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I-9 E-Verify Immigration Compliance

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  1. 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.
  2. DOJ Settles Immigration-Related Claim for $200,000 against Staffing Companies

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Immigrant and Employee Rights Section (IER) of the Department of Justice (DOJ) has reached a settlement whereby CitiStaff Solutions Inc., and CitiStaff Management Group Inc. (collectively CitiStaff) agreed to pay a civil penalty of $200,000 to the United States government. The settlement resolves the investigation into whether CitiStaff violated the law by discriminating against work-authorized immigrants when verifying their work authorization.

    Based on its investigation, IER concluded that CitiStaff, which provide staffing services in the greater Los Angeles, California area, routinely requested non-U.S. citizens present specific documents to prove their work authorization, such as Permanent Resident Cards (green cards) or Employment Authorization Documents (EADs), but did not make similar requests for specific documents to 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. The anti-discrimination provision of the Immigration and Nationality Act (INA) prohibits employers from subjecting employees to different or unnecessary documentary demands based on employees’ citizenship, immigration status or national origin.

    Furthermore, the investigation found CitiStaff required lawful permanent residents (LPRs) to reverify their work authorization status when their Permanent Resident Cards expired. It is unlawful to require reverification of a green card even if it expires as the LPRs continue to hold lawful status after a green card’s expiration.

    Under the settlement, CitiStaff will pay a civil penalty of $200,000 to the United States, train its staff on the law, and be subject to departmental monitoring and reporting requirements for three years.

    Companies need to be aware of the laws relating to determining employees’ lawful employment status as well as the law concerning re-verification. As you see, it is so easy for employers to make costly mistakes. 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.
  3. DOJ’s Lawsuit for Discrimination Based on Citizenship Status is Unusual

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    The Justice Department, through the Immigrant and Employee Rights Section (IER), filed a lawsuit against Louisiana-based companies Technical Marine Maintenance Texas LLC, which provides contract shipyard labor, and Gulf Coast Workforce LLC, a related company, alleging that they violated the Immigration and Nationality Act (INA) by engaging in a pattern or practice of discrimination against U.S. citizens and non-U.S. citizens during the I-9 and E-Verify process.

    According to the Complaint, from at least January 2014 until at least July 2017, Technical Marine asked U.S. citizens to produce List B and C documents, such as a state driver’s license and Social Security cards, respectively. The statistics showed during this period, Technical Marine obtained List B and C documents from 99.56% of U.S. citizens. On the other hand, Technical Marine asked non-U.S. citizens to produce a List A document, such as a permanent resident card (green card) or employment authorization document. The statistics showed during this period, Technical Marine obtained a List A document from 99.29% of non-U.S. citizens.

    This is an unusual case because the Complaint alleges Technical Marine discriminated against both U.S. citizens and non-U.S. citizens by their requests for certain documentation. In most cases brought by DOJ, the discrimination occurs through the request and receipt of certain document(s) by non-U.S. citizens while U.S. citizens are free to present any documentation from the Lists of Acceptable Documents. Because Technical Marine asked for specific and different documents from U.S. citizens and non-U.S. citizens, then both actions are alleged as unlawful. Under the INA, all workers, regardless of their citizenship status, must be allowed to choose from among the valid documentation that proves their employment eligibility.

    This Complaint is a reminder to employers – do not request specific documentation from employees, regardless of whether they are U.S. citizens or non-U.S. citizens. If you do, you may be investigated by the IER of the DOJ. Such investigations are costly and subject employers to civil penalties and back pay if they are found to have committed this type of discrimination or if employers reach a settlement with the IER.
  4. DOJ Proposes Revisions to OSC Through Rulemaking

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Department of Justice (DOJ) has issued a Notice of Proposed Rulemaking for the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Comments are being accepted for 30 days.

    The most significant proposed revision is to incorporate into a regulation the OSC’s definition of the intent requirement to discriminate as set forth in U.S. v. Life Generations Healthcare LLC, 11 OCAHO no. 1227 (2014), where OCAHO stated the discriminatory intent inquiry under 8 U.S.C § 1324b (a)(b) involves “ask[ing] the question whether the outcome would have been different if the groups [U.S. citizens versus non-U.S. citizens] had been reversed.” Thus, just the request for more or different documents because of an individual’s citizenship status or national origin constitutes intentional discrimination even if the employee was completely unaware of the prohibition against discrimination in the I-9 process.

    An interesting revision is a change in the name of the agency to Immigrant and Employee Rights Section. It would remain in the Civil Rights Division of DOJ. This change is understandable given the current lengthy name for the agency.

    Another potentially significant revision is replacement of the term “documentation abuses” with the term “unfair documentary practices”. Previously, to prove document abuse, one had to prove intent. But “unfair documentary practices” suggests no intent is needed to prove something is unfair.

    Other revisions include:


    • Definition of the term “citizenship status” to include refugees and asylees, which is consistent with OSC’s current practice;
    • Clarification of the term “discrimination” to be consistent with 8 U.S.C. 1324b - the act of intentionally treating an individual differently, regardless of the explanation for the discrimination and regardless of whether it is because of animus or hostility;
    • Definition of the statutory phrase – “more or different documents than required under such section to be consisted of OCAHO case law;
    • Definition of the term “charge” to make it broader as to what is acceptable;
    • Define the term “hire”;
    • Define how the Special Counsel’s office counts full-time and part-time employees to determine jurisdiction of national origin discrimination allegations; and
    • Clarification that Special Counsel is not bound by the 90-day statutory time limit on filing a complaint that is applicable to individuals filing actions.


    Overall, a few of these proposed changes are significant while others amount to housekeeping. Since the period for comment is open, if you feel strongly about one or more of the revisions, I invite you to submit your comments.
  5. Immigration-Related Fines Drastically Increasing

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The U.S. Department of Justice published a rule on June 30 that will increase penalties for unlawfully employing immigrants, and unfair employment practices tied to immigration, and “so-called paperwork violations” for I-9 forms, effective August 1, 2016.

    The DOJ regulation will “increase “paperwork violations” related to I-9 forms from a maximum of $1,100 to $2,156. The minimum penalty per violation increases from $110 to $216.
    Under the rule, the minimum penalty for the unlawful employment of immigrants will jump from $375 to $539, while the maximum will go from $3,200 to $4,313. And that’s just for a first order. Employees who receive three or more orders will be facing a new maximum penalty of $21,563 for unlawfully employing immigrants.

    And as for unfair immigration-related employment practices, a first order could cost a new top penalty of $3,563 per person discriminated against, up from $3,200. The minimum penalty increases from $375 to $445.

    The new regulation applies to violations that took place after November 2, 2015. I would anticipate the substantial increase in the fines will lead to significantly more OCAHO litigation since historically OCAHO reduces the penalties by between 30 and 45%.
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