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I-9 E-Verify Immigration Compliance

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  1. DOL Cites Another Win for Trump’s Hire American Executive Order

    By: Bruce Buchanan, Sebelist Buchanan Law


    The U.S. Department of Labor’s Wage and Hour Division (WHD) has debarred Christopher Lee Smith, owner of Christopher Lee Smith Farms in Glasgow, Kentucky, from applying for certification to request temporary foreign workers under the H-2A agricultural worker visa program for three years. WHD also assessed the employer a $35,755 civil penalty for violating the labor provisions of the H-2A program and found Smith owed $58,820 in back wages to 14 employees.

    The DOL investigation found Smith violated the requirements of the H-2A visa program by failing to reimburse foreign workers for their transportation expenses to and from their home countries, as the law requires; failing to reimburse employees for expenses related to obtaining their visas; failing to keep required time and pay records; failing to pay employees their wages when due; and failing to pay the required minimum wage to H-2A visa workers, as required by law.

    And in a continuing trend with each resolution of an immigration-related case by a federal agency, the DOL pointed to safeguarding American jobs pursuant to Trump’s Buy American, Hire American Executive Order. Specifically, Karen Garnett, Wage and Hour Division District Director in Louisville, said “This case demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and protect vulnerable workers from being paid less than they are legally owed.”

    The H-2A temporary agricultural program establishes a means for agricultural employers, who anticipate a shortage of domestic workers, to bring non-immigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.

  2. Company sues Competitor for Employing Undocumented Workers

    By: Bruce Buchanan, Sebelist Buchanan Law


    American Elite Molding LLC (AEM), a manufacturer based in Crestview, Florida, is suing a competitor, Advanced Cable Ties Inc. (ACT), for employing undocumented workers, through Twin City Temporaries, Inc., at a Gardner, Massachusetts, plant.

    The lawsuit, filed in Okaloosa County Circuit Court, Florida, is seeking unspecified monetary damages stemming from ACT's alleged use of workers who are not eligible to work in the United States. It specifically states the company has lost contracts and had to lower its prices as a result of ACT's alleged labor practices. AEM categorizes these actions by ACT as unfair competition.

    AEM CEO Bob Sires said about 60 percent of ACT's labor force - almost all the night workers and some of the day workers are undocumented workers supplied by Twin City Temporaries, which is based in Fitchburg, Massachusetts. He further claims Twin City Temporaries brings in workers from Vietnam and other countries and pays them under the table to avoid taxes and payroll costs.

    Sires said Twin City Temporaries approached him a year to a year-and-a-half ago and proposed a similar arrangement with AEM, claiming it could help cut labor costs. AEM rejected this arrangement. Sires claims after this, he realized AEM started losing a couple of clients' accounts to ACT, after ACT began using Twin City Temporaries.

    "ACT misleads the relevant marketplace by disingenuously attempting to convey a wholesome image of its workforce where, in reality ... over sixty percent of ACT's workforce is ineligible to work in the United States," the lawsuit says. The lawsuit also claims that AEM hires only legal workers and pays them in accordance with applicable labor laws.

    This lawsuit is extremely unusual and is a new twist on what employers, which employ undocumented workers, must fear. I wonder if Immigration & Customs Enforcement reads the newspaper and serves a Notice of Inspection on ACT. I will keep you informed on this lawsuit.

    For answers to many other questions related to immigration compliance, 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.
  3. Owner of Queens Medical Employment Agency Indicted for H-1B Visa Fraud Conspiracy

    By: Bruce Buchanan, Sebelist Buchanan Law




    A federal grand jury has returned an indictment against Rena Beduya Avendula, the owner and managing executive of Professional Placement & Recruitment, Inc. (PPRI) of Woodside, NY, charging her with a visa fraud scheme that brought Filipino citizens into the United States for financial profit. Avendula is charged with five counts of visa fraud and with conspiring to defraud the United States, commit visa fraud and illegally bring undocumented individuals into the United States.

    As alleged in the indictment, Avendula engaged in a scheme from October 2009 to February 2015 to bring Filipino citizens into the United States illegally by fraudulently claiming to the United States Citizenship and Immigration Services (USCIS) that the foreign nationals would be employed in “specialty occupations,” thereby qualifying for H-1B visas. Avendula used PPRI to further her visa fraud scheme. PPRI specialized in providing nursing care to elderly patients. Avendula, in an effort to secure some of the limited number of H-1B visas that are available each year, falsely stated that foreign nurses would be working in specialized nursing at prevailing wage rates. In fact, they were going to work as licensed practical nurses or RNs at significantly lower rates of pay, mostly at nursing homes and rehabilitation centers. Generally, registered RNs typically do not qualify as beneficiaries for H-1B visas.

    The H-1B nonimmigrant visa classification allows foreign nationals to enter the United States temporarily for the specific purpose of working for the employer in a “specialty occupation.” A “specialty occupation” requires certain specialized knowledge and a bachelor’s or higher-level degree for entry into the occupation within the United States labor market.

    As alleged in the indictment, PPRI sponsored dozens of fraudulent applications and profited from the filing fees she collected from the nurses and from the health care facilities that paid PPRI.

    If convicted, Avendula faces a statutory maximum of 10 years’ imprisonment for the visa fraud charges, and 10 years’ imprisonment for each foreign national she induced to reside in the United States in connection with the visa fraud conspiracy.
  4. ICE’s I-9 Audits Will Increase by 400% in Fiscal Year 2018

    By: Bruce Buchanan, Sebelist Buchanan Law



    As I have discussed numerous times in this blog, Immigration and Customs Enforcement (ICE), under the Trump administration, has significantly increased I-9 inspections/audits of employers to verify that their employees are authorized to work in the country and determine whether substantive paperwork violations have occurred. Now, we have statistics which substantiate the heightened activity of ICE in worksite enforcement.

    Between October 1, 2017, the beginning of fiscal year 2018, and May 4, 2018, there have been 2,282 ICE audits of employers’ I-9 forms while in the prior fiscal year, October 2016 and September 2017, there were 1,360 audits. Derek Benner, head of ICE's Homeland Security Investigations unit, said another nationwide wave of audits, like the ICE audits of 7-Eleven in January 2018, planned this summer, would push the total number of audits to "well over" 5,000 by the end of the fiscal year, September 30, 2018. If so, that would be almost a 400% increase from fiscal year 2017 and highest number of ICE audits ever. ICE audits, as we know them today, started in George W. Bush’s administration. ICE audits previously peaked at 3,127 in 2013.

    According to Brenner, ICE has developed a plan to conduct as many as 15,000 I-9 audits a year if it can receive appropriate funding and support from other areas of the Trump administration. The plan calls for creation of an Employer Compliance Inspection Center to perform employer audits at a single location instead of at regional offices around the country. Benner said that putting up to 250 auditors in one center with the right technology and a team of attorneys to quickly levy fines would enable his agency to audit between 10,000 and 15,000 companies annually.

    Benner stated one of the goals of this proposal is to create a "reasonable expectation" among employers that they will be audited. "This is kind of our vision of creating this culture of compliance," he said. "I think it's a game-changer."

    The plan also proposes changing the manner of delivery of the ICE Notice of Inspection (NOI) from in person to email or certified mail. Furthermore, after an initial review, by electronically scanning the I-9 forms for suspicious activity, the most egregious cases will be sent to regional offices for more in-depth investigation.

    Benner said the agency will focus both on criminal cases against employers as well deporting employees who in the country illegally. The statistics show there were 594 employers arrested on criminal work-related immigration charges from October 1 to May 4, up from 139 during the previous fiscal year.

    The deportation numbers will certainly increase due to this worksite enforcement as ICE has begun to detain employees listed on the Notice of Suspect Documents. Prior administrations did not detain undocumented workers on the Notice of Suspect Documents which lead many undocumented workers to quit one employer and find work down the road with another employer. As Brenner and many other immigration officials have stated, hiring undocumented workers creates unfair advantages for companies, encourages people to come to the U.S. illegally, results in document and identity fraud, exposes workers to potentially dangerous conditions without proper equipment, and leads to failure to pay overtime pay.

    If the heightened I-9 audits by ICE frightens you, as it should, be prepared and conduct an internal I-9 audit under the direction or control of an experienced immigration attorney with expertise in worksite enforcement. If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  5. DOJ and USCIS Formalize Partnership to Protect U.S. Workers from Discrimination and Combat Fraud

    By: Bruce Buchanan, Sebelist Buchanan Law



    The Department of Justice (DOJ) and U.S. Citizenship and Immigration Services (USCIS) have agreed on a Memorandum of Understanding (MOU) that expands their collaboration to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States.

    The MOU will increase the ability of the agencies to share information and help identify, investigate, and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws. In 2010, USCIS and the Justice Department’s Civil Rights Division entered into an ongoing partnership to share information about E-Verify misuse and combat employment discrimination, and this MOU expands upon the two agencies’ existing partnership.

    To advance the goals of the Buy American and Hire American Executive Order, in 2017, the Civil Rights Division of the DOJ launched the Protecting U.S. Workers Initiative, which is aimed at targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of foreign visa workers. Under this Initiative, the Civil Rights Division has opened dozens of investigations, filed one lawsuit, and reached settlement agreements with two employers.
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