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I-9 E-Verify Immigration Compliance


  1. OCAHO Reduces Employer's I-9 Penalty by about 50%

    By Bruce Buchanan, Siskind Susser

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    In United States v. Horno MSJ, Ltd., 11 OCAHO no. 1247 (2015), an Administrative Law Judge (ALJ) for the Office of Chief Administrative Hearing Officer (OCAHO) reduced an employer’s penalties for I-9 violations from about $30,500 to $14,600.

    Horno Misión San José is a mom-and-pop bakery in San Antonio, Texas. After receiving a Notice of Inspection (NOI) in July 2012, Horno presented 26 Form I-9s to Immigration and Customs Enforcement (ICE). In ICE’s Notice of Intent to Fine (NIF), it alleged 32 violations – failure to prepare/present I-9 forms for nine employees and failure to ensure 23 employees properly completed Section 1 or failed to properly complete Sections 2 or 3 of the I-9 forms.

    In a prehearing statement, Horno presented five I-9 forms that had not been previously submitted, and it presented numerous “modified” versions of the original I-9 forms it had previously submitted. The “modifications” involved signing the I-9 forms with post-dated signatures.

    Horno asserted that it did not have an obligation to provide I-9 forms for two employees because they quit before the orientation/hiring process was complete. However, the employees were paid and their paystubs showed each worked several days. Thus, Horno did have an obligation to complete and retain their I-9 forms and failed to do so.

    Many of the incomplete I-9 forms reflected substantive errors, such as failure of an Horno representative to sign the Section 2 certification; failure to record any information in Lists A, B or C; and no status box checked in Section 1. However, the OCAHO ALJ did not find Horno engaged in bad faith based upon its high rate of violations. It is well-established under OCAHO case law that bad faith requires a showing of culpable conduct beyond merely a high rate of violations.

    Horno was successful in arguing for a reduction of the proposed penalties. ICE sought a baseline penalty of $935 per violation based upon a violation rate of more than 90%. ICE aggravated the penalty by five percent for 13 employees’ I-9 forms because they were found to be unauthorized. Based upon the fact that Horno is a small business with an inability to pay the penalties, and the proposed penalties should have been closer to the midrange of penalties, the OCAHO ALJ reduced the penalties per violation to between $300 and $600 for a total fine of $14,600.

    Although Horno was successful in substantially reducing its penalties, it could have received a much lower penalty if it had engaged in a self-audit before the NOI was issued.

    A copy of the decision is available here.
    Cite as United States v. Horno MSJ, Ltd., 11 OCAHO no. 1247 (2015)

    Updated 04-15-2015 at 10:46 AM by BBuchanan

  2. Judge Says State Immigration Law is Unconstitutional

    By Bruce Buchanan, Siskind Susser

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    What started as a workers’ compensation case has resulted in an interesting decision from a chancery court judge in Nashville, Tennessee -- simultaneously revealing employer immigration violations and striking down a state immigration law.

    Carlos Martinez, a native of Guatemala, was working in the United States earning $400 per week as an undocumented day laborer. On August 8, 2011, Mr. Martinez slipped and fell in wet grass while operating a lawn mower. The lawn mower ran over his arm and the blade severed his left elbow and forearm. More than three years after his injury, Mr. Martinez found himself in court -- up against his employer, the employer’s insurer, and the Attorney General for the State of Tennessee -- fighting his workers’ compensation claim and trying to prove that he was entitled to benefits despite his federal immigration status.

    Employer Violations
    Mr. Martinez worked for Commercial Services of Pegram, Tennessee, performing painting and other general labor. According to the court, Commercial Services never required Mr. Martinez to fill out an employment application or any other forms such as an I-9 form, nor asked Mr. Martinez whether he was legally eligible to work in the United States.

    State Immigration Law
    According to court documents, Mr. Martinez lost a “significant portion of his arm below his elbow” in the lawn mower accident in 2011, and sustained a vocational disability of 84 percent to his left arm. A Tennessee state immigration law passed in 2009, “capped” Mr. Martinez’s recovery at 1.5 times his medical impairment rating because he was an undocumented worker – slashing his recovery to a vocational disability of 36 percent.

    The Tennessee legislature’s stated intent in passing the law was to “preserve the tradition of legal immigration while seeking to close the door to illegal workers in the State of Tennessee and to encourage the employers of Tennessee to comply with federal immigration laws in the hiring or continued employment of individuals who are not eligible or authorized to work in the United States.” Tenn. Code Ann. 50-6-241(e).

    Instead, what the trial court found is the law had the opposite effect -- making it less costly for employers to hire undocumented workers from a liability perspective, and providing a potential incentive for employers to circumvent the federal law.

    More importantly, the court deemed the statute unconstitutional as a “state immigration policy” preempted by federal law. The court cited the U.S. Supreme Court decision in Arizona v. United States, 132 S. Ct. 2492, 2498 (2012) in which an Arizona state law that attempted “to achieve one of the same goals as federal law – the deterrence of unlawful employment,” involved a conflict in the method of enforcement and served as “an obstacle to the regulatory system Congress chose.” Id. at 2505.

    Proposed State Civil Penalties under IRCA
    Another important distinction made by the trial court was that the Tennessee law imposed civil penalties on employers “to be paid directly to the State of Tennessee”. It found this provision was expressly barred by the terms of the Immigration Reform and Control Act (IRCA) which preempts “any State or local law imposing civil…sanctions…upon those who employ…unauthorized aliens”. 8 U.S.C. § 1324a(h)(2).

    The trial court struck down Tenn. Code Ann. 50-6-241(e) in its entirety, and Mr. Martinez was awarded future medicals and permanent partial disability benefits of approximately $30,000. It remains to be seen if the State of Tennessee will appeal the trial court’s decision.

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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. - - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .

    Updated 04-09-2015 at 03:27 PM by BBuchanan

  3. Can Discharged Undocumented Workers Receive Reinstatement?

    By Bruce Buchanan, Siskind Susser

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    In Mezonos Maven Bakery, 362 NLRB No. 41 (2015), the National Labor Relations Board (“Board”) considered whether unlawfully discharged undocumented workers may receive “conditional reinstatement.” On remand from the Second Circuit Court of Appeals, the Board concluded that the workers would be entitled to reinstatement on the condition that they prove their eligibility to work in the United States.

    This case arose when five employees were discharged from Mezonos Maven Bakery (“Mezonos”) in Brooklyn, New York. They filed a charge with the Board, claiming they were engaged in protected activities under the National Labor Relations Act. Mezonos did not dispute this issue; rather, the company asserted the workers were not entitled to any remedy – back pay or reinstatement – because they were not authorized to work in the United States. Mezonos also asserted that it offered to reinstate five employees if they could provide valid work authorization documents, but none of the employees did.

    On the issue of back pay, an Administrative Law Judge ("ALJ") found that the workers were entitled to back pay even though they were not authorized to work. The ALJ was silent as to the issue of reinstatement. On administrative appeal, the Board reversed the ALJ’s decision to award back pay to the workers, citing the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) (undocumented workers were not entitled to back pay after their discharge). The Board’s decision was appealed to the Second Circuit U.S. Court of Appeals where it was remanded back to the Board for consideration of the sole issue of reinstatement.

    On remand, and in its final order on March 27, 2015, the Board held that conditional reinstatement was appropriate in the Mezonos case. It explained that conditional reinstatement “is an appropriate remedy where […] an employer knowingly employs individuals who lack authorization to work in the United States and then discharges them in violation of the NLRA. Such a remedy is consistent with the policies of both NLRA and Immigration Reform and Control Act (IRCA).” Mezonos at p. 3.

    The Board also cited Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), in which the Supreme Court approved of a conditional reinstatement remedy in cases involving unlawfully discharged undocumented workers. The Sure-Tan court explained that making a reinstatement order conditional on compliance with immigration laws eliminates any potential inconsistency with those laws.

    Furthermore, the Board cited one of its own prior decisions in A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995) in which it held a conditional reinstatement order (requiring discriminatees to complete an I-9 form and present documentation reflecting work authorization) promoted the policy goals of IRCA and the NLRA.

    The Board concluded that conditional reinstatement does not conflict with the U.S. Supreme Court’s more recent decision in Hoffman Plastic because that decision did not prevent reinstatement where it is conditioned on an employee providing proof of work authorization.

    The Takeaway
    This case highlights the importance of employers verifying their employees’ work eligibility. Although the remedy of a conditional reinstatement may be available for discharged undocumented workers, this issue might never have been litigated if Mezonos had taken proper steps from the beginning to verify the work eligibility of those five employees.

    ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .

    Updated 04-06-2015 at 09:38 AM by BBuchanan

  4. OSC’s Authority to Investigate USCIS Referrals Is Defended by OCAHO

    By Bruce Buchanan, Siskind Susser

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    As immigration attorneys and readers of my blog have noticed, over the past several years, many of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) investigations of employers concerning discrimination and/or document abuse have begun with referrals from the U.S. Citizenship and Immigration Services (USCIS). In United States v. Louisiana Crane Company, 11 OCAHO no. 1246, an administrative law judge (ALJ) for the Office of Chief Administrative Hearing Officer (OCAHO) found that OSC does have the authority to investigate these cases after a referral from the USCIS.

    The case started after the USCIS made a referral to the OSC for alleged pattern or practice of discrimination by Louisiana Crane requiring specific documents to establish employment eligibility. Louisiana Crane responded that USCIS had engaged in “malicious use of process” and the USCIS should be interpleaded as a relevant party. The government filed a motion to dismiss.

    In denying Louisiana Crane’s motion, ALJ Stacy S. Paddack cited a number of sources for the authority to make referrals to the OSC: case law, statutory law, and memorandum of agreement.

    For case law, the ALJ cited In Re Investigation of: Modern Maintenance Co., Inc., 2 OCAHO no. 359, 476, 477 (1991), where OCAHO stated “OSC’s investigation followed upon information received from INS. . . . In my judgment, the INS referral constitutes reasonable cause for investigation.” Second, the ALJ cited Hernandez, et al. v. Farley Candy Co., 5 OCAHO no. 765, 367, 368 n. 1 (1995), where OCAHO stated INS’s investigation of Respondent “for alleged § 1324a violations with regard to the same individuals who are Complainants in this case does not bar OSC from asserting its own cause of action under § 1324b.”

    According to the ALJ, statutory and regulatory law also supported OSC. In United States v. McDonnell Douglas Corp., 3 OCAHO no. 507, 1053, 1061 (1993), an ALJ cited 8 U.S.C. § 1324b(d)(1) as supporting OSC’s “discretion to investigate unfair immigration-related employment practices on its own initiative, without a charging party, and the ability to file a complaint before an ALJ based on that investigation….” The ALJ in Louisiana Crane also stated 8 U.S.C. § 1324b(b)(1) and 28 C.F.R. § 44.300(a)(2) specifically have allowed legacy INS and Department of Homeland Security (DHS) to file charges with OSC “alleging that an unfair immigration-related employment practice has occurred or is occurring....”

    A third source of authority is a 2010 Memorandum of Agreement between the OSC and USCIS which states that USCIS may refer case information related to “allegations of discrimination arising out of employer use of E-Verify” to the OSC. The Memorandum states the following as its legal authority: (1) Section 274B of the Immigration and Nationality Act; (2) Homeland Security Act of 2002; (3) INA § 1324a; and (4) the Privacy Act of 1974. The fourth source of authority, according to the ALJ, is that E-Verify users enter into a Memorandum of Understanding with DHS, stating DHS can use data collected for compliance and enforcement actions.

    Therefore, the OCAHO ALJ held the authority referenced above demonstrates that OSC has authority to investigate and file a complaint “on its own initiative” without an underlying charge, which historically has included referrals from DHS.

    This decision is particularly important because USCIS has increasingly been making referrals to OSC for investigation of discrimination.

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ID:	939 ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .
  5. Terminated Employee Alleges “Creativity” in I-9 Verification

    By Bruce Buchanan, Siskind Susser

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    A federal employment lawsuit filed in Pennsylvania last week has turned up an unusual set of allegations of immigration compliance violations. The Plaintiff, a terminated employee, states in her complaint that she began working for Environmental Stoneworks in 2005 and took on Human Resources duties including the verification of employees’ work eligibility. She alleges that her superiors began pressuring her “intensively” to certify I-9 forms for employees without physically seeing the required documentation; and that an office manager told her to “get creative to get this done” because new employees needed to be on the job site immediately.

    Creativity in the employment verification process, according to the Plaintiff, entailed reviewing copies of eligibility documents on a cell phone and executing I-9 forms outside the presence of employees. Rather than get in touch with her creative side, the Plaintiff states in her complaint that she alerted her superiors it would be illegal to sign I-9 forms without “physically reviewing” eligibility documents in the presence of employees.

    Regardless of the reason for Plaintiff’s termination, she was correct in her belief that signing I-9 forms without physically reviewing employment eligibility documents would be illegal.

    The Office of Chief Administrative Hearing Officer (OCAHO) recently provided some insight on this same issue when it stated:

    “The I-9 form does not state that the certifier examined copies of the employee’s documents, it says the certifier examined the documents presented by the above named employee. It is simply impossible for a [certifier] to determine whether a document reasonably relates to an individual when the [certifier] never saw” the original documents. See United States v. Employer Solutions Staffing Group II, LLC, 11 OCAHO no. 1242 (2015). I covered this decision in a previous blog post.

    The Takeaway

    It is important for a company’s certifier to personally review the originals of the employment eligibility documents. An employer should not email, mail, or fax copies of the documents to another company official to review and certify. This concept is especially important to remember where an employer has multiple facilities and retains the originals at its corporate headquarters.

    More about the Miranda v. Environmental Materials, LLC, 3:15-cv-00568 (M.D. Pa.) case can be found here.

    Updated 03-27-2015 at 12:56 PM by BBuchanan

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