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I-9 E-Verify Immigration Compliance

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  1. DOJ Proposes Revisions to OSC Through Rulemaking

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Department of Justice (DOJ) has issued a Notice of Proposed Rulemaking for the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Comments are being accepted for 30 days.

    The most significant proposed revision is to incorporate into a regulation the OSC’s definition of the intent requirement to discriminate as set forth in U.S. v. Life Generations Healthcare LLC, 11 OCAHO no. 1227 (2014), where OCAHO stated the discriminatory intent inquiry under 8 U.S.C § 1324b (a)(b) involves “ask[ing] the question whether the outcome would have been different if the groups [U.S. citizens versus non-U.S. citizens] had been reversed.” Thus, just the request for more or different documents because of an individual’s citizenship status or national origin constitutes intentional discrimination even if the employee was completely unaware of the prohibition against discrimination in the I-9 process.

    An interesting revision is a change in the name of the agency to Immigrant and Employee Rights Section. It would remain in the Civil Rights Division of DOJ. This change is understandable given the current lengthy name for the agency.

    Another potentially significant revision is replacement of the term “documentation abuses” with the term “unfair documentary practices”. Previously, to prove document abuse, one had to prove intent. But “unfair documentary practices” suggests no intent is needed to prove something is unfair.

    Other revisions include:


    • Definition of the term “citizenship status” to include refugees and asylees, which is consistent with OSC’s current practice;
    • Clarification of the term “discrimination” to be consistent with 8 U.S.C. 1324b - the act of intentionally treating an individual differently, regardless of the explanation for the discrimination and regardless of whether it is because of animus or hostility;
    • Definition of the statutory phrase – “more or different documents than required under such section to be consisted of OCAHO case law;
    • Definition of the term “charge” to make it broader as to what is acceptable;
    • Define the term “hire”;
    • Define how the Special Counsel’s office counts full-time and part-time employees to determine jurisdiction of national origin discrimination allegations; and
    • Clarification that Special Counsel is not bound by the 90-day statutory time limit on filing a complaint that is applicable to individuals filing actions.


    Overall, a few of these proposed changes are significant while others amount to housekeeping. Since the period for comment is open, if you feel strongly about one or more of the revisions, I invite you to submit your comments.
  2. OSC Settles Claim Against Hartz Mountain Industries for Requiring U.S. Citizenship

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) reached a settlement agreement with Hartz Mountain Industries Inc., of Secaucus, New Jersey, to resolve allegations that the company discriminated against work-authorized non-U.S. citizen job seekers, in violation of the Immigration and Nationality Act (INA).

    The OSC’s investigation found that Hartz discriminated based on citizenship status by publishing a job posting that required applicants for a particular job opening to be U.S. citizens, in violation of the INA. Job postings with citizenship preferences or requirements violate the INA by restricting employment opportunities available to work-authorized non-citizens. While there are exceptions in the INA that allow for specific positions to be subject to citizenship requirements, the position available at Hartz did not meet the criteria.

    Under the settlement agreement, Hartz will pay $1,400 in civil penalties to the United States, train its human resources staff on the anti-discrimination provision of the INA, revise its policies on requiring citizenship and other policies, ensure all postings or advertisements are reviewed by a trained individual in employment discrimination or by legal counsel, review its policies and be subject to monitoring by the department for a three-year period.

    Although this type of violation is rarely seen, it can be prevented by legal counsel reviewing a company’s job postings.
  3. 5th Circuit Overrules OCAHO Decision Concerning $226,000 Penalty

    By: Bruce Buchanan, Sebelist Buchanan Law, PLLC

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    The Fifth Circuit Court of Appeals in Employer Solutions Staffing Group II, LLC v. OCAHO (August 11, 2016) reversed an OCAHO decision concerning the issue of personal versus corporate attestation of employee’s documents in Section 2 of the I-9 form; thus, it vacated the $226,000 civil penalty.

    ESSG is a staffing company based in Edina, Minnesota. It contracted with Larsen Manufacturing Co. in El Paso, Texas to provide employees. Then ESSG subcontracted with Flexicorps, Inc. to make all the hiring decisions for temporary employees at the Larsen facility.

    In so doing, ESSG had Flexicorps supervise the completion of Section 1 of the I-9 forms by employees and examine original documents presented by the employees for Section 2. However, instead of Flexicorps completing the employer certification at that time, ESSG had Flexicorps make color copies of the documents and send the I-9 forms and color copies of the documents to ESSG’s corporate headquarters. At that point, an ESSG employee examined the photocopies and completed Section 2, including the signed attestation that the employer examined the documents and they appeared to be genuine.

    In 2011, Immigration and Customs Enforcement (ICE) served a Notice of Inspection on ESSG for the Larsen facility and thereafter determined ESSG’s procedure in signing the certification was contrary to the law. After a hearing before an Administrative Law Judge (ALJ) of OCAHO, OCAHO agreed with ICE, found 242 violations and assessed a penalty of over $226,000.

    The 5th Circuit analyzed the statute, the Immigration and Nationality Act (INA), the accompanying regulations, and any applicable case law. The INA states a “person or entity must attest… on a form” that it has verified the employee’s document(s). See § 1324a (b)(1)(A). Thus, ESSG argued corporate attestation is consistent with the INA.

    The regulations state “an employer, his or her agent, or anyone acting directly or indirectly in the interest thereof, must” complete Section 2 on the I-9 form and sign the attestation. § 274a.2(b)(1)(ii)(B). The Court said it did not read this regulation to require the same person who met the hired employee and examined the original documents to be the one to sign the attestation.

    The Court then reviewed whether ESSG had fair warning of OCAHO’s reading of the statute and regulations. It found it did not, especially given the fact there were no prior OCAHO decisions on the matter and the ALJ only cited “commonsense” for her ruling, not any statute, regulation or case law. Thus, given the language of the INA and its regulations, the Court found ESSG lacked fair notice of OCAHO’s position.

    The Court concluded a “reasonable interpretation” permits corporate attestation due to the language of the INA. Thus, the Court concluded ESSG did not violate the INA. However, before employers celebrate the victory, it must be noted the Court went on to state their holding “does not address whether ICE can lawfully prohibit corporate attestations”; only that ESSG was not given fair notice.

    Since this is a Court of Appeals decision, it does not change ICE’s and OCAHO’s position and they are free to clarify whether corporate attestation is prohibited.

    An interesting question is whether this decision may provide an avenue to resolve the remote hire issue where the employer does not view the original documents. Obviously, it will depend on ICE’s and OCAHO’s position on this issue going forward
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  4. Employer’s Failure to Notify USCIS Costs $183,000

    By Bruce Buchanan, Sebelist Buchanan Law

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    A Department of Labor (DOL) Administrative Law Judge ruled in Matter of: Administrator, Wage, and Hour Division v. ME Global, Inc. that the employer failed to perfect the bona fide termination of its employee; therefore, ME Global owed the employee $183,000.

    ME Global hired Petar Peric on a three-year H-1B Visa in 2008. After only two months, ME Global fired Peric for unsafe conduct. Although the company notified Peric of his termination, it failed to provide notification to the USCIS of his termination.

    Under immigration laws, when an employer terminates an H-1B Visa holder, it must inform the employee, notify the USCIS, and offer to pay transportation costs for the employee to return to his home country.

    In 2010, Peric filed a complaint with DOL alleging he was owed back wages because of ME Global’s failure to notify the USCIS. Essentially, Peric argued that he was “benched” – placed in non-productive status.

    ME Global argued the complaint was beyond the 12 month statute of limitations; thus, it should be dismissed. The ALJ rejected that argument and found it was a continuing violation and was timely filed as long as it was filed within one year of when Peric left the United States. Since he filed the complaint in 2010 before leaving the U.S. in June 2011, it was not time-barred.

    Thus, the ALJ ruled ME Global owed Peric back wages from November 2008, when he was fired, until June 2011, when he left the United States.

    As you see, the employer’s failure to properly notify the USCIS of an employee’s discharge was costly.
  5. Disney, Consultants, and Terminated Workers Continue to Fight Over H-1B Visa Claims

    By Bruce Buchanan, Sebelist Buchanan Law

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    As I previously discussed and has been widely reported, two terminated Disney World employees have sued Disney World and two consulting firms, HCL, Inc. and Cognizant Technology Solutions Corp., alleging violations of Racketeer Influenced and Corrupt Organizations Act (RICO).

    The employees have alleged the consulting companies lied to the U.S. Department of Labor in their Labor Condition Application (LCA) when it stated the hiring of H-1B nonimmigrant employees would not adversely affect the working terms and conditions of other employees of the consulting firms. The employees have also alleged Disney World conspired with consulting firms leading to the RICO lawsuit.

    Cognizant has argued it did not even make those assertions in the LCA because the workers in question were exempt, and even if the workers were not exempt, Cognizant only was certifying no Cognizant employee would be affected. Cognizant stated it had no duty to make any certification for Disney Workers.

    Furthermore, Disney World and the defendants have stated Cognizant failed to allege the existence of an enterprise, necessary for a RICO Act claim; rather, Disney and Cognizant had a consulting relationship. In a later filing, HCL and Disney World made similar assertions as to why the lawsuit should be dismissed.

    More recently, the former Disney World employees responded that RICO had been sufficiently pled and Cognizant “could not help Disney World pursue the profit by hiring cheaper foreign labor without Cognizant filing the H-1B petitions.”

    In Disney World’s latest filing in the class action lawsuit, it stated that the plaintiffs’ lawsuits were “in search of a legal claim.” Disney World further stated the lawsuits do not have “any viable theory on which to proceed.”

    I will get you updated on further filings and rulings on the case.
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