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I-9 E-Verify Immigration Compliance


  1. Employers Beware: ICE is Targeting Companies Who Hire Undocumented Workers

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In mid-December, the federal government, through the U.S. Attorney’s office in Memphis and Immigration and Customs Enforcement (ICE), indicted 20 undocumented workers for using fake identification to get their jobs. These workers were employed at Expeditors International, a Memphis logistics company, and hired through a staffing agency, Provide Staffing Services.

    Robert Hammer, assistant special agent in charge with Homeland Security Investigations (HSI), a branch of ICE, stated the federal government is aggressively pursuing this case because the undocumented workers had access to a sensitive air cargo area at Memphis International Airport that required special clearance. “It is imperative for the safety and security of our airports, seaports and railyards that all individuals requiring this type of special vetting present valid and genuine identification documents in the hiring process,” he said.

    The U.S. Attorney for the Western District of Tennessee, Michael Dunavant, stated ICE plans to increase its focus on this type of criminal investigation in Tennessee throughout 2018. "Our enforcement strategy is going to be dual-pronged, focusing on both employers and the employees. According to the U.S. Attorney, no one with the companies that hired the workers has been indicted but the investigation is ongoing.

    If it is determined that the staffing company and/or Expeditors International had knowledge, actual or constructive, that the workers’ identification documents used in the I-9 work authorization process were fake, the companies and management would be subject to criminal prosecution by the federal government. It appears the federal government is taking this very seriously due to the workers’ access to a sensitive air cargo area that required special clearance.

    I expect ICE to continue to crackdown on employers’ use of undocumented workers in 2018. If you want a better understanding of the possible criminal and civil sanctions against employers within immigration compliance, I recommend you read my book, The I-9 and E-Verify Handbook, which is available at
  2. EOIR Announces New ALJ for OCAHO

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Executive Office for Immigration Review (EOIR) announced the appointment of James McHenry as an administrative law judge (ALJ) in EOIR’s Office of the Chief Administrative Hearing Officer (OCAHO), effective November 14, 2016. The arrival of ALJ McHenry will provide OCAHO with a permanent ALJ to replace one ALJ, Ellen Thomas, who retired, and another ALJ, who transferred out of OCAHO.

    OCAHO adjudicates cases of hiring of undocumented workers, I-9 verification violations, complaints of discrimination based on an individual’s citizenship status or national origin or overdocumentation in the employment eligibility verification process, and allegations of immigration*-related document fraud.

    ALJ McHenry earned a Bachelor of Science degree in 1997 from the Georgetown University School of Foreign Service and a Juris Doctor degree in 2003 from Vanderbilt University. Prior to his appointment to OCAHO, Mr. McHenry was an ALJ for the Social Security Administration. Before that, Mr. McHenry served in a variety of capacities with the Office of the Principal Legal Advisor, Immigration and Customs Enforcement (ICE) and the U.S. Attorney’s Office.
    Tags: alj, eoir, i-9, ocaho Add / Edit Tags
  3. Respondent falsely claimed U.S. Citizenship on I-9 Form

    By Bruce Buchanan, Siskind Susser P.C.

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    The 8th Circuit Court of Appeals in Etenyi v. Lynch upheld the Board of Immigration Appeals’ (“BIA”) decision, wherein it found an individual’s status could not be adjusted because he had falsely claimed that he was a United States citizen on an I-9 form.

    Etenyi, a citizen of Kenya, applied for Adjustment of Status. The USCIS denied the adjustment because Etenyi filled out an I-9 form for an employer claiming to be a United States citizen. After being placed into removal proceedings, a hearing was held before an immigration judge (“IJ”). Etenyi testified that the I-9 form had been pre-populated with his personal information. Although he confirmed that his name, address, social security number, and date of birth were correct, he claimed that he did not notice the checked box asserting, under penalty of perjury, that he was a “citizen of the United States.”

    The IJ and the BIA held that Etenyi was removable because he had signed the I-9 form and thereby adopted its contents. The evidence at issue, as noted by the IJ, included the I-9 form with the false claim of citizenship, Etenyi’s testimony that he reviewed other information on the form before signing it, Etenyi’s signature, and the fact that Etenyi had a college-level education from an American university.

    The Court did not agree with Etenyi’s arguments. First, he argues that an I-9 form cannot serve as the basis for a false claim of citizenship in a removal proceeding. The BIA and the Court have consistently held that the language of 8 U.S.C. § 1324a(b)(5) does not preclude the use of an I-9 form in removal proceedings. Second, Etenyi relies upon Kirong v. Mukasey, 529 F.3d 800 (8th Cir. 2008), to argue that DHS must present more than the I-9 form to satisfy its burden of proof. However, the Court found the I-9 form discussed in Kirong reflected the format of a prior version of the I-9 form, where an employee could check the box - “I am a citizen or national of the United States.” “This disjunctive phrasing rendered the alien’s statement ambiguous as to whether his ‘attestation involved a claim of citizenship or nationality.’” The box on Etenyi’s I-9 form states only that the applicant is “citizen of the United States.” Because this phrasing is unambiguous, an employee who attests to the validity of the checked “citizen of the United States” box by signing this I-9 form has made an objectively false representation of citizenship.


    This decision demonstrates the enormous consequences that falsely claiming U.S. citizenship can have on an immigration case. One can no longer rely upon the ambiguity of marking “U.S. Citizen or U.S. National” if the I-9 form was completed in the last six years. That’s when the USCIS separated the two statuses into separate boxes.
  4. OCAHO finds ICE did not Pierce Corporate Veil

    By Bruce Buchanan, Siskind Susser

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    Contrary to the assertions of Immigration and Customs Enforcement (ICE), Office of Chief Administrative Hearing Officer (OCAHO) found two companies owned by the same shareholders and with the same officers, could not both be found liable for I-9 form violations. See U.S. v. PM Packaging, Inc and PM Corporate Group, Inc. d/b/a PM Packaging, 11 OCAHO no. 1253 (2015).

    ICE served a Notice of Inspection (NOI) on PM Packaging at its one facility in Compton, California. Within a month, PM Packaging closed the facility but ICE continued the case with issuance of a Notice of Suspect Documents and Notice of Intent to Fine. After the parties could not resolve the matter, ICE issued a Complaint against PM Packaging and PM Corporate.

    PM Corporate asserted it was a separate entity than PM Packaging because no assets or employees were ever transferred between companies, and they had different premises and purposes. The only connection between the two entities is the same shareholders and officers. OCAHO found common ownership alone was insufficient to pierce the corporate veil. Thus, PM Corporate was not liable for any of PM Packaging’s I-9 form violations.

    As for the alleged violations, PM Packaging argued it was not liable for 28 violations, the failure to properly complete Section 2 of the I-9 forms, because they were technical errors. OCAHO found to the contrary, and stated they were substantive errors – failure to print the name of the employer representative who signed Section 2 (and the signatures were illegible) and failure to record the issuing authorities or expiration dates on many of the I-9 forms without retaining legible copies of the documents in question. Thus, penalties must be assessed for these substantive errors.

    PM Packaging was successful in reducing the amount of the penalties. ICE sought $53,762.50 in penalties. PM Packaging asserted these penalties were excessive and OCAHO agreed. It found the penalties should be assessed at $500 or $600 each, rather than $1,075.25 each. OCAHO’s reasoning was this level of penalties could not have a deterrent effect because the business had ceased to exist. Furthermore, maximum penalties were reserved for the most egregious violations, of which more than half of the violations in question did not meet the criteria.
  5. Abercrombie & Fitch Resolves another Discrimination Claim

    By Bruce Buchanan, Siskind Susser P. C.

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has reached an agreement with Abercrombie & Fitch Inc. (Abercrombie), a clothing retailer headquartered in Columbus, Ohio. The agreement resolves a complaint filed with OSC, claiming that the company discriminated against a non-U.S. citizen in violation of the Immigration and Nationality Act (INA).
    The investigation found that Abercrombie required a non-U.S. citizen, but not similarly-situated U.S. citizens, to produce her permanent resident card (green card) for the purpose of verifying her employment eligibility. The INA’s anti-discrimination provision prohibits employers from making specific documentary demands based on citizenship status or national origin when verifying an employee’s employment eligibility.

    Under the settlement agreement, Abercrombie will pay $3,661 in back pay to the complainant and a civil penalty of $1100 to the United States; establish a back pay fund of $153,932 to compensate other individuals who may have been harmed; undergo training on the anti-discrimination provision of the INA; revise their employment policies and training materials; and be subject to monitoring of its employment eligibility verification practices for two years.
    This settlement agreement is one more legal problem for Abercrombie. Earlier this year, the U.S. Supreme Court decision found against Abercrombie concerning whether it needed to provide a religious accommodation. In that case, a job applicant wore a hijab to a job interview, but did not mention her religion or request an exception to Abercrombie’s dress code. The Court found that a job applicant need only demonstrate that a prospective employer’s desire to avoid providing a religious accommodation was a motivating factor in its decision not to hire, not that the employer actually knew of the need for an accommodation. In an immigration case several years ago, Abercrombie settled a case with Immigration and Customs Enforcement (ICE) for $1 million due to essentially paperwork violations in their electronic I-9 system.
    Tags: i-9, ice, ina, osc Add / Edit Tags
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