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I-9 E-Verify Immigration Compliance

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  1. California Amends Law on Updating Immigration Status; by Bruce Buchanan, Siskind Suss

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    California Governor Jerry Brown has amended a recently enacted state employment law that expanded workplace protections for California workers, including immigrant employees. The amendment to the law adds language which clarifies the statute, especially for immigration purposes.

    Assembly Bill 263, which went into effect on January 1, 2014, provides greater protections against adverse employment actions to workers who are seeking to change their personal information or exercise their workplace rights. (See my prior blog post at LawLogix™) The statute says that employers may not discharge or take any other adverse employment action against an employee "because the employee updates or attempts to update his or her personal information, unless the changes are directly related to the skill set, qualifications, or knowledge required for the job." Thus, even if an employee made a prior false statement about their immigration status, an employer cannot discharge the employee for making such a statement.

    Assembly Bill 2751 amends AB 263 by adding language that employers may not discharge, discriminate, retaliate, or take any adverse employment action against an employee for updating or attempting to update personal information "based on a lawful change of name, social security number, or federal employment authorization document" (e.g., permanent resident card or Employment Authorization card), unless the change relates to skills, qualifications, or knowledge required for the job.

    For example, if an employee in California presents a new permanent resident card, Employment Authorization card and/or social security number, the employer may not discharge or take any adverse employment action against that employee. These types of situations occur when an employee receives employment authorization, such as through Deferred Action for Childhood Arrivals (DACA) or permanent residency through an immediate family member’s petition.

    Employers may, however, still discharge or take adverse employment action against an employee who makes false statements that do not involve updating their immigration status or other personal information.

    As the above language demonstrates, these situations can become complicated. Thus, California employers should seek the advice of an immigration compliance attorney to ensure compliance with the law.

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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 .

    Updated 08-05-2014 at 02:33 PM by BBuchanan

  2. Company Managers Indicted for Employing Undocumented Workers; by Bruce Buchanan

    by Bruce Buchanan, Siskind Susser

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    Five managers of a waste disposal company in Houston, Texas were recently indicted for conspiracy to employ illegal aliens, unlawfully employing illegal aliens, and encouraging and inducing illegal aliens to reside in the United States.

    According to the allegations in the indictment, from about July 2008 through April 2012, the defendants encouraged undocumented workers to obtain false documentation, assigned false identities to undocumented workers and, in some cases, provided them with employment documents related to their false identity.

    The indictment describes an alleged incident in January 31, 2012, in which the defendants and their co-conspirators "fired" at least 10 workers that they knew were unauthorized to work after an internal audit. Following the "termination" of these undocumented workers, the defendants allegedly told them they could come back to work if they got "good papers" belonging to other individuals, encouraged them to assume the identity of U.S. citizens or individuals who had authorization to reside and legally work in the country, and even assisted certain workers in obtaining false identities for employment and payroll purposes. The defendants then allegedly "rehired" at least 10 undocumented workers under their assumed identities and issued paychecks to them under the assumed name.

    The individuals whose identities were assumed did not authorize or even know their identities were being used, according to the indictment. They were former employees or individuals who had applied for employment but were never hired. The indictment alleges information was stolen from their employment applications and other records.

    Federal law requires employers to hire only U.S. citizens, lawful permanent residents and those who are authorized to work in the U.S. If convicted of encouraging and inducing aliens to reside or conspiracy to do so, the defendants face up to 10 years in federal prison. They further face another five years on any of the charges relating to the unlawful employment of illegal aliens. All charges also carry as possible punishment, a maximum fine of $250,000, upon conviction.

    This indictment demonstrates that managers and other higher-ranking company officials, such as owners, presidents and vice-presidents, face criminal penalties for engaging in immigration-related violations related to the employment of undocumented workers.

    The case has been unsealed, and the docket can be followed here: http://dockets.justia.com/docket/tex...c01712/1190674

    Click here for ICE and DOJ press releases.
  3. OCAHO Decides Desert Canyon Golf’s Penalties; by Bruce Buchanan, Siskind Susser

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    In United States v. Desert Canyon Golf, the Office of Chief Administrative Hearing Officer (OCAHO) was only focused on the amount of penalties to be assessed against the company for its I-9 errors. Previously, OCAHO determined Desert Canyon had committed 129 violations (click here to see my other blog post on that decision). In this decision, OCAHO assessed penalties of $57,650, which was a significant reduction from Immigration and Customs Enforcement’s proposed penalties of $113,742.

    To calculate the penalty, ICE set the baseline at $935 per violation based on an 87 percent error rate. ICE mitigated the penalties by 10 percent based on the small size of the business and the lack of history of previous violations. However, it aggravated the penalties by 5% for the seriousness of the violations. Thus the penalties were set at $888.25 per violation.

    Desert Canyon argued that the proposed penalties were “excessive, unwarranted, and completely inappropriate.” It stated it essentially committed only one error – failure to sign Section 2 of the I-9 forms in numerous instances. Desert Canyon stated it did not understand the directions on how to complete the I-9 form. Additionally, it asserted its enrollment and use of E-Verify is evidence of its good faith effort to follow the law.

    Ignorance of the law is not a viable defense. Furthermore, OCAHO found Desert Canyon did not commit just a single error; rather, it committed the same error many times. Finally, OCAHO stated participation in E-Verify “does not relieve the company from its obligation to properly complete I-9s for its employees.”

    OCAHO found that, except for the seriousness of the violations, the statutory factors were in the employer’s favor. Therefore, OCAHO decided to adjust the penalties to the midrange - between $400 and $500 per violation.

    The 50% reduction in penalties is consistent with the average reduction after litigation before OCAHO.

    A copy of the decision is available here. Cite as: U.S. v. Golf International d/b/a Desert Canyon Golf, 11 OCAHO no. 1222 (2014).
  4. OCAHO Issues Third Crescent City Decision; by Bruce Buchanan, Siskind Susser

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    In OCAHO’s third decision concerning the amount of penalties that Crescent City Meat Company owes for its failure to prepare/present I-9 forms for 15 employees, it assessed the company $6,750 in penalties.

    As discussed in prior articles, OCAHO ALJ Ellen K. Thomas initially decided Crescent City only owed $1,650 in civil penalties because ICE had failed to engage in good faith during the investigation and litigation. ICE appealed to Chief Administrative Hearing Officer (CAHO) Robin M. Stutman, who found ALJ Thomas had drawn this conclusion from a misreading of the record. Thus, the CAHO vacated the decision and remanded for reconsideration of the penalties.

    Since Crescent City’s error rate was 50% or greater, the baseline penalty was set at $935 per violation. ICE mitigated the penalty by 5% based on Crescent City’s small size, but aggravated the penalty by 5% for the seriousness of the violations. Thus, ICE set the total penalties at $14,025 ($935 x 15 violations).

    Crescent City raised three arguments for a reduction in the penalties – 1) it was unaware of the I-9 requirement, 2) the violations were not that serious, and 3) the company suffered losses over the last 25 years. Crescent City did not provide any records to support its arguments.

    In this decision, ALJ Thomas found ICE’s proposed penalties to be excessive. Although the ALJ found the violations to be serious, she found the remaining statutory factors – size of the company, good faith, employment of unauthorized workers and history of violations – to be favorable to Crescent City. The ALJ especially found Crescent City’s small size to be “precisely the type of business Congress intended to benefit from the general public policy of leniency to small entities” under the Small Business Regulatory Enforcement Fairness Act. Based on this analysis, the ALJ set each of the 15 violations at $450 for a total penalty of $6,750.

    This probably ends the Crescent City saga although ICE could file another appeal to CAHO. This appears unlikely. Thus, after all of the litigation has concluded, Crescent City had its penalties reduced by a little more than 50%, which is slightly more than the average reduction by OCAHO.

    A copy of this third decision is available here. Cite as United States v. Crescent City Meat Company, Inc., 11 OCAHO no. 1223 (2014) .
  5. UPDATED: Employer “DOs and DON’Ts” for Hiring, Firing, and E-Verify in 2014

    By Bruce Buchanan, Siskind Susser
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    For several years now, the U.S. Department of Justice’s Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, has published a helpful guide for employers known as the DOs and DON’Ts of using E-Verify. Building on that same information, the OSC recently released a companion guide known as the “Fact Patterns Flyer”, which includes real examples of employer mistakes in the hiring and firing process, Form I-9 and E-Verify processes, and INA anti-discrimination compliance.

    Examples were sourced from cases that OSC investigated in the last four years, and here are some excerpts:

    -What if an employer refuses to hire workers who look or sound ‘foreign’?
    “Employer agreed to pay $18,550 in back pay to a non-U.S. citizen….”

    -What if an employer asks Permanent Residents for a new green card when the current card expires?
    “Employer agreed to create a $100,000 back pay fund to compensate terminated workers and to pay $175,000 in civil penalties…”

    -What if an employer retaliates against a worker who asserts rights protected under the INA anti-discrimination provision?
    “Employer paid $1,800 in back pay and $3,000 in civil penalties…”

    -What if an employer prefers to hire exclusively U.S. citizens when there is no law, rule or regulation requiring employees be U.S. citizens?
    “Employer agreed to pay $100,000 in civil penalties…”

    These scenarios show why employers, both large companies and small businesses, should have immigration policies in place, such as an I-9 Compliance Policy and Anti-Discrimination Policy, to avoid using separate standards when requesting documentation from U.S. citizens and non-U.S. citizens. It is also prudent for employers to periodically self-audit under the supervision of an immigration compliance attorney to help avoid potential errors in the hiring, firing, and E-Verify processes.

    For the full examples, you can access the OSC Fact Patterns Flyer (Rev. June 2014) at: http://www.justice.gov/crt/about/osc...patterns_2.pdf

    For the most recent version of DOs and DON’Ts of using E-Verify, visit this link: http://www.justice.gov/crt/about/osc...sanddonts3.pdf

    Stay up-to-date with Siskind Susser's Immigration Compliance blog for employers at www.employerimmigration.com .

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ID:	775 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 .
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