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I-9 E-Verify Immigration Compliance

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  1. OCAHO Finds Employees’ TWIC Cards Grounds to Reduce Employer’s Penalties

    By Bruce Buchanan, Sebelist Buchanan Law

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    A trucking company, Ideal Transportation, significantly reduced its penalties for I-9 violations due to its truck drivers possessing “Transportation Worker Identification Credential” (TWIC) cards, which were issued by the Transportations Security Administration (TSA). See U.S. v. Ideal Transportation Co., Inc., 12 OCAHO no. 1290 (2016).

    Ideal Transportation operates a small intermodal carrier transporting international ocean containers between several ports in the northeast. Its drivers must have TWIC cards because they have unescorted access to secure areas of port facilities and certain vessels at the ports. In order to obtain a TWIC card, an individual must provide biometrics and pass a “security threat assessment” conducted by TSA. Furthermore, one must be a U.S. Citizen or be lawfully in the U.S. In this case, all of Ideal’s truck drivers possessed TWIC cards.

    After Ideal was served with a Notice of Inspection, it reviewed its employees’ I-9 forms and determined they were “soiled, torn and illegible and the information was outdated”; thus, all new I-9 forms were completed. Furthermore, Ideal shredded the existing “soiled” I-9 forms.

    Based upon this background, Immigration and Customs Enforcement (ICE) found 12 violations because the I-9 forms were not timely completed. ICE proposed a penalty of $11,220 based upon a baseline penalty of $935 per violation. In its filing with the Office of Chief Administrative Hearing Officer (OCAHO), Ideal asserted its drivers had TWIC cards, were U.S. citizens and had completed I-9 forms when initially hired. Thus, it asserted it did not violate the law.

    OCAHO found Ideal’s argument, that the timely prepared I-9 forms and subsequent destruction because they were damaged, was not a valid defense to liability. Although OCAHO recognizes “impossibility” as an affirmative defense to the failure to present I-9 forms when the I-9 forms were unavailable through no fault of the employer, those facts were not presented in this case. Rather, the destruction of the original I-9 forms was attributable to the company’s own actions. Thus, OCAHO found Ideal liable for 12 Form I-9 violations.

    However, OCAHO stated the TWIC cards demonstrated the employees were authorized to work, which undercuts ICE’s argument that Ideal was “at high risk to hire employees that may not be authorized to work.” Furthermore, the TWIC cards demonstrated the lack of seriousness of the violations as well as the company’s good faith.

    OCAHO also found due to Ideal’s very small size, the general public policy of leniency to small business entities should be considered in determining the appropriate penalty. Based upon these factors, OCAHO determined a penalty of $2700 was appropriate.
    Although Ideal greatly reduced its penalty, the lesson to be learned here is not to destroy the original I-9 forms even if you determine the I-9 forms need to be re-done. Instead, attach the original I-9 forms to the new I-9 forms even if they are soiled or torn.
  2. OSC Files Lawsuit Against Two Washington Companies Alleging Discrimination

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), an agency within the Department of Justice, recently filed a lawsuit against two Washington-based companies, Washington Potato Company and Pasco Processing LLC, alleging that they violated the Immigration and Nationality Act (INA) by discriminating against immigrants during the employment eligibility verification process because of their citizenship status.

    According to the 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 hired over 2,000 U.S. citizens (USCs) and approximately 800 lawful permanent residents (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. This information was gleaned by the Department of Homeland Security’s Monitoring and Compliance branch by reviewing data from E-Verify, which the two companies used.

    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 OSC alleged many LPR employees presented List B and C documents but the companies requested a specific document, the LPRs’ green card, for the Form I-9 and/or E-Verify from non-U.S. citizen employees, but allowed USCs the flexibility to present a variety of documents. Thus, the OSC alleged the companies treated LPRs and non-citizen employees differently than USCs and this treatment was intentional and discriminatory.

    Under the INA, all workers, including non-U.S. citizens, must be allowed to choose freely from among the valid documentation that proves their work authorization. The INA prohibits employers from discriminating by unlawfully limiting some workers’ choices based on their citizenship status. I will keep you updated on the outcome of this litigation.

    This complaint is an example of the downside of using E-Verify – the data entered by the employer is scrutinized by the Department of Homeland Security, who may refer the case to the OSC for investigation and litigation.
  3. New I-9 Form, effective January 22, 2017

    By Bruce Buchanan, Sebelist Buchanan Law

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    On November 14, 2016, the USCIS finally issued the new I-9 form, effective January 22, 2017. The current I-9 form continues to be in effect; however, during the interim period before January 22, 2017, an employer may use either the current 2013 version or the 2017 version. The new I-9 form has an expiration date of August 31, 2019.

    The most significant change is to make the downloadable I-9 form into a “smart” form. What does a “smart” form mean? It is not an electronic I-9 form. The downloadable I-9 form, using an Adobe reader, has been enhanced with error checking which is designed to prevent the most common mistakes. An example is if you fail to fully complete section 1 of the I-9 form, you will receive an alert that you did not enter data into all of the required fields.

    Employers filling out the smart I-9 version must still print the form, obtain signatures, monitor reverifications and updates. Second, if you use the smart form and make a mistake, your company will be held to the same standard of review when faced with an Immigration and Customs Enforcement (ICE) inspection.

    With the addition of the “smart” form, there are three types of I-9 forms: paper, “smart”, and electronic.
    Some of the other changes are:
    (1) Replacing the “Other Names Used” field in Section 1 with “Other Last Names Used.” This will avoid employees writing their nicknames in this field;

    (2) Modifying Section 1 to request certain employees to enter either their I-94 number or foreign passport information, rather than both;

    (3) Requiring you designate whether the employee’s number is an Alien (A) number or USCIS number, if using the smart form (however the numbers are the same though the more recent green cards refer to the number as USCIS);

    (4) Requiring “N/A” be entered instead of blanks in certain fields;

    (5) Replacing the word “date” to “today’s date”, next to signature boxes (this may help some people from entering their birthdate or from backdating the signature);

    (6) Providing a box for employees to check if they did not use a preparer or translator;

    (7) Modifying the I-9 form by adding a supplemental third page if using multiple preparers and/or translators;

    (8) Adding an area in Section 2 to enter additional information for TPS extensions, OPT STEM extensions and H-1B portability to avoid having to note this information in the margins of the I-9 form; and

    (9) Increasing the pages of instructions from 6 to 15.

    Although most of the changes may not appear significant, I would advise employers to seek legal advice from an immigration attorney as to compliance with the new I-9 form.
  4. OCAHO Finds No Fruit of Poisonous Tree

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In one of the most interesting recent decisions, the Office of Administrative Hearing Officer (OCAHO) rejected the company’s argument that the I-9 forms in error or missing were the “fruit of the poisonous tree” and should be excluded from the evidence considered. See U.S. v. Frimmel Management, LLC, 12 OCAHO no. 1271c (October 2016).

    This case arises out of the notorious Maricopa County, Arizona and Sheriff Joe Arpacio. The Maricopa County Sheriff’s Office (MCSO) conducted a criminal investigation into Frimmel Management alleging it knowingly hired or employed unauthorized workers. A state court dismissed the criminal complaints for a variety of reasons involving misdeeds by the MCSO.

    Because of MCSO’s investigation, Frimmel Management’s identity was disclosed to Immigration and Customs Enforcement (ICE), who decided to issue a Notice of Inspection (NOI). Thus, in August 2013, ICE issued a NOI and subpoena on Frimmel Management. The company provided the I-9 forms that it possessed but many employees did not have any I-9 forms and others had I-9 forms fraught with errors.

    As a result, ICE filed a Notice of Intent to Fine, a Complaint and Amended Complaint alleging numerous errors. Count I alleged 225 violations for failure to ensure employees properly completed Section 1 and/or the company failed to complete Sections 2 and 3 of employees’ I-9 forms. Count II alleged the same type of violation except all the employees were unauthorized to work. Counts III and IV alleged Frimmel Management failed to prepare and/or present I-9 forms for 63 employees, 29 of which were alleged to be unauthorized.

    ICE sought a $935 baseline penalty based upon 84% error rate and aggravated the violations for lack of good faith and the employment of some unauthorized workers.

    Frimmel Management argued all of the violations violated their 4th and 5th Amendment rights as the evidence was gathered illegally; thus, asserting the documents were the “fruit of the poisonous tree.” However, OCAHO declined to exclude this evidence because the only information that ICE obtained from the MCSO investigation was the identity of the company. OCAHO cited Supreme Court caselaw that this did not constitute grounds for exclusion as “fruit of the poisonous tree.” OCAHO agreed. OCAHO also stated even assuming ICE’s evidence was the “fruit” of MCSO’s illegal conduct, the evidence was not a “direct result” of MCSO’s conduct. Thus, this argument also failed.

    There was very little dispute about the I-9 form errors – Frimmel Management committed numerous substantive paperwork violations, including failure to prepare I-9 forms, failure to ensure the employees checked an appropriate box as to their work authorization – U.S. Citizen, permanent resident, etc., failure to ensure employees signed the attestation, and failure to provide appropriate information in Lists A, B or C.

    Thus, ICE determined Frimmel Management committed 380 violations. The company was successful in showing ICE could not establish 38 employees were unauthorized. ICE relied on several documents, including a Notice of Suspect Documents, which were insufficient to prove unauthorized status.

    OCAHO did lower the baseline penalty to $900 for most of the violations and $1000 for the ones involving unauthorized workers.; thus, the total penalty was $347,500.

    This case demonstrates the need for employers to be aware of their I-9 obligations and to take them seriously. If Frimmell Management had been more careful in the completion of the I-9 forms and had completed I-9 forms on all employees hired, their penalties would have been much lower.
  5. Court Upholds OCAHO’s Penalty Finding

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Second Circuit Court of Appeals in Buffalo Transportation, Inc. v. USA upheld the penalties assessed by the Office of Chief Administrative Hearing Officer (OCAHO). Previously, OCAHO found Buffalo Transportation, Inc. (BTI) violated the Immigration Control and Reform Act by committing 135 substantive violations and assessed a civil penalty of $75,600.

    In its appeal, BTI contended 54 of the 135 violations were technical, rather than substantive, violations. For these 54 violations to be dismissed, BTI would have to be successful in their appeal and Immigration and Customs Enforcement (ICE) would have to not give BTI 10 days to correct the technical errors.

    The issue before the Court was whether OCAHO correctly determined that the 54 Form I-9s presented to ICE were not prepared within three days of the employees’ hiring date. Under the applicable regulation, an employer must prepare an I-9 form within three days of hire and failure to do so is considered a substantive violation.

    In determining this issue, the Court applied deference to OCAHO’s interpretations of the relevant regulations regarding the timing of when I-9 forms must be prepared. After applying the appropriate deference, the Court stated OCAHO correctly determined there was no evidence that any of the I-9 forms were timely prepared; rather, the 54 Form I-9s were prepared after ICE delivered its Notice of Inspection to BTI.

    BTI also asserted it should have been given a warning notice rather than a penalty. However, the Court noted it is within the discretion of ICE to do so and in this case, ICE declined to use their discretion to issue a warning notice. Thus, the Court could not order ICE to issue a warning notice.

    Additionally, BTI argued it kept copies of the employees’ documents reflecting work authorization which shows substantial compliance. The Court noted the regulations clearly do not allow retention of these documents to relieve the employer from completing section 2 of the I-9 forms.

    Finally, BTI argued the amount of the penalties was arbitrary. The Court noted OCAHO considered the statutory factors and ability to pay and reduced the penalties accordingly. The Court concluded OCAHO made an “allowable judgement” in determining the penalties and it would not and could not substitute its judgement.

    This decision is consistent with most other court of appeals’ decision which uphold OCAHO’s findings and the assessment of the penalties.
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