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I-9 E-Verify Immigration Compliance

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  1. ICE Announces its Three-prong Approach to Worksite Enforcement

    By Bruce Buchanan, Sebelist Buchanan Law

    On the heels of Immigration and Customs Enforcement’s “silent raids” on almost 100 7-Eleven convenience stores and the resolution of a worksite enforcement case against Asplundh Tree Experts Co., which paid a record $95 million in fines and forfeitures, Immigration and Customs Enforcement (ICE) announced a three-prong approach to conduct worksite enforcement. In doing so, ICE stated this ensures employees are legally authorized to work in the United States for employers, from small start-up operations to the largest corporations.

    This strategy involves a three-prong approach to worksite enforcement: immigration compliance, through Form I-9 inspections, civil fines and referrals for debarment; enforcement, through the arrest of employers, knowingly employing undocumented workers, and the arrest of unauthorized workers for violation of laws associated with working without authorization; and outreach, through the IMAGE program, to instill a culture of compliance and accountability.

    “Homeland Security Investigations (HSI) prioritizes violators who abuse and exploit their workers, aid in the smuggling or trafficking of their alien workforce into the United States, create false identity documents or facilitate document fraud, or create an entire business model using an unauthorized workforce,” said HSI Acting Executive Associate Director Derek Benner. “Further priority is given to looking closely at those companies or industries that are deemed national security or critical infrastructure interests.” ICE also stated an effective worksite enforcement strategy must address both employers who knowingly hire illegal workers, as well as the workers themselves.

    ICE’s statement highlighted the recent resolution of a case against Asplundh Tree Experts Co., one of the largest privately-held companies in the United States. This case revealed a scheme to unlawfully employ undocumented workers, in which the highest levels of Asplundh management remained willfully blind while lower level managers hired and rehired employees they knew to be ineligible to work in the United States. The company pleaded guilty and was ordered to pay a monetary forfeiture judgment in the amount of $80 million – the largest judgment ever handed down in a worksite enforcement investigation. They are also required to abide by an administrative compliance agreement. Pursuant to a separate civil settlement agreement, Asplundh will pay an additional $15 million to satisfy civil claims arising out of their failure to comply with immigration law, bringing the total cost of this illegal scheme to $95 million.

    To learn more about employer immigration compliance and steps you can take to prevent I-9 violations and hiring undocumented workers, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, which is available at http://www.amazon.com/dp/0997083379.
  2. 9th Court of Appeals Agrees with OCAHO Decision

    By Bruce Buchanan, Sebelist Buchanan Law

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    In a rare Court of Appeals decision involving Form I-9 penalties, the Ninth Circuit Court of Appeals (covers California, Oregon, Washington, Nevada, Alaska, Idaho, Montana, and Hawaii) substantially agreed with a decision by the Office of Chief Administration Hearing Officer (OCAHO). See DLS Precision Fab LLC v. ICE (9th Cir. August 2017).

    In the underlying decision, OCAHO found DLS to have committed 504 violations related to their I-9 forms and assessed a penalty of $305,050. Of the 504 violations, 489 concerned substantive or paperwork violations while 15 concerned employees who DLS knowingly employed without work authorization. DLS was able to reduce the penalties to $305,050 from $495,250, which Immigration and Customs Enforcement (ICE) sought.

    On appeal to the 9th Circuit, DLS prevailed on one issue, thereby reducing the violations from 504 to 503. In the appeal, DLS argued its paperwork or substantive violations should be viewed under the “good faith defense” because it “made a good faith effort to comply with the Immigration and Nationality Act (INA) by hiring a HR director, who exhibited bad faith by neglecting his duty to keep DLS compliant.” The Ninth Circuit was not persuaded by DLS’s argument because the HR director was acting as DLS’s agent; thus, “his failure to perform his responsibility may properly be imputed to DLS.” Moreover, DLS’s argument essentially requests the Ninth Circuit to rewrite the statute, something that is not with the court’s authority.

    The Court also affirmed OCAHO’s rejection of DLS’s statute of limitations defense. Concerning the numerous paperwork violations, the Court found such a violation occurs “until it is corrected, or until the employer no longer is required to retain the I-9 form.” There is a five-year statute of limitations, which applies the above test. In applying this test, the Ninth Circuit found one violation was beyond the five-year statute of limitations.

    Finally, DLS asserted OCAHO failed to take into account its inability to pay defense. The Court agreed with DLS but pointed out OCAHO was not required to consider an inability to pay; thus, there was no error.

    This court’s decision reinforces my mantra in previous articles – Form I-9 errors can have costly consequences; thus, all employers should conduct internal I-9 audits under the supervision of counsel who is well-versed in immigration compliance. For more information on how companies can protect themselves, you may want to read by new book, The I-9 and E-Verify Handbook, available from Amazon at: https://www.amazon.com/I-9-E-Verify-...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. E-Verify Adding Languages to its Documents

    By Bruce E. Buchanan

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    Employers and employees can now get information in Urdu, Punjabi and Somali about the I-9 form, E-Verify and other immigration-related records. The following documents are now available in those languages as well as 18 other foreign languages:


    • Department of Homeland Security (DHS): Tentative Nonconfirmation Further Action Notice
    • Social Security Administration (SSA): Tentative Nonconfirmation Further Action Notice
    • DHS Referral Date Confirmation
    • SSA Referral Date Confirmation


    If an employer needs to give its employee a notice or letter in a language other than English, one should take the following steps:

    • Give your employee a copy of the pre-populated English version of the notice or letter along with the foreign language document.
    • Only sign the English version of the notice and letter.
    • Use the foreign language notices and letters only to help employees who have difficulty speaking or reading English.


    Other records which have been translated into 21 languages are:

    · Fact Sheet entitled “How to Correct Your Immigration Records” which gives instructions on how to correct immigration records.

    · Form I-9 Employee Information Sheet which gives answers to many Form I-9 questions in plain language. As a best practice, this information sheet should be made available to new employees who are about to complete Form I-9.

    · E-Verify Participation Poster - In addition to displaying the English and Spanish version of the E-Verify Participation poster, employers may also display any of the 19 foreign language versions.

    Utilizing the foreign language resources cited above, should assist employers when issues arise with your employees who do not speak English.
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