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I-9 E-Verify Immigration Compliance

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  1. Texas Tortilla Company Convicted of Employment of Undocumented Workers

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC
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    La Espiga De Oro (Espiga), manufacturer of tortillas for distribution to restaurants and businesses, forfeited $1 million because of a felony conviction of conspiracy to induce and encourage unlawful immigration through a pattern and practice of hiring and employing illegal aliens at the Texas tortilla factory. Owners Alfredo Sosa Lira, his wife Lydia Botello-Lira, their daughter Lydia Lira, and night manager Roberto Guerra, pleaded guilty to misdemeanor violations associated with their continued employment of undocumented aliens between October 2011 and August 2015.

    Homeland Security Investigations investigated a series of complaints about the company’s hiring practices. An undercover operation later led to evidence that the company knowingly hired individuals not authorized to work in the United States. In some instances, the company knew that aliens used fraudulent documents to secure employment.

    HSI executed a search warrant at the company in August 2015, which led to the discovery of 10 undocumented workers working there as well as evidence demonstrating that 55% of their employees were not authorized by law to work at the factory. Following the search warrant, the company was charged by criminal complaint and began cooperating with HSI and the U.S. Attorney’s Office to revise their hiring practices and implement new procedures to prevent future violations of federal law.

    The company paid $1 million, representing an amount that at least equals the value of property used to facilitate the crime, the value of wages paid to the unauthorized work force and the value of products manufactured and services provided by the illegal workforce during the conspiracy. This money will go directly to immigration authorities to assist them with their future enforcement efforts.
  2. OSC Files Lawsuit Against Two Washington Companies Alleging Discrimination

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), an agency within the Department of Justice, recently filed a lawsuit against two Washington-based companies, Washington Potato Company and Pasco Processing LLC, alleging that they violated the Immigration and Nationality Act (INA) by discriminating against immigrants during the employment eligibility verification process because of their citizenship status.

    According to the complaint filed with the Office of the Chief Administrative Hearing Officer (OCAHO), from at least November 2013 until at least October 2016, Washington Potato and Pasco Processing hired over 2,000 U.S. citizens (USCs) and approximately 800 lawful permanent residents (LPRs). Of the LPRs hired, 99.5% produced a List A document – their green card - to establish their work authorization while only 2% of the USCs hired produced a List A document, such as a U.S. passport or U.S. passport card. This information was gleaned by the Department of Homeland Security’s Monitoring and Compliance branch by reviewing data from E-Verify, which the two companies used.

    The companies asserted the high rate of List A documents for LPRs was because these employees did not possess List B or C documents. However, the OSC alleged many LPR employees presented List B and C documents but the companies requested a specific document, the LPRs’ green card, for the Form I-9 and/or E-Verify from non-U.S. citizen employees, but allowed USCs the flexibility to present a variety of documents. Thus, the OSC alleged the companies treated LPRs and non-citizen employees differently than USCs and this treatment was intentional and discriminatory.

    Under the INA, all workers, including non-U.S. citizens, must be allowed to choose freely from among the valid documentation that proves their work authorization. The INA prohibits employers from discriminating by unlawfully limiting some workers’ choices based on their citizenship status. I will keep you updated on the outcome of this litigation.

    This complaint is an example of the downside of using E-Verify – the data entered by the employer is scrutinized by the Department of Homeland Security, who may refer the case to the OSC for investigation and litigation.
  3. OSC Settles with Staffing Company Who Required U.S. Birth Certificate

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) reached a settlement agreement with Cumberland Staffing Inc., doing business as AtWork Cumberland Staffing (ACS), a temporary staffing agency located in Cookeville, Tennessee, to resolve an allegation that ACS engaged in citizenship discrimination by requiring a U.S. birth certificate in order to be considered for employment. This requirement discriminated against work-authorized immigrants and naturalized U.S. citizens in violation of the Immigration and Nationality Act (INA).

    The OSC initiated its investigation after a Tennessee resident notified it of an ACS job posting that included a U.S. birth certificate requirement. The investigation found that between December 2015 and February 2016, ACS created and published a job posting stating that applicants for machine operator positions at a client company must present a U.S. birth certificate. The discriminatory posting was published on several job search engine websites during this time period.

    In the absence of a legal basis to do so, such as a law, regulation or government contract that requires U.S. citizenship restrictions, employers, recruiters and referrers for a fee may not limit job opportunities or otherwise impose barriers to obtaining employment based on an individual’s citizenship, immigration status or national origin. By requiring a U.S. birth certificate – a document that only non-naturalized U.S. citizens possess – to be considered for an employment opportunity, ACS’s job posting created a discriminatory barrier for work-authorized individuals, such as naturalized U.S. citizens, U.S. nationals, lawful permanent residents, asylees and refugees.

    Under the settlement agreement, ACS will pay a civil penalty of $1,200, remove all specific document requirements from its job postings except where required by law, train staff on proper employment verification and reverification procedures, including attendance at a OSC webinar on anti-discrimination, and ensure that trained staff or legal counsel review future job advertisements.
    The takeaway from this settlement is do not require certain documentation, such as a U.S. birth certificate, that will discriminate against other work-authorized indiduals
  4. 5th Circuit Overrules OCAHO Decision Concerning $226,000 Penalty

    By: Bruce Buchanan, Sebelist Buchanan Law, PLLC

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    The Fifth Circuit Court of Appeals in Employer Solutions Staffing Group II, LLC v. OCAHO (August 11, 2016) reversed an OCAHO decision concerning the issue of personal versus corporate attestation of employee’s documents in Section 2 of the I-9 form; thus, it vacated the $226,000 civil penalty.

    ESSG is a staffing company based in Edina, Minnesota. It contracted with Larsen Manufacturing Co. in El Paso, Texas to provide employees. Then ESSG subcontracted with Flexicorps, Inc. to make all the hiring decisions for temporary employees at the Larsen facility.

    In so doing, ESSG had Flexicorps supervise the completion of Section 1 of the I-9 forms by employees and examine original documents presented by the employees for Section 2. However, instead of Flexicorps completing the employer certification at that time, ESSG had Flexicorps make color copies of the documents and send the I-9 forms and color copies of the documents to ESSG’s corporate headquarters. At that point, an ESSG employee examined the photocopies and completed Section 2, including the signed attestation that the employer examined the documents and they appeared to be genuine.

    In 2011, Immigration and Customs Enforcement (ICE) served a Notice of Inspection on ESSG for the Larsen facility and thereafter determined ESSG’s procedure in signing the certification was contrary to the law. After a hearing before an Administrative Law Judge (ALJ) of OCAHO, OCAHO agreed with ICE, found 242 violations and assessed a penalty of over $226,000.

    The 5th Circuit analyzed the statute, the Immigration and Nationality Act (INA), the accompanying regulations, and any applicable case law. The INA states a “person or entity must attest… on a form” that it has verified the employee’s document(s). See § 1324a (b)(1)(A). Thus, ESSG argued corporate attestation is consistent with the INA.

    The regulations state “an employer, his or her agent, or anyone acting directly or indirectly in the interest thereof, must” complete Section 2 on the I-9 form and sign the attestation. § 274a.2(b)(1)(ii)(B). The Court said it did not read this regulation to require the same person who met the hired employee and examined the original documents to be the one to sign the attestation.

    The Court then reviewed whether ESSG had fair warning of OCAHO’s reading of the statute and regulations. It found it did not, especially given the fact there were no prior OCAHO decisions on the matter and the ALJ only cited “commonsense” for her ruling, not any statute, regulation or case law. Thus, given the language of the INA and its regulations, the Court found ESSG lacked fair notice of OCAHO’s position.

    The Court concluded a “reasonable interpretation” permits corporate attestation due to the language of the INA. Thus, the Court concluded ESSG did not violate the INA. However, before employers celebrate the victory, it must be noted the Court went on to state their holding “does not address whether ICE can lawfully prohibit corporate attestations”; only that ESSG was not given fair notice.

    Since this is a Court of Appeals decision, it does not change ICE’s and OCAHO’s position and they are free to clarify whether corporate attestation is prohibited.

    An interesting question is whether this decision may provide an avenue to resolve the remote hire issue where the employer does not view the original documents. Obviously, it will depend on ICE’s and OCAHO’s position on this issue going forward
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  5. Company Pays $200,000 to Settle with OSC on Immigration-Related Discrimination Claim

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) reached an agreement with Crookham Company, of Caldwell, Idaho, whereby it agreed to pay $200,000 to resolve allegations that the company discriminated against work-authorized non-U.S. citizens, in violation of the Immigration and Nationality Act (INA).

    The investigation found Crookham discriminated against non-U.S. citizens by requiring them to produce either a permanent resident card (green card) or employment authorization card to prove their work authorization, whereas U.S. citizens were permitted to choose whichever valid documentation they wanted to present to prove their work authorization. Under the INA, all workers, including non-U.S. citizens, can choose whichever valid documentation they would like to present from the lists of acceptable documents to prove their work authorization. It is unlawful for an employer to limit employees’ choice of documentation because of their citizenship or immigration status.

    Under the settlement agreement, Crookham will be subject to monitoring for a three-year period. Prior to the settlement, Crookham proactively underwent department-provided training on the anti-discrimination provision of the INA and
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