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I-9 E-Verify Immigration Compliance

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  1. NLRB Says Unlawful to Threaten Deportation to Graduate Assistants

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

    In a case where immigration law and labor law overlapped, the National Labor Relations Board’s Division of Advice issued an Advice Memorandum finding on one occasion that Washington University unlawfully threatened its graduate assistants who were involved in a union organizing campaign.

    The dispute began when SEIU, Local 1 (Union) began an organizing campaign among graduate students (graduate assistants) at Washington University, many of which were foreign students. During the campaign, the University sent an email to all graduate assistants. One of the University’s statements was:

    Foreign students...I have been told that if a graduate student union is formed,
    and this union goes on strike...all foreign students will lose their visas and have
    to leave the country
    . In my opinion, this would be terrible for our students and
    our program.
    The next day, a union organizer stated unionization would not have any effect on the graduate assistant’s visa status and there was no possibility of them being deported.

    Due to the contradicting information, the graduate assistants requested another meeting with the University. At this meeting, the University stated that they did not know what would happen, but information provided by the Department of Homeland Security indicated that if the Union were to strike, student-visa holders “could lose their status and be asked to leave the country.”

    Later in the campaign, the University emailed a FAQ document addressing the foreign student visa issue. The University stated:

    Question: Could a strike potentially have an impact on my F-1 visa status?
    To obtain an answer, the University contacted an outside immigration attorney
    and ICE. The information provided to the University is set out below.
    Answer: If graduate students are required as part of their academic program
    to “work” as graduate assistants teaching classes or conducting research,
    then continuing to serve in that capacity is required in order for the student to
    maintain a “full course of study” and thus to maintain their F-1 status.

    As 8 CFR §214.2(f)(14) states: Any employment authorization, whether or
    not part of an academic program, is automatically suspended upon certification
    by the Secretary of Labor … or the Commissioner of the Immigration and
    Naturalization Service …, that a strike or other labor dispute involving a work
    stoppage of workers is in progress in the occupation at the place of employment.

    Under such circumstances, F-1 visa students could be subject to deportation
    whether they continued to “work” or not
    . If students honored the strike and
    caused the suspension of their work status under 8 CFR §214.2(f)(14), they
    could be deemed out of status for having failed to maintain a “full course of
    study.”
    Based upon this evidence, the Division of Advice concluded “the Employer violated Section 8(a)(1) of the Act by threatening that, in the event of a strike, “all foreign students will lose their visas and have to leave the country.” Furthermore, the Advice memo stated: “While a strike could potentially lead to such consequences for at least some graduate student employees, the Employer’s statement overstated the requirements of the applicable regulations and the potential effects of those regulations on the affected graduate student employees. In many strike situations, graduate student employees in fact would not lose their visas, given the time that it takes the Secretary of Labor to certify the strike after being notified by the relevant school officials. Moreover, even where the Secretary of Labor does certify a graduate student employee strike, and foreign graduate student employees do lose their student visas, individual graduate student employees may well have some basis other than their student status for lawfully remaining in the United States, despite the Employer’s blanket statement that they all would ‘have to leave the country.’”

    However, the Employer’s other statements were lawful, as they either set forth the exact language of the applicable Federal regulations or accurately conveyed the possibility that a strike “could” lead to the loss of student visas.

    For answers to many other questions related to immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.
  2. Employer Must Give Notice to Union Before Implementing E-Verify

    By Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

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    An Administrative Law Judge (ALJ) of the National Labor Relations Board (NLRB) held, in The Ruprecht Company, JD (NY)-14-16 (2016), that Ruprecht Co. violated Section 8(a)(5) of the National Labor Relations Act (NLRA) by unilaterally enrolling and implementing E-Verify without prior notice to UNITE HERE Local 1 (Union), who represented the bargaining unit employees.

    The case started when Immigration and Customs Enforcement (ICE) served a Notice of Inspection (NOI) on Ruprecht Co. subpoenaing the I-9 forms of their employees. Ruprecht Co. compiled and provided 262 Form I-9’s.

    Company Enrolls in E-Verify Without Notifying the Union

    Before ICE reached any decisions on the I-9 forms or the employees’ authorized status, Ruprecht Co. enrolled in E-Verify and began using it to check the authorized work status of new hires. Ruprecht Co. did not inform the Union of this event at that time. Ruprecht Co. said it did so “in order to avoid a catastrophic loss to its work force should another audit occur in the future.” Ruprecht Co. was not required by state or federal law to enroll in E-Verify. After enrollment, the Union was informed of the use of E-Verify by its members; thus a Union representative contacted Ruprecht Co. with suggested language from other collective bargaining agreements which precluded an employer from using E-Verify unless required to do so by state or federal law. Thereafter, Ruprecht Co. provided the Union with the NOI. On July 16, the company and Union held a bargaining session where Ruprecht Co. made a proposal to use E-Verify and informed the Union it was already using it.

    ICE finds Certain Employees are Unauthorized to Work or Appear to be Unauthorized to Work

    On July 10 and 14, 2015, ICE identified certain employees who were “deemed” to be unauthorized to work unless these employees presented valid documentation. The company notified the Union but refused to supply the names without a confidentiality agreement. On July 17, ICE provided Ruprecht Co. with a Notice of Suspect Documents (NSD) naming 194 employees that did not appear to be authorized to work. It stated those employees should be given an opportunity to present valid documentation and gave the company 10 days to verify their work authorization, terminate the employees or have fines by ICE.

    Three days later, the company called a meeting, informing the employees of the Notice of Suspect Documents and its intent to begin terminating employees within a few days. On July 22, Ruprecht Co. began notifying employees of their termination due to the ICE audit. Apparently, the company never gave the employees an opportunity to present new documentation. The Union was never given a list of employees on the Notice of Suspect Documents because it refused to sign the confidentiality agreement.

    Ruprecht Co. Violated NLRA by not notifying Union of Names on NSD and Use of E-Verify

    As a result of the ICE audit, Ruprecht Co. lost 62 bargaining unit employees. The ALJ found it was clear law that Ruprecht Co. had to terminate all employees who were not authorized to work. However, the ALJ stated if the company had provided the Union with the names on the NSD, it may have been able to assist them in providing valid documentation. Therefore, the company’s refusal to supply the names to the Union violated Section 8(a)(5) of the NLRA.

    Furthermore, the ALJ found the company’s enrollment in E-Verify was a term and condition of employment for which the company held an obligation to notify the Union and give the Union an opportunity to bargain about whether to enroll and use E-Verify. The company failed to do this; therefore, this also violated Section 8(a)(5) of the NLRA.

    Conclusion

    If an employer’s employees are represented by a union, the employer must give the union notice and opportunity to bargain about E-Verify and must, upon request, provide the names of the employees on the NSD. It should be noted an ALJ’s decision is not final and the losing party may appeal the decision to the NLRB. Stay tuned for further developments.
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