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I-9 E-Verify Immigration Compliance

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  1. DOJ Files Complaint Alleging Discrimination Against U.S. Citizens

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Justice Department, acting through Immigrant and Employee Rights Section (IER), has filed a Complaint against Crop Production Services Inc. (Crop Production) of Loveland, Colorado, for allegedly discriminating against U.S. workers in violation of the Immigration and Nationality Act (INA). In announcing the Complaint, Attorney General Jeff Sessions stated, “In the spirit of President Trump’s Executive Order on Buy American and Hire American, the Department of Justice will not tolerate employers who discriminate against U.S. workers because of a desire to hire temporary foreign visa holders.”

    The Complaint, filed with Office of Chief Administration Hearing Officer (OCAHO), alleges Crop Production discriminated against at least three U.S. citizens by refusing to employ them as seasonal technicians in El Campo, Texas, because Crop Production preferred to hire temporary foreign workers under the H-2A visa program. Additionally, the Complaint alleges Crop Production imposed more burdensome requirements on U.S. citizens than it did on H-2A visa workers to discourage U.S. citizens from working at the facility. For instance, the Complaint alleged that whereas U.S. citizens had to complete a background check and a drug test before being permitted to start work, H-2A workers could begin working without completing them and, in some cases, never completed them. The Complaint also alleged Crop Production refused to consider a limited-English proficient U.S. citizen for employment but hired H-2A workers who could not speak English. Ultimately, all of Crop Production’s 15 available seasonal technician jobs in 2016 went to H-2A workers rather than U.S. workers.

    Under the INA, it is unlawful for employers to intentionally discriminate against U.S. workers because of their citizenship status or to otherwise favor the employment of temporary foreign workers over available, qualified U.S. workers. In addition, the H-2A visa program requires employers to recruit and hire available, qualified U.S. workers before hiring temporary foreign workers. The Complaint seeks back pay on behalf of the workers, civil penalties, and other remedial relief to correct and prevent discrimination.

    This Complaint and Attorney General Sessions’ statement demonstrate the ability of the Trump administration to enforce Trump’s Executive Order - Buy American and Hire American. This is the second Complaint filed in two months alleging discrimination against U.S. citizens. I discussed the first Complaint against Technical Marine Maintenance Texas LLC in a prior blog post - http://blogs.ilw.com/entry.php?10034...tus-is-Unusual.

    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, which is available at http://www.amazon.com/dp/0997083379.
  2. Plant Nursery Violates Law by Favoring H-2A Workers

    By Bruce Buchanan, Sebelist Buchanan Law

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    Godwin’s Nursery and Trees paid nearly over $117,000 in back-pay and $29,500 in penalties after the U.S. Department of Labor determined the company passed over qualified U.S. citizen workers from Puerto Rico in favor of hiring foreign workers under the H-2A visa program.

    The Department of Labor determined that the nursery violated Section 218 of the Immigration and Nationality Act by denying five qualified workers from Puerto Rico the chance to work; instead, hiring four Mexican nationals through the H-2A visa program.

    Additionally, Department of Labor determined that Godwin failed to post information about the rights of agricultural workers, as required by law, and he failed to provide housing for the workers that adhered to housing health and safety standards.

    Remember if an employer is going to utilize the H-2A program or other non-immigrant visa programs, such as H-2A, one cannot discriminate against U.S. citizens.
  3. DOL Orders Payment of Over $2 Million for Violations of H-2A Program

    By Bruce Buchanan, Sebelist Buchanan Law

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    An administrative law judge (ALJ) of the U.S. Department of Labor (DOL) found Gonzalo Fernandez, the president and operator of Fernandez Farms, to have violated numerous laws concerning H-2A visa workers and ordered payment of over $2 million.

    The ALJ found the company required each H-2A worker to pay about $1600 from their wages in illegal kickbacks to cover the administrative costs of the H-2A program. For this violation, the ALJ ordered Fernandez to pay $410,850 to the affected workers.

    The ALJ also found Fernandez was not paying the correct piece/wage rate and overtime, nor providing free housing to H-2A workers. For these violations, Fernandez was ordered to pay approximately $650,000.

    Overall, Fernandez was ordered to pay approximately $1.1 million to the affected workers and approximately $1.3 million in civil penalties to the DOL. Furthermore, Fernandez Farms was barred from participating in the H-2A visa program for three years.

    Not only did Fernandez commit the above violations, the ALJ also found he threatened and coerced workers to deter them from reporting the violations and forced them to hide or lie to the DOL investigators.
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