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I-9 E-Verify Immigration Compliance

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  1. OCAHO Finds State Employer Had Sovereign Immunity

    By: Bruce Buchanan, Sebelist Buchanan Law

    Attachment 1213

    In Ugochi v. North Dakota Dept. of Human Service, 12 OCAHO no. 1304 (July 2017), the Office of Chief Administrative Hearing Officer (OCAHO) dismissed Chiaha Ugochi’s complaint that she was discriminated because of her citizenship status and national origin, the employer retaliated against her and committed document abuse.

    The case began with Ugochi filing a charge against her employer, North Dakota State Hospital, alleging it discriminated against her. Immigrant and Employer Rights Section of the Department of Justice dismissed her case due to insufficient evidence of discrimination or retaliation and referred the national origin claim to the EEOC, who has jurisdiction on national origin claims involving employers with more than 14 employees.

    Thereafter, Ugochi filed a complaint with OCAHO alleging she was fired because her employer asked for excessive documentation in the I-9 and E-Verify process. The employer responded that it was entitled to sovereign immunity under the 11th Amendment and had legitimate, non-discriminatory reasons for her termination - she failed a background check.

    In analyzing the employer’s defenses, OCAHO noted the employer in question is the North Dakota State Hospital, a state agency. Due to the employer being a state agency, one must review the 11th Amendment which states, “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Furthermore, the U.S. Supreme Court “has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” There are two exceptions to a state’s immunity from suit under the 11th Amendment. The first exception is where Congress has statutorily abrogated such immunity by “clear and unmistakable language.” The second exception exists when the state has expressly waived its immunity.

    OCAHO found sovereign immunity applied to the North Dakota State Hospital, a state agency; thus, it enjoyed immunity from these proceedings pursuant to the 11th Amendment. Neither exception to immunity is present in the instant matter. Accordingly, because Ugochi’s complaint is barred, the Motion to Dismiss was granted.

    On a personal note, last week the immigration bar lost a true advocate for immigrants, Yvette Sebelist, my law partner. May she rest in peace.

    Updated 08-22-2017 at 11:11 AM by BBuchanan

  2. OCAHO Finds State Employer Had Sovereign Immunity

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In Ugochi v. North Dakota Dept. of Human Service, 12 OCAHO no. 1304 (July 2017), the Office of Chief Administrative Hearing Officer (OCAHO) dismissed Chiaha Ugochi’s complaint that she was discriminated because of her citizenship status and national origin, the employer retaliated against her and committed document abuse.

    The case began with Ugochi filing a charge against her employer, North Dakota State Hospital, alleging it discriminated against her. Immigrant and Employer Rights Section of the Department of Justice dismissed her case due to insufficient evidence of discrimination or retaliation and referred the national origin claim to the EEOC, who has jurisdiction on national origin claims involving employers with more than 14 employees.

    Thereafter, Ugochi filed a complaint with OCAHO alleging she was fired because her employer asked for excessive documentation in the I-9 and E-Verify process. The employer responded that it was entitled to sovereign immunity under the 11th Amendment and had legitimate, non-discriminatory reasons for her termination - she failed a background check.

    In analyzing the employer’s defenses, OCAHO noted the employer in question is the North Dakota State Hospital, a state agency. Due to the employer being a state agency, one must review the 11th Amendment which states, “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Furthermore, the U.S. Supreme Court “has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” There are two exceptions to a state’s immunity from suit under the 11th Amendment. The first exception is where Congress has statutorily abrogated such immunity by “clear and unmistakable language.” The second exception exists when the state has expressly waived its immunity.

    OCAHO found sovereign immunity applied to the North Dakota State Hospital, a state agency; thus, it enjoyed immunity from these proceedings pursuant to the 11th Amendment. Neither exception to immunity is present in the instant matter. Accordingly, because Ugochi’s complaint is barred, the Motion to Dismiss was granted.

    On a personal note, last week the immigration bar lost a true advocate for immigrants, Yvette Sebelist, my law partner. May she rest in peace.
  3. Missing Deadline for Providing I-9s to ICE is Costly

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    OCAHO’s recent decision in U.S. v. Alpine Staffing, Inc., 12 OCAHO no. 1303 (May 2017), demonstrates how untimely presentation of I-9 forms can be costly to an employer.

    Alpine Staffing is a small staffing company in Minnesota. It received a Notice of Inspection (NOI) on August 23, 2013 informing the company that it needed to present all of its I-9 forms for current employees and former employees for the past 2 years by August 29, 2013. On that date, Alpine Staffing delivered many I-9 forms to ICE. The following day Alpine Staffing discovered 271 additional I-9 forms. It immediately delivered the additional I-9 forms to ICE. On October 1, 2013, the company discovered another 39 Forms I-9 and thereafter delivered those to ICE.

    After a review of the I-9 forms, ICE issued a Notice of Intent to Fine (NIF) and then a Complaint which alleged in Court I – failure to timely present or prepare 345 Forms I-9 and Court II – company failed to ensure 132 employees properly completed Section 1 of the I-9 form and/or the company failed to properly complete sections 2 or 3 of the I-9 forms. ICE sought $367,000 in penalties.

    Alpine Staffing’s principal defense was it was unaware of a specific deadline for presentation of I-9 forms to ICE. However, this defense was belied by the fact that they presented numerous I-9 forms on August 29, 2013, the date that ICE stated the I-9 forms were due. Thus, OCAHO found all I-9 forms delivered after August 29, 2013 were untimely presented.

    OCAHO affirmed ICE’s assessment of $770 per I-9 form for the 34 instances of failure to prepare an I-9 form for those employees. However, OCAHO gave Alpine Staffing a break on the untimely presented I-9 forms. For those presented a day late, OCAHO set a penalty of $500 each, rather than $770. For those I-9 forms delivered at a later date, OCAHO set a penalty of $600 each, rather than $770. Overall, the penalty assessed for the failure to prepare or untimely present I-9 forms was set at $185,000. ICE had sought $256,000. Concerning the 130 Court II violations, OCHAO reduced the penalty from $770 to $700 per I-9 violation. Overall, OCAHO assessed penalties of $276,000. Thus, Alpine Staffing received a reduction of about 25% in penalties.

    This decision shows the importance of locating and providing all I-9 forms covered by the NOI by the deadline. The company’s error appears to be caused by the fact that their I-9 forms were not kept in one location. It is certainly best to keep all a company’s I-9 forms in one location at the company’s facility.

  4. Year in Review: 2016 OCAHO Decisions

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    No employer wants to receive the dreaded “Notice of Intent to Fine” (NIF) in connection with an audit of their I-9 forms. Dealing with an I-9 inspection alone is a costly affair, but the NIF can be downright crippling – particularly for small businesses. Fortunately, employers can appeal an adverse I-9 decision by requesting a hearing with the Office of Chief Administrative Hearing Officer (OCAHO), an administrative court that reviews employer sanctions cases under §274A of the Immigration and Nationality Act.

    Although OCAHO decisions adjudicating I-9 penalties have leveled off in the past few years, it is anticipated there will be many more decisions in future years as the number of Form I-9 inspections is on the rise in the Trump administration and, as shown below, employers continue to obtain significant decreases of I-9 penalties at OCAHO.

    In calendar year 2016, OCAHO issued 16 substantive decisions against employers in I-9 penalty cases. For a few employers, there were two or more decisions concerning substantive issues before the court reached a decision on the amount of the I-9 penalties. The number of cases is a slight increase from 2015, when there were 13 decisions but still much lower than the 30 decisions issued in 2013.
    For remainder of article go to LawLogix website where full article is published - https://www.lawlogix.com/the-year-in...sions-in-2016/.
  5. OCAHO Says Employee Unprotected

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    In Thompson v. Sanchez Auto Services, LLC
    , 12 OCAHO no. 1302 (May 2017), OCAHO dismissed a complaint filed by a former employee of Sanchez Auto.

    In their decision, the Office of Chief Administrative Hearing Officer (OCAHO) highlighted a couple of key points to remember in the application of whether an employer’s actions violate 8 U.S.C §1324b – the anti-discrimination provisions of the Immigration and Nationality Act (INA). First, the complainant must be a protected individual – meaning a U.S. citizen; a permanent resident, who is not eligible for naturalization or less than six months has occurred since becoming eligible for naturalization; an asylee; or a refugee. In this case, Mr. Thompson became a permanent resident on September 25, 1994 and alleged discrimination between June 2012 and January 2013. Thus, Mr. Thompson was not a protected individual because he had been a permanent resident for about 18 years.

    The second point to be gleaned from this decision is that the statute only covers specific adverse employment actions - hiring, recruitment or firing of employees, retaliation and document abuse. Mr. Thompson alleged the employer failed to pay him proper wages. This is clearly not covered by §1324b.

    Thus, for the above reasons as well as others (which will not be discussed in this article), OCAHO dismissed Mr. Thompson’s complaint.
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