ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


Chinese Immig. Daily




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
© 1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

I-9 E-Verify Immigration Compliance

description

  1. Fruit and Vegetable Processor Agrees to Pay $225,000 to Settle Discrimination Lawsuit

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

    Click image for larger version. 

Name:	dollar sign PNG.jpg 
Views:	21 
Size:	6.4 KB 
ID:	1190

    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.
  2. USCIS Issues New I-9 Handbook for Employers

    By Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

Name:	USCIS-New-Form-I-9-Handbook-233x300.jpg 
Views:	38 
Size:	3.9 KB 
ID:	1172

    On February 14, 2017, the USCIS finally released the new “Handbook for Employers – Guidance for Completing Form I-9” (also referred to as M-274). In a comical note (at least for immigration compliance gurus), the USCIS backdated the handbook with the date of January 22, 2017.

    As you probably know, the M-274 Handbook for Employers is the USCIS’s guidance on how to complete and retain the I-9 form. Additionally, this M-274 handbook captures policy and regulatory changes since 2013, explains guidance regarding automatic extensions for certain Employment Authorization Documents, features more current sample documents, and provides an overview of unlawful discrimination due to citizenship status or national origin, document abuse, and retaliation. (These prohibited practices are not enforced by the USCIS; rather, they are enforced by the Immigrant and Employee Rights (IER) of the Department of Justice’s Civil Rights Division, which was formerly entitled Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC)).

    A new M-274 handbook was necessary due to USCIS’s introduction of the new I-9 form (eff. date 11/14/2016), which became mandatory for use for new hires on January 22, 2017. (This date explains the USCIS’s interest in backdating the M-274). As explained in a previous blog entry, the new I-9 form added a number of new features, including: modifying Section 1 to request certain employees to enter either their I-94 number or foreign passport information, rather than both; replacing the “Other Names Used” field in Section 1 with “Other Last Names Used”; requiring “N/A” be entered instead of blanks in certain fields in Section 1; providing a box for employees to check if they did or did not use a preparer or translator; modifying the I-9 form by adding a supplemental third page if using multiple preparers and/or translators; and adding an area in Section 2 to enter additional necessary information, such as for TPS extensions, OPT STEM extensions and H-1B portability. The new M-274 handbook offers guidance on how to utilize the new features of the I-9 form.

    The 64-page handbook is an important tool for Human Resource employees, who handle I-9 compliance, as well as immigrant attorneys, who want the latest guidance from the USCIS. Many of its explanations are repetitive from the instructions that accompany the I-9 form or information available on I-9 Central – an Internet-based website that answers many I-9 related questions. However, the M-274 handbook is a convenient go-to document that answers many questions.

    I recommend all individuals involved in I-9 compliance read the new handbook. For non-immigration compliance gurus, the reading of the handbook may be the answer for insomnia.
  3. OSC Files Lawsuit Against Two Washington Companies Alleging Discrimination

    By Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

Name:	potatoes small.jpg 
Views:	32 
Size:	5.2 KB 
ID:	1142

    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.
  4. New I-9 Form, effective January 22, 2017

    By Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

Name:	new I-9 form little.jpg 
Views:	289 
Size:	3.4 KB 
ID:	1141

    On November 14, 2016, the USCIS finally issued the new I-9 form, effective January 22, 2017. The current I-9 form continues to be in effect; however, during the interim period before January 22, 2017, an employer may use either the current 2013 version or the 2017 version. The new I-9 form has an expiration date of August 31, 2019.

    The most significant change is to make the downloadable I-9 form into a “smart” form. What does a “smart” form mean? It is not an electronic I-9 form. The downloadable I-9 form, using an Adobe reader, has been enhanced with error checking which is designed to prevent the most common mistakes. An example is if you fail to fully complete section 1 of the I-9 form, you will receive an alert that you did not enter data into all of the required fields.

    Employers filling out the smart I-9 version must still print the form, obtain signatures, monitor reverifications and updates. Second, if you use the smart form and make a mistake, your company will be held to the same standard of review when faced with an Immigration and Customs Enforcement (ICE) inspection.

    With the addition of the “smart” form, there are three types of I-9 forms: paper, “smart”, and electronic.
    Some of the other changes are:
    (1) Replacing the “Other Names Used” field in Section 1 with “Other Last Names Used.” This will avoid employees writing their nicknames in this field;

    (2) Modifying Section 1 to request certain employees to enter either their I-94 number or foreign passport information, rather than both;

    (3) Requiring you designate whether the employee’s number is an Alien (A) number or USCIS number, if using the smart form (however the numbers are the same though the more recent green cards refer to the number as USCIS);

    (4) Requiring “N/A” be entered instead of blanks in certain fields;

    (5) Replacing the word “date” to “today’s date”, next to signature boxes (this may help some people from entering their birthdate or from backdating the signature);

    (6) Providing a box for employees to check if they did not use a preparer or translator;

    (7) Modifying the I-9 form by adding a supplemental third page if using multiple preparers and/or translators;

    (8) Adding an area in Section 2 to enter additional information for TPS extensions, OPT STEM extensions and H-1B portability to avoid having to note this information in the margins of the I-9 form; and

    (9) Increasing the pages of instructions from 6 to 15.

    Although most of the changes may not appear significant, I would advise employers to seek legal advice from an immigration attorney as to compliance with the new I-9 form.
  5. USCIS Offers New Guidance on Pre-Population of I-9 Forms


    By: Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

Name:	uscis_logo.gif 
Views:	51 
Size:	6.1 KB 
ID:	1138

    In the most recent E-Verify Connection, Number 33, released in November 2016, the United States Citizenship and Immigration Services (USCIS) has re-visited the issue of the “pre-population” or “auto-population” of employee data into section 1 of an electronic I-9 and offered clear guidance.

    What is “pre-population” or “auto-population” of employee data? It is when portions of the I-9 form have already been filled out by a computer program before the employee or employer has started to complete the I-9 form.

    The E-Verify Connection raised and answered the following question: can Section 1 be auto-populated in the case of an electronically prepared Form I-9? Answer: “Form I-9, Section 1, cannot be auto-populated by an electronic system that collects information during the on-boarding process for a new hire.”

    Agencies have differed on Pre-population of Section 1 Data

    Three different agencies have taken positions on whether an employer can pre-populate portions of section 1 of the I-9 form and provided differing views.

    USCIS

    USCIS first addressed the issue in August 2012 and stated they were “not opposed to auto-filling Section 1 of Form I-9 by a company’s human resources system provided the employee and employer review and complete the attestation. Additionally, if Section 1 of Form I-9 is being completed on behalf of the employee, then the Preparer-Translator section must be completed.”

    However, six months later, USCIS said that employers should not electronically pre-populate section 1, even if the employee has the opportunity to review the information before signing. Then, at a later date, the USCIS stated it was not taking a position on the issue.

    OSC

    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) said in a Technical Assistance Letter (TAL), dated August 20, 2013, it discouraged the practice of pre-population because it "increases the likelihood of including inaccurate or outdated information.... (which) may lead an employer to reject documents presented or demand specific documents for Section 2 purposes.“ Additionally, the OSC noted that pre-populating section 1 may be a problem if the new hire was not proficient in English.

    ICE

    Immigration and Customs Enforcement (ICE) originally stated section 1 pre-population in an electronic I-9 was permissible if the employer also completed the preparer and/or translator section. In early 2013, ICE changed its position to that it was never permissible regardless of whether the preparer and/or translator section was used and regardless of whether the employee inputted the information that is pre-populated into the system. But in October 2013, ICE changed its position to it had no specific position on the issue and advised employers to simply follow the “regulations.” However, the regulations currently do not address the specific issue of pre-population in Section 1. Additionally, it stated it would evaluate the matter on a case by case basis.

    Why is the Issue of Pre-Population Important?

    In a Notice of Inspection, ICE analyzes an employer’s I-9 forms. If it deems the pre-population of section 1 to be a substantive violation, the employer is subject to a penalty. If all the employer’s I-9 forms were pre-populated, then that would be subject to a penalty of about $2000 (under new increased penalties) per I-9 form in error.

    Some Section 2 Fields Can Be Pre-Populated
    In this same E-Verify Connection, the USCIS stated the following fields can be auto-populated in Section 2: Employer’s Business or Organization Name, Employer’s Business or Organization Address (Street Number and Name), City or Town, State, and Zip Code.

    Conclusion

    This new guidance is just another example of the perils of the I-9 form and the need for employers to conduct internal I-9 audits under the supervision of an immigration compliance attorney.
Page 1 of 4 123 ... LastLast
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: