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By: Bruce Buchanan, Sebelist Buchanan Law
In Caltzoncin v. GSM Insurors-Glass, Sorenson & McDavid, 12 OCAHO no. 1287 (2016), the Office of Chief Administrative Hearing Officer (OCAHO) reiterated the longstanding requirement to prove citizenship status – one must be a citizen or national of the United States, permanent resident, refugee, or asylee in order to be a protected individual.
In this case, Mr. Caltzoncin filed a complaint against his employer alleging he was fired on the basis of his citizenship status and national origin discrimination. In Mr. Caltzoncin’s complaint, he conceded that he only had an employment authorization document (EAD) and was not a citizen, permanent resident, asylee or refugee. Under 8 U.S.C. § 13246(a)(3), an individual with an EAD is not protected by the Immigration Reform and Control Act (IRCA). Thus, OCAHO dismissed Mr. Caltzoncin’s complaint.
Concerning the national origin claim, Mr. Caltzoncin conceded that his former employer employed 15 or more employees. Again, under the law, concerning a national origin claim, an employer with 15 or more employees is not covered by IRCA; rather, the employer is covered by Title VII. Thus, Mr. Caltzoncin’s claim should have been directed to the EEOC, not the Office of Special Counsel for Immigration – Related Unfair Employment Practices (OSC). Thus, OCAHO also dismissed this claim.
By: Bruce Buchanan, Sebelist Buchanan Law PLLC
A Washington company, DJ Drywall, Inc., and its owner, David L. Jones, were sentenced in U.S. District Court in Seattle, Washington for repeated violations of the Immigration Reform and Control Act (IRCA) of 1986. Previously, in February 2016, DJ Drywall and David Jones pleaded guilty to knowingly encouraging and inducing a Mexican national to reside in the United States in violation of law. The guilty plea followed two civil penalties imposed by Immigration and Customs Enforcement (ICE) regarding the company’s practice of illegally hiring undocumented workers.
In both 2008 and 2011, DJ Drywall was audited by ICE and paid fines of $32,316 and $27,405, respectively, for violating immigration law, including the hiring of 21 known undocumented workers. Additionally, in 2013, ICE found a pattern of DJ Drywall hiring unauthorized workers and paying them ‘off the books,’ or encouraging them to submit false I-9 documents.
Under the terms of the plea agreement, David Jones forfeited $25,000 to the United States and received two years of probation. The company will be on probation for five years and will pay a $75,000 fine. While on probation, DJ Drywall will be required to verify the work authorization of all newly hired employees through the E-Verify system.
By Bruce Buchanan, Sebelist Buchanan Law
On November 24, 2015, the USCIS announced they are seeking public comment on a newly revised version of the I-9 form in order to reduce technical errors and address frequent points of confusion for both employers and employees. In order to seek comments, USCIS published a 60-day federal register notice. Once published, this will be the 13th version of the I-9 form, which arose out of the Immigration Reform and Control Act. Despite the proposed changes, the new I-9 form will not be electronic, though it will be smarter.
USCIS has proposed a number of changes, including: (1) certain fields, such as the correct number of digits for a Social Security number, will be validated to ensure information is entered correctly; (2) it will generate a quick-response matrix barcode, or QR code, once the form is printed, which can be used to streamline audit processes; (3) new drop-down list for the Lists of Acceptable Documents in Section 2, including a list of “universally used abbreviations”; (4) In Section 1, “Other Names Used” field will be replaced with “Other Last Names Used” (so no more listings of Bubba); (5) Some foreign nationals will only need to provide either, rather than both, their Form I-94 number or foreign passport information; (6) a new dedicated area in Section 2 to enter additional information that employers are currently required to notate in the margins of the form; (7) provides instructions on the screen that users can access to complete each field; (8) separates the instructions from the I-9 form; (9) explains in the instructions that asylees and refugees are good examples of those who should check “An alien authorized to work”; (10) clarifies the proper use of the Spanish version of the I-9 form in the instructions and discusses using it as a translation tool; and (11) employers will be able to enter multiple preparers/translators, each of whom must complete a separate preparer and/or translator section.
The period for comment ends on January 25, 2016 so you will need to act quickly to file your comments electronically. The USCIS is looking for feedback in four areas: the I-9’s usefulness; burden on employers and new hires; the quality, utility, and clarity of the information requested; and any improvements which can minimize the employer’s burden.