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I-9 E-Verify Immigration Compliance

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  1. DOJ Settles Immigration-Related Discrimination Claim Against Rustic Inn Crabhouse

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Justice Department, through the Immigrant and Employee Rights Section (IER), has reached a settlement agreement with Ark Rustic Inn LLC d/b/a Rustic Inn Crabhouse (Rustic Inn), a restaurant located in Fort Lauderdale, Florida. The agreement resolves the IER’s investigation into whether Rustic Inn discriminated against work-authorized immigrants when verifying their employment authorization.

    The investigation revealed Rustic Inn routinely requested that work-authorized non-U.S. citizens present specific documents, such as Permanent Resident Cards or Employment Authorization Documents, to verify their citizenship status information; however, it did not subject U.S. citizens to the same verification. The anti-discrimination provision of the Immigration and Nationality Act (INA) prohibits employers from subjecting employees to different or unnecessary documentary demands based on employees’ citizenship, immigration status or national origin.

    Under the settlement, Rustic Inn will pay a civil penalty of $4000 to the United States; review and revise any existing employment policies that relate to nondiscrimination on the basis of citizenship or immigration status and national origin so that it prohibits such discrimination in regard to the I-9 verification process; train its staff by viewing a free IER Employer/HR representative webinar; post notices informing workers about their rights under the INA’s anti-discrimination provision; shall ensure that all individuals, who are responsible for formulating and carrying out its hiring/firing, and employment eligibility verification policies, have available the most current version of the Form 1-9, USCIS Employment Eligibility Verification Handbook for Employers (M-274), and be subject to departmental monitoring for three years.

    The allegation of having different standards for U.S. citizens than non-U.S. citizens is a fairly common error by employers. However, with training by an immigration attorney, well-versed in employer compliance, these errors can easily be avoided. For more information on this issue and many others related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.
  2. IER Settles Immigration-Related Retaliation Claim Against InMotion Software

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Immigrant and Employee Rights Section (IER) of the Department of Justice has reached a settlement with InMotion Software LLC (InMotion), a software developer and recruiter in Texas, resolving their investigation into whether the company violated the Immigration and Nationality Act’s (INA) anti-discrimination provision.

    Based on its investigation, the IER concluded InMotion retaliated against a work-authorized job applicant (Charging Party) after she protested InMotion’s requirement that she provides a Permanent Resident Card (green card) even though she had a valid employment authorization card issued by the USCIS. After the Charging Party complained that InMotion’s request constituted discrimination under the INA, InMotion removed her from its pool of candidates available for job placement. The INA’s anti-discrimination provision prohibits employers from retaliating against or intimidating workers because they have opposed employer conduct that may violate that provision or have participated in the IER’s activities to enforce it.

    Under the settlement agreement, InMotion will pay $3621, the maximum civil penalty for an instance of retaliation, to the U.S. government, remove any references to the investigation or settlement from the Charging Party’s personnel file, post notices informing workers about their rights under the INA’s anti-discrimination provision, provide all newly hired employees with a Lists of Acceptable Documents to provide with the I-9 form, train its staff, and be subject to departmental monitoring and reporting requirements for one year.

    Companies need to be aware of the laws relating to retaliation if an employee files an anti-discrimination claim or alleges such discrimination. For the answers to these issues and many others related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.
  3. E-Verify Participation Poster Redesigned

    By: Bruce Buchanan, Sebelist Buchanan Law
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    The USCIS has recently released a redesigned E-Verify participation poster. The new poster informs current and prospective employees of their legal rights, responsibilities, and protections in the employment eligibility verification process.

    The poster is now available in English and Spanish as one poster. Employers must replace their participation posters when updates are provided by the U.S. Department of Homeland Security. Thus, employers should check to see if the most current poster is available. The new posters can be downloaded when participants log into E-Verify. Employers may also display any of 16 foreign language versions of the poster.

    E-Verify employers continue to be required to display the Immigrant and Employee Rights (IER) Right to Work posters in English and Spanish.

    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 at http://www.amazon.com/dp/0997083379.
  4. OCAHO Finds State Employer Had Sovereign Immunity

    By: Bruce Buchanan, Sebelist Buchanan Law

    Attachment 1213

    In Ugochi v. North Dakota Dept. of Human Service, 12 OCAHO no. 1304 (July 2017), the Office of Chief Administrative Hearing Officer (OCAHO) dismissed Chiaha Ugochi’s complaint that she was discriminated because of her citizenship status and national origin, the employer retaliated against her and committed document abuse.

    The case began with Ugochi filing a charge against her employer, North Dakota State Hospital, alleging it discriminated against her. Immigrant and Employer Rights Section of the Department of Justice dismissed her case due to insufficient evidence of discrimination or retaliation and referred the national origin claim to the EEOC, who has jurisdiction on national origin claims involving employers with more than 14 employees.

    Thereafter, Ugochi filed a complaint with OCAHO alleging she was fired because her employer asked for excessive documentation in the I-9 and E-Verify process. The employer responded that it was entitled to sovereign immunity under the 11th Amendment and had legitimate, non-discriminatory reasons for her termination - she failed a background check.

    In analyzing the employer’s defenses, OCAHO noted the employer in question is the North Dakota State Hospital, a state agency. Due to the employer being a state agency, one must review the 11th Amendment which states, “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Furthermore, the U.S. Supreme Court “has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” There are two exceptions to a state’s immunity from suit under the 11th Amendment. The first exception is where Congress has statutorily abrogated such immunity by “clear and unmistakable language.” The second exception exists when the state has expressly waived its immunity.

    OCAHO found sovereign immunity applied to the North Dakota State Hospital, a state agency; thus, it enjoyed immunity from these proceedings pursuant to the 11th Amendment. Neither exception to immunity is present in the instant matter. Accordingly, because Ugochi’s complaint is barred, the Motion to Dismiss was granted.

    On a personal note, last week the immigration bar lost a true advocate for immigrants, Yvette Sebelist, my law partner. May she rest in peace.

    Updated 08-22-2017 at 12:11 PM by BBuchanan

  5. OCAHO Finds State Employer Had Sovereign Immunity

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In Ugochi v. North Dakota Dept. of Human Service, 12 OCAHO no. 1304 (July 2017), the Office of Chief Administrative Hearing Officer (OCAHO) dismissed Chiaha Ugochi’s complaint that she was discriminated because of her citizenship status and national origin, the employer retaliated against her and committed document abuse.

    The case began with Ugochi filing a charge against her employer, North Dakota State Hospital, alleging it discriminated against her. Immigrant and Employer Rights Section of the Department of Justice dismissed her case due to insufficient evidence of discrimination or retaliation and referred the national origin claim to the EEOC, who has jurisdiction on national origin claims involving employers with more than 14 employees.

    Thereafter, Ugochi filed a complaint with OCAHO alleging she was fired because her employer asked for excessive documentation in the I-9 and E-Verify process. The employer responded that it was entitled to sovereign immunity under the 11th Amendment and had legitimate, non-discriminatory reasons for her termination - she failed a background check.

    In analyzing the employer’s defenses, OCAHO noted the employer in question is the North Dakota State Hospital, a state agency. Due to the employer being a state agency, one must review the 11th Amendment which states, “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Furthermore, the U.S. Supreme Court “has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” There are two exceptions to a state’s immunity from suit under the 11th Amendment. The first exception is where Congress has statutorily abrogated such immunity by “clear and unmistakable language.” The second exception exists when the state has expressly waived its immunity.

    OCAHO found sovereign immunity applied to the North Dakota State Hospital, a state agency; thus, it enjoyed immunity from these proceedings pursuant to the 11th Amendment. Neither exception to immunity is present in the instant matter. Accordingly, because Ugochi’s complaint is barred, the Motion to Dismiss was granted.

    On a personal note, last week the immigration bar lost a true advocate for immigrants, Yvette Sebelist, my law partner. May she rest in peace.
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