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I-9 E-Verify Immigration Compliance

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  1. Employer Discrimination Against U.S. Citizen

    By Bruce E. Buchanan

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    An employer discriminated against a U.S. citizen and favored individuals with an H-2A visa, according to OCAHO’s decision in U.S. v. Estopy Farms, 11 OCAHO no. 1252 (2015).

    Estopy Farms sought employment of non-immigrant worker to perform agricultural labor of a temporary nature. In order to hire individuals under the H-2A program, an employer must receive a certification from the U.S. Department of Labor (DOL), that there are insufficient American workers to perform the work. For the DOL to issue such a certification, an employer must advertise the positions and may not reject individuals based on criteria not listed on the original petition or job order.

    In this case, Estopy Farms, which in the business of harvesting cotton, filed a request to hire 14 H-2A workers as “cotton machine operators.” The request did not include any requirement that the applicants have prior experience.

    Enrique Romero, a U.S. citizen, applied for the job and had 14 years experience in operating agricultural equipment. Romero appeared to have been hired at his interview in that he was informed that he would be informed of the job’s start date. Despite calling Estopy Farms on several occasions, Romero was not hired; instead all the employees hired were H-2A visa holders.

    After filing a charge with the Office of Special Counsel for Immigration – Related Unfair Employment Practices (OSC), Romero was granted permission by the OSC to file a complaint with OCAHO alleging citizenship discrimination. The OSC intervened in the case before OCAHO. Interestingly, Romero settled a similar case filed in federal district court and moved that his OCAHO compliant be dismissed. OCAHO granted that order but OSC decided it wanted to pursue the OCAHO case as “guardian of the public interest.”

    In its defense, Estopy Farms stated it failed to hire Romero because he did not have any experience operating “cotton picker harvester machines.” However, Estopy Farms’ advertisement did not include the need for prior experience or certain qualifications. At least two of the H-2A visa holders hired did not have any prior experience.

    Based on the facts and Estopy Farms providing a series of “shifting, inconsistent, and mutually contradictory explanations” concerning why it failed to hire Romero, OCAHO found Estopy Farms’ defenses were pretextual. OCAHO further found Estopy Farms discriminated against a qualified U.S. citizen in favor of hiring H-2A workers. The amount of civil penalties will be decided in further proceedings.

    This decision shows that if one advertises for workers, it must make its hiring decisions based on the advertisement’s requirements, not on other factors. In this case, it appears Estopy Farms only wanted to hire H-2A visa holders and created reasons not to hire non-H-2A visa holders.
  2. OSC Settles Two Immigration-Related Discrimination Claims

    By Bruce Buchanan

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently settled cases with Memphis-area staffing agencies: Prestigious Placement; PFSWeb Inc.; and its subsidiary, Priority Fulfillment Services Inc., as well as Accountemps, a division of Robert Half International Inc., of Menlo Park, California. The agreements resolve complaints alleging discrimination under the Immigration and Nationality Act (INA).

    In the Memphis-area cases, the investigation found the companies refused to hire two qualified, Puerto Rican-born individuals because the companies believed that they were born in a foreign country. The companies rejected the workers’ valid Puerto Rican birth certificates and demanded that the workers present naturalization certificates, even though Puerto Ricans are U.S. citizens by birth. Under the anti-discrimination provision of the INA, employers cannot place additional documentary burdens on workers during the I-9 process based on their citizenship or perceived citizenship.

    Under the settlement agreement with the Memphis staffing companies, the charging parties will be paid between $200 and $255 each for lost wages. Furthermore, the companies will pay civil penalties of $1450 to the United States; undergo training on the anti-discrimination provision of the INA; revise their employment policies and training materials; be subject to monitoring of their employment eligibility verification practices for two years; and refer applicants and employees who complain, formally or informally, of discrimination in the hiring, firing, or employment eligibility verification and re-verification process immediately to the OSC by directing the affected individual to the OSC Poster and the OSC’s worker hotline and website, and advise the affected individual of his right to file a charge of discrimination with the OSC.

    In the Accountemps case, the investigation, based on a charge by a naturalized U.S. citizen, concluded the company refused to refer the charging party for a federal government contract position because, as a naturalized citizen, the charging party was not born in the United States. Under the INA, employers cannot discriminate against U.S. citizens based on their citizenship status, including refusing to hire them based on whether they were born in or outside the United States. Under the settlement, Accountemps will continue to refer the charging party for positions for which she is qualified, pay a $2,500 civil penalty, train its staff on the anti-discrimination provision of the INA, review and revise, if necessary their employment policies and training materials and be subject to a one-year monitoring period.

    As these cases demonstrate, employers continue to try to impose their own standards for specific documentation needed for certain individuals, i.e., Puerto Ricans and naturalized citizens. Unfortunately for these employees, this is unlawful.
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  3. E-Verify Adds North Dakota as 6th State to join RIDE

    By Bruce E Buchanan

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    The USCIS announced the E-Verify system will begin checking North Dakota driver’s licenses and ID cards, effective June 15, 2015. North Dakota is the sixth state to join the Records and Information from DMVs for E-Verify (RIDE) Program, which began in June 2011. The other states are Mississippi, Florida, Idaho, Iowa, and Nebraska.

    What is RIDE?

    RIDE gives employers the ability to validate the authenticity of an employee’s driver’s license, driver’s permit, or state-issued ID card (if presented during the I-9 process). The RIDE program attempts to mitigate this risk by comparing the data from the card with data supplied by states’ motor vehicle agencies.

    Helpful Tip
    In most states, driver’s licenses and ID cards often look alike so it’s important that the Employer choose the correct document type during the E-Verify submission in order to avoid a Tentative Non-confirmation (TNC). In order to assist HR in choosing the right document, E-Verify has created a fact sheet for each participating state, which provides images and descriptions of the different document types.
  4. 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.
  5. 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.
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