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I-9 E-Verify Immigration Compliance

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  1. What is Legal Workforce Act (H.R. 3711)?

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Congressman Lamar Smith (R-TX) has introduced the Legal Workforce Act (H.R. 3711), which proposes numerous changes to current law, including requiring every employer in the U.S. to use E-Verify or an electronic employment eligibility verification system.

    Here is a summary of the bill’s key provisions:

    • Mandatory employer participation in the E-Verify phased in over a two-year period based on the size of the employer;
    • Conditional job offers, based on passing E-Verify, which is contrary to current law, which prohibits use of E-Verify until a job offer is accepted;
    • Within 6 months of the bill’s enactment, these current workforce employees would have to have their employment eligibility reverified: employees who require a federal security clearance; workers assigned to a federal contract; and federal, state, and local government employee;
    • Beginning 30 days after the bill is enacted, an employer would be allowed to voluntarily use E-Verify to reverify the employment eligibility of any current employee, if the employer reverified all individuals at the same geographic location or employed within the same job category;
    • Employers would also have to use E-Verify, according to the phase-in timeline for employers based on their size, for workers with expiring work authorization;
    • Many documents, that are currently acceptable, would no longer be acceptable for proving employment eligibility;
    • Employers would be relieved of liability for any employment action taken with respect to a worker if the employer had verified the worker’s identity and employment eligibility and relied on information provided by E-Verify in good faith;
    • Would substantially increase penalties for employers who knowingly hired or employed unauthorized workers and who failed to use E-Verify or knowingly submitted false information to E-Verify, but fines for knowingly hiring or employing an unauthorized worker could be waived if the employer established that it acted in good faith;
    • Would preempt states and localities from passing employer sanctions and employment eligibility verification laws; but, it would allow states to use business licensing and similar laws to penalize employers for not using E-Verify. It would also allow a state, at its own cost, to enforce the provisions of the Legal Workforce Act if it followed the federal regulations, rules, and guidance implementing the act.


    I will keep you apprised of any actions taken toward passage of the Legal Workforce Act though it is highly unlikely that this bill will pass the U.S. Senate.
  2. DOJ Settles Immigration-Related Discrimination Claim Against Rustic Inn Crabhouse

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Justice Department, through the Immigrant and Employee Rights Section (IER), has reached a settlement agreement with Ark Rustic Inn LLC d/b/a Rustic Inn Crabhouse (Rustic Inn), a restaurant located in Fort Lauderdale, Florida. The agreement resolves the IER’s investigation into whether Rustic Inn discriminated against work-authorized immigrants when verifying their employment authorization.

    The investigation revealed Rustic Inn routinely requested that work-authorized non-U.S. citizens present specific documents, such as Permanent Resident Cards or Employment Authorization Documents, to verify their citizenship status information; however, it did not subject U.S. citizens to the same verification. The anti-discrimination provision of the Immigration and Nationality Act (INA) prohibits employers from subjecting employees to different or unnecessary documentary demands based on employees’ citizenship, immigration status or national origin.

    Under the settlement, Rustic Inn will pay a civil penalty of $4000 to the United States; review and revise any existing employment policies that relate to nondiscrimination on the basis of citizenship or immigration status and national origin so that it prohibits such discrimination in regard to the I-9 verification process; train its staff by viewing a free IER Employer/HR representative webinar; post notices informing workers about their rights under the INA’s anti-discrimination provision; shall ensure that all individuals, who are responsible for formulating and carrying out its hiring/firing, and employment eligibility verification policies, have available the most current version of the Form 1-9, USCIS Employment Eligibility Verification Handbook for Employers (M-274), and be subject to departmental monitoring for three years.

    The allegation of having different standards for U.S. citizens than non-U.S. citizens is a fairly common error by employers. However, with training by an immigration attorney, well-versed in employer compliance, these errors can easily be avoided. For more information on this issue and many others 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.
  3. IER Settles Immigration-Related Retaliation Claim Against InMotion Software

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Immigrant and Employee Rights Section (IER) of the Department of Justice has reached a settlement with InMotion Software LLC (InMotion), a software developer and recruiter in Texas, resolving their investigation into whether the company violated the Immigration and Nationality Act’s (INA) anti-discrimination provision.

    Based on its investigation, the IER concluded InMotion retaliated against a work-authorized job applicant (Charging Party) after she protested InMotion’s requirement that she provides a Permanent Resident Card (green card) even though she had a valid employment authorization card issued by the USCIS. After the Charging Party complained that InMotion’s request constituted discrimination under the INA, InMotion removed her from its pool of candidates available for job placement. The INA’s anti-discrimination provision prohibits employers from retaliating against or intimidating workers because they have opposed employer conduct that may violate that provision or have participated in the IER’s activities to enforce it.

    Under the settlement agreement, InMotion will pay $3621, the maximum civil penalty for an instance of retaliation, to the U.S. government, remove any references to the investigation or settlement from the Charging Party’s personnel file, post notices informing workers about their rights under the INA’s anti-discrimination provision, provide all newly hired employees with a Lists of Acceptable Documents to provide with the I-9 form, train its staff, and be subject to departmental monitoring and reporting requirements for one year.

    Companies need to be aware of the laws relating to retaliation if an employee files an anti-discrimination claim or alleges such discrimination. For the answers to these issues and many others 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.
  4. Court Rules for DOL in H-1B Backpay Lawsuit

    By: Bruce Buchanan, Sebelist Buchanan Law

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    A New York federal judge, Edgardo Ramos, sided with the U.S. Department of Labor (DOL) in a lawsuit by private equity firm, Aleutian Capital Partners, arising out of an investigation into alleged violations of the H-1B visa program, the company liable for nearly $23,000 in back wages to two employees stating the DOL’s Administrative Review Board (ARB) properly ruled. See Aleutian Capital Partners v. Perez (S. D. NY 2017).

    Judge Ramos rejected arguments by Aleutian that it was exempt from meeting the requirement for financial analyst and H-1B participant Shakir Gangjee because the company exceeded two annual wage requirements of $60,000 through supplementary bonuses, which were “nondiscretionary payments” equal to 3 percent of Aleutian’s revenue each month. The judge found the ARB determined Aleutian did not provide documentation showing its commitment to making the bonus payments to Gangjee.

    Furthermore, Judge Ramos agreed with the ARB that the bonus structure was insufficient because Gangjee’s wages were contingent on the revenues of Aleutian.

    “The ARB’s interpretation is supported by the fact that Sec. 655.731(c)(4) requires employers seeking to make nondiscretionary payments to show ‘unequivocally’ that the required wage obligation was ‘met for prior pay periods’ and ‘will be met for each current or future pay period,” Judge Ramos wrote. “It is reasonable to conclude that such showing can be made only if the nondiscretionary payments are guaranteed and not contingent. Accordingly, the Court defers to the ARB’s interpretation.”
  5. ICE Increasing its ICE Inspections by 4 to 5 times Current Level

    By: Bruce Buchanan, Sebelist Buchanan Law
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    In a speech to the Heritage Foundation on October 17, Tom Homan, Acting Director of Immigration and Customs Enforcement (ICE) said he has instructed Homeland Security Investigations (HSI), the investigative unit of ICE which conducts I-9 Inspections/Audits, to increase "by four to five times" worksite enforcement actions in 2018.

    Homan also stated, "We've already increased the number of inspections in worksite operations, you will see that significantly increase this next fiscal year." Homan said HSI’s goal is to remove the "magnet" drawing people to enter the US illegally.

    Homan’s statement was not unexpected given the Trump Administration’s increased enforcement of other aspects of immigration enforcement. Although earlier in 2017, ICE stated it had not increased the number of I-9 Inspections/Audits from the last year of the Obama Administration, it was just a matter of time before increases occurred. I have been warning employers and employer associations of the strong likelihood of increased I-9 Inspections/Audits.

    When worksite enforcement actions (I-9 Inspections/Audits) increase by four to five times, we could see over 6,500 I-9 Inspections/Audits per fiscal year. This would be more than double the number that the Obama Administration conducted in any year.

    Additionally, in marked contrast to earlier I-9 Inspections/Audits, Homan said "We're going to detain and remove the illegal alien workers" as “that is our job.” Furthermore, Homan stated ICE is going to strongly prosecute employers who knowingly hire illegal immigrant workers, in addition to deporting their undocumented workers.

    Over the past 10 years, when ICE has found undocumented workers at an employer’s worksites through analysis of employer’s I-9 forms, it would issue a Notice of Suspect Documents to the employer. It then instructed the employer to notify these workers and give them the opportunity to provide “newer and better documents” to prove their work authorization. If workers did not do so, ICE instructed employers to terminate those employees or face penalties for knowingly employing undocumented workers. However, ICE never went to the worksites to detain those workers who did not have valid work authorization. Interestingly, many undocumented workers thought ICE would detain them so they quit when their employer stated ICE said their documents did not establish work authorization.

    This increased step of detaining undocumented workers at an employer’s worksites had been anticipated due to the fact it is an easy method to vastly increase individuals for deportation. It will be interesting to see at what point ICE raids the employer to detain workers on the Notice of Suspect Documents – at the time of its issuance or after the employees have attempted to provide new documentation.

    For a review of ICE Inspections and how to conduct an internal I-9 audit in advance of an ICE inspection as well as other employer immigration compliance issues, 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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