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Chinese Immig. Daily
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By Bruce Buchanan, Sebelist Buchanan Law PLLC
A New York immigration lawyer Loreto Kudera, and his wife, Hazel Kudera, the owner of several medical staffing agencies, pled guilty and forfeited $1 million after admitting to giving false information to U.S. immigration authorities when applying for H1-B visas for foreign nurses, according to plea agreement.
Hazel Kudera owned multiple staffing agencies in New York that specialized in providing nurses to hospitals, outpatient and skilled nursing facilities. According to the government, Hazel and Loreto Kudera submitted at least 100 fraudulent applications to authorities, and profited from filing fees collected from the nurses and from the health care facilities that paid Hazel Kudera’s staffing agencies.
Hazel and Loreto Kudera falsely stated that the foreign nurses would be working in specialty occupations at prevailing wage rates when in actuality they were going to work as licensed practical nurses (LPNs) or registered nurses (RNs) at much lower rates of pay.
As part of the alleged scam, Hazel Kudera falsified a staffing agreement between NYC Healthcare Staffing and Dewitt Rehabilitation listing job positions that did not exist, such as clinical coordinator and health care quality assurance manager, in order to cover up the false job titles she provided to USICS.
By Bruce Buchanan, Sebelist Buchanan Law
Cawoods Produce, Inc. was successful in reducing by more than 50% the proposed penalty of $36,465 by Immigration and Custom Enforcement (ICE) before the Office of Chief Administrative Hearing Officer (OCAHO).
Cawoods was served with a Notice of Inspection (NOI) requesting the employer’s I-9, employee roster, and federal quarterly tax statements. After producing these documents, ICE issued a Notice of Suspect Documents, two Notices of Discrepancies, and a Notice of Technical and Procedural Failures. Thereafter, ICE issued a three-court complaint against Cawoods – Count I – failed to properly correct technical failures for two employees; Count II – failed to prepare and/or present I-9 forms for nine employees; and Count III – failed to properly complete 28 Form I-9’s.
ICE set the baseline penalty at $935 for the 39 violations based on 52 employees or 75%. Interestingly, it did not mitigate or aggravate the penalties based upon the five factors, finding them all to be neutral. Cawoods asserted it was a small business and should receive a 5% mitigating factor as well as one for good faith compliance. ICE treated good faith as neutral because it cooperated in the investigation. These assertions should have been discounted as it is well-established case law that good faith compliance after the service of the NOI is meaningless. Overall, ICE sought $36,465 as the penalty.
OCAHO found the two employees’ I-9 forms with technical errors were never listed in the Notice of Technical Failures nor was Cawoods given the opportunity to correct the technical errors. Therefore, Count I was dismissed.
Concerning Count II, OCAHO found that one employee was not listed on the quarterly tax report; thus, there was no showing that he was employed during the relevant period. However, the other eight employees were employed and Cawood’s failure to prepare I-9 forms on them was a serious violation.
As for Count III, OCAHO found ICE established liability for most, but not all, of the alleged violations. ICE failed to show nine of the 28 employees listed were employees during the relevant time period through tax records or any other records. OCAHO agreed the other 17 employee’s I-9 forms were improperly completed in Sections 1, 2, or 3.
Concerning the five factors, OCAHO found Cawoods to have committed serious violations, which called for a 5% aggravating factor while it was due a 5% mitigating factor of being a small business.
Based on the totality of the circumstances, OCAHO found $600 per the eight violations in Count II and one violation in Count III ($5400); $575 for the nine serious violations in Court II ($5175), and $500 per violation for the improper completion of eight I-9 forms ($400). Overall, it assessed a penalty of $14, 575.
As you can see, litigation in this case was a worthwhile endeavor as it reduced the penalties by about 75%. ICE’s failure to provide sufficient proof on many of the allegations proved to be their downfall.
By Bruce Buchanan, Sebelist Buchanan Law
OCAHO issued another recent decision in U.S. v. East Coast Foods, Inc. d/b/a Roscoe’s House of Chicken N Waffles, 12 OCAHO no. 1281 (2016), wherein it reduced ICE’s proposed penalty of $38,708 to $18,350 for a variety of reasons.
As it sounds, Roscoe’s is a small restaurant in California which got served with a Notice of Inspection on June 19, 2013. By July 29, ICE served Roscoe’s with a Notice of Discrepancies for two employees. Roscoe’s resolved those situations.
At this point, ICE served Roscoe’s with a Notice of Intent to Fine (NIF) alleging in Count I - 31 violations of failing to ensure employees properly completed Section I, Count II – one instance where the employee failed to properly complete Section 2, and Count III – failure to prepare and/or present I-9 forms for four employees. ICE sought a penalty of $38,709 based upon a baseline penalty of $935, which was enhanced by 5% each for the seriousness of the violations, its lack of good faith and employment of unauthorized workers.
However, it refused to mitigate the fine for being a small business even though it qualified as such with 60 employees. The enhancement for unauthorized workers was mystifying because ICE failed to allege the employment of any unauthorized workers.
Of the 31 violations in Count I, the employees failed to check an immigration status box – a blatant violation. In Count II, the employer only recorded a List C document and failed to record an accompanying List B document. Concerning Count III, all parties agreed no I-9 forms were presented for four employees.
Concerning the five aggravating / mitigating factors, OCAHO awarded a 5% reduction for Roscoe’s being a small business. On lack of good faith, it is well-known case law that a company’s poor rate of compliance does not equal bad faith. Thus, OCAHO declined to aggravate the penalty by 5% due to bad faith. OCAHO agreed the violations were serious; thus, the 5% enhancement.
Overall, OCAHO believed a lower fine was appropriate and assessed the penalties accordingly – Count I - $500 each x 31 = $15,500; Count II - $450 for 1 violation; and Count III - $600 each x 4 = $2,400. Thus, OCAHO assessed a penalty of $18,350.
By: Bruce Buchanan, Sebelist Buchanan Law PLLC
Recently, the Office of Chief Administrative Hearing Officer (OCAHO) found Muniz Concrete & Contracting, Inc. (MCCI), based out of Texas, to be in violation of the Immigration Reform and Control Act Section 1324a for 32 violations. Due to these violations, OCAHO determined the appropriate penalty was $16,275 although ICE sought a penalty of $19,989.
The case started with a Notice of Inspection, served on September 27, 2013 and quickly followed with a Notice of Suspect Documents (NSD), Notice of Discrepancies, and a Notice of Technical or Procedural Failures. The Notice of Discrepancies listed 19 employees where ICE discovered a discrepancy related to their identity and employment authorization. Concerning the NSD, ICE found 45 employees had not proven valid work authorization and the company was told to give the employees an opportunity to present “new and better” work authorizations
and without such, they should be terminated because they did not have valid work authorization. MCCI terminated a number of employees after receipt of the NSD. ICE also found 84 technical errors for which MCCI was given 10 days to correct without facing a penalty.
Finally, ICE issued a NIF alleging three counts - knowingly employing two unauthorized employees, failure to prepare 10 Form I-9s, and failure to properly ensure completion or the completion of 20 Form I-9s.
MCCI argued that under OCAHO case law, the fine amount was too high. ICE responded it simply utilized the fine matrix. Since there were 32 substantive violations out of 89 Form I-9s, it determined MCCI should be penalized $605 per violation because the percentage was between 30 and 39%. ICE enhanced the base penalty by 5% for the seriousness of the violations and another 5% for the hiring of six unauthorized workers. Furthermore, ICE charged the minimum of $375 each for knowingly employing the unauthorized workers.
ICE asserted MCCI had constructive knowledge of the unauthorized status of two employees because their work authorization cards had expired. ICE failed to provide any analysis of why it set these penalties at the lowest level. OCAHO found “knowingly” continuing to employ an unauthorized worker was more serious than paperwork violations; thus, it increased the penalty to $800 each (still 25% of the possible $3200 penalty).
On the ten violations for failure to prepare an I-9 form or failure to timely prepare one, there was little dispute of the facts. Same applies for the 20 alleged substantive paperwork violations – no employee signature; no A numbers for lawful permanent residents, no box checked as to status; or only a list C document recorded in Section 2.
There were two faults within ICE’s analysis of the penalties. One, it refused to consider a 5% mitigating factor even though MCCI was clearly a small employer with about 50 employees. Two, it did not provide any definitive evidence of the unauthorized status of some employees. Instead, it relied on the fact that the individuals were listed on the NSD. But, as we all should know by now, being listed on a NSD is not proof of unauthorized status.
Based upon the overall facts of the case, ICAHO decided to reduce penalties for Counts II and III. Though, as previously stated, it increased the penalty for the two Count I violations. OCAHO ordered MCCI to pay a fine of $16,275, a reduction of about 13%.
By Bruce Buchanan, Sebelist Buchanan Law PLLC
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) agreed to a settlement agreement with Macy’s over allegations that the national retailer violated the Immigration and Nationality Act (INA) by discriminating against work-authorized non-U.S. citizens at its Glendale, California, facility.
The OSC’s investigation was based on a charge filed by a lawful permanent resident (LPR) whose hiring was delayed in October 2015. The investigation found the employee was not able to begin working at Macy’s even though she showed sufficient proof of her work authorization because a Macy’s official incorrectly believed that LPRs were required to produce unexpired permanent resident cards, rather than any other document(s). The investigation also found that other human resource employees in Macy’s Glendale location were imposing the same unnecessary requirement on four other LPRS. In contrast, U.S. citizens were permitted to choose whichever valid documents they wanted to present to prove their work authorization. Under the INA, LPRs do not have to show their permanent resident cards when they start working; instead, they can choose whichever documentation the would like to present, such as a driver’s license and unrestricted social security card, from the lists of acceptable documents.
Under the settlement agreement, Macy’s will pay an $8,700 civil penalty, provide additional training to its employees and assess its employees’ understanding of applicable rules, and be subject to monitoring for 18 months, including periodically producing Form I-9 information to the OSC for review.
This settlement is just another instance of OSC’s aggressive approach to enforcing the anti-discrimination provisions under Section 12324b of the INA. To date in calendar year 2016, the OSC has settled eight discrimination cases. Even after all of this activity, I would estimate 50% of employers are not aware of the OSC and its authority.