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I-9 E-Verify Immigration Compliance

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  1. E-Verify Calls Attention from Enforcement Agencies

    By Bruce Buchanan, Siskind Susser



    The Monitoring and Compliance (M&C) Branch of U.S. Citizenship and Immigration Services (USCIS) is tasked with monitoring the employers who use E-Verify. In recent years, the number of compliance actions or referrals that M&C has sent to enforcement agencies has dramatically increased. When an employer is alleged to have misused the E-Verify system, M&C either refers that information to the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices and/or the U.S. Immigration and Customs Enforcement (ICE), or conducts its own “compliance actions”.

    Below is a chart of M&C compliance activities for the period of FY2011 through FY2014:



    As you can see, the number of referrals made to the OSC and/or ICE have increased over ten-fold from 86 to 909. Compliance actions which include emails, telephone calls, desk reviews and site visits by M&C more than doubled from 42,072 to 86,934.

    A desk review is conducted by the M&C Branch if a standard review of a company’s E-Verify usage indicates it may be experiencing difficulties with the system. Companies selected for a desk review provide M&C Branch with E-Verify employment-related documents, such as copies of TNC notices, referral letters, and procedures for processing I-9 forms and E-Verify cases. M&C Branch reviews and analyzes these documents and then advises the employer on how to correct any problems.

    A site visit can occur when the M&C Branch contacts an E-Verify participant if its records show a participant appears to be experiencing issues when using E-Verify. During a site visit, M&C Branch provides compliance assistance by discussing its observations with the participant. It also advises on how to properly follow E-Verify procedures.

    These statistics are enough to give any employer pause as to whether they want to utilize E-Verify, if they are in a state where E-Verify is not required or they are not a federal contractor already obligated to use FAR E-Verify.

    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 Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .

    Updated 04-30-2015 at 11:46 AM by BBuchanan

  2. USCIS myE-Verify Now Available Nationwide

    By Bruce Buchanan, Siskind Susser



    U.S. Citizenship and Immigration Services (USCIS) has announced the expansion of myE-Verify services nationwide. After a limited roll-out in 2014, it now serves as a “one-stop shop” for employees nationwide to open and manage a personal account.

    To create an account, the user must also complete a Self Check with a result of "Work Authorization Confirmed."


    If the user is unable to complete Self Check, they cannot set up a myE-Verify account at this time.

    myE-Verify is meant to be a free and secure way for workers to participate in the E-Verify process by accessing features dedicated for employees. It is equipped with these services:

    1. myE-Verify accounts – a free personal account to manage use of one’s information in E-Verify and Self Check;

    2. Self Lock – allows individuals to place a “lock” on their social security number (SSN) to help prevent unauthorized or fraudulent use of their SSN by another person to illegally obtain employment authorization within E-Verify. If their SSN is used, it will result in a Self Lock mismatch. Self Lock will remain active for 1 year and individuals can unlock their SSN any time a new employer needs to verify their employment eligibility in E-Verify; and

    3. myResources – a multimedia library for employees with these components: Employee Rights Toolkit, Your Rights with myE-Verify, Your Employer’s Responsibilities, and Privacy is Our Commitment.

    According to USCIS, the following features are planned for release at a later date:
    -Document Expiration Reminders, to set up alerts when a document (like a passport or driver’s license) is about to expire.
    -Case Tracker, to allow a user to track the status of their E-Verify or Self Check and know if any action is required.
    -Case History, to allow a user to monitor where and when their information has been used in the E-Verify system.


    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 Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .
  3. OSC Publishes Technical Assistance Letter on Texas Executive Order

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has published a Technical Assistance letter (TAL) concerning the conflict between the requirements of E-Verify and Texas Executive Order RP-80, which was issued by Governor Rick Perry on December 3, 2014.

    The specific issues raised in the TAL were:

    1. Whether Texas contractors may disregard RP-80's requirement that state contractors use E-Verify for "all persons employed during the contract term to perform duties within Texas" when it conflicts with federal E-Verify rules, which require E-Verify only to be used for newly-hired employees?

    2. Whether Texas state agencies are in violation of E-Verify by using E-Verify for "all current and prospective agency employees"?

    3. Whether Texas contractors would violate the anti-discrimination provision of the INA if RP-80 was used by a nationwide employer "to root out” complaining employees by transferring them to Texas after winning a Texas project and running them through E-Verify?

    Concerning the first question, OSC stated that U.S. Citizenship and Immigration Services (USCIS), the agency that administers the E-Verify program and issues guidance on proper E-Verify procedures, has advised employers in Texas that federal E-Verify requirements are in effect at all times.

    As for the second question, OSC stated that employers using E-Verify for prospective employees are in violation of federal E-Verify rules. Furthermore, unless an employer is a federal contractor using FAR E-Verify, it would be in violation of federal E-Verify rules to use E-Verify for verification of current employees.

    Concerning the third question, OSC stated that employers must not violate the anti-discrimination provision of the INA which prohibits discrimination on the basis of citizenship, immigration status, and national origin in the employment eligibility verification process. Examples of such discrimination are an employer rejecting valid Form I-9 documentation, demanding more or different Form I-9 documentation, or requesting specific Form I-9 documentation based on an employment-authorized individual's citizenship, immigration status, or national origin. Thus, according to OSC, an employer using RP-80 to assign an employee to work in Texas for the purpose of reverifying the employee's employment authorization may raise concerns that it is treating that employee differently in the employment eligibility verification process based on perceived citizenship status or national origin.

    OSC’s TAL is solid advice related to following E-Verify rules. However, in doing so, Texas contractors and subcontractors with Texas state agencies will be in violation of RP-80. Hopefully, current Governor Greg Abbott will amend the Executive Order to be in compliance with federal E-Verify rules.

    A copy of OSC’s technical assistance letter is available here.

    Updated 04-20-2015 at 12:35 PM by BBuchanan

  4. 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

  5. Judge Says State Immigration Law is Unconstitutional

    By Bruce Buchanan, Siskind Susser


    Photo of Nashville, Tennessee

    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).

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

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