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I-9 E-Verify Immigration Compliance

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  1. Sheriff Arpaio’s Unlawful Actions Lead Court to Find Frimmel Has No Liability

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC




    Just when you thought Sheriff Joe Arpaio could not cause further trouble because he’s out of office, he strikes again in an immigration case.

    This case centers on a Notice of Inspection (NOI) that was delivered to Frimmel Management after Sheriff Arpaio’s police force, Maricopa County Sheriff’s Office (MCSO), conducted raids of two Uncle Sam’s restaurants and the owner’s home. MCSO seized employment records based on suspicion that the restaurants’ workers committed identity theft and forgery. During the State of Arizona’s prosecution of Frimmel, the state court found the affidavits supporting the search warrant for the raids were “unreasonable and reckless.” Therefore, the Court dismissed the charges against Frimmel.

    One day after MCSO’s raids, MCSO sent a memorandum to ICE summarizing the results of the unlawful raid. Thereafter, MCSO issued press releases publicizing their raids and stated some of the workers had been put on ICE holds.

    About two and one-half weeks after the raids, ICE served a NOI/subpoena on Frimmel. After Frimmel timely produced the restaurants’ I-9 forms, ICE issued a Notice of Intent to fine (NIF) and a complaint for the case to be heard by an OCAHO Administrative Law Judge.

    In response to Frimmel’s objections, this ALJ found that how Frimmel had come to the attention of ICE was “irrelevant” to the OCAHO case. Frimmel also argued the I-9 forms must be suppressed under the fruit of the poisonous tree doctrine. The ALJ disagreed and found ICE had not relied on any “evidence directly obtained from MCSO’s unlawful conduct.” Since the primary goal of suppressing evidence based on illegal conduct is to deter future unlawful police conduct, this was not a factor in question in the ICE’s NOI of Frimmel. Thus, the ALJ upheld the $347,000 penalty.

    On appeal to the 9th Circuit Court of Appeals, the Court initially reviewed MCSO’s conduct. It found that MCSO’s omissions and distortions in the affidavits for the search warrant were “reckless and immaterial.” Thus, this finding led the 9th Circuit to find the raids violated the 4th Amendment to the Constitution.
    Furthermore, the Count found MCSO’s conduct to be egregious.

    Despite those findings, DHS argued the “ICE investigation was too attenuated from MCSO’s illegal conduct” Under the attenuation doctrine, evidence is admissible when “the connection between the illegality and challenged evidence has become so attenuated as to dissipate the taint caused by the illegality.”

    The Court rejected that argument and found there was a causal connection between MCSO’s unlawful search and the ICE audit. The identity evidence – Frimmell and his restaurants – resulted from MCSO’s raid, which “significantly directed the subsequent ICE investigation.” Thus, the I-9 forms which ICE seized were fruit of MCSO’s illegal search.

    In conclusion, the 9th Circuit found for Frimmel because ICE used the fruit of the poisonous tree – the I-9 forms. Thus, Frimmell did not owe the $347,000 that OCAHO had found as penalties.

    Although very few cases get litigated to the Court of Appeals, companies continue to have some success in appeals to the Courts of Appeal. Several years ago, the 5th Circuit Court of Appeals reversed OCAHO’s $227,000 penalty against Employer Solutions Staffing Group II, LLC.

    If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  2. IER Settles Immigration-Related Discrimination Claim Against Rose Acre

    By: Bruce Buchanan, Sebelist Buchanan Law



    The Immigrant and Employee Rights Section (IER), a part of the Civil Rights Division of the Justice Department, has reached a settlement with Rose Acre Farms Inc, one of the largest egg producers in the United States. The settlement resolves a long-standing lawsuit filed by the IER and the Justice Department alleging Rose Acre violated the Immigration and Nationality Act (INA) by discriminating against work-authorized non-U.S. citizens when verifying their work authorization.

    The Department’s amended complaint alleged that from at least June 2009 to December 22, 2011, Rose Acre routinely required work-authorized non-U.S. citizens to present a Permanent Resident Card or Employment Authorization Document to prove their work authorization but did not require specific documents from U.S. citizens. All work-authorized individuals, whether U.S. citizens or non-U.S. citizens, have the right to choose which valid documentation to present to prove they are authorized to work. Employers may not dictate which document(s) may be presented. The anti-discrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on employees’ citizenship or national origin.

    Under the settlement, Rose Acre will pay a civil penalty of $70,000 to the U.S. government; train its human resources personnel on their legal obligations to not discriminate by viewing a free online IER webinar presentation; revise any existing employment policies so that they prohibit discrimination based on citizenship, immigration status, and national origin in the hiring processes; and be subject to departmental monitoring for two years.

    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.
  3. DOJ and DOL in New Partnership to Protect U.S. Workers from Discrimination

    By: Bruce Buchanan, Sebelist Buchanan Law




    In a continuation of President Trump’s Buy American, Hire American Executive Order, the Department of Justice’s Civil Rights Division and the Department of Labor’s (DOL) Employment and Training Administration expanded their collaboration to better protect U.S. workers from discrimination by employers that prefer to hire temporary visa workers over qualified U.S. workers.

    This partnership enhances the Civil Rights Division’s efforts to stop companies from discriminating against U.S. workers and assists the Department of Labor’s Employment and Training Administration in identifying noncompliance with its foreign labor certification process. The signed Memorandum of Understanding (MOU) establishes protocols for the agencies to share information, refer matters between them, and train each other’s employees.

    The Civil Rights Division has increased its collaboration with other federal agencies, including the Departments of State and Homeland Security, to combat discrimination and abuse by employers improperly using temporary visa workers. Today’s MOU expands on the Division’s existing partnership with DOL.

    “Employers should hire workers based on their skills, experience, and authorization to work; not based on discriminatory preferences that violate the law,” said Acting Assistant Attorney General John Gore of the Civil Rights Division. “Our partnership with DOL, formalized today, significantly enhances the Civil Rights Division’s ability to identify employers that favor temporary visa holders over U.S. workers who can do the job.”

    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.
  4. ICE Sweeps Through South

    By: Bruce Buchanan, Sebelist Buchanan Law

    During the week of July 16, 2018, Immigration and Customs Enforcement (ICE) through Homeland Security Investigations (HSI), swept across at least three states, Tennessee, Georgia and Arkansas, delivering Notices of Inspection (NOI). According to an ICE official, HSI delivered 43 NOIs/subpoenas in Arkansas, 40 in West Tennessee, and an unknown number in Georgia.

    Earlier in the year, ICE had concentrated on California in worksite enforcement. It was anticipated that ICE would go east with NOIs although it was unknown which states would be hit in these waves of NOIs.

    Best advice for anyone who receives an NOI – retain an immigration attorney familiar with I-9 forms and worksite enforcement. Failure to obtain experienced legal counsel could be of great detriment to that employer.

    Will your company be next? My advice is be prepared through an internal I-9 Audit. An immigration attorney familiar with I-9 forms and worksite enforcement is the perfect person to assist you in an internal I-9 audit.

    If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  5. Difference Between ICE Raid and ICE Audit

    By: Bruce Buchanan, Sebelist Buchanan Law



    In 2018, Immigration and Customs Enforcement (ICE) raids have returned to workplaces after being dormant for the past 10 years. ICE audits/inspections have been regularly taking place for the past 10 years though they are increasing at an accelerated rate in 2017-2018 under the Trump Administration. So, what’s the difference between an ICE raid (also called a targeted enforcement operation) and an ICE audit/inspection:

    An ICE raid is like it sounds – ICE, or actually a part of ICE called Homeland Security Investigations (HSI), shows up at the employer’s premises without warning – hoping to catch employers and employees off guard. Raids often occur after an ongoing investigation shows a number of undocumented workers are employed there, often with the knowledge and/or assistance of the employer. HSI may receive tips of this unlawful activity by the employer.

    When ICE arrives at the employer’s premises, its agents surround the building and usually have aerial presence. Then ICE agents enter the business with a criminal search warrant. The search warrant will have a detailed description of what and where agents are going to search and what they may seize. This list may include: payroll; I-9 forms and any supporting documents; bank records; Social Security Administration documents; IRS Form 940 and 940 employment tax documents; and other financial or employee records. The employer should immediately contact its immigration legal counsel.

    Employers are not required to answer ICE questions during a worksite raid. If, during a worksite raid, ICE discovers unauthorized workers at the site, they may arrest and detain them. At the end of a raid, ICE agents should leave an inventory of the property they seized and a list of employees arrested.

    A recent example of an ICE raid and how it occurred is the April 2018 raid at Southeastern Provision, a meat-processing plant in Bean Station, Tennessee. The investigation began when the employer’s bank inquired of company officials why it was making very large cash withdrawals every week. The employer official said it was for payroll and its workforce was Hispanic. After the bank provided this information, the IRS subpoenaed the company’s bank records, which confirmed these large cash withdrawals. Later, a confidential informant was sent to Southeastern Provisions and hired without filling out an I-9 form. Based upon this evidence and other evidence gathered in the investigation, HSI and the IRS raided the employer’s facility and detained about 100 employees.

    In ICE audit is friendlier but can lead to damaging results. In this situation, HSI serves a Notice of Inspection (NOI)/subpoena on the employer, requesting all I-9 forms with supporting documentation as well as many other documents. Normally, the visit to the employer’s premises is unannounced, like an ICE raid. But there the similarities cease. Usually two agents will serve the NOI/subpoena on the employer and demand production of records within three business days or a little longer, such as within seven business days. HIS agent will ask if the employer wishes to waive the three days. Under no circumstances should an employer waive the three days. Upon receiving an NOI, the employer should contact its immigration legal counsel or hire one if the employer does not have one.

    Other records that will normally be subpoenaed include: copy of payroll, list of current employees, list of former employees for past one to three years; Social Security Administration documents; IRS Form 940 and 940 employment tax documents; business licenses; and list of companies who were contracted work.

    The ICE agents have the right to receive and inspect the originals of the I-9 forms. The employer should copy all documents turned over to ICE. Once the employer provides the documents, an ICE auditor inspects the I-9 forms to determine whether they comply with the law. The ICE auditor is checking for substantive violations, such as incomplete or missing forms, and technical violations, which an employer will be given 10 days to remedy.

    It is clear that employer raids and ICE audits will be frequent tools of ICE. Every employer should be vigilant in their immigration compliance. I would advise employers to meet with their immigration counsel, or obtain immigration counsel, to conduct an internal I-9 audit and draft or review an immigration compliance policy.

    If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
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