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I-9 E-Verify Immigration Compliance

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  1. 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.
  2. 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.
  3. 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.
  4. Immigrant Personal Injury: Do You Have a Case?

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    There are a variety of situations in which you may be injured due to something that was not your fault, such as being involved in a car accident caused by someone else’s negligence, slipping and falling in a grocery store, or being bitten by someone else's dog. One should not have to pay costly medical bills and other expenses that resulted from an accident caused by no fault of your own. It is important to hold people and businesses accountable when they put others at risk.

    However, there might be one curveball in your case: You're an undocumented immigrant.

    Many undocumented immigrants are afraid to take action in these situations. Even though they might be worried about having to pay for their own medical bills or have concerns regarding the financial losses that result when one is unable to work due to an injury, many immigrants are afraid of the alternative: deportation. People in this situation often end up suffering alone without hiring a personal injury lawyer to assist them with their case, which ultimately does not hold the responsible party accountable for their negligence.

    Is this situation fair?

    Usually, becoming a United States citizen or permanent resident is a long, challenging and expensive road. Just because you have not been able to overcome this obstacle does not mean that you shouldn't be able to protect yourself and fight for your rights after an injury.

    Luckily, many United States courts agree with this. New York's highest court, the Court of Appeals, decided on this matter in 2006. In the case, Balbuena v. IDR Realty, a man named Gorgonio Balbuena, a native of Mexico who was in the United States illegally at the time of the accident, was involved in a construction site accident. This accident was pretty serious and left Balbuena with serious head trauma and other injuries, making it impossible for him to work.

    When Balbuena filed a lawsuit, he was asked for proof that he was allowed to legally work in the United States. Since Balbuena was an undocumented immigrant, he unsurprisingly had no such paperwork. Because of this, part of Balbuena’s claim was dismissed, but the New York Court of Appeals ultimately found that he still had a right to a personal injury lawsuit due to the injuries that he sustained while on the job. Once this precedent was set, other courts throughout the nation have had similar decisions.

    So if you’re an undocumented immigrant, you should not be afraid to fight for the compensation you deserve after a personal injury. The last thing one should have to worry about while going through the tough healing process that ensues after a personal injury is their United States citizenship status.

    Of course, these cases may be tricky. Just as with most other personal injury cases, it is usually best to work with a skilled attorney. Your attorney has the qualifications to sort out these complex legal matters. Don't be afraid to fight for yourself; instead, hire a Miami personal injury lawyer who can help you every step of the way.

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ID:	1125Thanks to our friends at Personal Injury Lawyer of Miami for their added insight into personal injury practice.
  5. New I-9 Form to be Effective January 22, 2017

    By Bruce Buchanan, Sebelist Buchanan Law

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    The USCIS is finally going to be issuing a new I-9 form, which will be effective January 22, 2017. The current I-9 form continues to be in effect even though it states that it expires on March 31, 2016.

    This new I-9 form has cleared its final hurdle – approval by the Office of Management and Budget (OMB). Although the new form will not be for mandatory use until January 22, 2017, the USCIS must publish it by November 22, 2016. If it follows the pattern of the 2013 I-9 form, employers will be able to use either the 2013 I-9 form or the 2017 I-9 form for the period between November 22, 2016 and January 21, 2017. The new I-9 form will have an expiration date of August 31, 2019, which is consistent with previous I-9 validity periods.

    To date, the USCIS has not published a draft of the new I-9 form although it has stated changes that will be included in the 2017 I-9 form. Some of these 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) Providing a box for employees to check if they did not use a preparer or translator;
    (4) Modifying the I-9 form to enable the use of multiple preparers and translators; and
    (5) Adding an area in Section 2 to enter additional information for TPS extensions, OPT STEM extensions and H-1B portability in order to avoid having to note this information in the margins of the I-9 form.

    Stay tuned as I will publish the new I-9 form as soon as it is released, which hopefully will be before November 22, 2016.
    Tags: 2017, i-9 form, uscis Add / Edit Tags
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