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