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I-9 E-Verify Immigration Compliance

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  1. IER Settles Claim of Discrimination of U.S. Workers by Triple H Services, Landscaping Company

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC



    The Immigrant and Employee Rights Section (IER), a part of the Civil Rights Division of the Justice Department, reached a settlement agreement with Triple H Services LLC, a landscaping company based in Newland, North Carolina. The agreement resolves an investigation into whether Triple H discriminated against qualified and available U.S. workers based on their citizenship status by preferring to hire temporary workers with H-2B visas, in violation of the Immigration and Nationality Act (INA).

    The IER’s investigation found that although Triple H went through the motions of advertising over 450 landscape laborer vacancies in five states, it did so in a manner that misled U.S. workers about the available positions and prevented or deterred some from applying. The IER found Triple H did not consider several qualified U.S. workers who applied for positions in Virginia during the recruitment period, instead it hired H-2B visa workers. In several states where jobs were available, Triple H prematurely closed the online job application process for U.S. worker applicants, filled positions with H-2B visa workers without first advertising the jobs to U.S. workers in the relevant locations, or advertised vacancies in a manner that did not make the postings visible to job seekers using state workforce agency online services.

    The IER concluded that in taking these actions, Triple H effectively denied U.S. workers access to jobs based on its preference for hiring temporary H-2B visa workers to fill the positions. Refusing to consider or hire qualified and available U.S. workers based on their citizenship status violates the INA’s anti-discrimination provision, regardless of whether an employer has complied with other rules governing the use of temporary employment-based visa programs.

    The Justice Department touted this settlement agreement as part of the Division’s Protecting U.S. Workers Initiative, which is aimed at targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of temporary visa workers. Acting Assistant Attorney General John Gore said, “The Department will continue to fight to ensure that U.S. workers are not disadvantaged because of their citizenship status.”

    Under the settlement, Triple H must establish a backpay fund, with a cap of $85,000, to compensate certain individuals who were harmed by its practices; pay $15,600 in civil penalties to the U.S. government; engage in enhanced recruitment activities to attract U.S. workers; revise any existing employment policies so that they prohibit discrimination based on citizenship, immigration status, and national origin in the recruitment and hiring processes; train its Human Resources personnel on their legal obligations to not discriminate by viewing a free online IER webinar presentation; and be subject to departmental monitoring and reporting for a three-year period.

    This settlement is the second in the last week related to discrimination against U.S. workers. For answers to many other questions related to the IER and 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. IER Settles Immigration-Related Discrimination Claims Against J.C. Penney

    By: Bruce Buchanan, Sebelist Buchanan Law



    The Immigrant and Employee Rights Section (IER), a Division of the Justice Department, has reached a settlement agreement with J.C. Penney Corporation, Inc. The agreement resolves two investigations, one into whether J.C. Penney unlawfully rejected a lawful permanent resident’s valid work authorization documentation, and the other into whether J.C. Penney violated the Immigration and Nationality Act (INA) by unlawfully reverifying the work authorization of certain non-U.S. citizens.

    The first investigation was prompted by a lawful permanent resident’s charge alleging J.C. Penney violated the INA’s anti-discrimination provision when J.C. Penney fired her in August 2016. The investigation found J.C. Penney had improperly rejected the worker’s unexpired Permanent Resident Card as proof of her work authorization. The second investigation found J.C. Penney had unlawfully reverified the work authorization of certain non-U.S. citizens solely based on their citizenship status, even though those non-citizens had presented the same type of valid work authorization documents as U.S. citizens when first hired.

    The IER also found J.C. Penney unlawfully requested specific immigration documents from certain workers during the process of reverifying their work authorization because of their immigration status. Among other things, the INA prohibits employers from (1) rejecting valid work authorization documents, (2) limiting a worker’s choice of documentation to present for employment verification or reverification purposes, and (3) subjecting employees to different or unnecessary documentary demands, based on the employee’s citizenship, immigration status, or national origin.

    Under the terms of the settlement, J.C. Penney will pay a civil penalty of $14,430 to the United States; pay $11,177.60 in back pay to the worker who filed the charge; train its staff and corporate human resources personnel on their legal obligations to not discriminate on the basis of citizenship, immigration status, and national origin; require HR personnel to take an open book multiple choice test on the I-9 process; revise any existing employment policies so that they prohibit discrimination based on citizenship, immigration status, and national origin; honor employees’ documentation that appears genuine and relates to the person; not request more of different documents than required by law; post notices informing workers about their rights under the INA’s anti-discrimination provision; and be subject to departmental monitoring and reporting requirements for two years.

    It appears the IER is requiring more and more from employers entering into settlements. For example, HR personnel at J.C. Penney will be required to pass a test. This is a method to make sure that the law as relates to the I-9 process will be followed in the future. For answers to many other questions related to the IER and immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  3. DOJ and USCIS Formalize Partnership to Protect U.S. Workers from Discrimination and Combat Fraud

    By: Bruce Buchanan, Sebelist Buchanan Law



    The Department of Justice (DOJ) and U.S. Citizenship and Immigration Services (USCIS) have agreed on a Memorandum of Understanding (MOU) that expands their collaboration to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States.

    The MOU will increase the ability of the agencies to share information and help identify, investigate, and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws. In 2010, USCIS and the Justice Department’s Civil Rights Division entered into an ongoing partnership to share information about E-Verify misuse and combat employment discrimination, and this MOU expands upon the two agencies’ existing partnership.

    To advance the goals of the Buy American and Hire American Executive Order, in 2017, the Civil Rights Division of the DOJ launched the Protecting U.S. Workers Initiative, which is aimed at targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of foreign visa workers. Under this Initiative, the Civil Rights Division has opened dozens of investigations, filed one lawsuit, and reached settlement agreements with two employers.
  4. 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.
  5. OSC Settles Immigration-Related Claim Against Luis Esparza Services

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), within the Justice Department, reached an agreement with Luis Esparza Services, Inc. (LES), a farm labor contractor based in Bakersfield, California, resolving claims that the company discriminated against individuals because of citizenship status in violation of the Immigration and Nationality Act (INA).

    The investigation found LES required work-authorized non-U.S. citizens to produce documents issued by the Department of Homeland Security as a condition of employment, but did not require the same of U.S. citizen workers. The anti-discrimination provision of the INA prohibits employers from placing additional documentary burdens on workers during the employment eligibility verification process based on their citizenship status.

    Under the settlement agreement, LES will pay $320,000 in civil penalties, which is the largest civil penalty the Justice Department has ever secured to resolve a discrimination claim under the INA. Additionally, LES will compensate a worker who lost wages due to LES’s employment eligibility verification practices; undergo training on the anti-discrimination provision of the INA; revise its employment eligibility verification policies; and be subject to monitoring of its employment eligibility verification practices for three years.
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