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I-9 E-Verify Immigration Compliance

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  1. IER Settles Immigration-Related Discrimination Claim Against Florida Company

    By Bruce Buchanan, Sebelist Buchanan Law
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    The Justice Department’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, reached an agreement with Brickell Financial Services Motor Club, Inc., d/b/a Road America Motor Club, Inc. (Road America), headquartered in Miami, Florida. The settlement resolves the IER’s investigation into whether the company violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants when verifying their work authorization.

    The IER concluded, based on its investigation, that Road America routinely requested that lawful permanent residents show their Permanent Resident Cards to prove their work authorization but did not request specific documents from U.S. citizens. The investigation further revealed that Road America required lawful permanent resident employees to re-establish their work authorization when their Permanent Resident Cards expired, even though federal rules prohibit this practice. The antidiscrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on the employees’ citizenship or national origin.

    Under the settlement, Road America will pay a civil penalty of $34,200 and pay $1,044 to compensate a worker who lost wages due to its unfair documentary practices. Road America has also agreed to post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements.

    Unfortunately, the errors made by Road America are common among many employers. A good immigration training program could avoid these mistakes.
  2. OCAHO Decides Who is Protected from Document Abuse

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Chief Administrative Hearing Officer (OCAHO) issued an interesting decision involving “document abuse” which was recently renamed “unfair documentary practices” in the new regulations. U.S. v. Mar-Jac Poultry, Inc., 12 OCAHO no. 1298 (March 2017). It was a split decision with the Administrative Law Judge (ALJ) for OCAHO finding Mar-Jac Poultry committed many document abuse violations while other allegations were not document abuse.

    The case started with a charge filed by Edwin Morales, a TPS recipient, with the Office of Special Counsel for Immigration-Related Unfair Employment Practice (OSC) alleging document abuse. Thereafter, OSC informed Mar-Jac that it was expanding its investigation to include “a possible pattern or practice of document abuse against non-U.S. citizens.”

    Based on its investigation, the OSC filed a complaint with OCAHO alleging in Count I – Mar-Jac committed document abuse against Morales and “other similarly situated persons” and Count II – Mar-Jac engaged in a “pattern or practice of discrimination in the hiring and Employment Eligibility Verification Process.”

    In its Motion for Summary Judgment, Mar-Jac argued the statute only prohibits document abuse as it relates to protected individuals - U.S. citizens (USCs), recent lawful permanent residents (LPRs), refugees and asylees. Since Morales was a TPS recipient with an Employment Authorization card (EAD), Mar-Jac argued he was not protected regarding the document abuse allegations. The ALJ determined that “claims of document abuse with an intent or purpose of discriminating against an individual based on citizenship status is limited to claims against statutorily-defined protected individuals as defined in 8 U.S.C. § 1324b(a)(6).” Since Morales was on TPS, the ALJ agreed with Mar-Jac’s defense that Morales was not a protected individual.

    Concerning Count II – whether Mar-Jac engaged in a pattern or practice of discrimination, Mar-Jac conceded its HR employees required potential applicants to present a photo ID and a Social Security card in order to obtain an employment application. Without such, Mar-Jac did not provide them with an application.

    Also, if a person checked a box on Section 1 of the I-9 form as a LPR or authorized to work and presented Lists B and C documents, such as a driver’s license and Social Security card, respectively, the Mar-Jac HR employee would request the LPR card or EAD. Mar-Jac’s witnesses stated this request was made to make sure the card was valid and they believed E-Verify required non-USCs to present their LPR card or EAD. The witnesses acknowledged they were mistaken in their beliefs. Mar-Jac conceded USCs were not requested to present a particular document.

    Mar-Jac argued it had a legitimate, non-discriminatory reason, to verify the correct box was marked in Section 1, when its HR employees asked non-USCs to see their List A document – LPR card or EAD. Mar-Jac asserted it followed this practice in order to have Sections 1 and 2 accurately completed and to avoid non-compliance with the completion of the I-9 form, which could cause civil and criminal liability. Mar-Jac also argued it required non-USCs to present a List A document because of a mistaken belief that E-Verify required it; thus, it had no discriminatory intent. Furthermore, Mar-Jac asserted requests related to E-Verify are not covered by 8 U.S.C. § 1324b; thus, no violations should be found.

    To establish a case of document abuse, the decision stated a complainant must show (1) “that, in connection with the employment verification process required by 8 U.S.C. § 1324a(b), an employer has requested from the employee more or different documents than those required or has rejected otherwise acceptable valid documents and (2) that either of these actions was undertaken for the purpose or with the intent of discriminating against the employee on account of the employee’s national origin or citizenship status.”

    One of the issues in the case was the requisite intent required to prove the violations. The OSC asserted U.S. v. Life Generations, a 2014 OCAHO decision, stated an intent to discriminate means that a person “would have acted differently but for the protected characteristic.” Mar-Jac argued it had no intent to discriminate because a significant portion of its workforce were non-USCs. Furthermore, their actions were merely designed to “assist the applicant in satisfying the requirements of the Form I-9.” The ALJ stated discriminatory intent does not require “malice, ill will, or a malevolent nature.” Thus, Mar-Jac’s arguments were without merit.

    The ALJ concluded the testimony of Mar-Jac’s HR employees established direct evidence of discriminatory intent – the requests to see a DHS-issued document, LPR card or EAD, was motivated by the individual’s LPR or work-authorized status. Thus, the ALJ found the company “engaged in prohibited documentary practices by virtue of both specifying the kind of document that a new hire had to present, and requesting an additional document when a new hire sufficiently presented Lists B and C documents. Moreover, Mar-Jac’s documentary practices were carried out for the purposes of satisfying employment verification requirements of 8 U.S.C. § 1324a(b).”

    As for Mar-Jac’s remaining defense that it completed Section 1 as the preparer/translator and thus it needed to verify the information listed to avoid civil and criminal liability, the ALJ stated, “Although the preparer/translator attestation in Section 1 requires an attestation that the information contained therein is true and correct to the best of the preparer/translator’s knowledge, that standard does not require absolute metaphysical certainty – or even actual knowledge – regarding the information from the preparer/translator and in no way requires an employer to ask to see a document to verify the information.”

    Therefore, the OCAHO ALJ found Mar-Jac committed the violations alleged in Count II. A determination on the civil penalties and back pay were left for a later time. Furthermore, Mar-Jac has the right to appeal the ALJ’s decision to the Chief Judge of OCAHO.

    This decision shows employees can be mistaken on the proper manner to complete the I-9 form. Therefore, it is crucial that employers obtain regular training from immigration counsel on immigration compliance issues.
  3. IER Settles Immigration-Related Discrimination Claim Against Levy Restaurants

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, reached a settlement agreement with Levy Premium Foodservice Limited Partnership d/b/a Levy Restaurants. The settlement resolves the investigation of a charge filed by the charging party, a lawful permanent resident, against Levy’s Barclay Center restaurant in Brooklyn, New York, alleging discrimination in violation of the Immigration and Nationality Act (INA).

    The IER concluded that Levy discriminated against two lawful permanent residents by improperly reverifying their employment eligibility because of their immigration status. It also determined that Levy improperly required them to present specific types of documents to re-establish their employment eligibility and suspended the charging party when he was unable to present such a document.

    The anti-discrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on the employee’s citizenship, immigration status or national origin.

    Levy cooperated throughout the investigation, quickly reinstated the charging party, and restored his lost wages and leave benefits. Under the settlement, Levy must pay a civil penalty of $2,500 to the United States, undergo IER-provided training on the anti-discrimination provision of the INA, and be subject for one year to IER monitoring and reporting requirements – providing the I-9 forms of all non-U.S. employees hired during this period of time to IER for review as to whether Levy Restaurants is abiding by the law.

    This settlement demonstrates the need for employers to be careful as to the presentation of documentation by employees. Employers may not demand the presentation of certain documents, such as a green card. Rather, it is up to each individual employee to choose document(s) that are listed on the List of Acceptable documents.
  4. OSC Settles Immigration-Related Discrimination Claim Against J.E.T. Holding

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) (just renamed the Immigrant and Employee Rights Section of the Civil Rights Division of the Department of Justice) reached a settlement to resolve claims that J.E.T. Holding Co. Inc. discriminated against U.S. citizens, lawful permanent residents, and certain work-authorized immigrants in violation of the Immigration and Nationality Act (INA). J.E.T. is a company based in Saipan, Commonwealth of the Northern Mariana Islands (CNMI), where it operates a restaurant, bowling alley and amusement center.

    The investigation found evidence that for approximately the first five months of 2016, J.E.T. engaged in a pattern or practice of refusing to hire U.S. citizens, lawful permanent residents, and other work-authorized individuals for several dishwasher positions. OSC concluded that J.E.T. failed to consider qualified U.S. citizen applicants and others based on their citizenship or immigration status because of a preference for hiring non-immigrant foreign workers with CW-1 visas. The CW-1 visa grants temporary work authorization to its beneficiaries and is only available in the CNMI.

    Under the terms of the settlement, J.E.T. will pay a civil penalty of $12,000, establish a backpay fund of $40,000 to compensate qualified claimants for any lost wages through a claims process, train its workers on the anti-discrimination provision of the INA, and be subject to department monitoring.
  5. OCAHO Finds No Document Abuse

    By Bruce Buchanan, Sebelist Buchanan Law

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    An individual’s claim of document abuse by a company was dismissed by Office of Chief Administrative Hearing Officer (OCAHO) because the company was abiding by E-Verify laws in declining a List B document without a photograph. See Johnson v. Progressive Roofing, 12 OCAHO no. 1295 (Jan. 2017).

    Michael Johnson was hired by Progressive Roofing and thereafter presented his documents in the process of completing his I-9 form – voter registration card (List B document) and two List C documents- a birth certificate and a social security card. Progressive Roofing told Johnson that the documentation was insufficient because the voter registration card did not contain a photograph. Although unclear whether Progressive Roofing explained the insufficiency, the company was enrolled in E-Verify which requires a List B document, if presented, to contain a photograph. (Alternatively, an employee may present a List A document.)

    Johnson filed a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) (since renamed the Immigrant and Employee Rights Section) alleging document abuse for the company’s failure to accept his List B and C documents. OSC dismissed the charge for insufficient evidence of a violation but advised him of the right to file his own complaint with OCAHO. Johnson did so, alleging the same violation. Thereafter, Progressive Roofing filed an Answer and Motion for Summary Decision asserting it did not violate the law because it was following E-Verify practices and procedures by requiring a List B document containing a photograph or List A be presented. Johnson did not respond to the company’s motion.

    OCAHO explained document abuse occurs when an employer requests more or different documents than necessary or rejects valid documents and does so for the purpose of discriminating on the basis of citizenship status or national origin. Thus, document abuse takes two elements, an act and intent. It has not been a strict liability offense since the amendments to 8 U.S.C. §1324b(a)(b) in 1996.

    OCAHO found Johnson did not establish a prime facie case of discrimination because Progressive Roofing was an enrolled participant in E-Verify, which requires any List B document presented to contain a photograph, and did not request more or different documents than required by law. Assuming arguendo, Johnson established a prime facie case, Progressive Roofing met its burden by showing it had a legitimate nondiscriminatory reason for requesting a List B document with a photograph – to be in compliance with federal law. Finally, Johnson did not allege this defense was pretextual. Therefore, OCAHO dismissed Johnson’s complaint.

    This decision reminds employers that the use of E-Verify requires following certain rules, including only accepting List B documents with a photograph. In rejecting Johnson’s List B document, Progressive Roofing was merely following the applicable law.
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