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I-9 E-Verify Immigration Compliance

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  1. DOJ Settles Case Under U.S. Workers Initiative

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Immigrant and Employee Rights Section (IER) of Department of Justice (DOJ) and Crop Production Services Inc. (Crop Production), an agricultural company headquartered in Loveland, Colorado, reached a settlement agreement. The settlement resolves a lawsuit the IER filed against the company on September 28, 2017, alleging the company discriminated against U.S. citizens because of a preference for foreign visa workers, in violation of the Immigration and Nationality Act (INA).

    The settlement is part of the DOJ’s Protecting U.S. Workers Initiative, an initiative aimed at targeting, investigating, and bringing enforcement actions against companies that discriminate against U.S. workers in favor of foreign visa workers.

    The lawsuit alleged that in 2016, Crop Production discriminated against at least three United States citizens by refusing to employ them as seasonal technicians at its El Campo, Texas location because the company preferred to employ temporary foreign workers under the H-2A visa program. According to the complaint, Crop Production imposed more burdensome requirements on U.S. citizens than it did on H-2A visa workers to discourage U.S. citizens from working at the facility. For instance, the complaint alleges that although U.S. citizens had to complete a background check and a drug test before being permitted to start work, H-2A visa workers were allowed to begin working without completing them and, in some cases, never completed them. Ultimately, all of Crop Production’s 15 available seasonal technician jobs in 2016 went to H-2A visa workers instead of U.S. workers. For more information on the lawsuit, see my prior blog entry at http://blogs.ilw.com/entry.php?10157...t-U-S-Citizens.

    Under the INA, it is unlawful for employers to intentionally discriminate against U.S. workers because of their citizenship status or to otherwise favor the employment of temporary foreign visa workers over available, qualified U.S. workers. In addition, the H-2A visa program allows employers to hire foreign visa workers only if there is not enough qualified and available U.S. workers to fill the jobs.

    The settlement agreement requires Crop Production to pay civil penalties of $10,500 to the United States; undergo department-provided training on the anti-discrimination provision of the INA; revise employment policies to assure that Crop Production does not discriminate on the basis of citizenship, and clarify that H-2A visa holders may only be hired in the absence of any qualified and available U.S. workers; and comply with departmental monitoring and reporting requirements for a two-year period. In a separate agreement with workers represented by Texas RioGrande Legal Aid, Crop Production agreed to pay $18,738.75 in lost wages to affected U.S. workers.

    For answers to many other questions related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.
  2. When does Employer Need to Re-Verify Employee’s I-9 form?

    By: Bruce Buchanan, Sebelist Buchanan Law

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    From my observations of conducting numerous internal I-9 audits and representing employers in ICE I-9 inspections, I have noticed some employers do not comprehend when to reverify an employee. This article will try to simplify the process.

    If an employee is not a U.S. citizen or lawful permanent resident, he is likely working based on a status with a defined end date. For these employees, the employer must note the expiration date of their document(s) on the I-9 form, pull the employee’s I-9 form before its expiration date, and re-verify that the employee’s status has been extended. Employers should establish a reliable tickler system to prompt reverification. Aside from complying with the re-verification rule, this system will also ensure that an employer that needs to extend a work visa for an employee will not forget to take care of this critical task.

    Employers may not specify which documents an employee may present either at the time of hire or at the time of re-verification. An employee may have become a lawful permanent resident or otherwise received employment-authorized status allowing the employee to obtain a Social Security card, as discussed below, absent the sponsorship of the employer, so the employer should not assume the employee is unauthorized. An employee may present a Social Security card to show employment authorization at re-verification if the Social Security card is not restricted with a statement such as “not valid for employment,” “valid for work only with DHS authorization” or “valid for work only with INS authorization.” This type of Social Security card must be accompanied by an Employment Authorization Document (EAD) to be valid.

    Returning employees often do not need to complete a new I-9 form, but if that is not done, the employer needs to re-verify the employee’s work authorization in Section 3 of the I-9 form, if the formerly listed work authorization has expired. If a new version of the I-9 form has come out since the last time the I-9 form was completed, the employer may complete a new form or use Section 3 of the existing completed I-9 form. And if the form has been completed in Section 3 from a previous re-verification, the employer should complete Section 3 of a new I-9 form. Plus, the employer should put the employee’s name in Section 1 and retain the new form with the original.

    One final reminder - green cards, driver’s licenses, and passports with expiration dates do not need to be re-verified.

    For more information on reverification and many other issues related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.
  3. Employers Beware: ICE is Targeting Companies Who Hire Undocumented Workers

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In mid-December, the federal government, through the U.S. Attorney’s office in Memphis and Immigration and Customs Enforcement (ICE), indicted 20 undocumented workers for using fake identification to get their jobs. These workers were employed at Expeditors International, a Memphis logistics company, and hired through a staffing agency, Provide Staffing Services.

    Robert Hammer, assistant special agent in charge with Homeland Security Investigations (HSI), a branch of ICE, stated the federal government is aggressively pursuing this case because the undocumented workers had access to a sensitive air cargo area at Memphis International Airport that required special clearance. “It is imperative for the safety and security of our airports, seaports and railyards that all individuals requiring this type of special vetting present valid and genuine identification documents in the hiring process,” he said.

    The U.S. Attorney for the Western District of Tennessee, Michael Dunavant, stated ICE plans to increase its focus on this type of criminal investigation in Tennessee throughout 2018. "Our enforcement strategy is going to be dual-pronged, focusing on both employers and the employees. According to the U.S. Attorney, no one with the companies that hired the workers has been indicted but the investigation is ongoing.

    If it is determined that the staffing company and/or Expeditors International had knowledge, actual or constructive, that the workers’ identification documents used in the I-9 work authorization process were fake, the companies and management would be subject to criminal prosecution by the federal government. It appears the federal government is taking this very seriously due to the workers’ access to a sensitive air cargo area that required special clearance.

    I expect ICE to continue to crackdown on employers’ use of undocumented workers in 2018. If you want a better understanding of the possible criminal and civil sanctions against employers within immigration compliance, I recommend you read my book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.
  4. I-9 and E-Verify Handbook – Book Review

    By: Bruce Buchanan, Sebelist Buchanan Law

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    As many of you know, Greg Siskind and I have published a book, The I-9 and E-Verify Handbook (2nd edition). If you would like to know more about the book, SHRM has just published a positive book review, where they discuss various aspects of the book. You may view the review at: https://www.shrm.org/hr-today/news/h...d-everify.aspx

    If you would like to purchase the book, it is available at Amazon -http://www.amazon.com/dp/0997083379.
  5. JET of Saipan Distributes $40,000 in Back Pay to U.S. Workers Under IER Settlement

    By: Bruce Buchanan, Sebelist Buchanan Law

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    Immigrant and Employee Rights Section (IER) of the Civil Rights Division of the Justice Department announced J.E.T. Holding Co. Inc. (JET) has paid $40,000 to nine U.S. citizens pursuant to a January 17, 2017 settlement with IER, which resolved claims that JET discriminated against U.S. workers in favor of temporary foreign visa workers.

    In its investigation leading up to the settlement, the IER found JET, which operates a restaurant in Saipan, routinely refused to hire qualified U.S. citizens and other work-authorized individuals for dishwasher positions because of their citizenship status; rather, it preferred to fill the positions with temporary foreign visa workers. Under the Immigration and Nationality Act, employers cannot prefer to hire temporary foreign visa workers over available and qualified U.S. workers based on citizenship status. For more information on the settlement, see my prior blog entry at http://blogs.ilw.com/entry.php?9680-...-J-E-T-Holding.

    This settlement and back pay is another example of the IER and other immigration-related agencies striving to comply with President Trump’s Hire American Executive Order. For more information on Hire American EO, see http://hrprofessionalsmagazine.com/w...ecutive-order/, an article that I co-authored with Adam Cohen (@MDVisas).

    For more information on employer immigration compliance issues, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.
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