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  1. OSC Issues TAL related to Export Control Laws

    By Bruce Buchanan, Sebelist Buchanan Law
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    The Office of Special Counsel for Immigration-related Unfair Employment Practices (OSC) issued a Technical Assistance Letter (TAL), dated March 31, 2016, stating that an employer may violate the anti-discrimination provision of the Immigration and Nationality Act (INA) by asking questions when verifying employees’ citizenship status under U.S. export control laws, including the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and/or requiring employees to present documents establishing their citizenship or immigration status to ensure the employer’s compliance with U.S. export control regulations.

    Before we discuss the specifics of this matter, it is important to remember OSC’s TALs can be helpful in analyzing potential violations but they do not carry the weight of an agency or court decision.

    U.S. citizens and nationals, refugees, asylees, and recent lawful permanent residents are protected from citizenship status discrimination under the INA, and are also considered “U.S. persons” under ITAR and EAR. As noted in a February 25, 2013 TAL, ITAR “does not impose requirements on U.S. companies concerning the recruitment, selection, employment, promotion or retention of a foreign person.” Instead, ITAR requires that employers obtain export licenses for non-U.S. person employees if their positions require access to information governed by ITAR. As a result, ITAR does not limit the categories of work-authorized non-U.S. citizens an employer may hire.

    Furthermore, the OSC issued another TAL, dated October 6, 2010, stating an employer that implements a document verification process to determine only a new employee’s immigration or citizenship status to comply with export control laws is unlikely to violate the anti-discrimination provision if the document verification process is separate and distinct from the employment eligibility verification process. However, it is vital that the separate and distinct processes do not appear to be integrated.

    The proposed questions, being discussed in the TAL, to be asked by employers or their staffing agencies, to job applicants or newly-hired employees, would be prefaced with a statement that the questions relate to “Export Control Laws” and one does not have to answer these questions, if one does not wish to be considered for positions whose activities are subject to the Export Control Laws. However, the proposed document also states if you wish to be considered for these positions, you must answer these questions:

    1. I am one of the following: (a) a citizen of the United States; (b) a lawful permanent resident of the United States; or (c) a person admitted into the United States as an asylee or refugee: YES or NO; 2. If you answered “NO” to Question 1, please indicate your (a) Citizenship; and (b) U.S. Immigration Status.

    The OSC states that if an employer is hiring for at least some positions not subject to export control laws, it discourages asking the proposed questions for positions that are not subject to export control laws in order to avoid generating confusion among applicants or human resources personnel about the need for this information. Again as previously stated, the OSC cannot make a determination of the lawful or unlawful nature of the questions involving a specific case.
    Furthermore, asking questions to job applicants about their immigration or citizenship status for positions that are subject to export control laws may deter refugees and asylees, who are protected from citizenship status discrimination, from applying due to a misunderstanding about their eligibility for the position.

    Despite this discouragement, the OSC further opines an employer’s proposed questions of all job applicants or new hires, to determine only whether the employer will need an export license for certain individuals for particular positions, is unlikely to violate the INA’s prohibition against citizenship status discrimination. But if the employer rejected a protected individual’s application based on that individual’s answers, the employer may be engaging in citizenship status discrimination.

    As the above TAL and previously issued TALs demonstrate, the subject of questions and information relate to ITAR and EAR is very complicated and needs the input of an experienced immigration attorney.
  2. OSC Settles Retaliation Claim

    By Bruce Buchanan, Siskind Susser

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    The Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), has reached a settlement agreement with North American Shipbuilding LLC, a company located in Larose, Louisiana. The agreement resolves a complaint filed with the OSC, claiming that the company retaliated against an individual for filing a charge of discrimination with OSC.

    Based on its investigation, the OSC determined that North American Shipbuilding retaliated against an employee by barring him from the company’s business facilities. The anti-discrimination provision of the Immigration and Nationality Act (INA) prohibits employers from intimidating, threatening, coercing or retaliating against workers who file a charge under the law.

    Under the terms of the settlement agreement, the company has agreed to pay a civil penalty of $1,750 and $15,000 in back pay to the injured party. The company also has agreed to have certain personnel attend OSC’s training on the anti-discrimination provision of the INA through a remote webinar presentation, to revise company policies to avoid retaliation in the employment eligibility verification process, and to post for one year an OSC poster – “If You Have the Right to Work.”

    Although retaliations cases are quite common in EEOC matters, they have been uncommon in OSC matters. However, the lesson in all types of immigration-related and employment-related cases is the same – do not engage in retaliation against one who files a charge against the employer. All agencies regard retaliation cases as quite serious and could result, as shown in this case, with liability for back pay and civil penalties.
  3. 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.
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