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I-9 E-Verify Immigration Compliance

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  1. IMAGE Continues to Sign Up New Companies; by Bruce Buchanan, Siskind Susser

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    In the past year, at least 34 companies have signed up with ICE Mutual Agreement between Government and Employers (IMAGE), a voluntary program that allows private industry to partner with Immigration and Customs Enforcement (ICE) to reduce unauthorized employment and the use of fraudulent identity documents.

    ICE established the IMAGE program in 2006 to work toward a legal and more secure work force. As of December 31, 2013, there are 253 IMAGE members with an additional 108 companies awaiting IMAGE certification.

    To qualify for IMAGE certification, a company must perform the following requirements:

    • Conduct self-assessments of their hiring practices to uncover vulnerabilities that could be exploited by illegal aliens;
    • Enroll and participate in the E-Verify program within 60 days.
    • Establish a written hiring and employment eligibility verification policy that includes internal Form I-9 audits at least once per year.
    • Submit to a Form I-9 inspection by ICE (but the employer will not be subject to another inspection for two years).

    Upon enrollment in and commitment to the IMAGE Best Employment Practices program, participants are deemed "IMAGE certified". IMAGE also provides free training to all employers on how to complete the Form I-9 and how to detect fraudulent documents.

    Among immigration compliance attorneys, voluntary enrollment in IMAGE is usually frowned upon because of the need to undergo an ICE I-9 audit, where a company could be fined for their substantive errors on I-9 forms. ICE has made some improvements to IMAGE, such as waiving potential fines if substantive violations are discovered on fewer than 50% of the required I-9 forms; and if over 50% of the I-9 forms have substantive errors, ICE will mitigate the fines to the statutory minimum of $110 per violation. However, ICE does not grant employers immunity from penalties for using IMAGE. Thus, an employer is still exposing themselves to potential liability by participating in IMAGE.

    Updated 06-16-2014 at 03:46 PM by BBuchanan

  2. OCAHO Remands ALJ Decision That Criticized ICE; by Bruce Buchanan, Siskind Susser

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    Two recent decisions from the Office of the Chief Administrative Hearing Officer (OCAHO) in United States v. Crescent City Meat Company Inc. reached very different conclusions as to the conduct of Immigration and Customs Enforcement (ICE) counsel.

    Initially, Administrative Law Judge Ellen K. Thomas found ICE had ignored evidence that two of Crescent City’s employees were hired before November 7, 1986 when ICE tried to issue a penalty for the company’s failure to have I-9 forms for those two employees. (Note: A company is not required to have an I-9 form for any employee hired before November 7, 1986.)

    ALJ Thomas stated “it is doubly important that the government act with scrupulous fairness” when a party is unrepresented by counsel. Due to the ALJ’s belief that ICE counsel had failed to engage in good faith, she lowered the penalties from $935 per violation to the minimum of $110 each for 15 violations, totaling $1650.

    ICE counsel filed a Request for Administrative Review, arguing the ALJ erred in concluding that ICE had overreached in issuing the NIF and filing the complaint; and the ALJ abused her discretion by reducing the penalty to the statutory minimum based on incorrect findings of fact and conclusions of law.

    ICE counsel asserted that its Memorandum to Case File, the document in question, stated Crescent City identified nine current employees, two of whom were hired prior to November 1986, and eight former employees who were employed by the company within the previous year, as not having an I-9 form. Consequently, ICE charged the Respondent with 15 violations – seven violations pertaining to the current employees who were hired after November 6, 1986, and eight violations pertaining to the employees employed within the previous year.

    Therefore, ICE counsel asserted that they never fined or alleged that they would fine Respondent for the two employees hired before November 1986, contrary to the ALJ’s assumption that ICE “chose to disregard the information that two of Respondent’s current employees worked for the company since before the effective date of the statute.”

    Rather than undermining the company’s admissions of liability, as the ALJ decision stated, ICE’s Memorandum to Case File actually supports the number of violations it alleged in the NIF and complaint. Therefore, OCAHO held ICE did not appear to have overreached in issuing the NIF and filing the complaint in this case.

    OCAHO concluded although the ALJ has the discretion to reduce the civil penalties to the statutory minimum, in this case the reduction to the minimum amount was based in part on a finding that was not substantiated by the record –the alleged overreach by ICE did not exist. Thus, OCAHO vacated the ALJ’s decision and remanded the case for reconsideration of the penalty assessment.

    A copy of this second decision is available here. Cite as United States v. Crescent City Meat Company, Inc., 11 OCAHO no. 1217 (2014).
  3. OSC Settles Document Abuse Case Against Janitorial Company; by Bruce Buchanan

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    The Justice Department, through the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, has reached a settlement with Master Klean Janitorial of Denver, Colorado. The settlement resolves claims that the company engaged in discriminatory documentary requests based on citizenship status, in violation of the Immigration and Nationality Act (INA).

    An investigation found Master Klean Janitorial subjected work-authorized non-U.S. citizen new hires to unlawful demands for specific documentation issued by the U.S. Department of Homeland Security in order to verify their employment eligibility, while U.S. citizens were allowed to present their choice of documentation. The INA’s anti-discrimination provision prohibits employers from placing additional documentary burdens on work-authorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin.

    Under the settlement agreement, Master Klean Janitorial will pay $75,000 in civil penalties to the United States, 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 one year.

    The investigation into Master Klean Janitorial is an example of information sharing between government agencies, and follows other investigations that have come from referrals by U.S. Citizenship and Immigration Services (USCIS). USCIS referrals are based on alleged abuses or discrepancies within the E-Verify system.

    A copy of the settlement agreement is available here.

    Updated 05-23-2014 at 12:02 PM by BBuchanan

  4. ICE Inspection May Result in Terminations at Wash. Company; by Bruce Buchanan

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    U.S. Immigration and Customs Enforcement (ICE) recently inspected the I-9 forms of employees at Crunch Pak, an apple packaging company Cashmere, Washington with about 900 employees. ICE notified the company that hundreds of its workers have suspect documents and is demanding Crunch Pak produce documents showing its workers are legally authorized to work in the United States.

    In response to ICE’s findings, Crunch Pak spokesperson Amy Philpott stated, “What the company wants is for every employee to have the chance to correct their information or amend their paperwork.” Crunch Pak has since notified its employees to produce valid documents or face termination on May 19, 2014.

    The inspection of the Crunch Pak began in August 2013 when ICE served the company with a Notice of Inspection (NOI) requiring it to produce the I-9 forms of current and former employees along with a number of other payroll-related documents. In 2013, there were over 3,100 NOIs issued to employers throughout the United States. This is an increase of over 600% since 2008.

    As the number of NOIs has increased, so have the penalties paid by companies. In 2012, companies paid over $12.4 million in penalties for I-9 violations. In addition to fines, some company owners and managers have been criminally charged for knowingly hiring undocumented workers and/or harboring undocumented workers.
  5. OSC opines on Employer’s Obligation to Hire F-1 OPT

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    On April 30, 2014, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a Technical Assistance letter in response to questions posed by fellow AILA member Angelo Paparelli. It found in an advisory opinion that an employer would not discriminate against an applicant due to citizenship status if it failed to hire this particular applicant, who had F-1 optional practical training (OPT) status. However, the OSC stated an employer could be susceptible to a discrimination claim based upon national origin status if that was the real reason for not hiring the applicant.

    The situation involved an employment applicant on F-1 OPT status whose employment authorization would expire "three months after application for employment" and the applicant "has no ability to extend employment authorization under the F-1 OPT regulations because his or her studies are not in a STEM field and the employer is not enrolled in E-Verify; moreover, he or she is not eligible for any other available work authorization status."

    Question #1: “Could a company lawfully decline to extend an offer of employment to a candidate solely based on the fact that he/she will only have work authorization for three months without engaging in citizenship status or national origin discrimination?”

    Answer: OSC stated the categories of individuals protected from citizenship status discrimination are limited to U.S. citizens, lawful permanent residents (LPRs) who are not yet eligible to apply for naturalization or who have applied within six months of eligibility, asylees, and refugees. Thus, F-1 visa holders are not protected from citizenship status discrimination. Therefore, an “employer that asks whether an applicant would require sponsorship now or in the future is unlikely to implicate the anti-discrimination provision's prohibition against citizenship status discrimination.”

    However, this Technical Assistance letter did cite to a 2013 Technical Assistance letter, which stated document abuse may occur when an employer rejects an employee's Form I-9 document(s) based on inquires about the impending expiration of an individual's employment authorization document, or actually rejects a document based on a future expiration date. This determination would be regardless of whether the individual is a LPR, H-1B visa holder or in other lawful status. But the issue of document abuse was not raised as a question in the 2014 request for a Technical Assistance letter.

    Question #2: “If the company may lawfully decline such employment, may it communicate to the applicant this ground as the basis for their decision?”

    Answer: OSC stated that “communicating to an unsuccessful applicant that the employer's unwillingness to sponsor the applicant was the basis for the non-hire decision is not likely to lead to a determination by OSC that an employer has committed unlawful citizenship status discrimination.” OSC cautioned that “companies should not make assumptions based on an individual's current employment authorization status because they may not know whether an individual is in the process of transitioning to a different immigration status that would extend or continue the individual's ability to work in the United States.”

    National Origin Discrimination

    Even though the company may not commit “citizenship status discrimination” in its failure to hire, there is still the issue of “national origin discrimination”. All work-authorized individuals are protected from national origin discrimination under the anti-discrimination provision. Accordingly, the OSC stated an individual who believes that he or she was not hired based on national origin, based on country of origin, accent or appearance, may allege discrimination on this basis. OSC has jurisdiction over national origin claims involving entities with between four and 14 employees, while the Equal Employment Opportunity Commission (EEOC) has jurisdiction over claims involving employers with 15 or more employees.

    Conclusion

    Although Technical Assistance letters do not carry the weight of law, they give valuable insight into OSC’s thinking. This is the second Technical Assistance letter issued by the OSC in 2014. I wrote about the first Technical Assistance letter of 2014 in an earlier post.

    Updated 05-09-2014 at 02:16 PM by BBuchanan

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