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I-9 E-Verify Immigration Compliance

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  1. 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/.
  2. Realty Company Pays Over $100,000 to U.S. Workers to Settle Discrimination Claims

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Department of Justice announced Barrios Street Realty LLC, a Louisiana company, has paid approximately $108,000 to 12 U.S. workers pursuant to a settlement with DOJ. The payments are part of a March 2016 settlement that resolved claims that Barrios discriminated against U.S. workers in violation of the Immigration and Nationality Act (INA).

    The investigation found in July 2014, Barrios Street Realty and Jorge Arturo Guerrero Rodriguez failed to consider or improperly rejected 73 U.S. workers who applied for positions as sheet metal roofers or laborers, and then solicited foreign workers to fill these positions. The Office Special Counsel (later re-named Immigrant and Employee Rights Section) of the Department of Justice determined the company’s applications for foreign workers falsely claimed that its earlier efforts to fill the sheet metal and laborer positions failed to identify qualified U.S. workers. Refusing to consider or hire qualified U.S. workers because of their citizenship violates H-2B regulations and the INA’s anti-discrimination provision.

    The settlement required Barrios to pay $30,000 in civil penalties and up to $115,000 in back pay to compensate U.S. workers who were denied employment because of the company’s reliance on H-2B visa workers. After entering the settlement, the department determined that 12 U.S. workers were entitled to receive back pay totaling approximately $108,000, and the company made the final payments to the workers last week.

    This settlement is another effort by the Department of Justice to protect American workers. You might President Trump discuss this settlement in an upcoming speech as the Administration’s efforts to protect American workers.
  3. Plant Nursery Violates Law by Favoring H-2A Workers

    By Bruce Buchanan, Sebelist Buchanan Law

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    Godwin’s Nursery and Trees paid nearly over $117,000 in back-pay and $29,500 in penalties after the U.S. Department of Labor determined the company passed over qualified U.S. citizen workers from Puerto Rico in favor of hiring foreign workers under the H-2A visa program.

    The Department of Labor determined that the nursery violated Section 218 of the Immigration and Nationality Act by denying five qualified workers from Puerto Rico the chance to work; instead, hiring four Mexican nationals through the H-2A visa program.

    Additionally, Department of Labor determined that Godwin failed to post information about the rights of agricultural workers, as required by law, and he failed to provide housing for the workers that adhered to housing health and safety standards.

    Remember if an employer is going to utilize the H-2A program or other non-immigrant visa programs, such as H-2A, one cannot discriminate against U.S. citizens.
  4. Staffing Company and IER Settle Immigration-Related Discrimination Claim

    By: Bruce Buchanan, Sebelist Buchanan Law, PLLC

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    The Immigrant and Employee Rights Section (IER), formerly known as the OSC, has reached an agreement with Sellari’s Enterprises, Inc., a staffing company in Orlando, Florida. The settlement agreement resolves an investigation into whether Sellari’s violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants. The IER concluded Sellari’s requested that non-U.S. citizens present specific documents to prove their work authorization, such as a Permanent Resident Cards or Employment Authorization Documents, while not requesting specific documents from U.S. citizens. All work-authorized individuals, whether citizens or non-citizens, have the right to choose which valid documentation to present to prove they are authorized to work. The anti-discrimination provision of the INA prohibits employers from subjecting employees to different or unnecessary documentary demands based on employees’ citizenship, immigration status or national origin.

    Under the settlement, Sellari’s will pay a civil penalty of $120,000 to the United States, post notices informing workers about their rights under the INA’s antidiscrimination provision, undergo IER-provided training to HR employees on proper I-9 and E-Verify practices, revise employment policies and practices to be in compliance with the law, and comply with departmental monitoring and reporting requirements for three years.
  5. IER Settles Immigration-Related Discrimination Claim Against Panda Express

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    The Immigrant and Employee Rights Section (IER) of the Civil Rights Division of the Justice Department announced it reached a settlement agreement with Panda Restaurant Group, Inc. (Panda Express), a restaurant chain with over 1,800 locations in the United States. The agreement resolves an investigation into whether Panda Express discriminated against non-U.S. citizens in violation of the Immigration and Nationality Act (INA) when reverifying their authorization to work.

    The investigation concluded Panda Express unnecessarily required lawful permanent resident workers to re-establish their work authorization when their Permanent Resident Cards (green cards) expired, while not making similar requests to U.S. citizen workers when their documents expired. The investigation also revealed that Panda Express routinely required other non-U.S. citizen workers to produce immigration documents to reverify their ongoing work authorization despite evidence they had already provided sufficient documentation. The antidiscrimination provision of the INA prohibits such requests for documents when based on an employee’s citizenship status or national origin.

    Under the settlement, Panda Express will pay a civil penalty of $400,000 to the United States, establish a $200,000 back pay fund to compensate workers who lost wages due to the company’s practices, undergo IER-provided training to HR employees on the anti-discrimination provision of the INA, revise employment policies, modify its electronic I-9 system, train HR personnel on the M-274 Handbook for Employers and the USCIS E-Verify manual, and comply with departmental monitoring and reporting requirements for three years.

    This settlement is the largest to date in calendar year 2017. Employers should be trained by immigration counsel on a regular basis of immigration compliance issues.
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