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I-9 E-Verify Immigration Compliance

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  1. Sheriff Arpaio’s Unlawful Actions Lead Court to Find Frimmel Has No Liability

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC




    Just when you thought Sheriff Joe Arpaio could not cause further trouble because he’s out of office, he strikes again in an immigration case.

    This case centers on a Notice of Inspection (NOI) that was delivered to Frimmel Management after Sheriff Arpaio’s police force, Maricopa County Sheriff’s Office (MCSO), conducted raids of two Uncle Sam’s restaurants and the owner’s home. MCSO seized employment records based on suspicion that the restaurants’ workers committed identity theft and forgery. During the State of Arizona’s prosecution of Frimmel, the state court found the affidavits supporting the search warrant for the raids were “unreasonable and reckless.” Therefore, the Court dismissed the charges against Frimmel.

    One day after MCSO’s raids, MCSO sent a memorandum to ICE summarizing the results of the unlawful raid. Thereafter, MCSO issued press releases publicizing their raids and stated some of the workers had been put on ICE holds.

    About two and one-half weeks after the raids, ICE served a NOI/subpoena on Frimmel. After Frimmel timely produced the restaurants’ I-9 forms, ICE issued a Notice of Intent to fine (NIF) and a complaint for the case to be heard by an OCAHO Administrative Law Judge.

    In response to Frimmel’s objections, this ALJ found that how Frimmel had come to the attention of ICE was “irrelevant” to the OCAHO case. Frimmel also argued the I-9 forms must be suppressed under the fruit of the poisonous tree doctrine. The ALJ disagreed and found ICE had not relied on any “evidence directly obtained from MCSO’s unlawful conduct.” Since the primary goal of suppressing evidence based on illegal conduct is to deter future unlawful police conduct, this was not a factor in question in the ICE’s NOI of Frimmel. Thus, the ALJ upheld the $347,000 penalty.

    On appeal to the 9th Circuit Court of Appeals, the Court initially reviewed MCSO’s conduct. It found that MCSO’s omissions and distortions in the affidavits for the search warrant were “reckless and immaterial.” Thus, this finding led the 9th Circuit to find the raids violated the 4th Amendment to the Constitution.
    Furthermore, the Count found MCSO’s conduct to be egregious.

    Despite those findings, DHS argued the “ICE investigation was too attenuated from MCSO’s illegal conduct” Under the attenuation doctrine, evidence is admissible when “the connection between the illegality and challenged evidence has become so attenuated as to dissipate the taint caused by the illegality.”

    The Court rejected that argument and found there was a causal connection between MCSO’s unlawful search and the ICE audit. The identity evidence – Frimmell and his restaurants – resulted from MCSO’s raid, which “significantly directed the subsequent ICE investigation.” Thus, the I-9 forms which ICE seized were fruit of MCSO’s illegal search.

    In conclusion, the 9th Circuit found for Frimmel because ICE used the fruit of the poisonous tree – the I-9 forms. Thus, Frimmell did not owe the $347,000 that OCAHO had found as penalties.

    Although very few cases get litigated to the Court of Appeals, companies continue to have some success in appeals to the Courts of Appeal. Several years ago, the 5th Circuit Court of Appeals reversed OCAHO’s $227,000 penalty against Employer Solutions Staffing Group II, LLC.

    If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  2. IER Settles Immigration-Related Discrimination Claim Against Rose Acre

    By: Bruce Buchanan, Sebelist Buchanan Law



    The Immigrant and Employee Rights Section (IER), a part of the Civil Rights Division of the Justice Department, has reached a settlement with Rose Acre Farms Inc, one of the largest egg producers in the United States. The settlement resolves a long-standing lawsuit filed by the IER and the Justice Department alleging Rose Acre violated the Immigration and Nationality Act (INA) by discriminating against work-authorized non-U.S. citizens when verifying their work authorization.

    The Department’s amended complaint alleged that from at least June 2009 to December 22, 2011, Rose Acre routinely required work-authorized non-U.S. citizens to present a Permanent Resident Card or Employment Authorization Document to prove their work authorization but did not require specific documents from 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. Employers may not dictate which document(s) may be presented. The anti-discrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on employees’ citizenship or national origin.

    Under the settlement, Rose Acre will pay a civil penalty of $70,000 to the U.S. government; train its human resources personnel on their legal obligations to not discriminate by viewing a free online IER webinar presentation; revise any existing employment policies so that they prohibit discrimination based on citizenship, immigration status, and national origin in the hiring processes; and be subject to departmental monitoring 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.
  3. 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.
  4. 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.
  5. ICE delivers more than 5,200 audit notices in 2018

    By: Bruce Buchanan, Sebelist Buchanan Law



    As discussed last week in my blog, Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) were out in force during the week of July 16 delivering Notice of Inspection (NOI)/audit notices. Well now we know the numbers - HSI served 2,738 NOIs and made 32 arrests in a one-week period. This is a massive operation and over 10 times as big as ICE’s operation in California earlier this year.

    ICE announced I-9 audit notices were served to more than 5,200 businesses around the United States since January 2018. During the first phase of the operation, January 29 to March 30, 2018, HSI served 2,540 NOIs and made 61 arrests. Thus, at the present rate, ICE-HSI will reach over 8,500 NOIs for the 2018 calendar year. This is over 5,000 audits more than the highest previous amount of about 3,100 in 2013.

    HSI is currently carrying out its commitment to increase the number of I-9 audits in an effort to create a culture of compliance among employers, according to Derek N. Benner, Acting Executive Associate Director for HSI. HSI’s worksite enforcement strategy focuses on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance with the law. HSI’s worksite enforcement investigators help combat worker exploitation, illegal wages, child labor and other illegal practices.

    Failure to follow the law can result in criminal and civil penalties. In FY17, businesses were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines, including one company whose financial penalties represented the largest payment ever levied in an immigration case.

    In FY 2018, to date, HSI opened 6,093 worksite investigations and made 675 criminal and 984 administrative worksite-related arrests, respectively. In fiscal year 2017, HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement.

    Will your company be the next target? My advice is to be prepared through an internal I-9 Audit. An immigration attorney familiar with I-9 forms and worksite enforcement is the perfect person to assist you in an internal I-9 audit.

    If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
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