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I-9 E-Verify Immigration Compliance

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  1. OSC and Hilton Hotels Settle Immigration Discrimination Case

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has reached a settlement with Hilton Worldwide (Hilton) to resolve allegations that Hilton discriminated against a foreign-born worker.

    The settlement comes after an investigation into a complaint that was called-in to the OSC Worker Hotline. OSC’s investigation found reasonable cause to believe that Hilton engaged in citizenship status discrimination - “document abuse”, during the employment eligibility verification process in violation of the Immigration and Nationality Act (INA). Specifically, the department found that a Hilton-owned hotel in Naples, Florida, discriminated against an asylee by improperly rejecting his Social Security card when the hotel reverified his employment authorization.

    The anti-discrimination provision of the INA prohibits employers from rejecting an employee’s work-authorization documents because of the employee’s citizenship, immigration status or national origin. The INA also prohibits employers from specifying documents that employees must present during the employment eligibility verification process, and employers cannot reject documents that reasonably appear to be genuine and relate to the worker.

    Under the settlement agreement, Hilton will pay $550 in civil penalties to the United States; pay $12,600 in back pay to the worker who brought the complaint; revise its employment eligibility verification policies; undergo training on the anti-discrimination provision of the INA, and be subject to monitoring of its employment eligibility verification practices for two years in its owned or managed Florida Hotels.

    This settlement demonstrates that employers, large and small, can benefit from incorporating INA anti-discrimination provisions into a company I-9 Compliance policy, and from conducting immigration compliance training.

    A copy of the Hilton Worldwide settlement agreement can be viewed here.

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Size:  2.9 KB 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 this author on social media via Facebook and on Twitter @BuchananVisaLaw .
  2. ICE Catches Employer Backdating I-9 Forms

    By Bruce Buchanan, Siskind Susser

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    The Office of Chief Administrative Hearing Officer (OCAHO) issued its fifth substantive decision of 2015 finding that the company in United States v. Liberty Packaging, Inc., 11 OCAHO no. 1245 (2015), committed numerous I-9 violations. The proposed penalty by Immigration and Customs Enforcement (ICE) was lowered from $19,354 to $11,700.

    When ICE served a Notice of Inspection (NOI) on Liberty Packaging, it also provided the company with a sample copy of the current I-9 form surreptitiously marked with the letters “ICE”. It was later revealed to OCAHO that the surreptitious marking of that sample form is a tactic used by ICE to detect if employers backdate I-9 forms. In this case, it worked.

    Without having legal counsel, Liberty Packaging submitted 21 I-9 forms to ICE. After reviewing those forms, ICE issued the company a Notice of Intent to Fine (NIF) in March 2013. Liberty Packaging then submitted a “different” set of I-9 forms with an explanation that they were the “correct ones”.

    Of the 21 forms originally submitted in the first set, 17 contained the surreptitious “ICE” mark indicating they were backdated. Thus, ICE set a baseline penalty of $935 per violation and aggravated the penalty by 15% due to the company’s bad faith, the seriousness of the violations and the presence of unauthorized workers.

    It was discovered that a Human Resources manager at Liberty Packaging dated I-9 forms with the correct month and day of hire, but not with the correct year. Some of the forms were backdated between two and 20 years. As a result, there were many instances where the company used a newer version of the I-9 form which was not even in existence at the time of the employee’s hire.

    On the issue of different sets of forms, OCAHO cited well-established case law holding that the I-9 forms to be considered were the first set of forms the company provided in response to the NOI –not the second “different” set of forms the company submitted at a later date. OCAHO found that Liberty Packaging had committed “systematic and deliberate falsification” in Section 2 of the I-9 forms, which “cannot be said to indicate good faith.” It noted that the company’s Human Resources manager had eight years of experience which presumably meant they had “some expertise” in handling I-9 responsibilities.

    Concerning ICE’s proposed penalties, Liberty Packaging asserted that it was a small mom-and-pop business and expected to lose between $250,000 and $300,000 in 2013 (although the company failed to provide any documentation to support this assertion). The company argued that a $19,000 penalty would severely impact its ability to stay in business.

    Furthermore, the company was successful in arguing that ICE failed to prove five employees were unauthorized. ICE merely offered proof that they were listed on the Notice of Suspect Documents which is insufficient to establish unauthorized status.
    OCAHO found the proposed penalty should be adjusted to an amount closer to midrange, and reduced it to $650 per violation – an amount that “does not appear disproportionate to Liberty’s resources.” The penalty was reduced from $19,354 to $11,700.

    Take Away

    The most obvious take away is do not backdate the I-9 forms as it only exacerbates the employer’s liability. Second, submit the correct I-9 forms when responding to an NOI because later filed I-9 forms will not be considered. If this employer had engaged in preventive measures, such as hiring an attorney to conduct an I-9 audit, it could have avoided much of its liability.

    A copy of the decision is available here. Cite as United States v. Liberty Packaging, Inc., 10 OCAHO no. 1245 (2015).
  3. Kansas Hotel Owner Sentenced to 21 Months for Employing Undocumented Workers

    By Bruce Buchanan, Siskind Susser

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    A Kansas hotel co-owner, Rhonda R. Bridge, was sentenced in federal court to 21 months in prison for employing undocumented workers at two hotels in the Kansas City area. In addition to her prison sentence, Bridge also agreed to forfeit her interest in two hotels and the funds derived from the crime.

    According to court records, the investigation began in December 2011 when U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) special agents and agents with the state's Department of Revenue received information that the owners of the hotels were employing foreign nationals who were not lawfully present in the United States. In June 2012, an undercover agent posing as an illegal alien got a job at the Overland Park hotel. He was hired even though he told his employers he was not authorized to work in the United States. In 2011 and 2012, the defendants filed false and fraudulent Quarterly Wage Reports and Unemployment Tax Returns with the Kansas Department of Labor, in which they under-reported the number of employees at the Overland Park hotel, the amount of total wages paid and the amount of unemployment taxes due.

    By this scheme, Bridge lowered the hotels' operating costs and put the hotels at a competitive advantage by not paying social security, workers compensation and unemployment insurance for the undocumented workers.
  4. OSC Issues Flyer on Employers Avoiding Discrimination

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, which is within the Department of Justice, has issued an updated flyer entitled “How Employers Can Avoid Discrimination in the Form I-9 and E-Verify Processes.”

    There are some helpful points in the flyer for employers, which one may already know and refreshing or one might learn for the first time. Some of these helpful points are:

    • Employees do not need to prove the citizenship status they attest to in Section 1. Do not ask any employee for proof of immigration or citizenship status, such as asking an employee who marks “U.S. citizen” to present a naturalization certificate or U.S. passport.


    • Employees are not required to write their Social Security numbers (SSN) in Section 1 unless you use E-Verify.


    • To satisfy Section 2, employees must be allowed to present any documentation of their choice from the Lists of Acceptable Documents. All employees can choose to present either any unexpired List A document, or any unexpired List B document together with any unexpired List C document.


    • Do not ask any employee to present specific documents.


    • Some individuals, such as those with Temporary Protected Status (TPS), may have EADs that appear expired on the face of the cards, but the EADs may have been “automatically extended” and are still valid. Do not ask employees with automatically extended EADs to present additional documentation during the extension period.


    • U.S. citizens and some non-U.S. citizens should not be reverified. For example, do not reverify an LPR who presented a Permanent Resident Card that expired after initial verification.


    • Do not create E-Verify cases for employees who are waiting to receive their SSNs and for employees who present certain receipts for Section 2 documents. Despite the E-Verify delay, allow them to work for pay similar to employees whose E-Verify cases were created within the typical three-day period.


    • Do not reject valid documentation just because it is unfamiliar, or because it is an older version.


    • If an employee contests a TNC, do not fire, suspend, modify a work schedule, delay job placement or otherwise take any action adverse against the employee just because the employee received a TNC.
  5. OCAHO Reduces Speedy Gonzalez's Fines by 50%

    By Bruce Buchanan, Siskind Susser

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    In U.S. v. Speedy Gonzalez Construction, Inc., 11 OCAHO no. 1243 (2015), the Office of the Chief Administrative Hearing Officer (OCAHO) determined ICE’s proposed fines for the company should be reduced by about 50 percent. Previously, in 2014, OCAHO decided Speedy Gonzalez committed 179 violations – over half of which were for the failure of the company to prepare I-9 forms until after the Notice of Inspection and backdating to the date of hire.

    Earlier in the case, Speedy Gonzalez argued that it “recreated” some of the I-9 forms after the NOI when the original I-9 forms were missing. However, OCAHO held the company failed to present “a scintilla of evidence that the original forms ever actually existed.”

    Penalties Sought
    ICE sought $186,859.75 for the 179 violations previously found in the earlier decision. ICE based its penalties on a violation rate of 73.4 percent, which creates a baseline fine of $935 per violation. ICE also sought to aggravate many of the violations by 5 percent per factor for the seriousness of the violations, lack of good faith, and employment of unauthorized workers. Thus, ICE sought between $935 and $1,075.25 per violation.

    OCAHO’s Holding
    The ALJ for OCAHO declined to find a lack of good faith based upon backdated I-9 forms as OCAHO case law requires information on the “surrounding facts and circumstances” when an I-9 form is backdated. Additionally, the ALJ found ICE failed to identify many of the workers who were unauthorized; thus, she declined to aggravate the penalties for this reason, too.
    The ALJ concluded the proposed penalties were too high for a small business, especially in light of the general public policy of leniency reflected in the Small Business Regulatory Enforcement Act of 1996. The penalties were reduced to amounts closer to the mid-range of possible penalties, between $450 and $600 per violation. Thus, the penalties equaled $97,000. Finally, the ALJ found the parties were free to “establish a payment schedule in order to minimize the impact of the penalty on the operations of the company."

    Takeaway
    This is another case where through litigation the employer was able to reduce the penalties by about 50 percent, which was a great savings for the company but still left the company owing almost $100,000. Many of the violations could have been cured through a self-audit directed by an immigration compliance attorney.

    The full decision is here (PDF warning).
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