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I-9 E-Verify Immigration Compliance

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  1. 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.
  2. 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.”
  3. 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.
  4. California’s New Law Requiring Employee Notification of ICE Audits and More

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The State of California has a new law, “The Immigrant Worker Protection Act” (AB 450), which requires employers to notify its employees by written notice within 72 hours of Notice of Inspection (NOI) of I-9 records and to notify its employees, individually, of the results of the I-9 audit by Immigration and Customs Enforcement (ICE) within 72 hours of receiving the results of the NOI. Concerning these notifications, the Labor Commissioner is required to develop a template.

    The new California law also requires ICE agents to provide a judicial warrant to employers to access non-public portions of worksites. Thus, employers may not simply consent for ICE to have access to non-public portions of the worksite. The new law does not restrict ICE from providing a NOI to an employer demanding the employees’ I-9 forms within three days of service of the NOI and the employer being required to honor it. Additionally, employers are prohibited from sharing confidential employee information, such as Social Security numbers, unless required to do so in a NOI or provided a judicial warrant.

    The penalty for a first offense is $2,000 to $5,000 and for each subsequent violation - $5,000 to $10,000. The enforcement of these penalties is under the exclusive authority of the Labor Commissioner or California Attorney General. Thus, employers or employees may not seek enforcement of the statute.

    The question that I have with this legislation is whether any of it is preempted under federal law, Immigration Reform and Control Act (IRCA). Under federal law, when ICE wants to inspect an employer’s I-9 forms, it issues a Notice of Inspection and usually an administrative subpoena. I don’t believe the portions of the legislation concerning notifying workers would be preempted by federal law. It’s unclear whether restricting access to non-public portions of the worksites is preempted.

    I will keep you updated on any litigation over this new state law. For a review of all employment and immigration-related state laws and other issues 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.
  5. DOJ Settles Immigration-Related Claim for $200,000 against Staffing Companies

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Immigrant and Employee Rights Section (IER) of the Department of Justice (DOJ) has reached a settlement whereby CitiStaff Solutions Inc., and CitiStaff Management Group Inc. (collectively CitiStaff) agreed to pay a civil penalty of $200,000 to the United States government. The settlement resolves the investigation into whether CitiStaff violated the law by discriminating against work-authorized immigrants when verifying their work authorization.

    Based on its investigation, IER concluded that CitiStaff, which provide staffing services in the greater Los Angeles, California area, routinely requested non-U.S. citizens present specific documents to prove their work authorization, such as Permanent Resident Cards (green cards) or Employment Authorization Documents (EADs), but did not make similar requests for specific documents to U.S. citizens. All work-authorized individuals, whether U.S. citizens or non-U.S. citizens, have the right to choose which valid documentation to present to prove they are authorized to work. 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.

    Furthermore, the investigation found CitiStaff required lawful permanent residents (LPRs) to reverify their work authorization status when their Permanent Resident Cards expired. It is unlawful to require reverification of a green card even if it expires as the LPRs continue to hold lawful status after a green card’s expiration.

    Under the settlement, CitiStaff will pay a civil penalty of $200,000 to the United States, train its staff on the law, and be subject to departmental monitoring and reporting requirements for three years.

    Companies need to be aware of the laws relating to determining employees’ lawful employment status as well as the law concerning re-verification. As you see, it is so easy for employers to make costly mistakes. For the 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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