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I-9 E-Verify Immigration Compliance

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  1. Non-Compliance with E-Verify does not Render Company Ineligible for Work

    In Ashland Sales & Service Co. (Nov. 2013), the Government Accountability Office (GAO) dismissed a protest by Ashland Sales & Service Co. (Ashland), of Olive Hill, Kentucky, alleging that a contract for the Defense Logistics Agency was improperly awarded to Creighton AB, Inc. (Creighton), of Reidsville, Kentucky, because Creighton was not enrolled in the E-Verify system at the time of award.

    The issue involved the FAR clause - 52.222-54, Employment Eligibility Verification, which provides a contractor not enrolled in E-Verify at contract award “shall [enroll] within 30 calendar days of contract award.” According to the
    decision, Creighton was not enrolled in E-Verify at the time of award, but it enrolled the next day. The GAO found the requirement in the FAR clause allowing enrollment 30 days following award to be a matter of contract administration “having no effect upon the validity of an award.” Thus, the protest involved an issue outside of the GAO’s bid protest jurisdiction, under which it considers “challenges to the award or proposed award of contracts.”

    Furthermore, the GAO did not find the awardee’s previous noncompliance with the requirement in the FAR clause related to E-Verify, to be disqualifying. In its protest, Ashland stated the same contracting activity involved in the protest had awarded contracts to Creighton and allowed Creighton to perform work without enrolling in E-Verify as required by the FAR clause, which also was included in these earlier contracts. According to Ashland, this prior noncompliance rendered Creighton’s proposal technically unacceptable and ineligible for award. The GAO stated it did not condone Creighton’s prior failure to enroll in E-Verify, but this did not alter its view that Creighton’s proposal was acceptable or that compliance with the E-Verify requirement was a matter of contract administration that it would not review.

    This decision is just another instance of E-Verify becoming an issue in other areas of the law, besides immigration.
    [FONT=Times New Roman]

    Updated 12-10-2013 at 11:54 AM by BBuchanan

  2. ICE is Cross Training its Attorneys for Compliance Cases; by Bruce Buchanan, Siskind

    [FONT=Arial][COLOR=#000000]Immigration and Customs Enforcement (ICE) has recently begun to cross-train its attorneys. Specifically, ICE attorneys, who have been handling Immigrant Court cases and other matters, are receiving training in ICE’s worksite enforcement duties. This training involves one–week classes and/or observing ICE worksite enforcement attorneys. What does this mean for ICE’s worksite enforcement work? To me, it implies that ICE is getting ready to increase its enforcement activities and needs more attorneys familiar with this work. Time will tell if this is correct.
  3. OSC Reaches Settlement with Colorado Sheriff; by Bruce Buchanan, Siskind Susser

    The Justice Department, through the Office of Special Counsel (OSC) has reached an agreement with the Arapahoe County, Colorado Office of the Sheriff resolving allegations that the Sheriff’s Office violated the anti-discrimination provision of the Immigration and Nationality Act (INA). The investigation found reasonable cause to believe the Office of the Sheriff improperly restricted law enforcement positions to U.S. citizens (USCs), notwithstanding the fact that no law, regulation, executive order or government contract authorized it to restrict employment in this manner. A former employee, who filed a lawsuit, was a USC and had documentation that showed her work authorization, but not her citizenship. The INA’s anti-discrimination provision permits employers to limit jobs to U.S. citizens only where the employer is required to do so by law, regulation, executive order, or government contract. Under the settlement agreement, the Office of the Sheriff’s employment eligibility verification practices will be subject to monitoring by the Justice Department and reporting requirements for a period of three years, the Sheriff’s Office agreed to pay $500 in civil penalties to the United States, and inform other affected non-U.S. citizen applicants that they could re-apply for available law enforcement positions. The Office of the Sheriff had already addressed the identified victim’s back pay claims through an earlier agreement based on her private lawsuit. Let this case be a lesson to employers – if there is no law, regulation, executive order, or government contract which requires the employee be a USC, do not restrict the position to only USCs.
  4. Now E-Verify has a Method to Combat Identity Fraud; by Bruce Buchanan, Siskind Susser

    On November 18, 2013, the USCIS announced an enhancement to the E-Verify program that will help combat identity fraud by identifying and deterring fraudulent use of Social Security numbers (SSNs) for employment eligibility verification. USCIS will use a combination of algorithms, detection reports and analysis to identify patterns of fraudulent SSN use. This new safeguard will enable USCIS to lock a SSN that appears to have been misused, protecting it from further potential misuse in E-Verify. If an employee attempts to use a locked SSN, E-Verify will generate a “Tentative Non-confirmation” (TNC). The employee receiving the TNC will have the opportunity to contest the finding at a local Social Security Administration field office.
  5. Retaliation is an Issue in Immigration Law, Too; by Bruce Buchanan, Siskind Susser

    For years, employment law lawyers have seen that an employee’s retaliation claim against an employer for filing a charge, complaint or lawsuit, is often a greater problem than the original issue which precipitated it. Recently, in Breda v. Kindred Braintree Hospital, 10 OCAHO no. 1202 (2013), a retaliation claim in an immigration-related unfair employment practice setting was addressed by OCAHO.

    Kindred Braintree Hospital LLC entered into two agreements with John A. Breda, M.D. in 2009, for performing overnight emergency services and scheduling other physicians for overnight emergency services. In April 2010, Kindred notified Breda that it was terminating both agreements.

    The case began when Breda filed a charge with the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices in June 2010, alleging Kindred discriminated against him based on his U.S. citizenship by terminating the agreements and replacing him with an H-1B visa holder. OSC advised Breda that he could file a complaint with OCAHO. Breda declined to do so and filed an action in Massachusetts state court. Kindred filed a counterclaim alleging the original OSC charge was frivolous and sought to recoup its attorney’s fees and expenses as well as seek damages from Breda. The State Court dismissed Kindred’s counterclaim.
    Breda filed a second OSC charge alleging Kindred’s counterclaim was made in retaliation for Breda filing the original OSC charge. Breda’s second charge proceeded to litigation before OCAHO.

    Kindred asserted OCAHO did not have jurisdiction over the second charge alleging retaliation. OCAHO disagreed and found jurisdiction because 8 U.S.C. §1324b(a)(5) states it is “an unfair immigration-related employment practice for a person or other entity to …retaliate against any individual for engaging in protected conduct.” Since the initial OSC charge was protected conduct and thereafter Kindred filed a retaliatory counterclaim in state court, Breda met the statutory requirements.
    OCAHO explained Kindred’s conduct has a “chilling effect” on Breda as well as “protected charging parties or witnesses who may become aware of Kindred’s counterclaim and be deterred” from having contact with the OSC or other agencies.
    To remedy its unlawful conduct, Kindred was barred from relief under its counterclaim, ordered to post a notice advising employees of their rights (similar to a notice under the National Labor Relations Act due to an unfair labor practice) and remove negative information from Breda’s personnel file.
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