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I-9 E-Verify Immigration Compliance

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  1. Consulting Firm Settles with DOL Concerning H-1B Workers

    By: Bruce Buchanan, Sebelist Buchanan Law

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    U.S. Department of Labor Administrative Law Judge Larry S. Merck approved a settlement between consulting firm, Indus Group Inc., and the administrator of the DOL’s Wage and Hour Division, under which Indus will pay $214,785 in back wages to three H-1B computer programmer workers. Of the three employees, one is being paid $106,860 and the others - $57,760 and $50,160. The company has also agreed to pay $9,120 in penalties.

    According to the consent findings, the administrator found that in addition to owing back wages to the H-1B employees, the company did not cooperate in the investigation. However, Indus has now agreed to pay to pay the back wages as a “good faith resolution” of the dispute, according to the settlement.
  2. Company Agrees to Pay $195,000 to Settle Immigration Discrimination Claim

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), an agency within the Department of Justice, has reached a settlement with American Cleaning Company (ACC), a maintenance and janitorial company based in Brighton, Massachusetts, resolving claims that the company discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).

    The OSC’s investigation found that from January 15, 2009 until September 30, 2015, ACC routinely required workers, who were not U.S. citizens, to produce specific documents for the I-9 form and E-Verify processes, even though U.S. citizens were permitted to choose whatever valid documentation they wished to prove their work authorization. Under the INA, all workers, including non-U.S. citizens, must be allowed to choose whichever valid documentation they would like to present to prove their work authorization. It is unlawful for an employer to limit employees’ choice of documentation because of their citizenship or immigration status.

    Under the terms of the settlement agreement, ACC will pay $195,000 in civil penalties, train its human resources staff on the anti-discrimination provision of the INA through OSC webinars, and review and revise its employment policies and procedures related to nondiscrimination to conform to INA’s anti-discrimination requirements. Furthermore, ACC agreed to eliminate or revise the section of its website entitled “Immigration Compliance” to be consistent with E-Verify requirements, for a three-year period submit any changes in employment policies concerning nondiscrimination on the basis of citizenship, immigration status, or national origin to the OSC for their review, and submit written reports to the OSC, if requested to do so, over a three-year reporting period.

    Updated 10-19-2016 at 09:28 AM by BBuchanan

  3. Judge Dismisses Claims Against Disney and Consulting Firms for Alleged Visa Abuse

    By: Bruce Buchanan, Sebelist Buchanan Law
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    U.S. District Judge Gregory A. Presnell agreed with Walk Disney Parks and Resorts U.S. Inc., and consulting firms, Cognizant Technology Solutions and HCL, that the former Disney employees’ allegations that Disney and the consulting firms conspired to replace Disney employees with foreign workers in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) were unsupported by the law. In so finding, the judge said claims that the consultants made false statements in applications to obtain H-1B visas for the foreign workers relied on a misunderstanding of the law, and were fatal to the RICO actions and related claims.

    Dena Moore and Leo Perrero sued Disney and Cognizant Disney and HCL, respectively, on January 25, 2016. Moore and Perrero, who are both Americans, claimed Disney conspired with the consultants to replace 200 to 300 U.S. employees with people hired under the H-1B program, which provides temporary visas for nonimmigrant skilled workers.

    The civil RICO claims against HCL and Cognizant were based on the allegation that they engaged in racketeering activity by falsely stating on required Labor Department forms that the hiring of the nonimmigrant H-1B employees would not adversely affect the working conditions of similarly situated employees. Perrero and Moore claimed their firings did just that. HCL and Cognizant argued that the requirement applied only to their own employees, not Disney’s. Judge Presnell agreed, noting the working conditions requirement mentions “its U.S. worker employees.”

    Furthermore, the judge found the certification that H-1B employees would not displace American workers does not apply to H-1B workers, who earn at least $60,000 a year and have certain education or skill levels.

    This has been a highly visible litigation with most experts expecting dismissal of the claims. Given the nature of the claims, it is expected that Moore and Perrero will appeal the dismissals.
  4. Citizenship Status & National Origin Discrimination Claims Fail

    By: Bruce Buchanan, Sebelist Buchanan Law

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    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.
  5. IT Companies and Company Officials Indicted for H-1B Visa Fraud


    By: Bruce Buchanan, Sebelist Buchanan Law

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    IT companies, SCM Data, Inc., MMC Systems, Inc., their owner, Sowrabh Sharma, and an employee, Shikha Mohta, have been indicted for fraud in federal court, accused of conspiring to lie on applications for H-1B visas for temporary immigrant employees. The falsehoods were promises of full-time, in-house salaried jobs to foreign workers when the truth is they contracted the employees out, did not always pay them their wages and falsified pay stubs to cover-up their unlawful actions.

    The defendants “benched” employees, meaning they did not pay them when there was not work for them, which is a violation of the law, and created false pay stubs to cover up their actions. According to the indictment, the workers were pressured into paying Sharma to create the fake documents that indicated they were getting full-time wages, and were told if they did not do this, they would not be allowed to stay in the United States.

    The visa fraud and obstruction of justice conspiracy charge carries a potential penalty of five years in prison and a $250,000 fine. The alien harboring conspiracy charge carries a potential penalty of 10 years in prison and a $250,000 fine.

    Stay tuned for further developments in this matter – guilty pleas, trial, etc.
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