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By Bruce Buchanan, Sebelist Buchanan Law
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), an agency within the Department of Justice, recently filed a lawsuit against two Washington-based companies, Washington Potato Company and Pasco Processing LLC, alleging that they violated the Immigration and Nationality Act (INA) by discriminating against immigrants during the employment eligibility verification process because of their citizenship status.
According to the complaint filed with the Office of the Chief Administrative Hearing Officer (OCAHO), from at least November 2013 until at least October 2016, Washington Potato and Pasco Processing hired over 2,000 U.S. citizens (USCs) and approximately 800 lawful permanent residents (LPRs). Of the LPRs hired, 99.5% produced a List A document – their green card - to establish their work authorization while only 2% of the USCs hired produced a List A document, such as a U.S. passport or U.S. passport card. This information was gleaned by the Department of Homeland Security’s Monitoring and Compliance branch by reviewing data from E-Verify, which the two companies used.
The companies asserted the high rate of List A documents for LPRs was because these employees did not possess List B or C documents. However, the OSC alleged many LPR employees presented List B and C documents but the companies requested a specific document, the LPRs’ green card, for the Form I-9 and/or E-Verify from non-U.S. citizen employees, but allowed USCs the flexibility to present a variety of documents. Thus, the OSC alleged the companies treated LPRs and non-citizen employees differently than USCs and this treatment was intentional and discriminatory.
Under the INA, all workers, including non-U.S. citizens, must be allowed to choose freely from among the valid documentation that proves their work authorization. The INA prohibits employers from discriminating by unlawfully limiting some workers’ choices based on their citizenship status. I will keep you updated on the outcome of this litigation.
This complaint is an example of the downside of using E-Verify – the data entered by the employer is scrutinized by the Department of Homeland Security, who may refer the case to the OSC for investigation and litigation.
By Bruce Buchanan, Sebelist Buchanan Law
On November 14, 2016, the USCIS finally issued the new I-9 form, effective January 22, 2017. The current I-9 form continues to be in effect; however, during the interim period before January 22, 2017, an employer may use either the current 2013 version or the 2017 version. The new I-9 form has an expiration date of August 31, 2019.
The most significant change is to make the downloadable I-9 form into a “smart” form. What does a “smart” form mean? It is not an electronic I-9 form. The downloadable I-9 form, using an Adobe reader, has been enhanced with error checking which is designed to prevent the most common mistakes. An example is if you fail to fully complete section 1 of the I-9 form, you will receive an alert that you did not enter data into all of the required fields.
Employers filling out the smart I-9 version must still print the form, obtain signatures, monitor reverifications and updates. Second, if you use the smart form and make a mistake, your company will be held to the same standard of review when faced with an Immigration and Customs Enforcement (ICE) inspection.
With the addition of the “smart” form, there are three types of I-9 forms: paper, “smart”, and electronic.
Some of the other changes are:
(1) Replacing the “Other Names Used” field in Section 1 with “Other Last Names Used.” This will avoid employees writing their nicknames in this field;
(2) Modifying Section 1 to request certain employees to enter either their I-94 number or foreign passport information, rather than both;
(3) Requiring you designate whether the employee’s number is an Alien (A) number or USCIS number, if using the smart form (however the numbers are the same though the more recent green cards refer to the number as USCIS);
(4) Requiring “N/A” be entered instead of blanks in certain fields;
(5) Replacing the word “date” to “today’s date”, next to signature boxes (this may help some people from entering their birthdate or from backdating the signature);
(6) Providing a box for employees to check if they did not use a preparer or translator;
(7) Modifying the I-9 form by adding a supplemental third page if using multiple preparers and/or translators;
(8) Adding an area in Section 2 to enter additional information for TPS extensions, OPT STEM extensions and H-1B portability to avoid having to note this information in the margins of the I-9 form; and
(9) Increasing the pages of instructions from 6 to 15.
Although most of the changes may not appear significant, I would advise employers to seek legal advice from an immigration attorney as to compliance with the new I-9 form.
By: Bruce Buchanan, Sebelist Buchanan Law
In the most recent E-Verify Connection, Number 33, released in November 2016, the United States Citizenship and Immigration Services (USCIS) has re-visited the issue of the “pre-population” or “auto-population” of employee data into section 1 of an electronic I-9 and offered clear guidance.
What is “pre-population” or “auto-population” of employee data? It is when portions of the I-9 form have already been filled out by a computer program before the employee or employer has started to complete the I-9 form.
The E-Verify Connection raised and answered the following question: can Section 1 be auto-populated in the case of an electronically prepared Form I-9? Answer: “Form I-9, Section 1, cannot be auto-populated by an electronic system that collects information during the on-boarding process for a new hire.”
Agencies have differed on Pre-population of Section 1 Data
Three different agencies have taken positions on whether an employer can pre-populate portions of section 1 of the I-9 form and provided differing views.
USCIS first addressed the issue in August 2012 and stated they were “not opposed to auto-filling Section 1 of Form I-9 by a company’s human resources system provided the employee and employer review and complete the attestation. Additionally, if Section 1 of Form I-9 is being completed on behalf of the employee, then the Preparer-Translator section must be completed.”
However, six months later, USCIS said that employers should not electronically pre-populate section 1, even if the employee has the opportunity to review the information before signing. Then, at a later date, the USCIS stated it was not taking a position on the issue.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) said in a Technical Assistance Letter (TAL), dated August 20, 2013, it discouraged the practice of pre-population because it "increases the likelihood of including inaccurate or outdated information.... (which) may lead an employer to reject documents presented or demand specific documents for Section 2 purposes.“ Additionally, the OSC noted that pre-populating section 1 may be a problem if the new hire was not proficient in English.
Immigration and Customs Enforcement (ICE) originally stated section 1 pre-population in an electronic I-9 was permissible if the employer also completed the preparer and/or translator section. In early 2013, ICE changed its position to that it was never permissible regardless of whether the preparer and/or translator section was used and regardless of whether the employee inputted the information that is pre-populated into the system. But in October 2013, ICE changed its position to it had no specific position on the issue and advised employers to simply follow the “regulations.” However, the regulations currently do not address the specific issue of pre-population in Section 1. Additionally, it stated it would evaluate the matter on a case by case basis.
Why is the Issue of Pre-Population Important?
In a Notice of Inspection, ICE analyzes an employer’s I-9 forms. If it deems the pre-population of section 1 to be a substantive violation, the employer is subject to a penalty. If all the employer’s I-9 forms were pre-populated, then that would be subject to a penalty of about $2000 (under new increased penalties) per I-9 form in error.
Some Section 2 Fields Can Be Pre-Populated
In this same E-Verify Connection, the USCIS stated the following fields can be auto-populated in Section 2: Employer’s Business or Organization Name, Employer’s Business or Organization Address (Street Number and Name), City or Town, State, and Zip Code.
This new guidance is just another example of the perils of the I-9 form and the need for employers to conduct internal I-9 audits under the supervision of an immigration compliance attorney.
By Bruce Buchanan, Sebelist Buchanan Law
As previously stated, OCAHO has recently issued several decisions including U.S. v. St. Croix Personnel Services, Inc., 12 OCAHO no. 1289 (October 2016). In SCPS, OCAHO found in favor of the employer on eight of the 17 alleged violations, thereby reducing the penalty sought from $16,690 to $5,450.
SCPS, based in Minnesota, was served with a Notice of Inspection and subpoena in September 2013 and thereafter provided 16 Form I-9s to Immigration and Customs Enforcement (ICE). ICE issued a Notice of Intent to Fine and then a Complaint alleging the 16 form I-9s were in violation of the Immigration Reform and Control Act for failure to timely complete sections 1 or 2 of the I-9 form plus failure to provide an I-9 form for one employee. In its Answer, SCPS admitted to nine violations – the one failure to prepare an I-9 form and eight of the 16 other violations. However, it denied the other eight violations, arguing they were timeliness violations and were beyond the five-year statute of limitations. Furthermore, SCPS asserted two of the eight individuals were owners, not employees; thus, no I-9 forms were required. Finally, it asserted the penalty amount was excessive and sought the minimum of $110 per violation.
ICE sought a baseline penalty of $935 per violation based upon an error of over 50%. Moreover, it aggravated the penalty by 5% ($46.75) but never disclosed what the aggravation was based upon. Therefore, OCAHO declined to aggravate the penalty.
The major issue before OCAHO was whether eight I-9 forms were barred by the five-year statute of limitations. The evidence established SCPS failed to ensure the employees completed section 1 on their first day of employment and failed to complete section 2 within three business days of their hire dates.
OCAHO carefully analyzed this issue and reviewed the eight employees’ dates of hire and the dates I-9 forms were competed. The complaint was filed on July 30, 2015; thus, any timeliness claims which occurred before July 30, 2010 were time-barred. OCAHO found the eight employees in question were hired between April 2, 1999 and October 1, 2007 and section 2 should have been completed within three days thereafter; thus, all eight allegations occurred before July 30, 2010. Based upon this analysis, OCAHO dismissed the eight allegations as time-barred. In so doing, it did not address whether the two owners had to have I-9 forms.
Concerning the five statutory factors in assessing a penalty, small business, seriousness of violation, good faith/bad faith, employment of unauthorized workers, and history of violations, OCAHO found the violations were serious and a 5% aggravation was appropriate. However, it found SCPS was a small business, which should receive a 5% mitigation based upon this factor. The other three factors – lack of good faith, no unauthorized workers, and no history of violations, were treated as neutral.
In conclusion, OCAHO found SCPS deserved leniency due to consideration of the public policy of leniency to small businesses. As such, OCAHO assessed a $650 penalty for the failure to prepare one Form I-9 and $600 per violation for the other eight violations for a total of $5,450.
SCPS’counsel, DeAnne Hilgers, said “SCPS Personnel was willing to acknowledge liability where it was liable, but felt strongly about defending itself where it was not liable rather than capitulate. The court agreed with my client.”
Thus, through litigation, SCPS was able to reduce the penalty by about two-thirds, which should be considered a major victory for the employer.
By: Bruce Buchanan, Sebelist Buchanan Law
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), an agency within the Department of Justice, has reached a settlement with American Cleaning Company (ACC), a maintenance and janitorial company based in Brighton, Massachusetts, resolving claims that the company discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).
The OSC’s investigation found that from January 15, 2009 until September 30, 2015, ACC routinely required workers, who were not U.S. citizens, to produce specific documents for the I-9 form and E-Verify processes, even though U.S. citizens were permitted to choose whatever valid documentation they wished to prove their work authorization. Under the INA, all workers, including non-U.S. citizens, must be allowed to choose whichever valid documentation they would like to present to prove their work authorization. It is unlawful for an employer to limit employees’ choice of documentation because of their citizenship or immigration status.
Under the terms of the settlement agreement, ACC will pay $195,000 in civil penalties, train its human resources staff on the anti-discrimination provision of the INA through OSC webinars, and review and revise its employment policies and procedures related to nondiscrimination to conform to INA’s anti-discrimination requirements. Furthermore, ACC agreed to eliminate or revise the section of its website entitled “Immigration Compliance” to be consistent with E-Verify requirements, for a three-year period submit any changes in employment policies concerning nondiscrimination on the basis of citizenship, immigration status, or national origin to the OSC for their review, and submit written reports to the OSC, if requested to do so, over a three-year reporting period.
Updated 10-19-2016 at 10:28 AM by BBuchanan