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I-9 E-Verify Immigration Compliance

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  1. E-Verify Adding Languages to its Documents

    By Bruce E. Buchanan

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    Employers and employees can now get information in Urdu, Punjabi and Somali about the I-9 form, E-Verify and other immigration-related records. The following documents are now available in those languages as well as 18 other foreign languages:


    • Department of Homeland Security (DHS): Tentative Nonconfirmation Further Action Notice
    • Social Security Administration (SSA): Tentative Nonconfirmation Further Action Notice
    • DHS Referral Date Confirmation
    • SSA Referral Date Confirmation


    If an employer needs to give its employee a notice or letter in a language other than English, one should take the following steps:

    • Give your employee a copy of the pre-populated English version of the notice or letter along with the foreign language document.
    • Only sign the English version of the notice and letter.
    • Use the foreign language notices and letters only to help employees who have difficulty speaking or reading English.


    Other records which have been translated into 21 languages are:

    · Fact Sheet entitled “How to Correct Your Immigration Records” which gives instructions on how to correct immigration records.

    · Form I-9 Employee Information Sheet which gives answers to many Form I-9 questions in plain language. As a best practice, this information sheet should be made available to new employees who are about to complete Form I-9.

    · E-Verify Participation Poster - In addition to displaying the English and Spanish version of the E-Verify Participation poster, employers may also display any of the 19 foreign language versions.

    Utilizing the foreign language resources cited above, should assist employers when issues arise with your employees who do not speak English.
  2. OSC Settles Immigration-Related Claim Against Luis Esparza Services

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), within the Justice Department, reached an agreement with Luis Esparza Services, Inc. (LES), a farm labor contractor based in Bakersfield, California, resolving claims that the company discriminated against individuals because of citizenship status in violation of the Immigration and Nationality Act (INA).

    The investigation found LES required work-authorized non-U.S. citizens to produce documents issued by the Department of Homeland Security as a condition of employment, but did not require the same of U.S. citizen workers. The anti-discrimination provision of the INA prohibits employers from placing additional documentary burdens on workers during the employment eligibility verification process based on their citizenship status.

    Under the settlement agreement, LES will pay $320,000 in civil penalties, which is the largest civil penalty the Justice Department has ever secured to resolve a discrimination claim under the INA. Additionally, LES will compensate a worker who lost wages due to LES’s employment eligibility verification practices; undergo training on the anti-discrimination provision of the INA; revise its employment eligibility verification policies; and be subject to monitoring of its employment eligibility verification practices for three years.
  3. Four Indicted for Conspiring to Harbor Undocumented Workers

    By Bruce Buchanan, Siskind Susser

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    A federal grand jury returned an indictment charging four Akron residents with conspiracy and harboring undocumented workers for their restaurant in Akron, Ohio. Chau Fang Lam, Rui Xu, Xin Hsu, and Zhou Qiang Zou owned and operated the Royal Buffet and Grill restaurant in Akron. They conspired to harbor and harbored at least 10 undocumented workers for the purpose of commercial advantage and private financial gain. According to the indictment, the conspiracy included employing the undocumented workers at the Royal Buffet and Grill, where they worked for below minimum wage or only for tips. The defendants also housed the undocumented workers at one of their residences in Akron and transported them to and from the Royal Buffet and Grill as part of the conspiracy. At one time, Lam, Xu, Hsu, and Zou housed as many as 14 undocumented workers inside a single-family resident, according to the indictment. This indictment shows owners and managers of companies are subject to criminal liability for immigration-related violations. If convicted, each of the defendants will be facing jail time, a criminal fine and/or forfeiture of assets.
  4. Negotiating in an ICE Inspection

    By Bruce Buchanan, Siskind Susser

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    At a recent FBA Conference in Chicago on Worksite Enforcement, there was a panel discussion on negotiating with Immigration and Customs Enforcement (ICE) during an inspection – hosted by attorneys Sharon Mehlman, Marcine Seid, and Eileen Momblanco. In this article, I will elaborate upon some of the talking points from that discussion and other negotiation strategies.
    During an investigation by ICE, after receipt of a Notice of Inspection (NOI)/subpoena, there are several opportunities to negotiate with the agency.

    Negotiating Point #1 - Subpoena
    The first negotiable is the date by which the I-9 forms must be provided. The NOI states the I-9 forms and other subpoenaed documents must be provided to ICE within three business days of service of the NOI. Often times, however, a short extension of up to 10 days can be obtained if counsel contacts the ICE officer or auditor on the case and provides an appropriate reason for the extension (e.g. small HR staff; thousands of I-9 forms, counsel was just hired, etcetera). The decision to grant an extension is discretionary, and some ICE offices refuse to grant any extensions.

    Negotiating Point #2 – Notice of Suspect Documents
    If a company receives a Notice of Suspect Documents (NSD), after supplying the I-9 forms, it used to be common practice to negotiate what was a “reasonable” period to resolve the work status of those on the NSD. Now, all NSDs state the employer has 10 days to do so. In a liaison meeting with the American Immigration Lawyers’ Association (AILA), ICE stated that the 10 days is not a national policy although many regions treat it as such. However, in other regions this 10-day period is negotiable if the employer can show the impact that the loss of unauthorized employees will have on U.S. citizen employees and/or the community (e.g. the facility will be forced to shut down due to a lack of employees).

    Negotiating Point #3 – Notice to Employees
    On some occasions, ICE will negotiate a “roll-out schedule” for notification of employees listed on the NSD. After receipt of the NSD, the employer notifies those employees that ICE has determined their work authorization is invalid, and requests documentation from the employee to rebut ICE’s finding. With a roll-out schedule, the employer does not have to notify all employees on the NSD at the same time.

    Negotiating Point #4 – Proposed Penalty Amount
    The proposed penalty amount set forth in the Notice of Intent to Fine (NIF) is the most important point to negotiate. Before starting negotiations, counsel must inform ICE in writing that they wish to have a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO). If counsel fails to do so, then the NIF will become final in 30 days.
    Most ICE attorneys are amenable to negotiating a reduction in the proposed penalties. There are a number of arguments that counsel can make for a reduction, such as:

    • ICE listed technical error as a substantive error;
    • ICE incorrectly applied the five mitigating/aggravating factors;
    • ICE counted an employee twice in the NIF;
    • for timeliness violations – beyond the five year statute of limitations;
    • the company was not required to have I-9 form because the individual is an owner with substantial control or was hired on November 6, 1986 or beforehand;
    • math errors by ICE; and
    • for poor financial condition of the company established by financial records (this is a powerful tool for reducing the amount of the penalty and lengthening the time to pay the penalties – sometimes up to five years).


    Negotiating Point #5 – Press Release

    The last negotiable item is the press release and whether ICE is going to publicize the settlement of the matter. However, in many parts of the United States, ICE never issues a press release for settlements.

    Takeaway
    It is important to engage immigration compliance counsel as soon as a company is served with an NOI. As shown above, legal counsel can help to lessen an employer’s burden, avoid common pitfalls and negotiate at numerous points during the ICE inspection process.
  5. OSC Settles Dual Citizenship Discrimination Claim

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) reached a settlement with The Data Entry Company Inc. (TDEC), a government subcontractor located in Bethesda, Maryland. This case is unique because it involved a claim of discrimination based on dual citizenship.

    The OSC’s investigation found that on two occasions TDEC removed a U.S. citizen from its pool of applicants because she was a dual citizen, in violation of the Immigration and Nationality Act (INA). Under the INA’s anti-discrimination provision, employers may not discriminate in hiring on the basis of citizenship status unless required by law, regulation, executive order or government contract.

    Under the settlement agreement, TDEC will pay $7,007.75 in back pay to the charging party and a $750 civil penalty to the United States. For the next two years, the company must also send all current human resources personnel and all new human resources personnel to attend a compliance training webinar presented by the OSC.

    TDEC further agreed not to remove dual citizen applicants from consideration for jobs that are open to other U.S. Citizens and for which a basic security clearance or higher level security clearance is required on the basis of their dual citizenship. This requirement will not apply if an applicable government contract prohibits employment of a dual U.S. Citizen, or if the company has received written notification from the government directly or indirectly stating that candidates with dual citizenship are not acceptable.

    A copy of The Data Entry Company Inc. settlement agreement can be viewed here.

    ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .
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