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I-9 E-Verify Immigration Compliance

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  1. Missing Deadline for Providing I-9s to ICE is Costly

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    OCAHO’s recent decision in U.S. v. Alpine Staffing, Inc., 12 OCAHO no. 1303 (May 2017), demonstrates how untimely presentation of I-9 forms can be costly to an employer.

    Alpine Staffing is a small staffing company in Minnesota. It received a Notice of Inspection (NOI) on August 23, 2013 informing the company that it needed to present all of its I-9 forms for current employees and former employees for the past 2 years by August 29, 2013. On that date, Alpine Staffing delivered many I-9 forms to ICE. The following day Alpine Staffing discovered 271 additional I-9 forms. It immediately delivered the additional I-9 forms to ICE. On October 1, 2013, the company discovered another 39 Forms I-9 and thereafter delivered those to ICE.

    After a review of the I-9 forms, ICE issued a Notice of Intent to Fine (NIF) and then a Complaint which alleged in Court I – failure to timely present or prepare 345 Forms I-9 and Court II – company failed to ensure 132 employees properly completed Section 1 of the I-9 form and/or the company failed to properly complete sections 2 or 3 of the I-9 forms. ICE sought $367,000 in penalties.

    Alpine Staffing’s principal defense was it was unaware of a specific deadline for presentation of I-9 forms to ICE. However, this defense was belied by the fact that they presented numerous I-9 forms on August 29, 2013, the date that ICE stated the I-9 forms were due. Thus, OCAHO found all I-9 forms delivered after August 29, 2013 were untimely presented.

    OCAHO affirmed ICE’s assessment of $770 per I-9 form for the 34 instances of failure to prepare an I-9 form for those employees. However, OCAHO gave Alpine Staffing a break on the untimely presented I-9 forms. For those presented a day late, OCAHO set a penalty of $500 each, rather than $770. For those I-9 forms delivered at a later date, OCAHO set a penalty of $600 each, rather than $770. Overall, the penalty assessed for the failure to prepare or untimely present I-9 forms was set at $185,000. ICE had sought $256,000. Concerning the 130 Court II violations, OCHAO reduced the penalty from $770 to $700 per I-9 violation. Overall, OCAHO assessed penalties of $276,000. Thus, Alpine Staffing received a reduction of about 25% in penalties.

    This decision shows the importance of locating and providing all I-9 forms covered by the NOI by the deadline. The company’s error appears to be caused by the fact that their I-9 forms were not kept in one location. It is certainly best to keep all a company’s I-9 forms in one location at the company’s facility.

  2. Year in Review: 2016 OCAHO Decisions

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    No employer wants to receive the dreaded “Notice of Intent to Fine” (NIF) in connection with an audit of their I-9 forms. Dealing with an I-9 inspection alone is a costly affair, but the NIF can be downright crippling – particularly for small businesses. Fortunately, employers can appeal an adverse I-9 decision by requesting a hearing with the Office of Chief Administrative Hearing Officer (OCAHO), an administrative court that reviews employer sanctions cases under §274A of the Immigration and Nationality Act.

    Although OCAHO decisions adjudicating I-9 penalties have leveled off in the past few years, it is anticipated there will be many more decisions in future years as the number of Form I-9 inspections is on the rise in the Trump administration and, as shown below, employers continue to obtain significant decreases of I-9 penalties at OCAHO.

    In calendar year 2016, OCAHO issued 16 substantive decisions against employers in I-9 penalty cases. For a few employers, there were two or more decisions concerning substantive issues before the court reached a decision on the amount of the I-9 penalties. The number of cases is a slight increase from 2015, when there were 13 decisions but still much lower than the 30 decisions issued in 2013.
    For remainder of article go to LawLogix website where full article is published - https://www.lawlogix.com/the-year-in...sions-in-2016/.
  3. OCAHO Says Employee Unprotected

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    In Thompson v. Sanchez Auto Services, LLC
    , 12 OCAHO no. 1302 (May 2017), OCAHO dismissed a complaint filed by a former employee of Sanchez Auto.

    In their decision, the Office of Chief Administrative Hearing Officer (OCAHO) highlighted a couple of key points to remember in the application of whether an employer’s actions violate 8 U.S.C §1324b – the anti-discrimination provisions of the Immigration and Nationality Act (INA). First, the complainant must be a protected individual – meaning a U.S. citizen; a permanent resident, who is not eligible for naturalization or less than six months has occurred since becoming eligible for naturalization; an asylee; or a refugee. In this case, Mr. Thompson became a permanent resident on September 25, 1994 and alleged discrimination between June 2012 and January 2013. Thus, Mr. Thompson was not a protected individual because he had been a permanent resident for about 18 years.

    The second point to be gleaned from this decision is that the statute only covers specific adverse employment actions - hiring, recruitment or firing of employees, retaliation and document abuse. Mr. Thompson alleged the employer failed to pay him proper wages. This is clearly not covered by §1324b.

    Thus, for the above reasons as well as others (which will not be discussed in this article), OCAHO dismissed Mr. Thompson’s complaint.
  4. IER Settles Discrimination Claims Against Carrillo Farm

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    The Immigration and Employee Rights Section (IER) of the Department of Justice reached a settlement agreement with Carrillo Farm Labor, LLC, an onion farm in Deming, New Mexico, resolving an investigation of complaints that Carrillo Farm discriminated against U.S. citizens due to a hiring preference for foreign visa workers. This settlement is part of a Department of Justice enforcement initiative dedicated to combatting employment discrimination against U.S. workers.

    After investigating complaints filed on behalf of two U.S. citizens, IER determined that Carrillo Farm denied U.S. citizens employment in 2016 because it wanted to hire temporary foreign workers under the H-2A visa program. Under the anti-discrimination provision of the Immigration and Nationality Act (INA), it is unlawful for employers to intentionally discriminate against U.S. citizens because of their citizenship status.

    The settlement agreement requires Carrillo Farm to pay a civil penalty of $5000 to the United States, undergo IER-provided training on the anti-discrimination provision of the INA, and comply with departmental monitoring and reporting requirements for two years. In a separate agreement with workers represented by Texas RioGrande Legal Aid, Carrillo Farm agreed to pay a total of $44,000 in lost wages to affected U.S. workers.

    This is an interesting twist on discrimination – finding an employer discriminated against U.S. citizens. This settlement fits in well with DOJ’s recent announcement warning employers not to discriminate against U.S. citizens.
  5. Fruit and Vegetable Processor Agrees to Pay $225,000 to Settle Discrimination Lawsuit

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Washington Potato Company and Pasco Processing, LLC and the Justice Department’s Immigrant and Employee Rights Section (IER) of the Civil Rights Division, have reached a settlement agreement, whereby the companies agreed to pay over $225,000 to resolve a discrimination lawsuit filed by IER in November 2016. The complaint alleged Washington Potato directed and controlled Pasco Processing’s hiring practices, including the alleged discriminatory documentary practices, which violated the antidiscrimination provision of the Immigration and Nationality Act (INA).

    According to the November 2016 complaint, filed with the Office of the Chief Administrative Hearing Officer (OCAHO), from at least November 2013 until at least October 2016, Washington Potato and Pasco Processing routinely requested lawful permanent residents (LPRs) hired at Pasco Processing produce a specific document – a Permanent Resident Card (also referred to as a Green Card) – to prove their work authorization, while not requesting a specific document from U.S. citizens (USCs). From November 2013 until October 2016, the complaint alleged the companies hired over 2,000 USCs and approximately 800 LPRs. Of the LPRs hired, 99.5% produced a List A document – their green card - to establish their work authorization while only 2% of the USCs hired produced a List A document, such as a U.S. passport or U.S. passport card.

    Prior to the settlement, the companies asserted the high rate of List A documents for LPRs was because these employees did not possess List B or C documents. However, the government alleged many LPR employees presented List B and C documents but the companies requested non-U.S. citizen employees provide a specific document, a green card, for completion of the I-9 Form while it allowed USCs the flexibility to present a variety of documents.

    Under the settlement agreement, Washington Potato Company and Pasco Processing are required to pay civil penalties of $225,750, revise policies to eliminate any discrimination in the I-9 form and E-Verify procedures, post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel on the requirements of the INA’s anti-discrimination provision, and be subject to departmental monitoring and reporting requirements for two and one-half years.

    This is another example of the hefty civil penalties imposed by the IER, formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). In this case, it appears the companies decided not to litigate the complaint even though prior negotiations before the issuance of a complaint had been unsuccessful. Although the IER is a much smaller agency than Immigration and Customs Enforcement (ICE), often settlement of their cases involves substantial civil penalties and/or back pay. Thus, it is important that companies understand the antidiscrimination provision of the INA in order that they not face this liability. I recommend regular training on the antidiscrimination provision of the INA by immigration counsel.
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