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I-9 E-Verify Immigration Compliance

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  1. DOJ and DOL in New Partnership to Protect U.S. Workers from Discrimination

    By: Bruce Buchanan, Sebelist Buchanan Law




    In a continuation of President Trump’s Buy American, Hire American Executive Order, the Department of Justice’s Civil Rights Division and the Department of Labor’s (DOL) Employment and Training Administration expanded their collaboration to better protect U.S. workers from discrimination by employers that prefer to hire temporary visa workers over qualified U.S. workers.

    This partnership enhances the Civil Rights Division’s efforts to stop companies from discriminating against U.S. workers and assists the Department of Labor’s Employment and Training Administration in identifying noncompliance with its foreign labor certification process. The signed Memorandum of Understanding (MOU) establishes protocols for the agencies to share information, refer matters between them, and train each other’s employees.

    The Civil Rights Division has increased its collaboration with other federal agencies, including the Departments of State and Homeland Security, to combat discrimination and abuse by employers improperly using temporary visa workers. Today’s MOU expands on the Division’s existing partnership with DOL.

    “Employers should hire workers based on their skills, experience, and authorization to work; not based on discriminatory preferences that violate the law,” said Acting Assistant Attorney General John Gore of the Civil Rights Division. “Our partnership with DOL, formalized today, significantly enhances the Civil Rights Division’s ability to identify employers that favor temporary visa holders over U.S. workers who can do the job.”

    For answers to many other questions related to immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.
  2. Federal Judge Rules For and Against DOJ in Lawsuit Against California

    By: Bruce Buchanan, Sebelist Buchanan Law



    On July 5, 2018, Federal District Court Judge John Mendez of the Eastern District of California, struck down provisions of AB 450, the Immigrant Worker Protection Act (IWPA), that restricted employers from allowing Immigration and Customs Enforcement (ICE) agents to access nonpublic parts of a workplace without a warrant and re-verifying employee work authorization. However, the Judge upheld AB 450's requirement that employers notify employees within 72 hours of I-9 inspections that have been conducted.

    As you may recall from prior blog entries, AB 450 (IWPA) states California-based employers:


    • Are prohibited from voluntarily granting immigration enforcement agents access to any non-public areas of a worksite unless the agents present a judicial warrant;
    • Are prohibited from voluntarily allowing ICE agents to access, review, or obtain any employee records unless the agents present a Notice of Inspection (NOI) of Forms I-9, an administrative or judicial subpoena, or a judicial warrant requiring compliance;
    • Are prohibited from reverifying the employment eligibility of any current employee unless required by federal law;
    • Are required, if served with an I-9 NOI, to give notice in writing within 72 hours to each current employee at the worksite and any authorized labor union that an I-9 inspection has begun; and
    • Must notify any affected employee or authorized union representative within 72 hours of receiving any subsequent I-9 related federal notices, such as Notice of Suspect Documents.


    In March 2018, the Department of Justice (DOJ) sued California alleging AB 450 and two other new state laws designed to protect certain undocumented immigrants are unconstitutional. "The provisions of state law at issue have the purpose and effect of making it more difficult for federal immigration officers to carry out their responsibilities in California," Justice Department lawyers argue in the suit, further calling the laws an "obstacle to the United States' enforcement of the immigration laws and discriminating against federal immigration enforcement."

    Judge Mendez ruled against a preliminary injunction on the AB 450 Notice requirements because they are not preempted by federal authority over immigration. However, the Judge preliminarily enjoined California authorities from:


    • fining employers or otherwise enforcing the bans on reverifying the employment eligibility of current employees;
    • voluntarily giving immigration enforcement agents access to nonpublic areas of the worksite; or
    • allowing them to access, review, or obtain employee records.


    In doing so, Judge Mendez requested the President and Congress to act and stated:
    This Court has gone to great lengths to explain the legal grounds for its opinion. This Order hopefully will not be viewed through a political lens and this Court expresses no views on the soundness of the policies or statutes involved in this lawsuit. There is no place for politics in our judicial system and this one opinion will neither define nor solve the complicated immigration issues currently facing our Nation.

    Accordingly, this Court joins the ever-growing chorus of Federal Judges in urging our elected officials to set aside the partisan and polarizing politics dominating the current immigration debate and work in a cooperative and bi-partisan fashion toward drafting and passing legislation that addresses this critical political issue. Our Nation deserves it. Our Constitution demands it.

    I will keep you informed of further developments in this litigation.
  3. DOJ Settles Immigration-Related Discrimination Claim Against UCSD

    By: Bruce Buchahan, Sebelist Buchanan Law

    The Justice Department, through the Immigrant and Employee Rights Section (IER), has reached a settlement agreement with the University of California, San Diego (UCSD). The settlement resolves the investigation into whether the University’s Resource Management and Planning Vice Chancellor Area (RMP) discriminated against workers in violation of the Immigration and Nationality Act (INA) when verifying their continued authorization to work.

    The investigation concluded the RMP unnecessarily required certain work-authorized immigrants to re-establish their work authorization when their documents expired, based on the citizenship status of those individuals when they were hired. The anti-discrimination provision of the INA prohibits such requests for documents when based on an employee’s citizenship status or national origin.

    Under the settlement, the University will pay a penalty to the United States, train its RMP human resources personnel on the requirements of the INA’s anti-discrimination provision, and be subject to departmental monitoring and reporting requirements.

    Under the settlement agreement, UCSD will pay $4,712 in civil penalties for the alleged unfair documentary practices; post notices informing workers about their rights under the INA’s anti-discrimination provision; train its Human Resources personnel on their legal obligations to not discriminate by viewing a free online IER webinar presentation and reviewing the M-274 Handbook for Employers; review and revise, as necessary, any existing employment policies that relate to nondiscrimination based on traits or characteristics protected by law; and be subject to departmental monitoring and reporting requirements for two years.

    For answers to many other questions related to the IER, and immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.
  4. DOJ Settles Case Under U.S. Workers Initiative

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Immigrant and Employee Rights Section (IER) of Department of Justice (DOJ) and Crop Production Services Inc. (Crop Production), an agricultural company headquartered in Loveland, Colorado, reached a settlement agreement. The settlement resolves a lawsuit the IER filed against the company on September 28, 2017, alleging the company discriminated against U.S. citizens because of a preference for foreign visa workers, in violation of the Immigration and Nationality Act (INA).

    The settlement is part of the DOJ’s Protecting U.S. Workers Initiative, an initiative aimed at targeting, investigating, and bringing enforcement actions against companies that discriminate against U.S. workers in favor of foreign visa workers.

    The lawsuit alleged that in 2016, Crop Production discriminated against at least three United States citizens by refusing to employ them as seasonal technicians at its El Campo, Texas location because the company preferred to employ temporary foreign workers under the H-2A visa program. According to the complaint, Crop Production imposed more burdensome requirements on U.S. citizens than it did on H-2A visa workers to discourage U.S. citizens from working at the facility. For instance, the complaint alleges that although U.S. citizens had to complete a background check and a drug test before being permitted to start work, H-2A visa workers were allowed to begin working without completing them and, in some cases, never completed them. Ultimately, all of Crop Production’s 15 available seasonal technician jobs in 2016 went to H-2A visa workers instead of U.S. workers. For more information on the lawsuit, see my prior blog entry at http://blogs.ilw.com/entry.php?10157...t-U-S-Citizens.

    Under the INA, it is unlawful for employers to intentionally discriminate against U.S. workers because of their citizenship status or to otherwise favor the employment of temporary foreign visa workers over available, qualified U.S. workers. In addition, the H-2A visa program allows employers to hire foreign visa workers only if there is not enough qualified and available U.S. workers to fill the jobs.

    The settlement agreement requires Crop Production to pay civil penalties of $10,500 to the United States; undergo department-provided training on the anti-discrimination provision of the INA; revise employment policies to assure that Crop Production does not discriminate on the basis of citizenship, and clarify that H-2A visa holders may only be hired in the absence of any qualified and available U.S. workers; and comply with departmental monitoring and reporting requirements for a two-year period. In a separate agreement with workers represented by Texas RioGrande Legal Aid, Crop Production agreed to pay $18,738.75 in lost wages to affected U.S. workers.

    For 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, which is available at http://www.amazon.com/dp/0997083379.
  5. DOJ Settles Immigration-Related Claim for $200,000 against Staffing Companies

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Immigrant and Employee Rights Section (IER) of the Department of Justice (DOJ) has reached a settlement whereby CitiStaff Solutions Inc., and CitiStaff Management Group Inc. (collectively CitiStaff) agreed to pay a civil penalty of $200,000 to the United States government. The settlement resolves the investigation into whether CitiStaff violated the law by discriminating against work-authorized immigrants when verifying their work authorization.

    Based on its investigation, IER concluded that CitiStaff, which provide staffing services in the greater Los Angeles, California area, routinely requested non-U.S. citizens present specific documents to prove their work authorization, such as Permanent Resident Cards (green cards) or Employment Authorization Documents (EADs), but did not make similar requests for specific documents to U.S. citizens. All work-authorized individuals, whether U.S. citizens or non-U.S. citizens, have the right to choose which valid documentation to present to prove they are authorized to work. 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.

    Furthermore, the investigation found CitiStaff required lawful permanent residents (LPRs) to reverify their work authorization status when their Permanent Resident Cards expired. It is unlawful to require reverification of a green card even if it expires as the LPRs continue to hold lawful status after a green card’s expiration.

    Under the settlement, CitiStaff will pay a civil penalty of $200,000 to the United States, train its staff on the law, and be subject to departmental monitoring and reporting requirements for three years.

    Companies need to be aware of the laws relating to determining employees’ lawful employment status as well as the law concerning re-verification. As you see, it is so easy for employers to make costly mistakes. 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, which is available at http://www.amazon.com/dp/0997083379.
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