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I-9 E-Verify Immigration Compliance

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  1. Restaurant Owner Going to Prison for Harboring Undocumented Workers

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    An owner of two restaurants in Ukiah, California, Yaowapha Ritdet, was sentenced to serve 24 months in prison for harboring for profit and corruptly endeavoring to obstruct the internal revenue laws. According to documents filed with the court, Ritdet hired Thai nationals who were illegally present in the United States to work at her restaurants, Ruen Tong Thai Cuisine and Walter Café. Ritdet underpaid these employees, paid them in cash, and instructed them not to speak to anyone about their immigration status. Ritdet also did not pay employment taxes on the cash wages. Ritdet filed false individual income tax returns for 2007 through 2011 that underreported the gross receipts, sales, and income she received from her two restaurants.

    In addition to prison, Ritdet was ordered to serve three years of supervised release and to pay approximately $567,755.65 in restitution, including $70,768 to underpaid employees and $496,987 to the Internal Revenue Service.
  2. OPT STEM Regulation Survives in Lawsuit

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    A federal judge has ruled for the Department of Homeland Security (DHS) in a lawsuit concerning the promulgation of a 2016 regulation extending Optional Practical Training (OPT) by an additional 24 months for eligible STEM (science, technology, engineering and mathematics) degree holders. (Washington All. of Tech. Workers v. Dept. of Homeland Sec. (D.D.C. Apr. 19, 2017)).

    The Washington Alliance of Technology Workers argued the 2016 regulation exceeded the authority of DHS under several provisions of the Immigration and Nationality Act (INA). Specifically, the Alliance asserted the regulation allows employers to skirt the H-1B temporary visa program for high-skilled workers without providing labor protections for U.S. workers.

    The judge decided the Alliance, which represents U.S. workers who are STEM degree holders, did not show that the DHS had violated the INA in the promulgation of the regulation or the substance of the regulation.

    Despite this favorable ruling in litigation, on a case that has been in the courts for many years, OPT STEM faces uncertainty as to whether the Trump administration will attempt to eliminate or curtail it. Under last week’s “Buy American and Hire American” executive order, the Secretary of DHS “shall propose new rules and issue new guidance… to protect the interests of United States workers.” Since this language is so broad, Secretary of DHS may propose new rules for OPT STEM. Only time will tell so stay tuned.
  3. USCIS Will Issue Redesigned Green Cards and EADs

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC
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    USCIS announced a redesign to the Permanent Resident card (also known as a Green Card) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project. USCIS will begin issuing the new cards on May 1, 2017.

    The redesigns use enhanced graphics and fraud-resistant security features to create cards that are more tamper-resistant than the ones currently in use. The new Permanent Resident cards and EADs will:
    1. Display the individual’s photos on both sides;

    2. Show a unique graphic image and color palette:
    a. Green Cards will have an image of the Statue of Liberty and a predominately green palette;
    b. EAD cards will have an image of a bald eagle and a predominately red palette;
    3. Have embedded holographic images;

    4. No longer display the individual’s signature; and

    5. Also, Permanent Resident cards will no longer have an optical stripe on the back.

    Some Permanent Resident cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted.
  4. Employers Should Review I-9 form for Social Security Number Glitch

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    The USCIS is warning employees about a glitch on the I-9 form if it was downloaded between November 14, 2016 and November 17, 2016. Specifically, numbers entered in the Social Security number field were transposed when employees completed and printed Section 1 using a computer. For example, the number 123-45-6789 entered in the Social Security number field would appear as 123-34-6789 once the form printed. Therefore, employers should review I-9 forms downloaded during this short period of time to ensure your employees’ Social Security numbers appear correctly in Section 1.

    Employers who notice their employees’ Social Security numbers are not written correctly should have their employees draw a line through the transposed Social Security number in Section 1, enter the correct Social Security number, and then initial and date the change. Employers should include a written explanation with Form I-9 about why the correction was made in the event of an audit.

    This glitch was fixed on November 17, 2016 so if you downloaded the I-9 form after the fix, the I-9 forms should not have this glitch.
  5. H-1B Employer Allowed to Deduct Attorney Fees in This Case

    By Bruce Buchanan, Sebelist Buchanan Law

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    A Department of Labor Administrative Law Judge (ALJ) ruled that an employer who deducted an H-1B visa holder’s attorney’s fees from the employee’s accrued vacation time did not violate the Immigration and Nationality Act (INA). Administrator, Wage and Hour Division, Department of Labor v. Woodmen of the World Life Insurance Society.

    Woodman Life hired Oscar Garcia initially under TN non-immigrant visa status. Later, Woodmen Life submitted an H-1B visa to the USCIS, which was approved. After approval, Woodmen Life and Garcia entered into an agreement whereby Garcia would repay certain expenses, including attorney’s fees, related to the H-1B petition. When Garcia’s employment ended, based upon Garcia’s resignation, he received a final paycheck which deducted $5,800 for attorney’s fees from $9,644 which was owed for accrued but unused vacation.

    The DOL Administrator filed suit against Woodmen Life alleging $4,575 was unlawfully deducted from Garcia’s wages. (DOL determined $1,225 for premium processing was included in the $5,800 and was an allowable expense to be paid by Garcia.) The Administrator stated the $4,575 deducted from Garcia’s last paycheck was not allowed because it took his wages below the required wage. Woodmen Life asserted Garcia’s final paycheck did not fall below the required wage because Garcia’s vacation pay was accrued and did not affect the required wage. Under Woodmen Life’s vacation policy, if an employee resigns or is terminated, “accrued but unpaid vacation leave” will be paid in the final paycheck. Furthermore, Woodmen Life stated it treated Garcia the same as other employees who owed money to the company, such as for a tuition repayment plan.

    Under the statute, employers are prohibited from seeking repayment of H-1B attorney’s fees and expenses from the required wage. However, the ALJ found in this case the $4,575 was not deducted from the required wage; rather, it was deducted from Garcia’s benefits. The ALJ found the statute allowed this type of deduction, especially where it was consistent with Woodmen Life’s policy of repayment for certain expenses from accrued but unused vacation time.
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