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I-9 E-Verify Immigration Compliance

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  1. ICE Targeted 7-Eleven Stores for “Silent Raids”

    By: Bruce Buchanan, Sebelist Buchanan Law

    As discussed in my prior blog entry (http://blogs.ilw.com/entry.php?10245...-Service-Chain) that Immigration and Custom’s Enforcement (ICE) would be targeting a national food service chain, ICE delivered Notice of Inspections (NOIs) (sometimes referred to as “silent raids”) at 98 7-Eleven stores nationwide on January 10, 2018 demanding to see the I-9 forms of all employees. Furthermore, ICE detained 21 employees.

    The 7-Eleven stores involved are in 17 states, including California, Florida, Michigan, Missouri, New Jersey, New York, Pennsylvania, and Texas. 7-Eleven, Inc. issued a statement stating each of the stores is a franchise, who is “solely responsible for their employees, including who to hire and verifying their eligibility to work in the United States.” Furthermore, it stated that the franchise agreements of franchisees “convicted” of violating immigration laws, have been terminated.

    ICE referred to their recent actions as a “follow-up” of a 2013 investigation that resulted in the arrests and convictions of five franchise owners in New York and Virginia for harboring undocumented workers and wire fraud. Because of these convictions, it spawned the largest forfeiture in ICE history – forfeiture of franchise rights to 14 stores, forfeiture of five houses, valued at $1.3 million, and restitution of over $2.6 million for back wages stolen from employees. See my blog entry (http://blogs.ilw.com/entry.php?8272-...in-ICE-History) for October 6, 2014 for more details on the 2014 convictions.

    Thomas Homan, acting director of ICE, issued a statement – “Today’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”

    One of the unique aspects of the delivery of NOIs is the detention of 21 employees. In the Obama administration, which issued thousands of NOIs every year, ICE would not normally detain workers at the time of the NOI; rather, ICE would issue a Notice of Suspect Documents to the employer stating the named employees’ documentation did not demonstrate work authorization. Then the employer gave the employee an opportunity to provide “new” documentation. If employees were unable to provide valid documentation, the employer had to discharge the employees or face penalties. However, at no point in this process did ICE seek to detain undocumented workers.

    Homan had previously stated ICE was going to detain undocumented workers during NOIs and now we know how ICE is going to accomplish this. Unless ICE can establish that the employer was aware or should have been aware of the workers’ undocumented status, the employer will not face civil penalties or criminal penalties. In ICE’s previous actions toward 7-Eleven franchises, it established knowledge of undocumented status.

    After the indictments and convictions of the store owners in New York and Virginia in 2013 and 2014, 7-Eleven’s corporate office stated it would “take aggressive actions to audit the employment status of all of its franchisees’ employees.” However, 7-Elevens recent statement appears to try and wash their hands of any responsibility or liability for the franchisees’ actions.

    I will keep you abreast of future developments in the case. For a review of ICE’s civil and criminal actions against employers as well as other employer immigration compliance issues, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.
  2. Business Owner Goes to Jail for Fraudulent H-1B Scheme

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The owner of two employment staffing companies was sentenced in federal court to 52 months in prison and a $50,000 fine for engaging in a scheme to submit fraudulent H-1B petitions for foreign workers. Previously, Sunitha Guntipally had pled guilty to one count of conspiracy to commit visa fraud, obstruction of justice, use of false documents, mail fraud and witness tampering.

    Judge Lucy Koh stated the defendant’s conduct undermines respect for our legal immigration system and does tremendous damage to our institutions and affects the rights of others to immigrate to the United States.

    Guntipally and her husband, who own employment staffing companies DS Soft Tech and Equinett, and two co-conspirators submitted more than 100 fraudulent H-1B petitions to foreign workers to be placed at companies that either did not exist or never received the workers, according to federal prosecutors. The U.S. attorney’s office said the applications were intended to create a pool of H-1B beneficiaries who could then get hired by other companies, thereby unfairly giving Guntipally and her co-conspirators an advantage over other competing employment staffing firms.

    This case is another example of individuals being criminally liable for immigration law violations. For more information about immigration compliance issues, I invite you to read The I-9 and E-Verify Handbook, which I co-authored and is available at http://www.amazon.com/dp/0997083379.
  3. Automatic Extension of EADs for Hondurans and Nicaraguans on TPS

    By: Bruce Buchanan, Sebelist Buchanan Law

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    As the Trump administration continues to gradually terminate Temporary Protected Status (TPS) for some countries, including Honduras and Nicaragua, it is important to remember the validity of employment authorization cards (EADs) is automatically extended for a period of time for individuals with TPS from Honduras and Nicaragua.

    If an employee from Honduras or Nicaragua has an EAD with an expiration date of January 5, 2018 and lists the category code "A-12" or "C-19," this EAD is automatically extended and the employee may continue to work without a new EAD (and without a receipt notice) through the end of the applicable automatic extension period. TPS Honduras EADs have been automatically extended through July 4, 2018. TPS Nicaragua EADs have been automatically extended through March 6, 2018.

    Additionally, the EADs of TPS beneficiaries from Nicaragua, who timely re-register (Form I-821) and file a request for a new EAD (Form I-765), will be automatically extended through July 4, 2018. The period for re-registration ends on February 13, 2018. If approved, the new EAD will terminate on January 5, 2019, the last day of TPS for Nicaraguans.

    The automatic extension of EADs for Hondurans and Nicaraguans is very important for employers because normally an employer needs to terminate an employee whose EAD expires and no further work authorization, such as a new EAD or permanent resident card, is provided. Thus, EADs obtained through TPS are an exception to the rule. If an employer terminates an employee because it believed their work authorization had expired when the EAD had been automatically extended, the employer may have violated the anti-discrimination provision of the Immigration and Nationality Act (INA). As subject, the employee may be subject to an investigation by the Immigrant and Employee Rights (IER) Section of the Department of Justice, which has authority to seek an employee’s reinstatement with back pay and a penalty paid to the U.S. government.

    If you want further information on immigration compliance issues, I recommend reading The I-9 and E-Verify Handbook, a new book that I co-authored, which is available at http://www.amazon.com/dp/0997083379.
  4. ICE to Increase Worksite Immigration Enforcement Actions in Tennessee

    By: Bruce Buchanan, Sebelist Buchanan Law

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    Immigration and Customs Enforcement (ICE), through Homeland Security Investigations (HSI), plans to increase worksite immigration enforcement actions across Tennessee in 2018, according to Robert Hammer, an assistant special agent in charge of HSI in Nashville, Tennessee. As previously reported, Thomas D. Homan, acting director of U.S. Immigration and Customs Enforcement, has stated there will be 4 to 5 times increase in worksite enforcement actions, usually referred to as inspections, in 2018. See http://blogs.ilw.com/entry.php?10186...-Current-Level.

    Hammer made this statement after the indictment of 20 undocumented workers for using fake IDs to work in a sensitive air cargo area at Memphis International Airport.

    http://blogs.ilw.com/entry.php?10292...mented-Workers. Hammer also stated worksite immigration investigations will likely focus on "critical infrastructure," such as airports, defense contractors, food distribution and other businesses that have an impact on the general safety and welfare of the community. The emphasis on critical infrastructure is because the agency is making it one of its priorities.

    Although the Obama Administration greatly increased worksite immigration enforcement actions from 2009 through 2014, it curtailed these operations in the last two years of its administration. The Trump Administration’s increase will more than double the highest number of worksite immigration enforcement actions under the Obama Administration. Increased enforcement could have a big impact on companies and industries that use immigrant labor, especially in those states which do not require the use of E-Verify.

    If an employer receives a Notice of Inspection from ICE, its I-9 forms may show the employment of undocumented workers and the employer may have knowingly hired unauthorized workers, which is against the law. Alternatively, an employer may not have knowingly hired unauthorized workers but still those undocumented workers must be discharged (unless they quit) or the employer will be fined.

    If you want a full discussion of the possible criminal and civil sanctions against employers for violating immigration laws, I recommend you read my book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379. There are chapters dedicated to civil penalties and criminal sanctions for violating immigration laws.
  5. DOJ Settles Case Under U.S. Workers Initiative

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Immigrant and Employee Rights Section (IER) of Department of Justice (DOJ) and Crop Production Services Inc. (Crop Production), an agricultural company headquartered in Loveland, Colorado, reached a settlement agreement. The settlement resolves a lawsuit the IER filed against the company on September 28, 2017, alleging the company discriminated against U.S. citizens because of a preference for foreign visa workers, in violation of the Immigration and Nationality Act (INA).

    The settlement is part of the DOJ’s Protecting U.S. Workers Initiative, an initiative aimed at targeting, investigating, and bringing enforcement actions against companies that discriminate against U.S. workers in favor of foreign visa workers.

    The lawsuit alleged that in 2016, Crop Production discriminated against at least three United States citizens by refusing to employ them as seasonal technicians at its El Campo, Texas location because the company preferred to employ temporary foreign workers under the H-2A visa program. According to the complaint, Crop Production imposed more burdensome requirements on U.S. citizens than it did on H-2A visa workers to discourage U.S. citizens from working at the facility. For instance, the complaint alleges that although U.S. citizens had to complete a background check and a drug test before being permitted to start work, H-2A visa workers were allowed to begin working without completing them and, in some cases, never completed them. Ultimately, all of Crop Production’s 15 available seasonal technician jobs in 2016 went to H-2A visa workers instead of U.S. workers. For more information on the lawsuit, see my prior blog entry at http://blogs.ilw.com/entry.php?10157...t-U-S-Citizens.

    Under the INA, it is unlawful for employers to intentionally discriminate against U.S. workers because of their citizenship status or to otherwise favor the employment of temporary foreign visa workers over available, qualified U.S. workers. In addition, the H-2A visa program allows employers to hire foreign visa workers only if there is not enough qualified and available U.S. workers to fill the jobs.

    The settlement agreement requires Crop Production to pay civil penalties of $10,500 to the United States; undergo department-provided training on the anti-discrimination provision of the INA; revise employment policies to assure that Crop Production does not discriminate on the basis of citizenship, and clarify that H-2A visa holders may only be hired in the absence of any qualified and available U.S. workers; and comply with departmental monitoring and reporting requirements for a two-year period. In a separate agreement with workers represented by Texas RioGrande Legal Aid, Crop Production agreed to pay $18,738.75 in lost wages to affected U.S. workers.

    For answers to many other questions related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.
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