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I-9 E-Verify Immigration Compliance

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  1. OSC Publishes New Charge Form; by Bruce Buchanan, Siskind Susser

    The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, which is within the Departmentof Justice, has published a new charge form with a revision date of April 15, 2013 (although it was not introduced until recently). It is five pages (with a sixth page providing a Paperwork Reduction Act notice, thereby creating more paper). One must file by mail or e-mail the charge form within 180 days of the alleged date of discrimination. As this blog has discussed, the OSC has become much more aggressive against employers engaging in citizenship status discrimination, national origin discrimination (for those employers with four to 14 employees), document abuse and retaliation.

    Updated 07-25-2013 at 09:21 AM by BBuchanan (spacing problems)

  2. E-Verify adds Idaho Driver's Licenses to RIDE; by Bruce Buchanan, Siskind Susser

    Idaho became the third state to provide its driver's licenses to the E-Verify database. It was effective on July 14, 2013. Mississippi and Florida were the first two states in the database. This program is called RIDE (Records and Information from DMVs for E-Verify). Now, E-Verify will run a driver's license/identification check for those documents issued by Idaho, Mississippi and Florida. The purpose of the driver's license check is to add more data to determine the validity of AN employee for employment authorization. A fourth state, Iowa, will be added in the near future. It has been a slow start for RIDE as Mississippi was the first state to join in June 2011 with Florida following in December 2012.
  3. Employer Fined over $15,000 for Failure to Timely Prepare I-9 Forms; by Bruce Buchanan, Siskind Susser

    How much is your company willing to pay Immigration and Customs Enforcement (ICE)? The Office of the Chief Administrative Hearing Officer (OCAHO) issued a decision, United States v. Anodizing Industries, Inc., wherein the fines sought by ICE were over $25,000 and ultimately reduced to $15,600.
    Anodizing Industries is a small business, 26 employees, which operates a metal-finishing factory in Los Angeles, California. After ICE issued a Notice of Inspection (NOI) on July 30, 2010, Anodizing Industries provided their employees' I-9 forms. Unfortunately for Anodizing Industries, many of the I-9 forms presentedwere dated August 12, 2010 in Section 2 -a full 13 days after the NOI was served, and months or years after some of the employees were hired. Furthermore, at least 11 of the I-9 forms were undated by the employee.  Anodizing Industries argued these were technical, not substantive, errors for which the "good faith" defense should apply so that it should be given 10 days to correct the deficiencies.
    OCAHO disagreed with Anodizing Industries' argument. The case law is clear that "failure to prepare an I-9 in a timely fashion... is not only a substantive violation but also a serious one, because an employee could potentially be unauthorized for employment during the entire time his or her eligibility remains unverified," citing previous OCAHO decisions. Furthermore, OCAHO stated "the longer an employer delays in preparing an I-9 form, the more serious is the violation." OCAHO pointed to former employees' I-9 forms, which were not completed for between two and five years. At least one I-9 form was not completed until 22 years after the fact.
    OCAHO sought a baseline penalty of $935 and aggravated the penalties by 5%, apparently based upon the seriousness of the violations and the presence of unauthorized workers, but mitigated by 5% for the small size of the employer. Despite the seriousness of the violations, OCAHO in its discretion found the penalties should be adjusted to the "upper mid-range" and assessed at $600 per violation for a total of $15,600.
    The lesson learned here is prepare an I-9 form immediately at the time of hire and if you realized you forgot to do so, then do so as soon as possible. The longer you wait the worse.
  4. OSC Enters into Memorandum of Understanding with NLRB; by Bruce Buchanan, Siskind Susser

    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has entered into a Memorandum of Understanding (MOU) with the National Labor Relations Board (NLRB), formalizing a collaborative relationship that allows both agencies to share information, refer matters to each other and coordinate investigations as appropriate.
    OSC is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act, which prohibits citizenship status and national origin discrimination in hiring, firing and recruitment or referral for a fee, as well as discriminatory Form I-9 and E-Verify practices. The NLRB enforces the National Labor Relations Act, which protects the rights of most private sector employees to join together through union activity and/or protected concerted activity to improve their wages, hours and working conditions.
    The MOU will allow the NLRB to make referrals to OSC, with the express authority of the NLRB charging party, when a matter before the NLRB suggests a possible violation of the anti-discrimination provision, such as verification of employment authorization, in the I-9 or E-Verify process, that appears to be discriminatory based on citizenship status or national origin. Similarly, the OSC will refer matters to the NLRB that appear to fall within that agency's authority. The MOU also provides for cross-training and technical assistance to ensure that staff within each agency can identify appropriate referrals.
  5. OCAHO Rejects Employer's Speculative Argument and Finds Appeal Untimely; by Bruce Buchanan, Siskind Susser

    In U.S. v. Silverado Stages, Inc. (May & June 2013), OCAHO declined to reduce the employer's penalties of $7480, assessed by Immigration & Customs Enforcement (ICE) or hear the employer's request for review.
    Silverado Stages is the largest private motor coach operator in California with four locations, 140 employees and a gross annual income of $11 million. ICE alleged Silverado Stages failed to timely complete I-9 forms on 16 employees, two of which were undocumented workers. ICE's NIF sought penalties of $440 per violation (meaning 20 to 29 % of the I-9 forms had substantive errors).
    ICE determined Silverado Stages was a mid-size company; thus, the size of the employer was a neutral factor. ICE found two aggravating factors - seriousness of the violations and the presence of two undocumented workers; but for some unexplained reason, ICE did not increase the penalties by 5% each for these aggravating factors.
    Silverado Stages argued ICE does not know for a fact "that the forms were prepared but then misplaced, lost or destroyed." Thus, ICE cannot assume the I-9 forms were not initially timely prepared. OCAHO found Silverado Stages' "hypothesis" to be "no more than speculation" and held ICE is not obligated to "rebut whatever 'plausible' imaginary scenarios can be postulated."
    The Administrative Law Judge concluded $440 per violation was "well within the statutory parameters" and appeared "reasonable in light of the record." Thus, OCAHO upheld the assessment of $7480. Silverado Stages unsuccessfully attempted to request OCAHO to review the ALJ's decision because OCAHO found the Request to be untimely and improperly filed and served. 
    This decision is contrary to most OCAHO decisions in that OCAHO did not reduce the penalties assessed by ICE. It is only speculation to say why but two reasons may be that Siverado Stages is not a small employer and its "hypothesis" was totally discredited by OCAHO.  
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