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I-9 E-Verify Immigration Compliance

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  1. ICE Raids Factory in Houston

    By Bruce Buchanan, Siskind Susser PC

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    Immigration and Customs Enforcement (ICE) and the Department of Labor (DOL) raided the tortilla factory, La Espiga de Oro, in Houston, Texas in August 2015. They served a criminal search warrant at the business and detained approximately 10 workers from the factory.

    Prior Raids Stopped in 2008

    2008 was the last year of any significant raids by ICE on employees. In that year, ICE raided a meatpacking plant in Pottsville, Iowa, Howard Industries, Inc. in Laurel, Mississippi, and Action Rags USA, a second-hand clothing company, in Houston, Texas. That same year, ICE announced a shift away from sweeping up undocumented workers in high-profile work site enforcement raids. Instead, ICE began a Culture of Compliance, which focused on targeting employers for their hiring practices and proper completion of the I-9 forms. This has forced thousands of U.S. businesses to open up their books to ICE agents and led to the collection of millions of dollars in penalties.

    Some Detained Workers Received Employment Authorization

    Greg Palmore, a spokesman for ICE, said the La Espiga de Oro raid is part of an ongoing investigation but declined to provide any more details. He said that seven of the 10 detained workers were granted employment authorization, allowing them to legally work here for up to one year because they are “material witnesses.” Palmore stated the immigrants “have to be able to work and survive while we retain them as witnesses.” Three other detainees were not granted work authorization though ICE declined to say why.

    Takeaways

    Has ICE changed their methods or was this raid just an aberration? Time will tell. I will keep you alerted on this matter.

  2. Respondent falsely claimed U.S. Citizenship on I-9 Form

    By Bruce Buchanan, Siskind Susser P.C.

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    The 8th Circuit Court of Appeals in Etenyi v. Lynch upheld the Board of Immigration Appeals’ (“BIA”) decision, wherein it found an individual’s status could not be adjusted because he had falsely claimed that he was a United States citizen on an I-9 form.

    Etenyi, a citizen of Kenya, applied for Adjustment of Status. The USCIS denied the adjustment because Etenyi filled out an I-9 form for an employer claiming to be a United States citizen. After being placed into removal proceedings, a hearing was held before an immigration judge (“IJ”). Etenyi testified that the I-9 form had been pre-populated with his personal information. Although he confirmed that his name, address, social security number, and date of birth were correct, he claimed that he did not notice the checked box asserting, under penalty of perjury, that he was a “citizen of the United States.”

    The IJ and the BIA held that Etenyi was removable because he had signed the I-9 form and thereby adopted its contents. The evidence at issue, as noted by the IJ, included the I-9 form with the false claim of citizenship, Etenyi’s testimony that he reviewed other information on the form before signing it, Etenyi’s signature, and the fact that Etenyi had a college-level education from an American university.

    The Court did not agree with Etenyi’s arguments. First, he argues that an I-9 form cannot serve as the basis for a false claim of citizenship in a removal proceeding. The BIA and the Court have consistently held that the language of 8 U.S.C. § 1324a(b)(5) does not preclude the use of an I-9 form in removal proceedings. Second, Etenyi relies upon Kirong v. Mukasey, 529 F.3d 800 (8th Cir. 2008), to argue that DHS must present more than the I-9 form to satisfy its burden of proof. However, the Court found the I-9 form discussed in Kirong reflected the format of a prior version of the I-9 form, where an employee could check the box - “I am a citizen or national of the United States.” “This disjunctive phrasing rendered the alien’s statement ambiguous as to whether his ‘attestation involved a claim of citizenship or nationality.’” The box on Etenyi’s I-9 form states only that the applicant is “citizen of the United States.” Because this phrasing is unambiguous, an employee who attests to the validity of the checked “citizen of the United States” box by signing this I-9 form has made an objectively false representation of citizenship.

    Takeaway:

    This decision demonstrates the enormous consequences that falsely claiming U.S. citizenship can have on an immigration case. One can no longer rely upon the ambiguity of marking “U.S. Citizen or U.S. National” if the I-9 form was completed in the last six years. That’s when the USCIS separated the two statuses into separate boxes.
  3. Nebraska Beef Settles for Uncapped Back Pay Fund and $200,000 Penalty

    By Bruce Buchanan, Siskind Susser PC

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has reached a settlement with Nebraska Beef Ltd., an Omaha meat packing company. The OSC’s investigation found that the company required non-U.S. citizens, but not similarly-situated U.S. citizens, to present specific documentary proof of their immigration status to verify their employment eligibility. The Immigration and Nationality Act’s (INA) anti-discrimination provision prohibits employers from making documentary demands based on citizenship or national origin when verifying an employee’s authorization to work.

    Under the settlement agreement, Nebraska Beef will pay a $200,000 civil penalty to the United States and will establish an uncapped back pay fund to compensate individuals who lost wages because of the company’s practices. In so doing, it must notify numerous applicants and employees about a possible back pay claim. Additionally, the settlement requires the company to undergo compliance monitoring for two years, train its employees on the anti-discrimination provision of the INA, and to review and revise its office policies.
  4. OCAHO issues Penalty to Employer for Discrimination

    By Bruce Buchanan

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    After previously finding that Estopy Farms discriminated against a U.S. citizen in favor of individuals with H-2A visas, the Office of Chief Administrative Hearing Officer (OCAHO) issued the employer the maximum penalty of $3,200. See U.S. v. Estopy Farms, 11 OCAHO no. 1256 (2015).

    Estopy Farms, which is in the business of harvesting cotton, sought employment of non-immigrant workers to perform agricultural labor - “cotton machine operators” - of a temporary nature through the H-2A program. An employer must receive a certification from the U.S. Department of Labor, that there are insufficient American workers to perform the work, and it may not reject individuals based on criteria not listed on the original petition or job order.

    Enrique Romero, a U.S. citizen, applied for the job and had 14 years experience in operating agricultural equipment. Romero was not hired; instead, all of the employees hired were H-2A visa holders. In its prior decision, OCAHO found Estopy Farms discriminated against Romero.

    In the present matter, the Office of Special Counsel (OSC) sought the maximum penalty of $3,200 because the employer knew the law from prior use of H-2A visas, was uncooperative, and “committed an egregious statutory violation that resulted in significant harm.” Although the statute does not specify factors to consider in assessing the penalty, case law has considered the following factors: the egregiousness of the violations, the harm resulting from the discrimination, the employer’s resistance to OSC’s investigation, noncompliance with court orders, and the employer’s familiarity with the law involved.

    OCAHO agreed with OSC’s assessment; accordingly, OCAHO assessed the maximum penalty of $3,200 and issued a cease and desist order.

    This decision shows the cost of violating the law in attempting to bypass U.S. citizens in the operation of an H-2A program. It is important to retain qualified immigration counsel when seeking employees through the H-2A program.

  5. AILA Asserts Proposed Changes to E-Verify are not Authorized by Statute

    By Bruce Buchanan

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    On June 8, 2015, the Department of Homeland Security (DHS) proposed changes to E-Verify, with the most significant being utilization of E-Verify when an employer re-verifies an employee through the I-9 form. Recently, the American Immigration Lawyers Association (AILA) submitted its comments in opposition to the revisions. AILA’s basic premise is there is no statutory authority to support these revisions.

    Section 403(3)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which authorized E-Verify states: “The person or other entity shall make an inquiry…using the confirmation system to seek confirmation of the identity and employment eligibility of an individual, by not later than the end of three working days after the date of hiring.Therefore, the statute permits E-Verify employers to verify the employment authorization of potential employees only in the context of the “hiring.”

    If the proposed revisions were implemented, employers would not receive legal protections - such as a rebuttable presumption that the employer did not knowingly hiring an undocumented worker if authorized by E-Verify - provided to employers for acting in good faith reliance on E-Verify results. This is because the statute only provides this protection in the hiring context related to the employee’s identity and employment authority.

    AILA asserted the proposed changes to E-Verify would significantly change the requirements and burdens placed on E-Verify employers; thus, it constitutes a legislative rule under Section 553 of the Administrative Procedure Act (APA), which requires notice and comment rulemaking before they can be lawfully implemented.

    I will note that a Federal Judge recently found DHS failed to utilize this same type of notice and comment rulemaking in implementing the 17-month OPT STEM extension and voided the extension. Thus, DHS may be making a similar mistake in this case without notice and comment rulemaking.

    AILA also asserted rulemaking was required to the extent that these changes would be applied to federal contractors. The Federal Acquisition Regulation (FAR) does not allow a federal contractor to “perform additional employment verificationusing E-Verify for any employee whose employment eligibility was previously verified by the contractor through” E-Verify. DHS cannot unilaterally impose E-Verify changes on federal contractors by revising the Memorandum of Understanding (MOU) because the E-Verify obligations of federal contractors are already set forth in the FAR. Thus, an amendment, with the full notice and comment process, would be required to impose these new burdens.

    Furthermore, AILA argued DHS’s proposal did not provide any substantive policy justification in its supporting statement for the change. This is despite the fact that the proposal would impose substantial new burdens and obligations on E-Verify employers. The failure to provide a policy justification deprives the public of the opportunity to meaningfully assess the costs and benefits of the proposed changes.

    Finally, AILA argued, under this proposed revision, E-Verify employers who follow the proposed MOU’s three-day reverification procedure rather than the strict expiration date rule found in the I-9 reverification regulation could unintentionally find themselves in violation of INA §274A(a)(2), and for federal contractors, this could lead to debarment. The proposal does not contain a safe harbor provision from a knowingly continuing to employ violation.

    I will be following these E-Verify proposed revisions by DHS and update you on any new developments.
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