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I-9 E-Verify Immigration Compliance

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  1. Plant Nursery Violates Law by Favoring H-2A Workers

    By Bruce Buchanan, Sebelist Buchanan Law

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    Godwin’s Nursery and Trees paid nearly over $117,000 in back-pay and $29,500 in penalties after the U.S. Department of Labor determined the company passed over qualified U.S. citizen workers from Puerto Rico in favor of hiring foreign workers under the H-2A visa program.

    The Department of Labor determined that the nursery violated Section 218 of the Immigration and Nationality Act by denying five qualified workers from Puerto Rico the chance to work; instead, hiring four Mexican nationals through the H-2A visa program.

    Additionally, Department of Labor determined that Godwin failed to post information about the rights of agricultural workers, as required by law, and he failed to provide housing for the workers that adhered to housing health and safety standards.

    Remember if an employer is going to utilize the H-2A program or other non-immigrant visa programs, such as H-2A, one cannot discriminate against U.S. citizens.
  2. OCAHO Finds State Employer Had Sovereign Immunity

    By: Bruce Buchanan, Sebelist Buchanan Law

    Attachment 1213

    In Ugochi v. North Dakota Dept. of Human Service, 12 OCAHO no. 1304 (July 2017), the Office of Chief Administrative Hearing Officer (OCAHO) dismissed Chiaha Ugochi’s complaint that she was discriminated because of her citizenship status and national origin, the employer retaliated against her and committed document abuse.

    The case began with Ugochi filing a charge against her employer, North Dakota State Hospital, alleging it discriminated against her. Immigrant and Employer Rights Section of the Department of Justice dismissed her case due to insufficient evidence of discrimination or retaliation and referred the national origin claim to the EEOC, who has jurisdiction on national origin claims involving employers with more than 14 employees.

    Thereafter, Ugochi filed a complaint with OCAHO alleging she was fired because her employer asked for excessive documentation in the I-9 and E-Verify process. The employer responded that it was entitled to sovereign immunity under the 11th Amendment and had legitimate, non-discriminatory reasons for her termination - she failed a background check.

    In analyzing the employer’s defenses, OCAHO noted the employer in question is the North Dakota State Hospital, a state agency. Due to the employer being a state agency, one must review the 11th Amendment which states, “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Furthermore, the U.S. Supreme Court “has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” There are two exceptions to a state’s immunity from suit under the 11th Amendment. The first exception is where Congress has statutorily abrogated such immunity by “clear and unmistakable language.” The second exception exists when the state has expressly waived its immunity.

    OCAHO found sovereign immunity applied to the North Dakota State Hospital, a state agency; thus, it enjoyed immunity from these proceedings pursuant to the 11th Amendment. Neither exception to immunity is present in the instant matter. Accordingly, because Ugochi’s complaint is barred, the Motion to Dismiss was granted.

    On a personal note, last week the immigration bar lost a true advocate for immigrants, Yvette Sebelist, my law partner. May she rest in peace.

    Updated 08-22-2017 at 11:11 AM by BBuchanan

  3. OCAHO Finds State Employer Had Sovereign Immunity

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In Ugochi v. North Dakota Dept. of Human Service, 12 OCAHO no. 1304 (July 2017), the Office of Chief Administrative Hearing Officer (OCAHO) dismissed Chiaha Ugochi’s complaint that she was discriminated because of her citizenship status and national origin, the employer retaliated against her and committed document abuse.

    The case began with Ugochi filing a charge against her employer, North Dakota State Hospital, alleging it discriminated against her. Immigrant and Employer Rights Section of the Department of Justice dismissed her case due to insufficient evidence of discrimination or retaliation and referred the national origin claim to the EEOC, who has jurisdiction on national origin claims involving employers with more than 14 employees.

    Thereafter, Ugochi filed a complaint with OCAHO alleging she was fired because her employer asked for excessive documentation in the I-9 and E-Verify process. The employer responded that it was entitled to sovereign immunity under the 11th Amendment and had legitimate, non-discriminatory reasons for her termination - she failed a background check.

    In analyzing the employer’s defenses, OCAHO noted the employer in question is the North Dakota State Hospital, a state agency. Due to the employer being a state agency, one must review the 11th Amendment which states, “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Furthermore, the U.S. Supreme Court “has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” There are two exceptions to a state’s immunity from suit under the 11th Amendment. The first exception is where Congress has statutorily abrogated such immunity by “clear and unmistakable language.” The second exception exists when the state has expressly waived its immunity.

    OCAHO found sovereign immunity applied to the North Dakota State Hospital, a state agency; thus, it enjoyed immunity from these proceedings pursuant to the 11th Amendment. Neither exception to immunity is present in the instant matter. Accordingly, because Ugochi’s complaint is barred, the Motion to Dismiss was granted.

    On a personal note, last week the immigration bar lost a true advocate for immigrants, Yvette Sebelist, my law partner. May she rest in peace.
  4. Texas Tortilla Company Convicted of Employment of Undocumented Workers

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC
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    La Espiga De Oro (Espiga), manufacturer of tortillas for distribution to restaurants and businesses, forfeited $1 million because of a felony conviction of conspiracy to induce and encourage unlawful immigration through a pattern and practice of hiring and employing illegal aliens at the Texas tortilla factory. Owners Alfredo Sosa Lira, his wife Lydia Botello-Lira, their daughter Lydia Lira, and night manager Roberto Guerra, pleaded guilty to misdemeanor violations associated with their continued employment of undocumented aliens between October 2011 and August 2015.

    Homeland Security Investigations investigated a series of complaints about the company’s hiring practices. An undercover operation later led to evidence that the company knowingly hired individuals not authorized to work in the United States. In some instances, the company knew that aliens used fraudulent documents to secure employment.

    HSI executed a search warrant at the company in August 2015, which led to the discovery of 10 undocumented workers working there as well as evidence demonstrating that 55% of their employees were not authorized by law to work at the factory. Following the search warrant, the company was charged by criminal complaint and began cooperating with HSI and the U.S. Attorney’s Office to revise their hiring practices and implement new procedures to prevent future violations of federal law.

    The company paid $1 million, representing an amount that at least equals the value of property used to facilitate the crime, the value of wages paid to the unauthorized work force and the value of products manufactured and services provided by the illegal workforce during the conspiracy. This money will go directly to immigration authorities to assist them with their future enforcement efforts.
  5. Arizona and Maryland Become 9th and 10th States to Join E-Verify RIDE

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Arizona and Maryland have become the ninth and tenth states to join the Records and Information from DMVs for E-Verify (RIDE) Program. RIDE is an E-Verify initiative, in conjunction with the American Association of Motor Vehicle Administrators, linking the E-Verify system with participating state driver’s licensing agencies. The prior states joining RIDE were Florida, Idaho, Iowa, Mississippi, Nebraska, North Dakota, Wisconsin, and Wyoming.

    RIDE allows E-Verify to validate the authenticity of driver’s licenses and state identification cards presented by employees as I-9 form identity documents. The RIDE program attempts to mitigate the risk of fraud by comparing the data from the card with data supplied by states’ motor vehicle agencies. If E-Verify is not able to match the license or ID card to data within the DMV, the employer will receive a Tentative Non-confirmation (TNC) indicating the issue and must give the employee a Further Action Notice and opportunity to meet I-9 demands. In this manner, RIDE is designed to boost the accuracy of employment eligibility verification in E-Verify
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