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I-9 E-Verify Immigration Compliance

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  1. OSC Issues Flyer on Employers Avoiding Discrimination

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, which is within the Department of Justice, has issued an updated flyer entitled “How Employers Can Avoid Discrimination in the Form I-9 and E-Verify Processes.”

    There are some helpful points in the flyer for employers, which one may already know and refreshing or one might learn for the first time. Some of these helpful points are:

    • Employees do not need to prove the citizenship status they attest to in Section 1. Do not ask any employee for proof of immigration or citizenship status, such as asking an employee who marks “U.S. citizen” to present a naturalization certificate or U.S. passport.


    • Employees are not required to write their Social Security numbers (SSN) in Section 1 unless you use E-Verify.


    • To satisfy Section 2, employees must be allowed to present any documentation of their choice from the Lists of Acceptable Documents. All employees can choose to present either any unexpired List A document, or any unexpired List B document together with any unexpired List C document.


    • Do not ask any employee to present specific documents.


    • Some individuals, such as those with Temporary Protected Status (TPS), may have EADs that appear expired on the face of the cards, but the EADs may have been “automatically extended” and are still valid. Do not ask employees with automatically extended EADs to present additional documentation during the extension period.


    • U.S. citizens and some non-U.S. citizens should not be reverified. For example, do not reverify an LPR who presented a Permanent Resident Card that expired after initial verification.


    • Do not create E-Verify cases for employees who are waiting to receive their SSNs and for employees who present certain receipts for Section 2 documents. Despite the E-Verify delay, allow them to work for pay similar to employees whose E-Verify cases were created within the typical three-day period.


    • Do not reject valid documentation just because it is unfamiliar, or because it is an older version.


    • If an employee contests a TNC, do not fire, suspend, modify a work schedule, delay job placement or otherwise take any action adverse against the employee just because the employee received a TNC.
  2. OCAHO Reduces Speedy Gonzalez's Fines by 50%

    By Bruce Buchanan, Siskind Susser

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    In U.S. v. Speedy Gonzalez Construction, Inc., 11 OCAHO no. 1243 (2015), the Office of the Chief Administrative Hearing Officer (OCAHO) determined ICE’s proposed fines for the company should be reduced by about 50 percent. Previously, in 2014, OCAHO decided Speedy Gonzalez committed 179 violations – over half of which were for the failure of the company to prepare I-9 forms until after the Notice of Inspection and backdating to the date of hire.

    Earlier in the case, Speedy Gonzalez argued that it “recreated” some of the I-9 forms after the NOI when the original I-9 forms were missing. However, OCAHO held the company failed to present “a scintilla of evidence that the original forms ever actually existed.”

    Penalties Sought
    ICE sought $186,859.75 for the 179 violations previously found in the earlier decision. ICE based its penalties on a violation rate of 73.4 percent, which creates a baseline fine of $935 per violation. ICE also sought to aggravate many of the violations by 5 percent per factor for the seriousness of the violations, lack of good faith, and employment of unauthorized workers. Thus, ICE sought between $935 and $1,075.25 per violation.

    OCAHO’s Holding
    The ALJ for OCAHO declined to find a lack of good faith based upon backdated I-9 forms as OCAHO case law requires information on the “surrounding facts and circumstances” when an I-9 form is backdated. Additionally, the ALJ found ICE failed to identify many of the workers who were unauthorized; thus, she declined to aggravate the penalties for this reason, too.
    The ALJ concluded the proposed penalties were too high for a small business, especially in light of the general public policy of leniency reflected in the Small Business Regulatory Enforcement Act of 1996. The penalties were reduced to amounts closer to the mid-range of possible penalties, between $450 and $600 per violation. Thus, the penalties equaled $97,000. Finally, the ALJ found the parties were free to “establish a payment schedule in order to minimize the impact of the penalty on the operations of the company."

    Takeaway
    This is another case where through litigation the employer was able to reduce the penalties by about 50 percent, which was a great savings for the company but still left the company owing almost $100,000. Many of the violations could have been cured through a self-audit directed by an immigration compliance attorney.

    The full decision is here (PDF warning).
  3. OCHAO Refuses to Lower Penalties for Staffing Company

    By Bruce Buchanan, Siskind Susser

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    In United States v. Employer Solutions Staffing Group II, LLC, 11 OCAHO no. 1242 (2015), Office of Chief Administrative Hearing Officer (OCAHO) refused to lower ICE’s proposed penalties of $227,000, which was based on 292 violations at a baseline penalty of $935 per violation.

    The main issue in the case was the method used by ESSG, a staffing company, to complete the I-9 forms. ESSG had employees employed throughout the U.S. To complete the I-9 form, the employee filled out Section 1 and an ESSG staffing recruiter or hiring agent reviewed Section 2 document(s) presented by the employee. However, instead of completing Section 2, the ESSG representative forwarded the I-9 form and a copy of the document(s) via mail or courier to its home office in Minnesota. At that point, the payroll administrator reviewed copies of the documents, completed Section 2, and signed as the certifying officer.

    Agency Law Principles Rejected
    ESSG’s attorney asserted the rules of agency permitted the above procedure for completing the I-9 forms because “general agency law attributes the principal’s knowledge to the agent, and the agent’s knowledge to the principal.” OCAHO rejected this “creative” defense because the procedure does not comply with the requirements of the employment eligibility verification system.

    Proper Procedure for Completion of I-9 Forms
    As OCAHO 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, moreover, for a payroll administrator in Edina Minnesota to determine whether a document reasonably relates to an individual when the administrator never saw” the original documents.

    Take Away
    It is important for the certifier to personally review the originals of the 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.
  4. OSC Warns Employers Not to Discriminate Against Salvadorans with TPS in New Video

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) released an educational video reminding employers that Salvadorans with Temporary Protected Status (TPS) may continue working beyond the March 9, 2015, expiration date of their employment authorization documents.

    The video explains the Department of Homeland Security automatically extended the validity of employment authorization documents for Salvadorans with TPS for an additional six months to September 9, 2015. Employers should obtain the Federal Register notice of the extension and attach it to the employee’s existing I-9 form.


    Requesting additional work-authorization documents from these employees may violate the anti-discrimination provision of the Immigration and Nationality Act. This provision prohibits employers from making additional and unauthorized documentary demands because of an employee’s citizenship status, immigration status or national origin when verifying or re-verifying an employee’s employment eligibility.


    TPS is a temporary immigration benefit that allows qualified individuals from designated countries who are in the United States to stay and obtain employment authorization documents to work legally in the United States for a limited period of time. A foreign country is designated for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, such as on-going armed conflict, environmental disasters or other extraordinary and temporary conditions in the designated country.


    The newly released video may be viewed here.


  5. Nebraska Becomes 5th State to Join RIDE

    By Bruce E. Buchanan, Siskind Susser
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    Effective February 1, 2015, Nebraska became the fifth state to join the Records and Information from DMVs for E-Verify, or RIDE. Nebraska joins Mississippi, Florida, Idaho and Iowa in RIDE, which links E-Verify with state departments of motor vehicles and state public safety offices. RIDE allows E-Verify to validate the authenticity of driver’s licenses and state identification cards that employees present as identity documents for the I-9 form. RIDE is intended to help to reduce document fraud and boost the accuracy of employment eligibility verification by E-Verify.
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