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  1. Litigation Involving Nebraska Beef’s Reneged Settlement Continues

    By: Bruce Buchanan, Sebelist Buchanan Law

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    A U.S. District Judge in Nebraska has ruled in favor of the Department of Justice’s Show Cause Motion in the never-ending saga of Nebraska Beef Ltd. reneging on a settlement that it reached in August 2015 with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (now the Immigrant and Employee Rights Section (IER)) of the Department of Justice.

    As you may recall, Nebraska Beef and the OSC reached a settlement concerning whether Nebraska Beef was discriminating against work-authorized immigrants by requiring non-U.S. citizens, but not similarly-situated U.S. citizens, to present specific documentary proof of their immigration status to verify their employment eligibility in violation of the Immigration & Nationality Act (INA). In the settlement, Nebraska Beef agreed to pay a $200,000 civil penalty.

    However, before the civil penalty was due, a Department of Justice press release stated the government “found” Nebraska Beef to have violated the law. The settlement had stated the OSC had a “reasonable cause to believe” Nebraska Beef had violated the INA. Nebraska Beef asserted the press release’s inaccuracy materially breached the settlement agreement because Nebraska Beef did not admit liability and excused the company’s payment of $200,000.

    Thereafter, the OSC filed for enforcement of the settlement agreement in federal court in Nebraska. The District Court found no material breach occurred and ordered Nebraska Beef to pay the $200,000 and perform all settlement obligations. After an appeal of the order, the Court stayed the company’s obligation to pay the $200,000 civil penalty but not the company’s other obligations – training, reporting, and notifying potential back pay claimants and providing such information to the IER of the DOJ.

    Nebraska Beef did not timely comply with the non-monetary portions of the order even though these provisions had not been stayed. Thus, the DOJ filed a Motion to Show Cause as to why Nebraska Beef was not in contempt of court.

    The District Court granted the government’s motion and ordered Nebraska Beef to show why it should not be held in contempt of court. I will update this case when the Court decides whether Nebraska Beef is in contempt of court.
  2. DOJ Settles Immigration Claim Against Another Staffing Agency

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    The Justice Department’s Immigrant and Employee Rights Section (IER) (formerly known as OSC) has reached a settlement agreement with Provisional Staffing Solutions, a temporary staffing agency located in Cranston, Rhode Island. The agreement resolves the IER’s investigation into whether Provisional Staffing discriminated against non-U.S. citizens in violation of the Immigration and Nationality Act (INA).

    The investigation concluded Provisional Staffing routinely requested non-U.S. citizens present specific identity documents, such as a Permanent Resident Card, to prove their work authorization while not requesting a specific identity document from U.S. citizens. The antidiscrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on the employees’ citizenship or national origin.  Lawful permanents residents and other work-authorized non-U.S. citizens often have the same identity and work authorization documents available to them as U.S. citizens, and may choose from among the acceptable documents to prove they are authorized to work.

    Under the settlement, Provisional Staffing must pay a civil penalty of over $16,000 to the United States, provide a copy of Lists of Acceptable Documents to employees simultaneously with the request for employees to complete their I-9 forms, revise company policies in order that they prohibit discrimination on the basis of citizenship status or national origin, post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, through the viewing of an IER webinar, on immigration compliance issues, and be subject to departmental monitoring and reporting requirements for the next three years.

    Staffing companies appear to be more likely to violate the antidiscrimination provision of the INA. In the past year, IER has settled with at least five staffing companies concerning allegations of discrimination due to citizenship status.
  3. OSC Renamed Immigrant and Employee Rights Section

    By: Bruce Buchanan, Sebelist Buchanan Law

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    Effective January 18, 2017, U.S. Department of Justice’s (DOJ) Civil Rights Division has implemented a final rule to update regulations concerning enforcement of employment-related anti-discrimination provisions under the “unfair immigration-related employment practices” section of the Immigration and Nationality Act (INA).

    One of the most interesting changes is the Office of Special Counsel for Immigration-Related Unfair Employment Practices, usually referred to as Office of Special Counsel or OSC, is being renamed the Immigrant and Employee Rights Section. It will remain part of DOJ’s Civil Rights Division. However, the individual in charge of the Immigrant and Employee Rights Section will still be referred to as Special Counsel due to statutory language. Thus, this may cause some confusion for attorneys and the public.

    Probably the most significant change in the regulations is a definition of “discriminate” to clarify that an employer’s intent to discriminate must be based on national origin or citizenship status. This definition of intent does not consider what reason an employer may have had. Under the new rule, DOJ explains that if the employer is intentionally treating the permanent resident differently for an unlawful reason, such as citizenship status, then the employer has discriminated.

    Other significant changes in the new regulations include:

    • Individuals who submit a discrimination claim within the 180-day period provided by law now have an additional 45 days to submit information if the Special Counsel decides that they did not provide enough information to meet the requirements for a “charge”;
    • Charges may be filed after the 180-day time limit under certain circumstances;
    • The Special Counsel may file a complaint based on an investigation the office initiated, up to five years after the date of alleged discrimination;
    • Definition of the term “citizenship status” includes refugees and asylees, which is consistent with Special Counsel’s current practice;
    • Definition of the statutory phrase – “more or different documents than required under such section” to be consistent with OCAHO case law;
    • Definition of the term “charge” to make it broader as to what is acceptable; and
    • Definition of the term “hire”.
  4. Four Charged in H-1B Visa Fraud Scheme

    By Bruce Buchanan, Sebelist Buchanan Law


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    The Justice Department (DOJ) has charged four individuals with conspiring to submit more than 100 fake H-1B visa applications, a scheme aimed at creating a pool of workers to compete with U.S. staffing firms. The indictment alleges Venkat and Sunitha Guntipally, Pratap “Bob” Kondamoori and Sandhya Ramireddi used “deceit, craft, trickery, and dishonest means” in a scheme aimed at placing H-1B workers at temporary positions with companies that differed from the end-companies listed on the visa petitions. The charges are for the conspiracy visa fraud, false statements, mail fraud, obstruction of justice, and witness tampering, as well as the use of false documents and aiding and abetting the scheme. The maximum prison term for visa fraud is 10 years, while mail fraud and witness tampering both hold a maximum penalty of 20 years, according to the DOJ.

    Between 2010 and 2014, DOJ said Venkat and Sunitha Guntipally used their employment-staffing companies DS Soft Tech and Equinett to sponsor temporary nonimmigrant workers for fraudulent H-1B applications for placements at companies that either didn’t exist or never received the proposed temporary workers, submitting fake documents to government agencies.

    According to DOJ, DS Soft Tech and Equinett submitted approximately 22 separate petitions for H-1B workers to be placed at a company operated by Kondamoori called SemSolar Inc., and work on a product the defendants allegedly knew didn’t exist. None of those workers who received the temporary visas through the scheme ever worked at SemSolar.

    DOJ also alleges Kondamoori used his company SISL Networks to petition for fake visas with his sister Ramireddi acting as the human resources and operations manager all three companies.

    The Guntipallys, Kondamoori and Ramireddi are also facing charges for allegedly concealing and covering up the visa-scheme from the government through false statements to the DHS and other agencies, as well as tampering with witnesses by allegedly contacting multiple individuals who had received the fake visas and persuading them to give misleading statements to criminal investigators, the indictment said.
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