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I-9 E-Verify Immigration Compliance

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  1. IER Settles Immigration-Related Discrimination Claim Against Levy Restaurants

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, reached a settlement agreement with Levy Premium Foodservice Limited Partnership d/b/a Levy Restaurants. The settlement resolves the investigation of a charge filed by the charging party, a lawful permanent resident, against Levy’s Barclay Center restaurant in Brooklyn, New York, alleging discrimination in violation of the Immigration and Nationality Act (INA).

    The IER concluded that Levy discriminated against two lawful permanent residents by improperly reverifying their employment eligibility because of their immigration status. It also determined that Levy improperly required them to present specific types of documents to re-establish their employment eligibility and suspended the charging party when he was unable to present such a document.

    The anti-discrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on the employee’s citizenship, immigration status or national origin.

    Levy cooperated throughout the investigation, quickly reinstated the charging party, and restored his lost wages and leave benefits. Under the settlement, Levy must pay a civil penalty of $2,500 to the United States, undergo IER-provided training on the anti-discrimination provision of the INA, and be subject for one year to IER monitoring and reporting requirements – providing the I-9 forms of all non-U.S. employees hired during this period of time to IER for review as to whether Levy Restaurants is abiding by the law.

    This settlement demonstrates the need for employers to be careful as to the presentation of documentation by employees. Employers may not demand the presentation of certain documents, such as a green card. Rather, it is up to each individual employee to choose document(s) that are listed on the List of Acceptable documents.
  2. OSC Settles Immigration-Related Discrimination Claim Against J.E.T. Holding

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) (just renamed the Immigrant and Employee Rights Section of the Civil Rights Division of the Department of Justice) reached a settlement to resolve claims that J.E.T. Holding Co. Inc. discriminated against U.S. citizens, lawful permanent residents, and certain work-authorized immigrants in violation of the Immigration and Nationality Act (INA). J.E.T. is a company based in Saipan, Commonwealth of the Northern Mariana Islands (CNMI), where it operates a restaurant, bowling alley and amusement center.

    The investigation found evidence that for approximately the first five months of 2016, J.E.T. engaged in a pattern or practice of refusing to hire U.S. citizens, lawful permanent residents, and other work-authorized individuals for several dishwasher positions. OSC concluded that J.E.T. failed to consider qualified U.S. citizen applicants and others based on their citizenship or immigration status because of a preference for hiring non-immigrant foreign workers with CW-1 visas. The CW-1 visa grants temporary work authorization to its beneficiaries and is only available in the CNMI.

    Under the terms of the settlement, J.E.T. will pay a civil penalty of $12,000, establish a backpay fund of $40,000 to compensate qualified claimants for any lost wages through a claims process, train its workers on the anti-discrimination provision of the INA, and be subject to department monitoring.
  3. OSC Renamed Immigrant and Employee Rights Section

    By: Bruce Buchanan, Sebelist Buchanan Law

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    Effective January 18, 2017, U.S. Department of Justice’s (DOJ) Civil Rights Division has implemented a final rule to update regulations concerning enforcement of employment-related anti-discrimination provisions under the “unfair immigration-related employment practices” section of the Immigration and Nationality Act (INA).

    One of the most interesting changes is the Office of Special Counsel for Immigration-Related Unfair Employment Practices, usually referred to as Office of Special Counsel or OSC, is being renamed the Immigrant and Employee Rights Section. It will remain part of DOJ’s Civil Rights Division. However, the individual in charge of the Immigrant and Employee Rights Section will still be referred to as Special Counsel due to statutory language. Thus, this may cause some confusion for attorneys and the public.

    Probably the most significant change in the regulations is a definition of “discriminate” to clarify that an employer’s intent to discriminate must be based on national origin or citizenship status. This definition of intent does not consider what reason an employer may have had. Under the new rule, DOJ explains that if the employer is intentionally treating the permanent resident differently for an unlawful reason, such as citizenship status, then the employer has discriminated.

    Other significant changes in the new regulations include:

    • Individuals who submit a discrimination claim within the 180-day period provided by law now have an additional 45 days to submit information if the Special Counsel decides that they did not provide enough information to meet the requirements for a “charge”;
    • Charges may be filed after the 180-day time limit under certain circumstances;
    • The Special Counsel may file a complaint based on an investigation the office initiated, up to five years after the date of alleged discrimination;
    • Definition of the term “citizenship status” includes refugees and asylees, which is consistent with Special Counsel’s current practice;
    • Definition of the statutory phrase – “more or different documents than required under such section” to be consistent with OCAHO case law;
    • Definition of the term “charge” to make it broader as to what is acceptable; and
    • Definition of the term “hire”.
  4. OCAHO Finds No Jurisdiction Over Case

    By Bruce Buchanan, Sebelist Buchanan Law

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    Office of Chief Administrative Hearing Officer (OCAHO) found it did not have jurisdiction concerning alleging allegations of national origin discrimination and retaliation against a U.S. Army captain. See Windsor v. Captain Landeen, 12 OCAHO no. 1294 (Dec. 2016).

    Washington Younggil Kim Jung Windsor (“Windsor”) sought employment as a recruiter at the U.S. Army Recruiting Command in New York. Windsor was not hired and alleged in a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) that it was because he is from South Korea. (At this time, Widsor was a lawful permanent resident. He later became a U. S. citizen).

    The OSC dismissed Windsor’s charge because it determined it did not have jurisdiction over the U.S. Army. However, the OSC told Windsor that he could pursue a complaint with OCAHO against the U.S. Army and Captain Landeen. Thereafter, Windsor filed a complaint before OCAHO alleging the same facts as he did in his charge with the OSC.

    OCAHO initially determined that despite the complaint being filed against Captain Landeen, it alleged acts of Captain Landeen in his official capacity with U.S. Army. Thus, it reviewed whether a complaint can be brought against the U.S. Army under the Immigration and Nationality Act.

    OCAHO found the U.S. Army was a part of the U.S. Department of Defense, a federal agency. Based upon that finding, it determined “absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” OCAHO found no such waiver existed under the INA. Thus, it followed OCAHO caselaw which has held “federal government agencies are not amenable to suit under 8 U.S.C. § 1324b” (cases alleging discrimination due to citizenship status, national origin, retaliation or document abuse). Based upon this analysis, OCAHO dismissed Windsor’s complaint.
  5. OSC Settles Immigration-Related Discrimination Claim Against Utah Company

    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, reached an agreement resolving claims that 1st Class Staffing LLC, a staffing company based in Orem, Utah, discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).

    The OSC’s investigation found that 1st Class Staffing’s office in Fontana, California routinely requested that non-U.S. citizens provide specific immigration documents to establish their authorization to work. However, it did not request specific immigration documents to establish their authorization to work from U.S. citizens. Under the INA, all workers, including non-U.S. citizens, must be allowed to choose whichever valid documentation they would like to present from the lists of acceptable documents to prove their work authorization. Failure to allow such because of their citizenship, immigration status or national origin is unlawful.

    Under the terms of the settlement agreement, 1st Class must pay for lost wages to the charging party whose complaint initiated the investigation; pay $17,600 in civil penalties to the United States; ensure all relevant personnel have the current version of the M-274 – I-9 Handbook for Employers, and M-775 – USCIS E-Verify Manual; train its human resources staff on the anti-discrimination provision of the INA by attending an OSC webinar; provide the OSC every 4 months for the next year a list of all individuals hired, including name, hire date and citizenship status, from which the OSC may select up to 150 individuals to review their I-9 forms; and review and revise its policies and procedures to comply with the requirements of the INA’s anti-discrimination provision.
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