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I-9 E-Verify Immigration Compliance

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  1. JET of Saipan Distributes $40,000 in Back Pay to U.S. Workers Under IER Settlement

    By: Bruce Buchanan, Sebelist Buchanan Law

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    Immigrant and Employee Rights Section (IER) of the Civil Rights Division of the Justice Department announced J.E.T. Holding Co. Inc. (JET) has paid $40,000 to nine U.S. citizens pursuant to a January 17, 2017 settlement with IER, which resolved claims that JET discriminated against U.S. workers in favor of temporary foreign visa workers.

    In its investigation leading up to the settlement, the IER found JET, which operates a restaurant in Saipan, routinely refused to hire qualified U.S. citizens and other work-authorized individuals for dishwasher positions because of their citizenship status; rather, it preferred to fill the positions with temporary foreign visa workers. Under the Immigration and Nationality Act, employers cannot prefer to hire temporary foreign visa workers over available and qualified U.S. workers based on citizenship status. For more information on the settlement, see my prior blog entry at http://blogs.ilw.com/entry.php?9680-...-J-E-T-Holding.

    This settlement and back pay is another example of the IER and other immigration-related agencies striving to comply with President Trump’s Hire American Executive Order. For more information on Hire American EO, see http://hrprofessionalsmagazine.com/w...ecutive-order/, an article that I co-authored with Adam Cohen (@MDVisas).

    For more information on employer immigration compliance issues, 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. 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.
  3. I-9 Violations Cannot be Alleged by a Complainant in Discrimination Complaint

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In Sapre v. Dave S.B. Hoon – John Wayne Cancer Institute, 12 OCAHO no. 1305 (August 2017), an employee alleged the Respondent discriminated against her because of her citizenship status and national origin, retaliated against her, and committed document abuse, thereby violating the antidiscrimination provisions of the Immigration and Nationality Act, 8 U.S.C. § 1324b (2012). In a procedural decision, OCAHO denied a Motion for Default Judgment.

    In so ruling, OCAHO denied Complainant’s request that the ALJ inquire into the employer’s alleged Form I-9 errors. OCAHO reiterated that the employer sanctions statute, 8 U.S.C. § 1324a, and accompanying regulations, “do not authorize a private individual to file a complaint directly with an Administrative Law Judge alleging violations in completion of the Form I-9, which is unlawful pursuant to § 1324a(a)(1)(B)” (quoting de Araujo v. Joan Smith Enters., Inc., 10 OCAHO no. 1187 (2013).
  4. Texas Tortilla Company Convicted of Employment of Undocumented Workers

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC
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    La Espiga De Oro (Espiga), manufacturer of tortillas for distribution to restaurants and businesses, forfeited $1 million because of a felony conviction of conspiracy to induce and encourage unlawful immigration through a pattern and practice of hiring and employing illegal aliens at the Texas tortilla factory. Owners Alfredo Sosa Lira, his wife Lydia Botello-Lira, their daughter Lydia Lira, and night manager Roberto Guerra, pleaded guilty to misdemeanor violations associated with their continued employment of undocumented aliens between October 2011 and August 2015.

    Homeland Security Investigations investigated a series of complaints about the company’s hiring practices. An undercover operation later led to evidence that the company knowingly hired individuals not authorized to work in the United States. In some instances, the company knew that aliens used fraudulent documents to secure employment.

    HSI executed a search warrant at the company in August 2015, which led to the discovery of 10 undocumented workers working there as well as evidence demonstrating that 55% of their employees were not authorized by law to work at the factory. Following the search warrant, the company was charged by criminal complaint and began cooperating with HSI and the U.S. Attorney’s Office to revise their hiring practices and implement new procedures to prevent future violations of federal law.

    The company paid $1 million, representing an amount that at least equals the value of property used to facilitate the crime, the value of wages paid to the unauthorized work force and the value of products manufactured and services provided by the illegal workforce during the conspiracy. This money will go directly to immigration authorities to assist them with their future enforcement efforts.
  5. OSC Files Lawsuit Against Two Washington Companies Alleging Discrimination

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), an agency within the Department of Justice, recently filed a lawsuit against two Washington-based companies, Washington Potato Company and Pasco Processing LLC, alleging that they violated the Immigration and Nationality Act (INA) by discriminating against immigrants during the employment eligibility verification process because of their citizenship status.

    According to the 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 hired over 2,000 U.S. citizens (USCs) and approximately 800 lawful permanent residents (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. This information was gleaned by the Department of Homeland Security’s Monitoring and Compliance branch by reviewing data from E-Verify, which the two companies used.

    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 OSC alleged many LPR employees presented List B and C documents but the companies requested a specific document, the LPRs’ green card, for the Form I-9 and/or E-Verify from non-U.S. citizen employees, but allowed USCs the flexibility to present a variety of documents. Thus, the OSC alleged the companies treated LPRs and non-citizen employees differently than USCs and this treatment was intentional and discriminatory.

    Under the INA, all workers, including non-U.S. citizens, must be allowed to choose freely from among the valid documentation that proves their work authorization. The INA prohibits employers from discriminating by unlawfully limiting some workers’ choices based on their citizenship status. I will keep you updated on the outcome of this litigation.

    This complaint is an example of the downside of using E-Verify – the data entered by the employer is scrutinized by the Department of Homeland Security, who may refer the case to the OSC for investigation and litigation.
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