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I-9 E-Verify Immigration Compliance

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  1. Staffing Company and IER Settle Immigration-Related Discrimination Claim

    By: Bruce Buchanan, Sebelist Buchanan Law, PLLC

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    The Immigrant and Employee Rights Section (IER), formerly known as the OSC, has reached an agreement with Sellari’s Enterprises, Inc., a staffing company in Orlando, Florida. The settlement agreement resolves an investigation into whether Sellari’s violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants. The IER concluded Sellari’s requested that non-U.S. citizens present specific documents to prove their work authorization, such as a Permanent Resident Cards or Employment Authorization Documents, while not requesting specific documents from U.S. citizens. All work-authorized individuals, whether citizens or non-citizens, have the right to choose which valid documentation to present to prove they are authorized to work. The anti-discrimination provision of the INA prohibits employers from subjecting employees to different or unnecessary documentary demands based on employees’ citizenship, immigration status or national origin.

    Under the settlement, Sellari’s will pay a civil penalty of $120,000 to the United States, post notices informing workers about their rights under the INA’s antidiscrimination provision, undergo IER-provided training to HR employees on proper I-9 and E-Verify practices, revise employment policies and practices to be in compliance with the law, and comply with departmental monitoring and reporting requirements for three years.
  2. Asplundh Manager & Supervisors Charged with hiring Undocumented Workers

    By: Bruce Buchanan, Sebelist Buchanan Law, PLLC

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    Federal prosecutors charged three managers/supervisors of Asplundh Tree Expert Inc. with conspiring to hire undocumented workers using false identification and Social Security numbers. Asplundh, a nationwide company, removes brush and vegetation from electric and gas lines.

    In 2009, Asplundh had their I-9 forms audited by Immigration and Customs Enforcement (ICE). The ICE audit determined over 100 employees were undocumented; thus, Asplundh fired the employees.

    After the ICE audit of Asplundh’s I-9 forms, prosecutors allege workers, fired for being undocumented, were rehired under false identities. Larry Gauger, a regional manager charged with conspiracy, "instructed management that it would have 'plausible deniability' as to the fraudulent hiring because even though the employees' Social Security numbers did not truly belong to these employees, the employees' proffered Social Security numbers would be positive matches in the E-Verify database." Jude Solis and Juan Rodriguez, supervisors for Asplundh, were also charged with conspiracy and fraud.

    These indictments are clear proof that knowingly hiring undocumented workers can have criminal consequences. This is especially so when you assist the undocumented workers to obtain fake ID.
  3. IER Settles Immigration-Related Discrimination Claim Against Panda Express

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    The Immigrant and Employee Rights Section (IER) of the Civil Rights Division of the Justice Department announced it reached a settlement agreement with Panda Restaurant Group, Inc. (Panda Express), a restaurant chain with over 1,800 locations in the United States. The agreement resolves an investigation into whether Panda Express discriminated against non-U.S. citizens in violation of the Immigration and Nationality Act (INA) when reverifying their authorization to work.

    The investigation concluded Panda Express unnecessarily required lawful permanent resident workers to re-establish their work authorization when their Permanent Resident Cards (green cards) expired, while not making similar requests to U.S. citizen workers when their documents expired. The investigation also revealed that Panda Express routinely required other non-U.S. citizen workers to produce immigration documents to reverify their ongoing work authorization despite evidence they had already provided sufficient documentation. The antidiscrimination provision of the INA prohibits such requests for documents when based on an employee’s citizenship status or national origin.

    Under the settlement, Panda Express will pay a civil penalty of $400,000 to the United States, establish a $200,000 back pay fund to compensate workers who lost wages due to the company’s practices, undergo IER-provided training to HR employees on the anti-discrimination provision of the INA, revise employment policies, modify its electronic I-9 system, train HR personnel on the M-274 Handbook for Employers and the USCIS E-Verify manual, and comply with departmental monitoring and reporting requirements for three years.

    This settlement is the largest to date in calendar year 2017. Employers should be trained by immigration counsel on a regular basis of immigration compliance issues.
  4. BALCA Finds Job Duties Outweigh Job Title

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    The Board of Alien Labor Certification Appeals (BALCA) reversed a Certifying Officer’s denial of PERM application stating that a denial based primarily on the foreign national’s lack of prior experience with congruent job titles must be reversed. (Sumeru Inc, 2013-PER-01241).

    Sumeru, Inc. filed an Application for Permanent Employment Certification (“Form 9089”) listing the Alien with a Section H job title of “project manager” and requiring either a master’s degree in Engineering and 24 months’ experience in the field or alternately a bachelor’s degree in Computer Science or Information Systems and 5 years’ experience in the field. The foreign national possessed a bachelor’s degree in Engineering and 4 and ½ years’ experience with Sumeru and 5 years’ prior experience in 3 jobs with titles other than “project manager” but with like duties and responsibilities.

    The CO denied the PERM application stating that hiring the foreign national is not in accordance with the minimum requirements for the job opportunity listed in Form 9089. On appeal, Sumeru filed a Request for Review asked the DOL to focus on the duties of the position in question, not mere title only. Sumeru cited Matter of Maple Derby, Inc., 1989-INA-185 in which an alien qualified for a position despite a difference in job titles. Sumeru also provided a detailed chart aligning each required duty to a duty the Alien maintained in a previous position.

    Upon review, BALCA reversed the denial of labor on grounds that the foreign national’s prior experience was substantially equivalent to the duties required by the employer.
  5. IER Stays Busy Under Its New Name

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    On January 18, 2017, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) changed its name to Immigrant and Employee Rights Section (IER), Civil Rights Division of the Department of Justice. The newly – named government agency has been busy in its first months of existence.

    Since January 18, 2017, the IER has entered into seven settlement agreements and collected over $300,000 in penalties and $75,000 in backpay.

    Besides these settlement agreements, IER has issued 11 Letters of Resolution to employers. IER issues a Letter of Resolution when after an investigation of a charge, there is insufficient evidence of a violation of the anti-discrimination provision, but there is evidence of the employer having deficiencies in their I-9 form and/or E-Verify compliance. Letters of Resolution may also be issued when an employer quickly resolves an issue by hiring or reinstating the individual in question with backpay. In resolving these investigations, employer often agree to participate in IER-sponsored training and to ensure their Human Resources Staff becomes better trained on I-9 and E-Verify compliance.
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