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I-9 E-Verify Immigration Compliance

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  1. Company Off the Hook for Over $1.4 Million in Penalties

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In an unusual case, the Office of Chief Administrative Hearing Officer (OCAHO) granted a Motion for Summary Judgment filed by Personnel Plus, Inc. in U.S. v. Spectrum Technical Staffing Services and Personnel Plus, Inc., 12 OCAHO no. 1291 (Nov. 2016).

    Immigration and Customs Enforcement (ICE) issued a complaint against Spectrum alleging it committed 2,147 substantive and uncorrected technical errors and sought a penalty of over $1.4 million. A few months later, ICE filed a Motion to amend the Complaint to add Personnel Plus as a Respondent. OCAHO granted the motion.
    Personnel Plus filed an Answer to the Amended Complaint asserting it was not a successor or alter ego of Spectrum. Thereafter, Personnel Plus filed a Motion to Dismiss/Motion for Summary Judgment seeking to be removed from the case.

    The underlying legal arguments and facts were somewhat complicated and centered around any relationship between Spectrum and Personnel Plus, and if such existed, whether liability should attach to Personnel Plus. ICE asserted Personnel Plus was a “mere continuation” of Spectrum and thus met an exception to the general rule that a successor company does not acquire the liabilities and obligations of a predecessor company; thus, it cannot be found liable. ICE stated four factors should be considered: (1) continuity of ownership, (2) time lapse between dissolution and formation of the respective companies, (3) continuation of the business, and (4) the assumption of liabilities by the new entity.

    Concerning ownership, Ms. Goslin was the owner of Spectrum while her husband, Mr. McKay, who was divorcing Ms. Goslin, was the owner of Personnel Plus. Although Spectrum initially listed both Ms. Goslin and Mr. McKay as owners, OCAHO accepted corporate documents filed with the state which showed Mr. McKay was not an owner of Spectrum. Second, although Spectrum curtailed its operations after the formation of Personnel Plus, it did not cease to exist as an entity and continued on a scaled-down basis. Finally, there was no evidence of assumption of liabilities by Personnel Plus although ICE stated it was seeking that information in discovery.

    One fact that ICE attempted to use in its favor is that the couple’s divorce decree stated Mr. McKay would receive 55% and Ms. Goslin 45% of profits if either Spectrum or Personnel Plus was sold. However, OCAHO did not find this to constitute common ownership. Another fault cited by ICE was that for a short period of time, Spectrum and Personnel Plus shared office space. However, OCAHO did not find this evidence sufficient to find liability on behalf of Personnel Plus.

    Personnel Plus argued there was not any significant transfer of assets from Spectrum to Personnel Plus, which is required before addressing a “mere continuation” analysis. ICE asserted there was a transfer of assets, but it was unable to provide proof of such, although it felt its discovery requests would provide such proof.

    OCAHO concluded ICE failed to demonstrate a transfer of all or substantially all of Spectrum’s assets to Personnel Plus, which is a prerequisite to establishing corporate successor liability. Assuming arguendo there was a transfer, OCAHO found the record does not show any exception to the general rule that a successor does not acquire the liabilities of the predecessor.

    The case will continue with Spectrum as the only Respondent. I will keep you informed of further developments in this case.
  2. OSC Settles Two Immigration-Related Discrimination Claims

    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, reached settlements resolving claims that the Denver Sheriff Department and the Aldine, Texas Independent School District discriminated against work-authorized immigrants in violation of the Immigration and Nationality Act (INA).

    The investigation found that from approximately January 1, 2015 until March 23, 2016, the Denver Sheriff Department discriminated based on citizenship status by requiring applicants for deputy sheriff positions to be U.S. citizens and publishing job postings with U.S. citizenship requirements, in violation of the INA. The INA’s anti-discrimination provision prohibits employers from limiting jobs to U.S. citizens except where the employer is required to do so by law, regulation, executive order or government contract. The Denver Sheriff Department was not subject to one of the INA’s exceptions.

    Under the settlement agreement, the Denver Sheriff Department will pay $10,000 in civil penalties; identify applicants who may have been disqualified from consideration for deputy sheriff positions due to the citizenship requirement and consider these applicants’ qualifications without regards to their citizenship; train its human resources staff on the anti-discrimination provision of the INA by attending an OSC webinar; provide the OSC every 6 months for the next three years the completed I-9 forms of all new hires and all recruiting advertisements; and review and revise its policies and procedures to comply with the requirements of the INA’s anti-discrimination provision.

    The other investigation found that Aldine School District required non-U.S. citizens, but not similarly-situated U.S. citizens, to present specific documents when reverifying their employment eligibility once their original documents expired. The INA’s anti-discrimination provision prohibits employers from making specific documentary demands based on citizenship or national origin when verifying or reverifying an employee’s authorization to work.

    As part of the settlement agreement, Aldine School District will pay a $140,000 civil penalty, revise its policies and procedures, and train its human resources staff on the anti-discrimination provision of the INA by attending an OSC webinar.
    In a unique remedy, Aldine School District will implement a three-year program to train students and students’ parents on the requirements of the INA’s anti-discrimination provision. Specifically, the training program will be focused on educating adult participants in Aldine’s parent literacy/English as a Second Language (ESL) classes, 12th grade students enrolled in certain classes and the school district’s employees.
  3. OCAHO Finds Employees’ TWIC Cards Grounds to Reduce Employer’s Penalties

    By Bruce Buchanan, Sebelist Buchanan Law

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    A trucking company, Ideal Transportation, significantly reduced its penalties for I-9 violations due to its truck drivers possessing “Transportation Worker Identification Credential” (TWIC) cards, which were issued by the Transportations Security Administration (TSA). See U.S. v. Ideal Transportation Co., Inc., 12 OCAHO no. 1290 (2016).

    Ideal Transportation operates a small intermodal carrier transporting international ocean containers between several ports in the northeast. Its drivers must have TWIC cards because they have unescorted access to secure areas of port facilities and certain vessels at the ports. In order to obtain a TWIC card, an individual must provide biometrics and pass a “security threat assessment” conducted by TSA. Furthermore, one must be a U.S. Citizen or be lawfully in the U.S. In this case, all of Ideal’s truck drivers possessed TWIC cards.

    After Ideal was served with a Notice of Inspection, it reviewed its employees’ I-9 forms and determined they were “soiled, torn and illegible and the information was outdated”; thus, all new I-9 forms were completed. Furthermore, Ideal shredded the existing “soiled” I-9 forms.

    Based upon this background, Immigration and Customs Enforcement (ICE) found 12 violations because the I-9 forms were not timely completed. ICE proposed a penalty of $11,220 based upon a baseline penalty of $935 per violation. In its filing with the Office of Chief Administrative Hearing Officer (OCAHO), Ideal asserted its drivers had TWIC cards, were U.S. citizens and had completed I-9 forms when initially hired. Thus, it asserted it did not violate the law.

    OCAHO found Ideal’s argument, that the timely prepared I-9 forms and subsequent destruction because they were damaged, was not a valid defense to liability. Although OCAHO recognizes “impossibility” as an affirmative defense to the failure to present I-9 forms when the I-9 forms were unavailable through no fault of the employer, those facts were not presented in this case. Rather, the destruction of the original I-9 forms was attributable to the company’s own actions. Thus, OCAHO found Ideal liable for 12 Form I-9 violations.

    However, OCAHO stated the TWIC cards demonstrated the employees were authorized to work, which undercuts ICE’s argument that Ideal was “at high risk to hire employees that may not be authorized to work.” Furthermore, the TWIC cards demonstrated the lack of seriousness of the violations as well as the company’s good faith.

    OCAHO also found due to Ideal’s very small size, the general public policy of leniency to small business entities should be considered in determining the appropriate penalty. Based upon these factors, OCAHO determined a penalty of $2700 was appropriate.
    Although Ideal greatly reduced its penalty, the lesson to be learned here is not to destroy the original I-9 forms even if you determine the I-9 forms need to be re-done. Instead, attach the original I-9 forms to the new I-9 forms even if they are soiled or torn.
  4. OSC Files Lawsuit Against Two Washington Companies Alleging Discrimination

    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, recently filed a lawsuit against two Washington-based companies, Washington Potato Company and Pasco Processing LLC, alleging that they violated the Immigration and Nationality Act (INA) by discriminating against immigrants during the employment eligibility verification process because of their citizenship status.

    According to the complaint filed with the Office of the Chief Administrative Hearing Officer (OCAHO), from at least November 2013 until at least October 2016, Washington Potato and Pasco Processing hired over 2,000 U.S. citizens (USCs) and approximately 800 lawful permanent residents (LPRs). Of the LPRs hired, 99.5% produced a List A document – their green card - to establish their work authorization while only 2% of the USCs hired produced a List A document, such as a U.S. passport or U.S. passport card. This information was gleaned by the Department of Homeland Security’s Monitoring and Compliance branch by reviewing data from E-Verify, which the two companies used.

    The companies asserted the high rate of List A documents for LPRs was because these employees did not possess List B or C documents. However, the OSC alleged many LPR employees presented List B and C documents but the companies requested a specific document, the LPRs’ green card, for the Form I-9 and/or E-Verify from non-U.S. citizen employees, but allowed USCs the flexibility to present a variety of documents. Thus, the OSC alleged the companies treated LPRs and non-citizen employees differently than USCs and this treatment was intentional and discriminatory.

    Under the INA, all workers, including non-U.S. citizens, must be allowed to choose freely from among the valid documentation that proves their work authorization. The INA prohibits employers from discriminating by unlawfully limiting some workers’ choices based on their citizenship status. I will keep you updated on the outcome of this litigation.

    This complaint is an example of the downside of using E-Verify – the data entered by the employer is scrutinized by the Department of Homeland Security, who may refer the case to the OSC for investigation and litigation.
  5. New I-9 Form, effective January 22, 2017

    By Bruce Buchanan, Sebelist Buchanan Law

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    On November 14, 2016, the USCIS finally issued the new I-9 form, effective January 22, 2017. The current I-9 form continues to be in effect; however, during the interim period before January 22, 2017, an employer may use either the current 2013 version or the 2017 version. The new I-9 form has an expiration date of August 31, 2019.

    The most significant change is to make the downloadable I-9 form into a “smart” form. What does a “smart” form mean? It is not an electronic I-9 form. The downloadable I-9 form, using an Adobe reader, has been enhanced with error checking which is designed to prevent the most common mistakes. An example is if you fail to fully complete section 1 of the I-9 form, you will receive an alert that you did not enter data into all of the required fields.

    Employers filling out the smart I-9 version must still print the form, obtain signatures, monitor reverifications and updates. Second, if you use the smart form and make a mistake, your company will be held to the same standard of review when faced with an Immigration and Customs Enforcement (ICE) inspection.

    With the addition of the “smart” form, there are three types of I-9 forms: paper, “smart”, and electronic.
    Some of the other changes are:
    (1) Replacing the “Other Names Used” field in Section 1 with “Other Last Names Used.” This will avoid employees writing their nicknames in this field;

    (2) Modifying Section 1 to request certain employees to enter either their I-94 number or foreign passport information, rather than both;

    (3) Requiring you designate whether the employee’s number is an Alien (A) number or USCIS number, if using the smart form (however the numbers are the same though the more recent green cards refer to the number as USCIS);

    (4) Requiring “N/A” be entered instead of blanks in certain fields;

    (5) Replacing the word “date” to “today’s date”, next to signature boxes (this may help some people from entering their birthdate or from backdating the signature);

    (6) Providing a box for employees to check if they did not use a preparer or translator;

    (7) Modifying the I-9 form by adding a supplemental third page if using multiple preparers and/or translators;

    (8) Adding an area in Section 2 to enter additional information for TPS extensions, OPT STEM extensions and H-1B portability to avoid having to note this information in the margins of the I-9 form; and

    (9) Increasing the pages of instructions from 6 to 15.

    Although most of the changes may not appear significant, I would advise employers to seek legal advice from an immigration attorney as to compliance with the new I-9 form.
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