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I-9 E-Verify Immigration Compliance

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  1. Effects of Temination of DACA on Employers

    By: Bruce Buchanan, Sebelist Buchanan Law

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    Since President Trump’s announcement rescinding DACA (Deferred Action for Childhood Arrivals), media focus has been on the 800,000 DACA recipients – as it rightfully should be. However, there is going to be another entity impacted - employers of those 800,000 DACA recipients.

    Not only do employers need to be concerned about the loss of valuable employees, but employers need to be concerned with staying in compliance of immigration laws. It is fundamental immigration law that employees cannot legally work without proof of their identity and work authorization. Thus, when DACA recipients’ Employment Authorization Card (EAD) expire, employers will need to discharge DACA recipients, unless they have found another way to obtain work authorization (which is very unlikely).

    But before employers start discharging employees, one needs to be careful not to do so prematurely. During the period of DACA’s work authorization, even beyond March 5, 2018, when the USCIS will no longer approve DACA renewals, DACA employees can be authorized to legally work. It all depends on the EAD’s expiration date. Although no renewal EAD will be issued after March 5, 2018, this doesn’t mean all DACA recipients are not eligible to work after March 5, 2018.

    As an example, DACA employee Jose has an EAD which expires on March 4, 2018, so he can renew his DACA status and EAD (if the renewal is filed by October 5, 2017). Thus, he will be eligible to work until about March 2020. On the other hand, another employee, Mohammed, has an EAD pursuant to DACA, which expires on March 6, 2018. Unfortunately, March 6, 2018 is the date his employment must terminate. Thus, employers must be observant of the EAD’s expiration date.

    How does an employer even know whether the EAD is through DACA, TPS, or withholding of removal? There is a code on the front of the EAD card. For DACA, the code is C33. This code is different than codes for TPS or withholding - A10, A12 or C19.

    Some employers may ask why can’t I just discharge DACA recipients now. First, they are probably very good employees – as so many of them are proud to be legally working for the first time in their lives. Second, hopefully Congress is going to pass the DREAM Act or some other legislation that will provide for lawful employment for DACA recipients; thus, employers won’t have to face the issue. However, if an employer chose to discharge a DACA recipient based on his DACA status, it is very unlikely that the discharge would be unlawful under the anti-discrimination provisions of the Immigration and Nationality Act.

    Some small employers may be thinking I’m just going to look the other way and not terminate DACA recipients when their work authorization expires. Although I can understand employers not wanting to hurt their DACA employees, employers need to consider their own situation. If an employer continues to employ a worker after his work authorization expires, is not renewed, and no other work authorization is provided, they are subject to “knowingly” employing an undocumented worker. The fines for such a first offense range from $539 to over $4000, with a fine of over $3,000 being the most likely. If you have five DACA employees that you retain without work authorization, you are looking at a fine of $15,000 before Immigration and Customs Enforcement (ICE) has even looked at your Form I-9s for substantive violations. So, your heart may tell you to keep DACA recipients without work authorization; but, listen to your head, which is filled with dollar signs for fines and penalties.

    For the 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, available on Amazon at http://www.amazon.com/dp/0997083379.
  2. New I-9 Form Must Be Used as of September 18

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    As I previously discussed in my July 19, 2017 blog, the USCIS released a new revised I-9 form on July 17, 2017. It becomes mandatory to use for new hires as of September 18, 2017. In the interim period, July 17 to September 17, use of the new I-9 form was optional. The newest I-9 form has a revision date of 07/17/17 N.

    There are no changes on the I-9 form or the Supplemental page. The minor changes are the addition of Consular Report of Birth Abroad (Form FS-240) to List C Acceptable Documents and minor wording changes in the instructions.

    USCIS has stated it will include these changes in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274). However, to date, the USCIS has not do so. I will keep you advised.

    In order to keep you compliant and answer your questions on completing the I-9 form, using E-Verify, and state immigration laws, I have co-authored a book with Greg Siskind, The I-9 and E-Verify Handbook, available from Amazon at: http://www.amazon.com/dp/0997083379
  3. 9th Court of Appeals Agrees with OCAHO Decision

    By Bruce Buchanan, Sebelist Buchanan Law

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    In a rare Court of Appeals decision involving Form I-9 penalties, the Ninth Circuit Court of Appeals (covers California, Oregon, Washington, Nevada, Alaska, Idaho, Montana, and Hawaii) substantially agreed with a decision by the Office of Chief Administration Hearing Officer (OCAHO). See DLS Precision Fab LLC v. ICE (9th Cir. August 2017).

    In the underlying decision, OCAHO found DLS to have committed 504 violations related to their I-9 forms and assessed a penalty of $305,050. Of the 504 violations, 489 concerned substantive or paperwork violations while 15 concerned employees who DLS knowingly employed without work authorization. DLS was able to reduce the penalties to $305,050 from $495,250, which Immigration and Customs Enforcement (ICE) sought.

    On appeal to the 9th Circuit, DLS prevailed on one issue, thereby reducing the violations from 504 to 503. In the appeal, DLS argued its paperwork or substantive violations should be viewed under the “good faith defense” because it “made a good faith effort to comply with the Immigration and Nationality Act (INA) by hiring a HR director, who exhibited bad faith by neglecting his duty to keep DLS compliant.” The Ninth Circuit was not persuaded by DLS’s argument because the HR director was acting as DLS’s agent; thus, “his failure to perform his responsibility may properly be imputed to DLS.” Moreover, DLS’s argument essentially requests the Ninth Circuit to rewrite the statute, something that is not with the court’s authority.

    The Court also affirmed OCAHO’s rejection of DLS’s statute of limitations defense. Concerning the numerous paperwork violations, the Court found such a violation occurs “until it is corrected, or until the employer no longer is required to retain the I-9 form.” There is a five-year statute of limitations, which applies the above test. In applying this test, the Ninth Circuit found one violation was beyond the five-year statute of limitations.

    Finally, DLS asserted OCAHO failed to take into account its inability to pay defense. The Court agreed with DLS but pointed out OCAHO was not required to consider an inability to pay; thus, there was no error.

    This court’s decision reinforces my mantra in previous articles – Form I-9 errors can have costly consequences; thus, all employers should conduct internal I-9 audits under the supervision of counsel who is well-versed in immigration compliance. For more information on how companies can protect themselves, you may want to read by new book, The I-9 and E-Verify Handbook, available from Amazon at: https://www.amazon.com/I-9-E-Verify-...dp/0997083379/.
  4. I-9 Violations Cannot be Alleged by a Complainant in Discrimination Complaint

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In Sapre v. Dave S.B. Hoon – John Wayne Cancer Institute, 12 OCAHO no. 1305 (August 2017), an employee alleged the Respondent discriminated against her because of her citizenship status and national origin, retaliated against her, and committed document abuse, thereby violating the antidiscrimination provisions of the Immigration and Nationality Act, 8 U.S.C. § 1324b (2012). In a procedural decision, OCAHO denied a Motion for Default Judgment.

    In so ruling, OCAHO denied Complainant’s request that the ALJ inquire into the employer’s alleged Form I-9 errors. OCAHO reiterated that the employer sanctions statute, 8 U.S.C. § 1324a, and accompanying regulations, “do not authorize a private individual to file a complaint directly with an Administrative Law Judge alleging violations in completion of the Form I-9, which is unlawful pursuant to § 1324a(a)(1)(B)” (quoting de Araujo v. Joan Smith Enters., Inc., 10 OCAHO no. 1187 (2013).
  5. Realty Company Pays Over $100,000 to U.S. Workers to Settle Discrimination Claims

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Department of Justice announced Barrios Street Realty LLC, a Louisiana company, has paid approximately $108,000 to 12 U.S. workers pursuant to a settlement with DOJ. The payments are part of a March 2016 settlement that resolved claims that Barrios discriminated against U.S. workers in violation of the Immigration and Nationality Act (INA).

    The investigation found in July 2014, Barrios Street Realty and Jorge Arturo Guerrero Rodriguez failed to consider or improperly rejected 73 U.S. workers who applied for positions as sheet metal roofers or laborers, and then solicited foreign workers to fill these positions. The Office Special Counsel (later re-named Immigrant and Employee Rights Section) of the Department of Justice determined the company’s applications for foreign workers falsely claimed that its earlier efforts to fill the sheet metal and laborer positions failed to identify qualified U.S. workers. Refusing to consider or hire qualified U.S. workers because of their citizenship violates H-2B regulations and the INA’s anti-discrimination provision.

    The settlement required Barrios to pay $30,000 in civil penalties and up to $115,000 in back pay to compensate U.S. workers who were denied employment because of the company’s reliance on H-2B visa workers. After entering the settlement, the department determined that 12 U.S. workers were entitled to receive back pay totaling approximately $108,000, and the company made the final payments to the workers last week.

    This settlement is another effort by the Department of Justice to protect American workers. You might President Trump discuss this settlement in an upcoming speech as the Administration’s efforts to protect American workers.
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