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I-9 E-Verify Immigration Compliance

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  1. 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.
  2. Tech Company Agrees to Pay $173,000 to resolve H-1B Violations

    By: Bruce Buchanan, Sebelist Buchanan Law


    Cloudwick Technologies Inc., a California-based IT company, has agreed to pay $173,044 to 12 employees for violations of the federal H-1B foreign labor certification program after an investigation by the U.S. Department of Labor’s Wage and Hour Division (WHD). Additionally, Cloudwick has also enrolled in an enhanced compliance agreement requiring them to hire an independent third-party monitor to help ensure future compliance.

    WHD investigators found the company paid impacted employees well below the wage levels required under the H-1B program based on job skill level, and also made illegal deductions from workers’ salaries. As a result, some of the H-1B employees that Cloudwick brought from India with promised salaries of up to $8,300 per month instead received as little as $800 net per month.

    The Trump administration is touting this agreement as another victory for “Buy American, Hire American.” Susana Blanco, Wage and Hour Division District Director in San Francisco stated “The intent of the H-1B foreign labor certification program is to help American companies find the highly skilled talent they need when they can prove that a shortage of U.S. workers exists. The resolution of this case demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and protect guest workers from being paid less than they are legally owed.”

    Cloudwick provides data solution services to major corporations nationwide, including American Express, Bank of America, Apple, Cisco, Comcast, Intuit, Safeway, Verizon, Visa, and many others.
  3. Metropolitan Concrete Corp. owes over $100,000 Due to Violations in H-2B Visa Program

    By: Bruce Buchanan, Sebelist Buchanan Law



    Following an investigation by the U.S. Department of Labor’s Wage and Hour Division (WHD), Metropolitan Concrete Corp. will pay $29,161 in civil money penalties and $73,647 in back wages to 15 employees working under the H-2B non-immigrant visa program.

    WHD investigators found Metropolitan Concrete Corp. classified the H-2B employees improperly as landscapers. The investigation determined the H-2B employees actually worked as cement masons and concrete finishers, and as such, the employer should have paid them at a higher prevailing wage rate. The company also should have advertised the position to potential U.S. workers using the correct job classification and prevailing wage rate, as required by the H-2B provisions of the Immigration and Nationality Act. Failing to do so may have resulted in fewer U.S. workers applying for the positions than would have occurred if the employer advertised accurate information.

    Investigators also found Metropolitan Concrete failed to comply with requirements to pay the employees’ inbound transportation costs and to provide workers with the tools, supplies, or equipment they need to perform their job duties. The company also took impermissible deductions from workers’ pay for housing expenses. In addition to the payment of back wages, the Division assessed $29,161 in civil penalties.

    If you want to know more information on 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.
  4. Meat Processing Plant Agrees to Pay $52,100 to Resolve IER Discrimination Claim

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

    The Immigrant and Employee Rights Section (IER) of the Justice Department has entered into a settlement agreement with West Liberty Foods L.L.C., a meat processing business that operates a plant in Bolingbrook, Illinois, wherein the company will pay $52,100. The settlement resolves the IER’s investigation into whether the company discriminated against work-authorized immigrants when verifying their employment authorization.

    The investigation revealed that West Liberty Foods routinely asked non-U.S. citizens hired at its Bolingbrook location to present specific documents, such as permanent resident cards or employment authorization documents, to establish their work authorization but did not make similar requests of U.S. citizens. The anti-discrimination provision of the Immigration and Nationality Act (INA) prohibits employers from subjecting employees to more or different documentary demands based on employees’ citizenship, immigration status, or national origin.

    Under the settlement, West Liberty Foods will pay a civil penalty of $52,100 to the United States; revise employment policies to assure that West Liberty Foods does not discriminate on the basis of citizenship status; ensure that its human resources staff participates in IER-provided training on the anti-discrimination provision of the INA; post notices informing workers about their rights under the INA’s anti-discrimination provision; and be subject to IER monitoring for two years.

    This settlement demonstrates the need for employers to be aware of the anti-discrimination provision of the INA as it relates to treating employees differently due to their citizenship status. To learn more about employer immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, which is available at http://www.amazon.com/dp/0997083379.
  5. OCAHO Reduces Penalties for Two Related Companies

    By: Bruce Buchanan, Sebelist Buchanan Law

    In a calendar year with few decisions, Office of Chief Administration Hearing Officer (OCAHO) issued its last one in U.S. v. Integrity Concrete/American Concrete, 13 OCAHO no. 1307 (2017). In this decision, OCAHO substantially reduced the penalties assessed against Integrity Concrete, Inc. and American Concrete, Inc., which essentially acted as joint employers. This decision only involves the amount of the penalties as Respondents agreed to the liability.

    Factual Scenario for Integity

    Integrity, located in San Diego, CA, was served with a Notice of Inspection (NOI) in January 2015. Thereafter, ICE served Notice of Suspect Documents on Integrity listing eight employees whose I-9 forms could not be verified as authorized to work. Integrity responded none of the eight employees were employed anymore.

    About seven months later, Integrity was served with a Notice of Intent to Fine (NIF), which charged the company with the failing to timely prepare I-9 forms for five employees, failing to ensure that three employees properly completed Section 1 of their I-9 forms, and failing to properly complete Section 2 or 3 of the I-9 forms for 16 employees. ICE assessed a fine of $24,684 based upon a baseline penalty of $935 and 5% enhancement for lack of good faith and seriousness of the violations.

    In Integrity’s answer, it challenged the penalties asserting it was a small employer, numbering 28 employees, which should account for a 5% statutory reduction in the penalty, bad faith should not have been found, and the penalties assessed would place an undue hardship on the company.

    Factual Scenario for American

    American, also located in San Diego, CA, was served with a Notice of Inspection (NOI) in January 2015. Later, American was also served with a Notice of Suspect Documents listing four employees whose I-9 forms could not be verified as authorized to work. American responded none of these employees were employed at its company. ICE assessed a fine of $24,684 based upon a baseline penalty of $935 and a 5% enhancement for lack of good faith and seriousness of the violations.

    ICE also served a separate NIF on American alleging it failed to timely prepare I-9 forms for 10 employees. ICE proposed a fine of $5,390 based on a baseline penalty of $440 plus 5% enhancements for lack of good faith, seriousness of the violations, and employment of three undocumented workers. American filed an Answer asserting it should have received 5% mitigation for each of these factors: small size of its workforce (48 employees), good faith, and the non-statutory factor of leniency toward small businesses.

    OCAHO’s Decision

    The first factor discussed was whether Integrity and American should receive 5% mitigation for being a small employer. ICE asserted the fact that both employers had small workforces, 48 and 28 employees, was inappropriate for determining whether they were small employers. ICE argued it should focus on gross sales and gross assets. The Administrative Law Judge (ALJ) for OCAHO disagreed and applied appropriate caselaw to find both to meet the definition of small employers; thus, they were entitled to the statutory 5% mitigating factor.

    Next the ALJ focused on whether Integrity and/or American should be assessed 5% enhancement for bad faith or 5% mitigation for good faith. ICE asserted three reasons for a finding of bad faith: Integrity backdated one I-9 form; both companies did not complete I-9 forms for some employees until after the NOIs issued; and their failure to present evidence that they utilize E-Verify.

    Although backdating alone is insufficient to support a finding of bad faith, the ALJ found several factors supported a finding of bad faith. However, the ALJ noted the use or non-use of E-Verify is not a factor which should be reviewed in determining good faith/bad faith.

    Concerning the employment of undocumented workers as an enhancement factor, the ALJ stated ICE failed to provide any evidence of their undocumented status. Rather, their enhancement was based on inclusion in the Notice of Suspect Documents. As the ALJ correctly pointed out, an allegation of undocumented status, which is essentially what placement on a Notice of Suspect Documents means, is not sufficient to prove undocumented status. Thus, no enhancement was added for this factor.

    Another issue involving Integrity was whether it established an inability to pay/hardship. The ALJ did not find such, despite a loss of over $600,000, because Integrity paid approximately $500,000 in salaries and benefits – much of which was paid to its shareholders.

    In determining the amount of the penalties, the ALJ was disturbed by the fact that $935 was the baseline penalty for Integrity while only $440 was the baseline penalty for American. Although the ALJ correctly noted the difference in the percentage of errors on the I-9 forms was the basis of the different baseline penalty, he found the companies should be assessed at approximately the same dollar amount and compliance rate alone is insufficient to justify wide variation. Thus, the ALJ assessed $400 baseline penalty for substantive paperwork violations and $500 for failure to prepare I-9 forms.

    Based on this analysis, Integrity was found to have committed five violations for failing to prepare and/or present I-9 forms. Each of these violations will be assessed at $500, with the enhancement factor for seriousness of the violations and mitigation factor for the small size of the business cancelling each other. Accordingly, Integrity is liable for $2,525 under Count I. Under Counts II and III, Integrity was liable for substantive violations for failure to properly complete three I-9 forms and 19 substantive paperwork violations, all assessed at $400 each. Therefore, Integrity is liable for $11,325.

    American was found liable for 11 substantive violations for failing to prepare and/or present I-9 forms. Each of these violations will be assessed at $500, which includes the $500 base fine, with the enhancement factor for seriousness of the violations and mitigation factor for the small size of the business cancelling each other. Accordingly, American is assessed a total civil penalty of $5,500.

    Conclusion

    OCAHO may have slowed down on adjudication of cases but they will be back to speed once they get their allotment of ALJs. In the meantime, now is a great time to conduct an internal I-9 audit under the supervision of an experienced immigration compliance attorney. To find out more about internal I-9 audits as well as other employer immigration compliance issues, 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.
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