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I-9 E-Verify Immigration Compliance


  1. Hotel Chain Pays $1.95 Million for Undocumented Workers

    By Bruce Buchanan, Siskind Susser

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    Grand America Hotels and Resorts, a subsidiary of the Sinclair Services Company, will forfeit $1.95 million for hiring unauthorized workers pursuant to a non-prosecution agreement between the company, the U.S. Attorney for the District of Utah and U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI).

    In reaching this agreement, the company will avoid criminal prosecution in exchange for its full cooperation and remedial action in the wake of HSI's investigation into the hiring practices at its hotel and resort properties in Arizona, California, Idaho, Wyoming and Utah.

    According to facts set forth in the agreement, several lower-level Grand America employees and mid-level managers conspired to re-hire unauthorized workers despite an ICE audit of I-9 forms that began in September 2010. A year later, ICE-HSI issued a Notice of Suspect Documents to Grand America stating that 133 employees were not authorized to work in the United States. After the Notice, the employees could not produce documentation that they were authorized to work. The company was issued a warning notice and Grand America informed HSI that it had terminated the employees.

    However, HSI later discovered that the conspirators created three temporary employment agencies or “shell companies” between August 2011 and October 2011, to re-hire 43 of the unauthorized workers. The agreement says most of the workers returned to work using different names and fraudulent identity documents.

    In addition to forfeiting $1.95 million to the Department of Homeland Security (DHS), Grand America will be required to take substantial remedial measures, which could cost up to $500,000 to implement. Such measures include: adopting new corporate policies to comply with immigration law; incorporating immigration law compliance clauses into the company’s labor service contracts; re-training human resources employees on I-9 compliance procedures; and agreeing to continue using E-Verify in the hiring of new employees. Grand America also agreed to retain immigration counsel to advise the company regarding hiring and immigration procedures.

    Grand America avoided criminal prosecution and fully cooperated with HSI’s investigation. Prosecutors said the company handed over all incriminating evidence it obtained through its own internal investigation, and fired the managers who were involved in the conspiracy. The government will seek to prosecute the conspirators separately.

    This news is a reminder to employers of the wealth of remedies available to ICE-HSI for immigration violations.

    Updated 09-16-2014 at 02:30 PM by BBuchanan

  2. U.S. Government Sues its Cleaning Service for I-9 Violations

    By Bruce Buchanan, Siskind Susser

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    The Office of Chief Administrative Hearing Officer (OCAHO) for the Executive Office for Immigration Review (EOIR) just published its decision in United States v. Clean Sweep Janitor Service. OCAHO reduced Clean Sweep’s fines from $12,623 to $6,750.

    It all began with an investigation by the Department of Homeland Security, Immigration and Customs Enforcement (DHS/ICE) into Clean Sweep, the janitorial service it paid to clean its own offices for over a decade. The company also apparently cleaned EOIR’s offices until, Clean Sweep says, they lost their cleaning contract with both agencies “to an unlicensed contractor that pays employees under the table” and underbid Clean Sweep “by forty percent.”

    According to the complaint, Clean Sweep is a woman-owned small family business located in Alpine, California. With only 10 active employees, it has cleaned the offices of a long list of other federal agencies including IRS, SSA, and DEA.

    ICE’s investigation failed to find any unauthorized workers at Clean Sweep, but found that the company failed to prepare I-9 Forms for 15 current or former employees. ICE sought an adjusted penalty of $12,623 which Clean Sweep felt was excessive and would be a “devastating financial blow” to the company.

    In assessing the final penalty amount, OCAHO looks to 8 U.S.C. § 1324a(e)(5) and must consider the following factors:

    1) the size of the employer’s business;
    2) the employer’s good faith;
    3) the seriousness of the violations;
    4) whether or not the individual was an unauthorized alien; and
    5) the employer’s history of previous violations.

    Factors in favor of Clean Sweep were that the company had no history of previous violations, there were no unauthorized workers found, and as a small business it should benefit from the general public policy of leniency to small entities set forth in the Small Business Regulatory Enforcement Fairness Act of 1996.

    OCAHO fined Clean Sweep $6,750 for its failure to prepare I-9s for 15 employees, stating that it regards this offense as one of the “most serious violations because it completely subverts the purpose of the employment verification requirements.”

    A copy of the decision is available here. Cite as U.S. v. Clean Sweep Janitor Service, 11 OCAHO no. 1226

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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 this author on social media via Facebook and on Twitter @BuchananVisaLaw .
  3. OSC Settles Immigration Claim against Charter Bus Company

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), within the Justice Department, has reached a settlement with MCA Transportation, a charter bus operator headquartered in Orlando, Florida. The settlement resolves a claim by one of MCA’s employees that the company engaged in citizenship discrimination during the employment eligibility verification process in violation of the Immigration and Nationality Act (INA).

    The employee who made the complaint was a work-authorized asylee and alleged that MCA requested more or different documents from him than were necessary for the Form I-9. After OSC conducted an investigation, it found there was reasonable cause to believe MCA committed an “unfair documentary practice” in violation of the INA by requesting “more or different employment eligibility verification documents than are necessary on the basis of citizenship status”.

    The INA’s anti-discrimination provision specifically 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.

    As part of the settlement agreement, MCA will only pay $660.00 in civil penalties to the United States, but for the next three (3) years the company will be required to do the following:

    1) Advise OSC of any changes in the company’s employment policies as they relate to nondiscrimination on the basis of citizenship status and national origin at least thirty (30) days prior to the effective date of such revised policies;

    2) Ensure that all individuals who are responsible for formulating, carrying out, and/or conducting training on MCA's hiring, firing, equal employment, and employment eligibility verification policies, including all managers and employees who have any role making employment eligibility decisions, such as completing the Form I-9 and/or using the E-Verify system ("Verifying Personnel"), are in possession of the most current version of the Form I-9, USCIS Employment Eligibility Verification Handbook for Employers and the most current USCIS E-Verify Manual; and

    3) Send all new Verifying Personnel to attend an Office of Special Counsel Employer/HR webinar within sixty (60) days of hire or promotion.

    This case is a great example why any employer, large or small, would be wise to have an I-9 Compliance Policy in place and consult periodically with an immigration compliance attorney. Be sure to read my prior blog post on Employment of Asylees and Refugees at:

    A copy of the MCA settlement agreement can be viewed here.

    Updated 09-10-2014 at 06:19 PM by BBuchanan

  4. California Supreme Court Rules in favor of Undocumented Worker

    By Bruce Buchanan, Siskind Susser

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    The California Supreme Court recently found, in Salas v. Sierra Chemical Co., that an undocumented worker who filed a claim under the California Fair Employment and Housing Act (FEHA) was not barred from receiving damages for lost wages.

    The employee alleged that Sierra failed to reasonably accommodate his physical disability and refused to rehire him, in retaliation for his filing of a worker’s compensation claim. During discovery, Sierra learned the employee in question was undocumented and had used someone else’s Social Security number for employment.

    Sierra argued the employee was not entitled to back pay or damages because of his undocumented status, citing the U.S. Supreme Court’s decision in Hoffman Plastics Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). In Hoffman, the court held the NLRB could not “award back pay to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by criminal fraud.”

    The employee argued that an amendment to California’s FEHA entitled him to all remedies available under state law, except reinstatement, regardless of his immigration status. Interestingly, the California FEHA amendment was passed in response to the U.S. Supreme Court’s decision in Hoffman.

    The Issue
    Does the federal Immigration Reform and Control Act (IRCA) preempt the California FEHA anti-discrimination law?

    In this case, the California Supreme Court found that FEHA generally is not preempted by federal law and did not directly conflict with IRCA because compliance with both federal and state law is possible. Although IRCA prohibits unauthorized use of false documents to get a job, it does not prohibit an employer from paying, or an employee from receiving, wages earned during employment wrongfully obtained by document fraud, so long as the employer remains “unaware” of the employee’s unauthorized status.

    Stated another way, an employee may be entitled to lost wages for the period of time from unlawful termination until the employer discovers the fraud. In this case, the Court held that the employee was not entitled to any award for loss of employment during the post-discovery period because Sierra learned of his undocumented status during discovery and IRCA prohibits “knowingly” employing an unauthorized worker.

    The California FEHA amendment did not frustrate the purpose of the IRCA statute, insofar as it made available to the employee the remedy of pre-discovery period lost wages for unlawful termination. By not allowing unauthorized workers to obtain state remedies for unlawful termination, including pre-discovery period lost wages, the California Supreme Court reasoned that it would effectively immunize employers who violate California state law by discriminating against their workers on grounds such as disability or race, retaliate against workers who seek compensation for workplace injuries, or who fail to pay the wages required under state law.

    The Takeaway
    This case shows that California employers cannot hide behind an employee’s undocumented status in attempting to deny back pay after violating a state employment law. It also reinforces the importance to employers of proper completion of I-9 Forms and proper use of DHS E-Verify which can help employers identify document abuse and/or fraudulent social security numbers used by undocumented workers.

    A copy of the court opinion is available here.
  5. OSC Settles Immigration Claim against Culinaire International

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), within the Justice Department, has reached an agreement with Culinaire International, a Texas-based catering and restaurant management company, resolving a claim that Culinaire engaged in citizenship discrimination during the employment eligibility re-verification process in violation of the Immigration and Nationality Act (INA).

    The investigation found Culinaire required lawful permanent resident (LPR) employees to produce a new Permanent Resident Card when their prior card expired, even though the INA prohibits such conduct. LPRs have permanent work authorization in the United States, even after their permanent resident cards expire.

    Under the settlement agreement, Culinaire will establish a $40,000 back pay fund to compensate potential economic victims; pay $20,460 in civil penalties to the United States; undergo training on the anti-discrimination provision of the INA; revise its employment eligibility re-verification policies; and be subject to monitoring of its employment eligibility verification practices for 20 months.

    This error by Culinaire is a fairly common error made by employers, who believe they must re-verify an LPR card because an employee’s Employment Authorization document (EAD) must be re-verified at the time of its expiration. However, under the law, the expiration of an LPR card is treated differently than the expiration of an EAD card.

    A copy of the settlement agreement, when it becomes available, can be viewed here.
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