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I-9 E-Verify Immigration Compliance

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  1. Safe-Air Fails to Find Safety in its I-9 Forms

    By: Bruce Buchanan, Sebelist Buchanan Law

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    OCAHO issued a decision in U.S. v. Safe-Air of Illinois, Inc., 12 OCAHO no. 1270 (2016), finding Safe-Air committed all of the alleged violations but reduced the fine from $34,969 to $18,450.

    Safe-Air is a family-owned business in Chicago where they perform sheet metal work and manufacturing. It employs 42 workers. After a Notice of Inspection, Immigration and Customs Enforcement (ICE) issued a Notice of Intent to Fine alleging 39 violations within three separate counts: Count I - failed to prepare I-9 forms – 2 violations; Count II - failed to properly complete Section 2 of the I-9 forms - 30 violations; and Count III - failed to properly complete Section 2 of the I-9 forms for 7 unauthorized employees. Safe-Air stipulated to liability on all counts.

    The question before the Administrative Law Judge was what the appropriate fine was. ICE stated there was a 95% error rate, which equals $935 per violation. The baseline penalty was mitigated by 5% due to Safe-Air being a small business. Thus, ICE sought a baseline penalty of $888.25 per violation, equaling $34,969.

    Safe-Air argued that it was in substantial compliance of the law even though it had a 95% error rate. ICE found this argument to be incredulous and OCAHO agreed.

    Safe-Air also asserted it was entitled to greater mitigation based upon its good faith and no prior history of immigration violations. It also argued it could not afford to pay the penalty as it already owed $40,000 to the IRS and had unpaid property taxes. ICE responded that the debt to the government showed a “pattern of consistent disdain and disregard for its legal and financial obligations.” Furthermore, ICE questioned the validity of Safe-Air’s financial records because they were neither audited nor certified. Finally, ICE pointed out the proposed fine was less than 1% of Safe-Air’s total sales in 2014.

    OCAHO found that because the company was small and did not demonstrate any bad faith or have any history of violations, leniency was favored. Plus, OCAHO agreed with Safe-Air that the company had financial problems; thus, proposed penalties were “unduly harsh”. Based upon this reasoning, OCAHO found the following: Count I violations - $500 each; Count II violations - $450 each, and Count III violations - $550 each.

    As is so often the case, if Safe-Air had conducted a timely internal I-9 audit, many of these violations could have been located and fixed.
  2. Company is Pulling Out its Hair after OCHAO Decision

    By Bruce Buchanan, Sebelist Buchanan Law
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    The Office of Chief Administrative Hearing Officer (OCAHO) issued another decision arising case out of Buffalo, New York wherein it upheld most of Immigration and Customs Enforcement’s (ICE) proposed fine of $5329.50. See U.S. v. Hair U Wear, LLC, 11 OCAHO no. 1268 (2016). The case is similar to the earlier Buffalo case, Golden Farm Market.

    Allegations

    Hair U Wear, a very small business, received a Notice of Inspection (NOI) from ICE in January 2014. After not timely preparing four I-9 forms and failing to prepare two forms, a Notice of Intent to Fine was issued. Hair U Wear denied all allegations and did not raise any affirmative defenses.
    Of the four allegations related to not timely preparing I-9 forms, each reflected there was no date in either Section 1 or Section 2 after the signatures. Furthermore, all of the I-9 Forms used the March 8, 2013 edition even though the first day of employment for each employee was listed as October 1, 2003, October 1, 2006, April 1, 2008, and April 12, 2012. This is obvious evidence that the I-9 forms were prepared well after the employees were hired.

    Appropriate Penalties

    ICE asserted the appropriate penalty was $5329.50 based on a 100% error rate – which equals a fine of $935 per violation. ICE mitigated the fine by 10% based on the mitigating factors of a small business and no employment of undocumented workers. It aggravated the penalty by 5% due to the seriousness of the violations. These mitigating and aggravating factors led to a fine assessment of $888.25 per violation.
    ICE provided reports reflecting that Hair U Wear reported employing six employees in 2013. Hair U Wear did not dispute this fact. Hair U Wear did not provide I-9 forms for two individuals listed in the reports and conceded it prepared the other four I-9 forms after the NOI.
    Concerning the five aggravating / mitigating factors, OCAHO agreed with ICE’s use of three of the five factors, but added a third mitigating factor, lack of prior violations. Concerning the aggravating factor of seriousness, OCAHO cited prior caselaw which states the failure to prepare or timely prepare I-9 forms is a potentially serious violation because the employer has not ensured the individuals are authorized to work without completing the I-9 form. Through the use of these factors, the baseline penalty of $935 was reduced by 10% to $841.50 per violation. Thus, OCAHO found the total penalties should be $4776.50.

    Takeaway

    As is usually the case, if Hair U Wear had conducted an internal I-9 audit before the NOI, it would have realized it did not have I-9 forms for its employees and sought to resolve the issue. As you can see by this case, even very small employers can face penalties assessed by ICE.
  3. Restaurant Manager Receives Prison Time for Harboring Illegal Workers

    By Bruce Buchanan, Sebelist Buchanan Law

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    The manager of a Mexican restaurant in Ottawa, Kansas, Alex Sanchez, Jr., was sentenced to six months in federal prison for harboring undocumented workers. This sentence resulted from an investigation by U.S. Immigration and Customs Enforcement's Homeland Security Investigations. Sanchez’s prison sentence will be followed by six months home confinement and supervised release for three years. Additionally, Sanchez must pay a $4,000 fine.

    In the plea agreement, Sanchez admitted that in 2011 he paid a fine of $22,589 fine for I-9 form violations. Despite having to pay this fine, he continued to employ workers in 2012 who he knew were not legally in the United States. Additionally, he provided housing for his undocumented workers and paid them in cash.
  4. ALJ Orders $48,000 in Back Pay for H-1B Worker

    By Bruce E. Buchanan @ Sebelist Buchanan Law

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    A U.S. Department of Labor (DOL) Administrative Law Judge (ALJ) ordered Florida-based Government Training LLC, which provides training and publishing for government agencies, to pay back wages of about $48,000 to a nonimmigrant H-1B worker, Duneet Sharma, an Indian National, whom it underpaid. See Administrator, Wage and Hour Division v. Government Training, LLC, 2015-LCA-5 (DOL OALJ 2016).

    Initially, the DOL issued findings that Government Training had violated the Immigration and Nationality Act (INA) by not paying Sharma either the actual wage or the prevailing wage specified in two LCAs. Thus, the DOL concluded that Sharma was owed back wages. The employer appealed the findings, sending the case to an ALJ. In October, the DOL filed for a summary decision, saying that the facts backing its initial findings were not in dispute.

    Under the INA, employers who want to hire nonimmigrants to work in specialty occupations in the U.S. under the H-1B program must first obtain certification from the DOL by filing a labor condition application, or LCA, which sets the worker’s wage levels and working conditions. After getting an LCA as well as approval from the U.S. Department of Homeland Security, the H-1B nonimmigrant is issued a visa and may begin work.

    Before the ALJ, Government Training sought the case to be dismissed and raised these issues: whether the employer was not liable for back wages due to lack of work, and whether Sharma was provided with a car, a cellphone and health insurance that should have been considered part of his wages.

    The ALJ found that Government Training routinely underpaid Sharma, who was employed as a computer programmer from 2010 until 2013, from the amounts it had listed in its LCAs. The ALJ said the LCAs in Sharma’s case promised to pay him $65,000 per year for the position of software engineer, and set the prevailing wage at close to $56,000. The ALJ noted that Government Training admitted that it did not pay Sharma the required wages under the LCAs, and rejected the company’s arguments that it should be excused from not paying those required wages.

    The ALJ also pointed out that although the health insurance, car and phone that Sharma received could be considered as benefits that are provided as compensation, Government Training didn’t submit any documentation to show how much those items cost or that they were ever reported on Sharma’s payroll or to the IRS as required; thus, the ALJ declined to find these benefits offset some of the back pay.
  5. Professor Flunks the Test

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Chief Administrative Hearing Officer (OCAHO) held, in Chellouf v. Inter American University of Puerto Rico, 12 OCAHO No. 1269 (2016) that the university did not retaliate against Linda Chellouf by discharging her from the faculty.

    Chellouf’s Years as an Instructor, Assistant Professor and Associate Professor

    Chellouf, a French national, holds a Doctor of Musical Arts from Eastman School of Music. Chellouf became employment on a temporary appointment as instructor in the Department of Fine Arts for the academic year 2006-2007. She was eligible for employment under an approved H-B visa. One year later, Chellouf received a temporary appointment as an assistant professor. This was renewed during the 2008-2009 academic year. In July 2009, she was promoted to a probationary associate professor and received a series of one year appointments for the academic years of 2009-2010 through 2012-2013.

    Labor Certification Process

    In 2013, the university began a process of labor certification to retain Chellouf as a permanent resident worker. The university started the required advertising process at that time, including two consecutive Sunday advertisements ion the newspaper, El Nuevo Dia. On May 14, 2013, Chellouf sent an email to the university’s attorney expressing her belief that the university was not properly advertising because it did not place an ad in a national professional journal.

    On August 1, 2013, the university provided her with another one-year appointment as a probationary associate professor for the 2013-2014 academic year. Chellouf declined to sign it because she had applied for a permanent position and promotion. On August 12, 2013, the university notified her that her evaluation of the sixth year of her tenure track had been approved for the academic year of 2013-2014.

    Chellouf’s Termination

    Despite not signing the August 1, 2013 contract, Chellouf continued her teaching duties. However, on October 16, 2013, she was notified that the university considered her to have “voluntarily resigned” because she had not signed the August 1 contract. The contract stated it was invalid on its terms after 15 days unsigned. Thus, Chellouf ceased her professor duties and her salary was not paid thereafter. A formal termination letter was signed by the University Chancellor on November 4, 2013, reiterating her employment had been terminated. The university paid Chellouf back wages from October 16 to November 4, 2013 and offered to pay her transportation costs back to France.

    OSC Charge and Complaint

    On March 10, 2014, Chellouf filed a charge with the Office of Special Counselfor Immigration-related Unfair Employment Practices (OSC) alleging the university violated Department of Labor regulations and discriminated against individuals protected by §1324b by advertising the position in a local paper rather than a national professional journal. OSC gave Chellouf a right-to-sue and she filed her complaint with OCAHO on October 7, 2014 alleging she was retaliated against for opposing the university’s recruitment practices for foreign faculty.

    Parties’ Arguments and OCAHO’s Decision

    The university argued Chellouf did not even make out a prima facie case of retaliation because she did not engage in protected activity. Specifically, her May 14, 2013 email did not allege discrimination, just the accuracy of the labor certification process. Thus, the university argued there is no factual basis of a causal relationship between the email and her termination. Even if Chellouf somehow met her standard, the university asserted the reason for her discharge was Chellouf’s failure to sign the August 1, 2013 employment contract- a legitimate nondiscriminatory reason.

    Chellouf asserted she did not abandon her employment and she was terminated for no legitimate reason. But Chellouf did not give a plausible reason for her failure to sign the contract. Rather, Chellouf stated she wanted a permanent tenure-track position but ignored the fact she was not eligible for such at that time. Finally, she returned to her argument about the university’s advertising practices.

    OCAHO agreed with the university’s positions – Chellouf had not engaged in protected activity and even if she had, the university offered a legitimate non-discriminatory reason for her discharge. OCAHO referred to Chellouf’s argument as “wishful thinking” but laments there were “no winners in this case” because the university lost a “valued faculty member.”

    Takeaways

    In order for an employee to be retaliated against, the employee must have engaged in protected activity. A general complaint is insufficient.
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