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I-9 E-Verify Immigration Compliance

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  1. Employer’s Reverifications Violate NLRA

    By: Bruce Buchanan, Sebelist Buchanan Law
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    As an immigration attorney and former NLRB attorney, I am always fascinated when immigration law and immigration law overlap. That was the case in Cinelease, Inc., JD(SF)-33-77 (July 2017), where an Administrative Law Judge for the National Labor Relations Board (NLRB) found an employer, Cinelease, to have violated Sections 8 (a)(1) and (3) of the National Labor Relations Act (NLRA) by actions related to reverifying employees’ work authorization documents.

    The issue of reverification arose after the Teamsters Union filed a petition with the NLRB seeking an election of the company’s warehouse employees. Within two weeks, Cinelease’s operations manager had a meeting with an employee and told how him that his work permit had expired. The employer said they learned of this information from another worker.

    Because of this information, Cinelease contacted their legal counsel, who advised to conduct an internal I-9 audit to verify all employees’ documentation. At that time, Cinelease did not have a procedure in place to conduct such an audit and had not been reverifying immigration documentation. Their immigration counsel gave Cinelease instructions from on how to conduct the audit although Cinelease’s managers and legal counsel could not agree on whether they were told to not re-verify green cards.

    Pursuant to the instructions, Cinelease’s HR manager reviewed all the employees’ I-9 forms and made a list of those employees with expired documentation. The list did not differentiate between expired green cards and expired work permits. (An employee’s green card or permanent residence does not end at the end of the employee’s green card and it is unlawful, under the Immigration & Nationality Act (INA), for an employer to reverify an employee’s green card status.)

    The company-wide audit showed 17 employees out of 165 employees had “expired work papers; seven of the 17 employees were warehouse employees. Next, Cinelease began calling in the 17 employees one by one and informing them they had expired work papers and to provide up to date documentation. Some of the employees had not provided updated work permits to Cinelease on a regular basis and only when Cinelease haphazardly requested such. One employee, Hugo Martinez, was unable to provide a current work permit; thus, Cinelease suspended him until December 18, 2016, one day after the NLRB conducted union election.

    Following reverifications of the employees’ documentation, attendance at union meetings declined. The union election ended at a tie. Additionally, the day after the election, suspended employee Martinez was told by Cinelease management that he could take more time to get new documentation.

    In concluding the requests to reverify employees’ employment authorization documents were a violation of Section 8 (a)(1) of the NLRA, the ALJ stated that normally this would not be a violation of the NLRA; rather, it is required under immigration law for work permits. However, the NLRB has previously found this action is unlawful if conducted in retaliation for union activity.

    Thus, the question is whether Cinelease’s actions were retaliatory. As the ALJ stated: “It is perfectly clear the documentation was not requested as part of the Respondent’s ordinary practice of rechecking work authorizations. Rather, such large-scale rechecks of work authorizations was unprecedented.

    Cinelease argued it was just attempting to comply with immigration law. However, Cinelease also rechecked permanent residents, which under immigration law is prohibited. Even for permanent residents, Cinelease requested reverification of their cards, including those whose green cards had not expired. Ultimately, the ALJ found the reverifications were retaliatory and motivated by anger at the union campaign and Martinez for his union support. Thus, they violated the NLRA.

    The ALJ also found the suspension of Martinez was unlawful. This is interesting in that under immigration law, Cinelease took the correct action when it discovered his unauthorized status. But it did it for retaliatory reasons; thus, the ALJ found a violation. For a remedy, Martinez must provide proof of work authorization before Cinelease can put him back on the payroll.

    It will be interesting to see if Cinelease appeals the ALJ’s decision. I will keep you informed.
  2. DOJ’s Lawsuit for Discrimination Based on Citizenship Status is Unusual

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    The Justice Department, through the Immigrant and Employee Rights Section (IER), filed a lawsuit against Louisiana-based companies Technical Marine Maintenance Texas LLC, which provides contract shipyard labor, and Gulf Coast Workforce LLC, a related company, alleging that they violated the Immigration and Nationality Act (INA) by engaging in a pattern or practice of discrimination against U.S. citizens and non-U.S. citizens during the I-9 and E-Verify process.

    According to the Complaint, from at least January 2014 until at least July 2017, Technical Marine asked U.S. citizens to produce List B and C documents, such as a state driver’s license and Social Security cards, respectively. The statistics showed during this period, Technical Marine obtained List B and C documents from 99.56% of U.S. citizens. On the other hand, Technical Marine asked non-U.S. citizens to produce a List A document, such as a permanent resident card (green card) or employment authorization document. The statistics showed during this period, Technical Marine obtained a List A document from 99.29% of non-U.S. citizens.

    This is an unusual case because the Complaint alleges Technical Marine discriminated against both U.S. citizens and non-U.S. citizens by their requests for certain documentation. In most cases brought by DOJ, the discrimination occurs through the request and receipt of certain document(s) by non-U.S. citizens while U.S. citizens are free to present any documentation from the Lists of Acceptable Documents. Because Technical Marine asked for specific and different documents from U.S. citizens and non-U.S. citizens, then both actions are alleged as unlawful. Under the INA, all workers, regardless of their citizenship status, must be allowed to choose from among the valid documentation that proves their employment eligibility.

    This Complaint is a reminder to employers – do not request specific documentation from employees, regardless of whether they are U.S. citizens or non-U.S. citizens. If you do, you may be investigated by the IER of the DOJ. Such investigations are costly and subject employers to civil penalties and back pay if they are found to have committed this type of discrimination or if employers reach a settlement with the IER.
  3. Litigation Involving Nebraska Beef’s Reneged Settlement Continues

    By: Bruce Buchanan, Sebelist Buchanan Law

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    A U.S. District Judge in Nebraska has ruled in favor of the Department of Justice’s Show Cause Motion in the never-ending saga of Nebraska Beef Ltd. reneging on a settlement that it reached in August 2015 with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (now the Immigrant and Employee Rights Section (IER)) of the Department of Justice.

    As you may recall, Nebraska Beef and the OSC reached a settlement concerning whether Nebraska Beef was discriminating against work-authorized immigrants by requiring non-U.S. citizens, but not similarly-situated U.S. citizens, to present specific documentary proof of their immigration status to verify their employment eligibility in violation of the Immigration & Nationality Act (INA). In the settlement, Nebraska Beef agreed to pay a $200,000 civil penalty.

    However, before the civil penalty was due, a Department of Justice press release stated the government “found” Nebraska Beef to have violated the law. The settlement had stated the OSC had a “reasonable cause to believe” Nebraska Beef had violated the INA. Nebraska Beef asserted the press release’s inaccuracy materially breached the settlement agreement because Nebraska Beef did not admit liability and excused the company’s payment of $200,000.

    Thereafter, the OSC filed for enforcement of the settlement agreement in federal court in Nebraska. The District Court found no material breach occurred and ordered Nebraska Beef to pay the $200,000 and perform all settlement obligations. After an appeal of the order, the Court stayed the company’s obligation to pay the $200,000 civil penalty but not the company’s other obligations – training, reporting, and notifying potential back pay claimants and providing such information to the IER of the DOJ.

    Nebraska Beef did not timely comply with the non-monetary portions of the order even though these provisions had not been stayed. Thus, the DOJ filed a Motion to Show Cause as to why Nebraska Beef was not in contempt of court.

    The District Court granted the government’s motion and ordered Nebraska Beef to show why it should not be held in contempt of court. I will update this case when the Court decides whether Nebraska Beef is in contempt of court.
  4. Another I-9 Form Released by USCIS

    By: Bruce Buchanan, Sebelist Buchanan Law

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    USCIS released a revised I-9 form on July 17, 2017. Employers will be able to use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through September 17, 2017. On September 18, employers must use the revised form with a revision date of 07/17/17 N. As shown below, the changes to the I-9 form are not even on the form but rather in the Lists of Acceptable Documents and instructions. With these changes being so minor, one must question the necessity of issuing a new I-9 form.

    Revisions related to the Lists of Acceptable Documents on Form I-9:


    • Adding the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Section 2 and Section 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9; and
    • Combining all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) into selection 2 in List C.


    Revisions to the Form I-9 instructions will include:


    • Changing the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section; and
    • Removing “the end of” from the phrase “the first day of employment.”


    USCIS will include these changes in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274). It is unclear when this will occur. I will keep you advised.
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  5. Wyoming Becoming 8th State to Join E-Verify RIDE

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Wyoming will soon become the eighth state to join the Records and Information from DMVs for E-Verify (RIDE) Program. RIDE is an E-Verify initiative, in conjunction with the American Association of Motor Vehicle Administrators, linking the E-Verify system with participating state driver’s licensing agencies. The prior states joining RIDE were Florida, Idaho, Iowa, Mississippi, Nebraska, North Dakota, and Wisconsin.

    RIDE allows E-Verify to validate the authenticity of driver’s licenses and state identification cards presented by employees as I-9 form identity documents. The RIDE program attempts to mitigate the risk of fraud by comparing the data from the card with data supplied by states’ motor vehicle agencies. If E-Verify is not able to match the license or ID card to data within the DMV, the employer will receive a Tentative Non-confirmation (TNC) indicating the issue and must give the employee a Further Action Notice and opportunity to meet I-9 demands. In this manner, RIDE is designed to boost the accuracy of employment eligibility verification in E-Verify.
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