ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


Chinese Immig. Daily




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
© 1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

I-9 E-Verify Immigration Compliance

description

  1. 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 11:11 AM by BBuchanan

  2. OCAHO Finds State Employer Had Sovereign Immunity

    By: Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

Name:	FLAGUS_north_dakota.jpg 
Views:	1 
Size:	13.2 KB 
ID:	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.
  3. Texas Tortilla Company Convicted of Employment of Undocumented Workers

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC
    Click image for larger version. 

Name:	tortillas.jpg 
Views:	8 
Size:	11.3 KB 
ID:	1212

    La Espiga De Oro (Espiga), manufacturer of tortillas for distribution to restaurants and businesses, forfeited $1 million because of a felony conviction of conspiracy to induce and encourage unlawful immigration through a pattern and practice of hiring and employing illegal aliens at the Texas tortilla factory. Owners Alfredo Sosa Lira, his wife Lydia Botello-Lira, their daughter Lydia Lira, and night manager Roberto Guerra, pleaded guilty to misdemeanor violations associated with their continued employment of undocumented aliens between October 2011 and August 2015.

    Homeland Security Investigations investigated a series of complaints about the company’s hiring practices. An undercover operation later led to evidence that the company knowingly hired individuals not authorized to work in the United States. In some instances, the company knew that aliens used fraudulent documents to secure employment.

    HSI executed a search warrant at the company in August 2015, which led to the discovery of 10 undocumented workers working there as well as evidence demonstrating that 55% of their employees were not authorized by law to work at the factory. Following the search warrant, the company was charged by criminal complaint and began cooperating with HSI and the U.S. Attorney’s Office to revise their hiring practices and implement new procedures to prevent future violations of federal law.

    The company paid $1 million, representing an amount that at least equals the value of property used to facilitate the crime, the value of wages paid to the unauthorized work force and the value of products manufactured and services provided by the illegal workforce during the conspiracy. This money will go directly to immigration authorities to assist them with their future enforcement efforts.
  4. Arizona and Maryland Become 9th and 10th States to Join E-Verify RIDE

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

    Click image for larger version. 

Name:	Ride E-Verify.jpg 
Views:	16 
Size:	5.3 KB 
ID:	1211

    Arizona and Maryland have become the ninth and tenth states to join the Records and Information from DMVs for E-Verify (RIDE) Program. RIDE is an E-Verify initiative, in conjunction with the American Association of Motor Vehicle Administrators, linking the E-Verify system with participating state driver’s licensing agencies. The prior states joining RIDE were Florida, Idaho, Iowa, Mississippi, Nebraska, North Dakota, Wisconsin, and Wyoming.

    RIDE allows E-Verify to validate the authenticity of driver’s licenses and state identification cards presented by employees as I-9 form identity documents. The RIDE program attempts to mitigate the risk of fraud by comparing the data from the card with data supplied by states’ motor vehicle agencies. If E-Verify is not able to match the license or ID card to data within the DMV, the employer will receive a Tentative Non-confirmation (TNC) indicating the issue and must give the employee a Further Action Notice and opportunity to meet I-9 demands. In this manner, RIDE is designed to boost the accuracy of employment eligibility verification in E-Verify
  5. Employer’s Reverifications Violate NLRA

    By: Bruce Buchanan, Sebelist Buchanan Law
    Click image for larger version. 

Name:	cinelease_1422644139_280.jpg 
Views:	14 
Size:	2.4 KB 
ID:	1210
    As an immigration attorney and former NLRB attorney, I am always fascinated when immigration law and immigration law overlap. That was the case in Cinelease, Inc., JD(SF)-33-77 (July 2017), where an Administrative Law Judge for the National Labor Relations Board (NLRB) found an employer, Cinelease, to have violated Sections 8 (a)(1) and (3) of the National Labor Relations Act (NLRA) by actions related to reverifying employees’ work authorization documents.

    The issue of reverification arose after the Teamsters Union filed a petition with the NLRB seeking an election of the company’s warehouse employees. Within two weeks, Cinelease’s operations manager had a meeting with an employee and told how him that his work permit had expired. The employer said they learned of this information from another worker.

    Because of this information, Cinelease contacted their legal counsel, who advised to conduct an internal I-9 audit to verify all employees’ documentation. At that time, Cinelease did not have a procedure in place to conduct such an audit and had not been reverifying immigration documentation. Their immigration counsel gave Cinelease instructions from on how to conduct the audit although Cinelease’s managers and legal counsel could not agree on whether they were told to not re-verify green cards.

    Pursuant to the instructions, Cinelease’s HR manager reviewed all the employees’ I-9 forms and made a list of those employees with expired documentation. The list did not differentiate between expired green cards and expired work permits. (An employee’s green card or permanent residence does not end at the end of the employee’s green card and it is unlawful, under the Immigration & Nationality Act (INA), for an employer to reverify an employee’s green card status.)

    The company-wide audit showed 17 employees out of 165 employees had “expired work papers; seven of the 17 employees were warehouse employees. Next, Cinelease began calling in the 17 employees one by one and informing them they had expired work papers and to provide up to date documentation. Some of the employees had not provided updated work permits to Cinelease on a regular basis and only when Cinelease haphazardly requested such. One employee, Hugo Martinez, was unable to provide a current work permit; thus, Cinelease suspended him until December 18, 2016, one day after the NLRB conducted union election.

    Following reverifications of the employees’ documentation, attendance at union meetings declined. The union election ended at a tie. Additionally, the day after the election, suspended employee Martinez was told by Cinelease management that he could take more time to get new documentation.

    In concluding the requests to reverify employees’ employment authorization documents were a violation of Section 8 (a)(1) of the NLRA, the ALJ stated that normally this would not be a violation of the NLRA; rather, it is required under immigration law for work permits. However, the NLRB has previously found this action is unlawful if conducted in retaliation for union activity.

    Thus, the question is whether Cinelease’s actions were retaliatory. As the ALJ stated: “It is perfectly clear the documentation was not requested as part of the Respondent’s ordinary practice of rechecking work authorizations. Rather, such large-scale rechecks of work authorizations was unprecedented.

    Cinelease argued it was just attempting to comply with immigration law. However, Cinelease also rechecked permanent residents, which under immigration law is prohibited. Even for permanent residents, Cinelease requested reverification of their cards, including those whose green cards had not expired. Ultimately, the ALJ found the reverifications were retaliatory and motivated by anger at the union campaign and Martinez for his union support. Thus, they violated the NLRA.

    The ALJ also found the suspension of Martinez was unlawful. This is interesting in that under immigration law, Cinelease took the correct action when it discovered his unauthorized status. But it did it for retaliatory reasons; thus, the ALJ found a violation. For a remedy, Martinez must provide proof of work authorization before Cinelease can put him back on the payroll.

    It will be interesting to see if Cinelease appeals the ALJ’s decision. I will keep you informed.
Page 1 of 66 1231151 ... LastLast
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: