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I-9 E-Verify Immigration Compliance

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  1. Nebraska Beef Settles for Uncapped Back Pay Fund and $200,000 Penalty

    By Bruce Buchanan, Siskind Susser PC

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has reached a settlement with Nebraska Beef Ltd., an Omaha meat packing company. The OSC’s investigation found that the company required non-U.S. citizens, but not similarly-situated U.S. citizens, to present specific documentary proof of their immigration status to verify their employment eligibility. The Immigration and Nationality Act’s (INA) anti-discrimination provision prohibits employers from making documentary demands based on citizenship or national origin when verifying an employee’s authorization to work.

    Under the settlement agreement, Nebraska Beef will pay a $200,000 civil penalty to the United States and will establish an uncapped back pay fund to compensate individuals who lost wages because of the company’s practices. In so doing, it must notify numerous applicants and employees about a possible back pay claim. Additionally, the settlement requires the company to undergo compliance monitoring for two years, train its employees on the anti-discrimination provision of the INA, and to review and revise its office policies.
  2. OCAHO issues Penalty to Employer for Discrimination

    By Bruce Buchanan

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    After previously finding that Estopy Farms discriminated against a U.S. citizen in favor of individuals with H-2A visas, the Office of Chief Administrative Hearing Officer (OCAHO) issued the employer the maximum penalty of $3,200. See U.S. v. Estopy Farms, 11 OCAHO no. 1256 (2015).

    Estopy Farms, which is in the business of harvesting cotton, sought employment of non-immigrant workers to perform agricultural labor - “cotton machine operators” - of a temporary nature through the H-2A program. An employer must receive a certification from the U.S. Department of Labor, that there are insufficient American workers to perform the work, and it may not reject individuals based on criteria not listed on the original petition or job order.

    Enrique Romero, a U.S. citizen, applied for the job and had 14 years experience in operating agricultural equipment. Romero was not hired; instead, all of the employees hired were H-2A visa holders. In its prior decision, OCAHO found Estopy Farms discriminated against Romero.

    In the present matter, the Office of Special Counsel (OSC) sought the maximum penalty of $3,200 because the employer knew the law from prior use of H-2A visas, was uncooperative, and “committed an egregious statutory violation that resulted in significant harm.” Although the statute does not specify factors to consider in assessing the penalty, case law has considered the following factors: the egregiousness of the violations, the harm resulting from the discrimination, the employer’s resistance to OSC’s investigation, noncompliance with court orders, and the employer’s familiarity with the law involved.

    OCAHO agreed with OSC’s assessment; accordingly, OCAHO assessed the maximum penalty of $3,200 and issued a cease and desist order.

    This decision shows the cost of violating the law in attempting to bypass U.S. citizens in the operation of an H-2A program. It is important to retain qualified immigration counsel when seeking employees through the H-2A program.

  3. AILA Asserts Proposed Changes to E-Verify are not Authorized by Statute

    By Bruce Buchanan

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    On June 8, 2015, the Department of Homeland Security (DHS) proposed changes to E-Verify, with the most significant being utilization of E-Verify when an employer re-verifies an employee through the I-9 form. Recently, the American Immigration Lawyers Association (AILA) submitted its comments in opposition to the revisions. AILA’s basic premise is there is no statutory authority to support these revisions.

    Section 403(3)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which authorized E-Verify states: “The person or other entity shall make an inquiry…using the confirmation system to seek confirmation of the identity and employment eligibility of an individual, by not later than the end of three working days after the date of hiring.Therefore, the statute permits E-Verify employers to verify the employment authorization of potential employees only in the context of the “hiring.”

    If the proposed revisions were implemented, employers would not receive legal protections - such as a rebuttable presumption that the employer did not knowingly hiring an undocumented worker if authorized by E-Verify - provided to employers for acting in good faith reliance on E-Verify results. This is because the statute only provides this protection in the hiring context related to the employee’s identity and employment authority.

    AILA asserted the proposed changes to E-Verify would significantly change the requirements and burdens placed on E-Verify employers; thus, it constitutes a legislative rule under Section 553 of the Administrative Procedure Act (APA), which requires notice and comment rulemaking before they can be lawfully implemented.

    I will note that a Federal Judge recently found DHS failed to utilize this same type of notice and comment rulemaking in implementing the 17-month OPT STEM extension and voided the extension. Thus, DHS may be making a similar mistake in this case without notice and comment rulemaking.

    AILA also asserted rulemaking was required to the extent that these changes would be applied to federal contractors. The Federal Acquisition Regulation (FAR) does not allow a federal contractor to “perform additional employment verificationusing E-Verify for any employee whose employment eligibility was previously verified by the contractor through” E-Verify. DHS cannot unilaterally impose E-Verify changes on federal contractors by revising the Memorandum of Understanding (MOU) because the E-Verify obligations of federal contractors are already set forth in the FAR. Thus, an amendment, with the full notice and comment process, would be required to impose these new burdens.

    Furthermore, AILA argued DHS’s proposal did not provide any substantive policy justification in its supporting statement for the change. This is despite the fact that the proposal would impose substantial new burdens and obligations on E-Verify employers. The failure to provide a policy justification deprives the public of the opportunity to meaningfully assess the costs and benefits of the proposed changes.

    Finally, AILA argued, under this proposed revision, E-Verify employers who follow the proposed MOU’s three-day reverification procedure rather than the strict expiration date rule found in the I-9 reverification regulation could unintentionally find themselves in violation of INA §274A(a)(2), and for federal contractors, this could lead to debarment. The proposal does not contain a safe harbor provision from a knowingly continuing to employ violation.

    I will be following these E-Verify proposed revisions by DHS and update you on any new developments.
  4. Judge Invalidates OPT Extension, Stays Decision

    By Bruce Buchanan, Siskind Susser PC

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    A U.S. District Court Judge for the District of Colombia invalidated USCIS’s 17-month Optional Practical Training (OPT) extension rule for STEM recipients in Washington Alliance of Technology Workers vs. U.S. Department of Homeland Security. The Judge found the Department of Homeland Security (DHS) did not have good cause to publish the OPT extension regulation in 2008 as an emergency rule; thus, it was not exempted the notice and comment requirement. Luckily for employers and STEM (Science, Technology, Engineering or Math) recipients under OPT, the Judge stayed her decision, meaning it will not go into effect until February 12, 2016.

    In 2008, DHS implemented this rule to allow F-1 students with degrees in certain STEM fields to extend their OPT work authorization period by 17 months after an initial 12-month period as long as the employers were enrolled in E-Verify. The rule also provided for significant H-1B cap gap protections.

    The Judge stayed her decision because the immediate impact “would force ‘thousands of foreign students with work authorizations . . . to scramble to depart the United States” and there is “no way of immediately restoring the pre-2008 status quo without causing substantial hardship for foreign students and a major labor distribution for the technology sector.”

    Unless USCIS issues a new OPT STEM extension rule via notice-and-comment rulemaking by February 12, 2016, the Judge’s decision will go into effect, eliminating the benefits of the 2008 rule. However, DHS has the opportunity to publish the substance of the 2008 rule through the rulemaking process, which allows for a 90-day comment period before the rule can be re-authorized. This must be done as soon as possible in order to beat the February 12, 2016 deadline.
  5. SEC Charges Oil Company and CEO in Scheme Targeting EB-5 Investors

    By Bruce Buchanan

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    On July 6, 2015, the Securities and Exchange Commission (SEC) charged Luca International Group, LLC, a San Francisco Bay area oil-and-gas company and its CEO with running a $68 million Ponzi-like scheme, and an affinity fraud scheme concerning EB-5 Visas that targeted the Chinese-American community in California and investors in Asia

    The SEC alleges that Bingqing Yang knew that Luca International was earning no profits and sinking under a mountain of debt, yet she made presentations to investors portraying a successful oil-and-gas operation, with millions of barrels of oil reserves and billions of cubic feet in gas reserves. Yang falsely projected outsized investment returns ranging from 20 to 30 percent annually. She allegedly commingled investor funds to prevent the scheme from collapsing, and used money from new investors to make sham profit payments to earlier investors. Yang also allegedly diverted $2.4 million in investor funds through her brother's company in Hong Kong purportedly for the purchase of an oil rig, but instead used it to purchase a 5,600-square-foot home in an exclusive gated community in Fremont, Calif. In addition, Yang allegedly spent investor funds on pool and gardening services, personal taxes, and a family vacation to Hawaii.

    According to the SEC's complaint filed in federal court in San Francisco, Luca International conducted seminars for investors at the company's offices and hotel conference rooms in California. Besides targeting investors in the Chinese-American community through advertisements in Chinese-language television, radio, and newspaper outlets, Yang and Luca International allegedly zeroed in on Chinese citizens who sought permanent U.S. residence through the EB-5 program, which provides a way for foreign investors to obtain a green card by meeting certain U.S. investment requirements. Yang is alleged to have raised approximately $8 million from EB-5 investors purportedly to finance, through a loan to another Luca entity, jobs and development costs for eight oil-and-gas drilling projects. Yang allegedly told these investors that loan was fully secured, but the Luca entity the EB-5 investors funded was hopelessly in debt and contrary to the rosy representations Yang made to investors, had no realistic possibility of ever repaying the loan.
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