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I-9 E-Verify Immigration Compliance

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  1. Business Owner Goes to Jail for Fraudulent H-1B Scheme

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The owner of two employment staffing companies was sentenced in federal court to 52 months in prison and a $50,000 fine for engaging in a scheme to submit fraudulent H-1B petitions for foreign workers. Previously, Sunitha Guntipally had pled guilty to one count of conspiracy to commit visa fraud, obstruction of justice, use of false documents, mail fraud and witness tampering.

    Judge Lucy Koh stated the defendant’s conduct undermines respect for our legal immigration system and does tremendous damage to our institutions and affects the rights of others to immigrate to the United States.

    Guntipally and her husband, who own employment staffing companies DS Soft Tech and Equinett, and two co-conspirators submitted more than 100 fraudulent H-1B petitions to foreign workers to be placed at companies that either did not exist or never received the workers, according to federal prosecutors. The U.S. attorney’s office said the applications were intended to create a pool of H-1B beneficiaries who could then get hired by other companies, thereby unfairly giving Guntipally and her co-conspirators an advantage over other competing employment staffing firms.

    This case is another example of individuals being criminally liable for immigration law violations. For more information about immigration compliance issues, I invite you to read The I-9 and E-Verify Handbook, which I co-authored and is available at http://www.amazon.com/dp/0997083379.
  2. Automatic Extension of EADs for Hondurans and Nicaraguans on TPS

    By: Bruce Buchanan, Sebelist Buchanan Law

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    As the Trump administration continues to gradually terminate Temporary Protected Status (TPS) for some countries, including Honduras and Nicaragua, it is important to remember the validity of employment authorization cards (EADs) is automatically extended for a period of time for individuals with TPS from Honduras and Nicaragua.

    If an employee from Honduras or Nicaragua has an EAD with an expiration date of January 5, 2018 and lists the category code "A-12" or "C-19," this EAD is automatically extended and the employee may continue to work without a new EAD (and without a receipt notice) through the end of the applicable automatic extension period. TPS Honduras EADs have been automatically extended through July 4, 2018. TPS Nicaragua EADs have been automatically extended through March 6, 2018.

    Additionally, the EADs of TPS beneficiaries from Nicaragua, who timely re-register (Form I-821) and file a request for a new EAD (Form I-765), will be automatically extended through July 4, 2018. The period for re-registration ends on February 13, 2018. If approved, the new EAD will terminate on January 5, 2019, the last day of TPS for Nicaraguans.

    The automatic extension of EADs for Hondurans and Nicaraguans is very important for employers because normally an employer needs to terminate an employee whose EAD expires and no further work authorization, such as a new EAD or permanent resident card, is provided. Thus, EADs obtained through TPS are an exception to the rule. If an employer terminates an employee because it believed their work authorization had expired when the EAD had been automatically extended, the employer may have violated the anti-discrimination provision of the Immigration and Nationality Act (INA). As subject, the employee may be subject to an investigation by the Immigrant and Employee Rights (IER) Section of the Department of Justice, which has authority to seek an employee’s reinstatement with back pay and a penalty paid to the U.S. government.

    If you want further information on immigration compliance issues, I recommend reading The I-9 and E-Verify Handbook, a new book that I co-authored, which is available at http://www.amazon.com/dp/0997083379.
  3. ICE to Increase Worksite Immigration Enforcement Actions in Tennessee

    By: Bruce Buchanan, Sebelist Buchanan Law

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    Immigration and Customs Enforcement (ICE), through Homeland Security Investigations (HSI), plans to increase worksite immigration enforcement actions across Tennessee in 2018, according to Robert Hammer, an assistant special agent in charge of HSI in Nashville, Tennessee. As previously reported, Thomas D. Homan, acting director of U.S. Immigration and Customs Enforcement, has stated there will be 4 to 5 times increase in worksite enforcement actions, usually referred to as inspections, in 2018. See http://blogs.ilw.com/entry.php?10186...-Current-Level.

    Hammer made this statement after the indictment of 20 undocumented workers for using fake IDs to work in a sensitive air cargo area at Memphis International Airport.

    http://blogs.ilw.com/entry.php?10292...mented-Workers. Hammer also stated worksite immigration investigations will likely focus on "critical infrastructure," such as airports, defense contractors, food distribution and other businesses that have an impact on the general safety and welfare of the community. The emphasis on critical infrastructure is because the agency is making it one of its priorities.

    Although the Obama Administration greatly increased worksite immigration enforcement actions from 2009 through 2014, it curtailed these operations in the last two years of its administration. The Trump Administration’s increase will more than double the highest number of worksite immigration enforcement actions under the Obama Administration. Increased enforcement could have a big impact on companies and industries that use immigrant labor, especially in those states which do not require the use of E-Verify.

    If an employer receives a Notice of Inspection from ICE, its I-9 forms may show the employment of undocumented workers and the employer may have knowingly hired unauthorized workers, which is against the law. Alternatively, an employer may not have knowingly hired unauthorized workers but still those undocumented workers must be discharged (unless they quit) or the employer will be fined.

    If you want a full discussion of the possible criminal and civil sanctions against employers for violating immigration laws, I recommend you read my book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379. There are chapters dedicated to civil penalties and criminal sanctions for violating immigration laws.
  4. DOJ Settles Case Under U.S. Workers Initiative

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Immigrant and Employee Rights Section (IER) of Department of Justice (DOJ) and Crop Production Services Inc. (Crop Production), an agricultural company headquartered in Loveland, Colorado, reached a settlement agreement. The settlement resolves a lawsuit the IER filed against the company on September 28, 2017, alleging the company discriminated against U.S. citizens because of a preference for foreign visa workers, in violation of the Immigration and Nationality Act (INA).

    The settlement is part of the DOJ’s Protecting U.S. Workers Initiative, an initiative aimed at targeting, investigating, and bringing enforcement actions against companies that discriminate against U.S. workers in favor of foreign visa workers.

    The lawsuit alleged that in 2016, Crop Production discriminated against at least three United States citizens by refusing to employ them as seasonal technicians at its El Campo, Texas location because the company preferred to employ temporary foreign workers under the H-2A visa program. According to the complaint, 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 alleges that although U.S. citizens had to complete a background check and a drug test before being permitted to start work, H-2A visa workers were allowed to begin working without completing them and, in some cases, never completed them. Ultimately, all of Crop Production’s 15 available seasonal technician jobs in 2016 went to H-2A visa workers instead of U.S. workers. For more information on the lawsuit, see my prior blog entry at http://blogs.ilw.com/entry.php?10157...t-U-S-Citizens.

    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 visa workers over available, qualified U.S. workers. In addition, the H-2A visa program allows employers to hire foreign visa workers only if there is not enough qualified and available U.S. workers to fill the jobs.

    The settlement agreement requires Crop Production to pay civil penalties of $10,500 to the United States; undergo department-provided training on the anti-discrimination provision of the INA; revise employment policies to assure that Crop Production does not discriminate on the basis of citizenship, and clarify that H-2A visa holders may only be hired in the absence of any qualified and available U.S. workers; and comply with departmental monitoring and reporting requirements for a two-year period. In a separate agreement with workers represented by Texas RioGrande Legal Aid, Crop Production agreed to pay $18,738.75 in lost wages to affected U.S. workers.

    For 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. When does Employer Need to Re-Verify Employee’s I-9 form?

    By: Bruce Buchanan, Sebelist Buchanan Law

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    From my observations of conducting numerous internal I-9 audits and representing employers in ICE I-9 inspections, I have noticed some employers do not comprehend when to reverify an employee. This article will try to simplify the process.

    If an employee is not a U.S. citizen or lawful permanent resident, he is likely working based on a status with a defined end date. For these employees, the employer must note the expiration date of their document(s) on the I-9 form, pull the employee’s I-9 form before its expiration date, and re-verify that the employee’s status has been extended. Employers should establish a reliable tickler system to prompt reverification. Aside from complying with the re-verification rule, this system will also ensure that an employer that needs to extend a work visa for an employee will not forget to take care of this critical task.

    Employers may not specify which documents an employee may present either at the time of hire or at the time of re-verification. An employee may have become a lawful permanent resident or otherwise received employment-authorized status allowing the employee to obtain a Social Security card, as discussed below, absent the sponsorship of the employer, so the employer should not assume the employee is unauthorized. An employee may present a Social Security card to show employment authorization at re-verification if the Social Security card is not restricted with a statement such as “not valid for employment,” “valid for work only with DHS authorization” or “valid for work only with INS authorization.” This type of Social Security card must be accompanied by an Employment Authorization Document (EAD) to be valid.

    Returning employees often do not need to complete a new I-9 form, but if that is not done, the employer needs to re-verify the employee’s work authorization in Section 3 of the I-9 form, if the formerly listed work authorization has expired. If a new version of the I-9 form has come out since the last time the I-9 form was completed, the employer may complete a new form or use Section 3 of the existing completed I-9 form. And if the form has been completed in Section 3 from a previous re-verification, the employer should complete Section 3 of a new I-9 form. Plus, the employer should put the employee’s name in Section 1 and retain the new form with the original.

    One final reminder - green cards, driver’s licenses, and passports with expiration dates do not need to be re-verified.

    For more information on reverification and many other issues 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.
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