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I-9 E-Verify Immigration Compliance

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  1. Effects of Temination of DACA on Employers

    By: Bruce Buchanan, Sebelist Buchanan Law

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    Since President Trump’s announcement rescinding DACA (Deferred Action for Childhood Arrivals), media focus has been on the 800,000 DACA recipients – as it rightfully should be. However, there is going to be another entity impacted - employers of those 800,000 DACA recipients.

    Not only do employers need to be concerned about the loss of valuable employees, but employers need to be concerned with staying in compliance of immigration laws. It is fundamental immigration law that employees cannot legally work without proof of their identity and work authorization. Thus, when DACA recipients’ Employment Authorization Card (EAD) expire, employers will need to discharge DACA recipients, unless they have found another way to obtain work authorization (which is very unlikely).

    But before employers start discharging employees, one needs to be careful not to do so prematurely. During the period of DACA’s work authorization, even beyond March 5, 2018, when the USCIS will no longer approve DACA renewals, DACA employees can be authorized to legally work. It all depends on the EAD’s expiration date. Although no renewal EAD will be issued after March 5, 2018, this doesn’t mean all DACA recipients are not eligible to work after March 5, 2018.

    As an example, DACA employee Jose has an EAD which expires on March 4, 2018, so he can renew his DACA status and EAD (if the renewal is filed by October 5, 2017). Thus, he will be eligible to work until about March 2020. On the other hand, another employee, Mohammed, has an EAD pursuant to DACA, which expires on March 6, 2018. Unfortunately, March 6, 2018 is the date his employment must terminate. Thus, employers must be observant of the EAD’s expiration date.

    How does an employer even know whether the EAD is through DACA, TPS, or withholding of removal? There is a code on the front of the EAD card. For DACA, the code is C33. This code is different than codes for TPS or withholding - A10, A12 or C19.

    Some employers may ask why can’t I just discharge DACA recipients now. First, they are probably very good employees – as so many of them are proud to be legally working for the first time in their lives. Second, hopefully Congress is going to pass the DREAM Act or some other legislation that will provide for lawful employment for DACA recipients; thus, employers won’t have to face the issue. However, if an employer chose to discharge a DACA recipient based on his DACA status, it is very unlikely that the discharge would be unlawful under the anti-discrimination provisions of the Immigration and Nationality Act.

    Some small employers may be thinking I’m just going to look the other way and not terminate DACA recipients when their work authorization expires. Although I can understand employers not wanting to hurt their DACA employees, employers need to consider their own situation. If an employer continues to employ a worker after his work authorization expires, is not renewed, and no other work authorization is provided, they are subject to “knowingly” employing an undocumented worker. The fines for such a first offense range from $539 to over $4000, with a fine of over $3,000 being the most likely. If you have five DACA employees that you retain without work authorization, you are looking at a fine of $15,000 before Immigration and Customs Enforcement (ICE) has even looked at your Form I-9s for substantive violations. So, your heart may tell you to keep DACA recipients without work authorization; but, listen to your head, which is filled with dollar signs for fines and penalties.

    For the answers to many other questions related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, available on Amazon at http://www.amazon.com/dp/0997083379.
  2. OCAHO Orders Employer to Pay Penalties of $56,150

    By Bruce Buchanan, Sebelist Buchanan Law
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    After a lull in published decisions, the Office of Chief Administration Hearing Officer (OCAHO) has recently issued several decisions, including U.S. v. Solutions Group International, LLC, 12 OCAHO no. 1288 (October 2016), where the employer was ordered to pay $56,150 in penalties.

    Solutions Group is a private security firm in Beverly Hills, California, where it employs less than 100 employees. After Immigrations and Customs Enforcement (ICE) served a Notice of Inspection, Solutions Group failed to provide an I-9 form for 31 employees to ICE in their response. As for other I-9 forms provided, ICE alleged 53 were not properly completed in section 2 by Solutions Group. These violations consisted of no second page of the two-page I-9 form, and a failure to complete the employer attestation in section 2.

    Because of these determinations, ICE issued a two-count complaint – I - failure to prepare/present I-9 forms and II - failure to properly complete Section 2. ICE determined the penalty should be $86,394. ICE determined the penalty by assessing a baseline fine of $935 for each violation, based on over 50% of the I-9 forms being in violation of the law. It also aggravated the penalties by 5% each for lack of good faith and the seriousness of the violations; thus, each violation equaled $1028.50. Even though Solutions Group was a small employer with no unauthorized workers and no history of violations, ICE treated these as neutral factors as opposed to mitigating factors.

    Solutions Group conceded the violations but offered several affirmative defenses, including ICE violated its Fourth and Fifth Amendment rights, and the penalties were excessive, especially in light of the company’s poor financial situation. Solutions Group asserted its constitutional rights were violated by ICE’s selective enforcement of employer sanctions. However, Solutions Group provided no evidence to support its assertions; thus, this defense failed.

    OCAHO did find that Solutions Group was deserving of 5% mitigation for being a small business. Furthermore, OCAHO stated the company’s poor rate of compliance did not demonstrate a lack of good faith; therefore, this was not an aggravating factor. OCAHO agreed Solutions Group committed serious violations for which a 5% aggravation was added.

    Although ICE was not persuaded by Solutions Group’s inability to pay defense, OCAHO found some support for the proposition. Based on the company’s inability to pay and leniency toward small businesses, OCAHO reduced the penalties to $700 per violation in Count I and $650 per violation in Count II. Overall, OCAHO ordered Solutions Group to pay $56,150.

    Even though Solutions Group was unsuccessful in most of its defenses, it still received a reduction in the penalties of almost 30%. This is a normal reduction because of litigation. This decision is another example of the importance of an internal I-9 audit, which presumably would have discovered many of the errors and provided the opportunity to correct some of them without facing penalties.
  3. Tennessee Joining Other States with Mandatory E-Verify

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Tennessee Legislature, with the Governor’s signature, has amended its non-mandatory E-Verify law to a mandatory E-Verify law, effective January 1, 2017.

    In 2012, the State of Tennessee began to require large employers to use E-Verify or copy and maintain one of 11 identification documents, such as U.S. passport, permanent resident card, Employment Authorization card, driver’s license, and State of Tennessee ID card of all new hires. At the time of passage in 2011, there were a number of organizations opposing mandatory E-Verify, including the Chamber of Commerce. Beginning in 2013, the law expanded to cover employers with six or more employees; thus covering most employers in the State.

    In the 2016 legislative session, it decided to revise E-Verify to make it mandatory for all new hires of employers with 50 or more employees. This portion of the statute is effective January 1, 2017. This change puts Tennessee in line with most other southern states, though the 50 or more employees is a higher number than other states.

    As for penalties, if an employer fails to verify the work authorization of an employee, it will be fined $500 for a first violation, and moves upwards from there. If an employer refuses to comply with the State order, it faces a fine of $500 per day.

    If any of the employees are undocumented, the State will suspend the employer’s business license until it complies with the state law – verify the employee is authorized to work through E-Verify.

    The action by the Tennessee Legislature is somewhat unusual as the last state to pass mandatory E-Verify was North Carolina in 2012. Also, in 2012, Pennsylvania passed a law to add E-Verify for state contractors. These are the last states to pass E-Verify legislation.

    The threshold of 50 or more employees seems to be a compromise to get additional support from the super-majority Republicans in the legislature, many of which have strong ties to businesses. By using the 50-employee threshold, the law will not affect an enormous number of state businesses and many of the larger employers, such as International Paper and Singer Sewing, already use E-Verify to authorize their new hires.
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