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I-9 E-Verify Immigration Compliance

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  1. OSC & ICE Publish Guidance to Employers on Internal I-9 audits

    By Bruce Buchanan, Siskind Susser
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    The Department of Justice’s Office of Special Counsel (OSC) and the U.S. Immigration and Customs Enforcement (ICE) have issued a six-page joint Guidance for Employers Conducting Internal Form I-9 Audits. In a later blog, I will discuss more of the specifics of the guidance.

    To ensure that these internal audits are conducted properly and do not discriminate against employees, ICE and OSC have collaborated to issue formal guidance on the topic. According to Principal Deputy Assistant Attorney General Vanita Gupta, head of the Civil Rights Division, “without clear and effective guidelines, internal audits can create barriers to employment for work-authorized individuals.”

    The joint guidance was developed by the two agencies with significant input from the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, the U.S. Citizenship and Immigration Services, the Department of Labor, the National Labor Relations Board, the Equal Employment Opportunity Commission and stakeholders around the country. This guidance is part of the six-month action plan of the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws.

    Among other things, the guidance provides employers with information regarding the scope and purpose of audits; considerations before conducting internal audits; details regarding how to correct errors, omissions or other deficiencies found on Forms I-9 and how to cure deficiencies related to E-Verify queries; and guidance regarding the anti-discrimination mandate.

    Updated 12-15-2015 at 10:41 AM by BBuchanan

  2. OSC Settles Dual Citizenship Discrimination Claim

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) reached a settlement with The Data Entry Company Inc. (TDEC), a government subcontractor located in Bethesda, Maryland. This case is unique because it involved a claim of discrimination based on dual citizenship.

    The OSC’s investigation found that on two occasions TDEC removed a U.S. citizen from its pool of applicants because she was a dual citizen, in violation of the Immigration and Nationality Act (INA). Under the INA’s anti-discrimination provision, employers may not discriminate in hiring on the basis of citizenship status unless required by law, regulation, executive order or government contract.

    Under the settlement agreement, TDEC will pay $7,007.75 in back pay to the charging party and a $750 civil penalty to the United States. For the next two years, the company must also send all current human resources personnel and all new human resources personnel to attend a compliance training webinar presented by the OSC.

    TDEC further agreed not to remove dual citizen applicants from consideration for jobs that are open to other U.S. Citizens and for which a basic security clearance or higher level security clearance is required on the basis of their dual citizenship. This requirement will not apply if an applicable government contract prohibits employment of a dual U.S. Citizen, or if the company has received written notification from the government directly or indirectly stating that candidates with dual citizenship are not acceptable.

    A copy of The Data Entry Company Inc. settlement agreement can be viewed here.

    ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .
  3. USCIS myE-Verify Now Available Nationwide

    By Bruce Buchanan, Siskind Susser



    U.S. Citizenship and Immigration Services (USCIS) has announced the expansion of myE-Verify services nationwide. After a limited roll-out in 2014, it now serves as a “one-stop shop” for employees nationwide to open and manage a personal account.

    To create an account, the user must also complete a Self Check with a result of "Work Authorization Confirmed."


    If the user is unable to complete Self Check, they cannot set up a myE-Verify account at this time.

    myE-Verify is meant to be a free and secure way for workers to participate in the E-Verify process by accessing features dedicated for employees. It is equipped with these services:

    1. myE-Verify accounts – a free personal account to manage use of one’s information in E-Verify and Self Check;

    2. Self Lock – allows individuals to place a “lock” on their social security number (SSN) to help prevent unauthorized or fraudulent use of their SSN by another person to illegally obtain employment authorization within E-Verify. If their SSN is used, it will result in a Self Lock mismatch. Self Lock will remain active for 1 year and individuals can unlock their SSN any time a new employer needs to verify their employment eligibility in E-Verify; and

    3. myResources – a multimedia library for employees with these components: Employee Rights Toolkit, Your Rights with myE-Verify, Your Employer’s Responsibilities, and Privacy is Our Commitment.

    According to USCIS, the following features are planned for release at a later date:
    -Document Expiration Reminders, to set up alerts when a document (like a passport or driver’s license) is about to expire.
    -Case Tracker, to allow a user to track the status of their E-Verify or Self Check and know if any action is required.
    -Case History, to allow a user to monitor where and when their information has been used in the E-Verify system.


    ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .
  4. OCAHO Reduces Employer's I-9 Penalty by about 50%

    By Bruce Buchanan, Siskind Susser

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    In United States v. Horno MSJ, Ltd., 11 OCAHO no. 1247 (2015), an Administrative Law Judge (ALJ) for the Office of Chief Administrative Hearing Officer (OCAHO) reduced an employer’s penalties for I-9 violations from about $30,500 to $14,600.

    Horno Misión San José is a mom-and-pop bakery in San Antonio, Texas. After receiving a Notice of Inspection (NOI) in July 2012, Horno presented 26 Form I-9s to Immigration and Customs Enforcement (ICE). In ICE’s Notice of Intent to Fine (NIF), it alleged 32 violations – failure to prepare/present I-9 forms for nine employees and failure to ensure 23 employees properly completed Section 1 or failed to properly complete Sections 2 or 3 of the I-9 forms.

    In a prehearing statement, Horno presented five I-9 forms that had not been previously submitted, and it presented numerous “modified” versions of the original I-9 forms it had previously submitted. The “modifications” involved signing the I-9 forms with post-dated signatures.

    Horno asserted that it did not have an obligation to provide I-9 forms for two employees because they quit before the orientation/hiring process was complete. However, the employees were paid and their paystubs showed each worked several days. Thus, Horno did have an obligation to complete and retain their I-9 forms and failed to do so.

    Many of the incomplete I-9 forms reflected substantive errors, such as failure of an Horno representative to sign the Section 2 certification; failure to record any information in Lists A, B or C; and no status box checked in Section 1. However, the OCAHO ALJ did not find Horno engaged in bad faith based upon its high rate of violations. It is well-established under OCAHO case law that bad faith requires a showing of culpable conduct beyond merely a high rate of violations.

    Horno was successful in arguing for a reduction of the proposed penalties. ICE sought a baseline penalty of $935 per violation based upon a violation rate of more than 90%. ICE aggravated the penalty by five percent for 13 employees’ I-9 forms because they were found to be unauthorized. Based upon the fact that Horno is a small business with an inability to pay the penalties, and the proposed penalties should have been closer to the midrange of penalties, the OCAHO ALJ reduced the penalties per violation to between $300 and $600 for a total fine of $14,600.

    Although Horno was successful in substantially reducing its penalties, it could have received a much lower penalty if it had engaged in a self-audit before the NOI was issued.

    A copy of the decision is available here.
    Cite as United States v. Horno MSJ, Ltd., 11 OCAHO no. 1247 (2015)

    Updated 04-15-2015 at 10:46 AM by BBuchanan

  5. Judge Says State Immigration Law is Unconstitutional

    By Bruce Buchanan, Siskind Susser


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    What started as a workers’ compensation case has resulted in an interesting decision from a chancery court judge in Nashville, Tennessee -- simultaneously revealing employer immigration violations and striking down a state immigration law.

    Carlos Martinez, a native of Guatemala, was working in the United States earning $400 per week as an undocumented day laborer. On August 8, 2011, Mr. Martinez slipped and fell in wet grass while operating a lawn mower. The lawn mower ran over his arm and the blade severed his left elbow and forearm. More than three years after his injury, Mr. Martinez found himself in court -- up against his employer, the employer’s insurer, and the Attorney General for the State of Tennessee -- fighting his workers’ compensation claim and trying to prove that he was entitled to benefits despite his federal immigration status.

    Employer Violations
    Mr. Martinez worked for Commercial Services of Pegram, Tennessee, performing painting and other general labor. According to the court, Commercial Services never required Mr. Martinez to fill out an employment application or any other forms such as an I-9 form, nor asked Mr. Martinez whether he was legally eligible to work in the United States.

    State Immigration Law
    According to court documents, Mr. Martinez lost a “significant portion of his arm below his elbow” in the lawn mower accident in 2011, and sustained a vocational disability of 84 percent to his left arm. A Tennessee state immigration law passed in 2009, “capped” Mr. Martinez’s recovery at 1.5 times his medical impairment rating because he was an undocumented worker – slashing his recovery to a vocational disability of 36 percent.

    The Tennessee legislature’s stated intent in passing the law was to “preserve the tradition of legal immigration while seeking to close the door to illegal workers in the State of Tennessee and to encourage the employers of Tennessee to comply with federal immigration laws in the hiring or continued employment of individuals who are not eligible or authorized to work in the United States.” Tenn. Code Ann. 50-6-241(e).

    Instead, what the trial court found is the law had the opposite effect -- making it less costly for employers to hire undocumented workers from a liability perspective, and providing a potential incentive for employers to circumvent the federal law.

    More importantly, the court deemed the statute unconstitutional as a “state immigration policy” preempted by federal law. The court cited the U.S. Supreme Court decision in Arizona v. United States, 132 S. Ct. 2492, 2498 (2012) in which an Arizona state law that attempted “to achieve one of the same goals as federal law – the deterrence of unlawful employment,” involved a conflict in the method of enforcement and served as “an obstacle to the regulatory system Congress chose.” Id. at 2505.

    Proposed State Civil Penalties under IRCA
    Another important distinction made by the trial court was that the Tennessee law imposed civil penalties on employers “to be paid directly to the State of Tennessee”. It found this provision was expressly barred by the terms of the Immigration Reform and Control Act (IRCA) which preempts “any State or local law imposing civil…sanctions…upon those who employ…unauthorized aliens”. 8 U.S.C. § 1324a(h)(2).

    Conclusion
    The trial court struck down Tenn. Code Ann. 50-6-241(e) in its entirety, and Mr. Martinez was awarded future medicals and permanent partial disability benefits of approximately $30,000. It remains to be seen if the State of Tennessee will appeal the trial court’s decision.


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Size:  2.9 KB ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .

    Updated 04-09-2015 at 03:27 PM by BBuchanan

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