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I-9 E-Verify Immigration Compliance

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  1. Company Ordered to Forfeit $185,000, Restaurant Owner Fined $10,000;by Bruce Buchanan

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    Premier Paving Inc. (PPI), a Denver-based corporation, was sentenced to forfeit nearly $185,000 in criminal proceeds for its criminal practice of hiring undocumented workers. The forfeited money will go to the Department of Transportation federal highway fund as some of the undocumented workers performed work on federal transportation projects.

    At approximately the same time, late January 2014, Juan Carlos Angel, owner of several Peppers Mexican Grill & Cantina locations in Jacksonville, Florida, who had previously pled guilty to engaging in a pattern of hiring undocumented workers, was ordered to pay a $10,000 fine for hiring five undocumented workers.

    PPI Hires Undocumented Workers and Settles with ICE for $11,000 in Penalties
    According to the plea agreement with PPI, the investigation began in 2007 when Immigration and Customs Enforcement (ICE) audited PPI's employment records and found it had committed violations of hiring employees not authorized to work in the U.S. PPI knowingly hired and continued to employ workers who were not authorized to work because they did not possess the documents required by law to complete an I-9 form. In 2008, PPI and ICE entered into a settlement agreement whereby PPI paid $11,000 in penalties and would only “hire only U.S. citizens and aliens authorized to work in the United States."

    PPI Continued to Employ Undocumented Workers - Forfeits $185,000
    Despite the 2008 agreement, PPI began working with an employment agency, “Servicios de Migracion Para Todos.” (“Immigration Services for Everyone”) and continued to employ workers who were not authorized to work in the U.S. Another review by ICE in September 2012 determined that the company employed unauthorized workers, and failed to adequately complete I-9 forms for a number of employees hired between January 1, 2011 and September 20, 2012.

    Owner of Restaurants Guilty of Hiring Undocumented Workers and Pays $10,000 fine
    In the Peppers Mexican Grill & Cantina case, in June 2013, ICE agents arrested four employees for document fraud after conducting an inspection of the restaurant’s Form I-9s, pursuant to a Notice of Inspection. Based on information gathered from the inspection, ICE agents determined Juan Carlos Angel hired five employees who were undocumented and not legally permitted to work in the United States. Thus, Angel pled guilty and paid a $10,000 fine. A copy of the Factual Basis and Plea Agreements are available here .
  2. OSC Issues Helpful Technical Assistance Letters; by Bruce Buchanan, Siskind Susser

    The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment practices just recently issued two interesting Technical Assistance Letters to answer common questions from employers.

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    Several questions were asked pertaining to Driver Authorization/Driver Privilege Cards, which were described as “cards issued by states to individuals who are unable to document proof of lawful status," and who are often not authorized to work in the United States. It was further explained that "different States currently or may in the future have different formats for these documents and/or annotations that specifically reference whether such documents are acceptable for federal identification purposes on the face of the documents."

    Specific employer questions were:

    1. Do such cards constitute acceptable List B documents to evidence identity during the Form I-9 completion process?

    2. May an employer employ an individual who presents this type of card given that such documents are statistically issued to predominantly undocumented individuals?

    3. May an employer employing an individual who has shown this type of card for I-9 or other purposes be deemed to have knowingly employed an individual who is not authorized to work in the United States?

    OSC’s answer:
    “According to the Form I-9 Lists of Acceptable Documents, a driver's license or ID card issued by a State or outlying possession of the United States [satisfies the criteria to be considered a List B document] provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address."

    To that extent, employers are cautioned against concluding that an individual is not legally authorized to work in the United States based on a perception that a List B document is "statistically issued to predominantly undocumented individuals." An employment-authorized individual whose List B document is rejected because an employer made this assumption may allege discrimination on the basis of national origin or citizenship status in violation of the anti-discrimination provision of the INA by filing a discrimination charge with OSC.

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    4. In the context of an internal Form I-9 audit, may an employer request the employment eligibility documentation presented at the time the Form I-9 was completed, if the copies of the documentation "are unclear and prevent [the] forensic evaluation of their genuineness?"

    5. May the employer, alternatively, request current employment authorization documentation if the documentation presented at the time the Form I-9 was completed is no longer available?

    OSC’s answer: “The employer may have a significant need to ensure an authorized workforce in a sale to another company or to avoid losing valued employees in an ICE audit. As a threshold matter, the standard for reviewing Form I-9 documentation during an internal audit does not change from the standard applied during the initial employment eligibility verification process. An employer is required to accept Form I-9 documentation that reasonably appears to be genuine and to relate to the individual presenting the documentation." OSC noted that this standard does not require an employer to utilize forensic techniques, and that different levels of scrutiny based on the type of document or the citizenship status or national origin of the employee may violate the anti-discrimination provision.

    Further, as employers are not required to photocopy I-9 documentation (except for certain documents when an employer uses E-Verify), OSC suggests an employer should not conclude, solely based on unclear photocopies of Form I-9 documentation, that an employee's Form I-9 documentation is not genuine or does not relate to the individual. Requesting such documents on the basis of citizenship status or national origin may also violate the anti-discrimination provision of the INA.

    Copies of the OSC Technical Assistance Letters are available here and here.

    Updated 02-12-2014 at 01:38 PM by BBuchanan

  3. OSC Settles with City over Citizenship Status Discrimination; by Bruce Buchanan

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    The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, an agency within the Department of Justice, reached a settlement with the City of Waterloo, Iowa, on January 30, 2014, resolving allegations that the city violated the anti-discrimination provision of the Immigration and Nationality Act (INA).

    An investigation was initiated after a charge was filed by a work-authorized, lawful permanent resident (Charging Party) alleging that the City of Waterloo refused to consider him for a firefighter position because he was not a U.S. citizen. The investigation confirmed that the City of Waterloo improperly restricted firefighter positions to U.S. citizens despite the fact that no law, regulation, executive order or government contract authorized the city to legally restrict employment in such a manner under the INA.

    Under the settlement agreement, the City of Waterloo must provide the Charging Party with a new opportunity to apply for the firefighter position. If the results of the firefighter testing process show he would have been previously hired, the City must pay him back pay for the period of time he would have been hired in the absence of discrimination. If the test results show he would not have been hired at that time, but had a qualifying score, he must be placed in line to be hired at a later date if a firefighter position becomes available for which his score qualifies him. In addition, the city must pay $13,000 in civil penalties to the United States, make changes to its policies and practices to ensure unlawful citizenship requirements are not imposed, provide training to city officials, and be subject to monitoring by the department for one year.

    This settlement demonstrates the OSC is continuing the trend of 2013 in vigorously investigating charges of discrimination under the INA and assessing fines against employers that violate the INA.

    A copy of the settlement agreement is available here .

  4. Owners of Temp Agencies Arrested for Immigration Conspiracy; by Bruce Buchanan

    On January 30, 2014, federal agents arrested the owners of two employment agencies in Houston and charged them with recruiting and placing undocumented immigrants at restaurant jobs around the country, among other federal crimes. If convicted, each defendant faces up to 10 years just on the immigration conspiracy charge.

    The raids on Hong Li Job Agency and the Tai Shan Employment Agency were part of a wider undercover investigation by U.S. Immigration and Customs Enforcement (ICE) that led to the arrest of 30 other suspects including operators and managers connected with Chinese restaurants in Arkansas, Colorado, Kansas, Louisiana, Oklahoma, Maine, Texas and elsewhere who are believed to have knowingly employed and exploited undocumented workers.

    Hiring of unauthorized workers is a violation of section 274A of the Immigration and Nationality Act (INA), which involves the failure of an employer to verify the employment eligibility of any person hired after November 6, 1986, by using the Form I-9.

    The workers, primarily from Mexico and Central America, were allegedly charged a fee of $300 to $480 for job placement which was deducted from their first month's pay. Once hired, they would work 12-hour shifts and 6 days per week at the restaurants, but were not paid overtime or allowed to keep their tips or gratuities. Workers were paid a set amount of $1,000 to $2,000 a month for putting in 72-hours of work per week. The restaurant operators paid less than the minimum wage, paid in cash to avoid employment taxes, and did not provide the workers with health insurance, vacation or sick time, ICE officials said.

    Copies of both indictments are available here and here .

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ID:	706 Restaurants specifically identified in the indictments are:

    China Cafe - Brownwood, TX;
    Asian City - Nacogdoches, TX;
    China Star - Bastrop, LA;
    Super Taste China Buffet - Port Allen, LA;
    New China Buffet and Grill - Abbeville, LA;
    Grand Buffet - Nederland, TX;
    King Buffet - Port Arthur, TX;
    Asian Garden - San Marcos, TX;
    Buffet City Asian Cuisine - Rockwall, TX;
    Weng's Buffet City Asian Cuisine - Rockwall, TX;
    Dragon Buffet and Sushi - Sanger, TX

    Updated 02-04-2014 at 05:38 PM by BBuchanan

  5. Over 500,000 Employers Now Using E-Verify; by Bruce Buchanan, Siskind Susser

    The USCIS recently announced more than 500,000 employers now use its E-Verify program. The free tool allows employers, small businesses and large corporations alike, to confirm their new employees’ eligibility to work. This is a sharp increase in usage since the program began in 1996. Originally, just 11,474 companies in fiscal year 1996 signed up for E-Verify. That number jumped ten-fold to 111,671 companies in FY 2012.

    Why the increase?

    In FY 2013, employers’ use of E-Verify increased by almost 500%. Much of the increase can be attributed to improved accuracy since, according to USCIS, 98.8% of work-authorized employees are confirmed instantly or within 24 hours, requiring no further employee or employer action. Additionally, many states have passed their own E-Verify laws and federal contractors and subcontractors are often required to use E-Verify. A useful map of state by state E-Verify requirements is available here .

    It would also be hard to ignore the continued enforcement efforts by Immigration and Customs Enforcement (ICE) whereby certain companies have agreed to use E-Verify, conduct self-audits, and submit to an ICE audit as part of settlement agreements for violations or in acts of voluntary compliance under the “IMAGE” program.

    An immigration lawyer’s perspective

    From an immigration lawyer’s perspective, the increased use of E-Verify means employers are relieved of some of the burden of determining whether an employee’s I-9 Form documentation is authentic. Additionally, E-Verify can act as a safe harbor for employers in many instances.

    Businesses wishing to learn more about E-Verify should read USCIS’s Employer Manual located here .
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