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I-9 E-Verify Immigration Compliance

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  1. E-Verify Post-Government Shutdown; by Bruce Buchanan, Siskind Susser

    E-Verify has resumed operations following the 16-day federal government shutdown. Employers must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013. If the employer is prompted to provide a reason why the case is late, select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field. If an employee had a Tentative Non-confirmation (TNC) referred between September 17 and 30, 2013 and was not able to resolve the TNC due to the federal government shutdown, add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation.’ Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If an employer has an employee who decided to contest his TNC while E-Verify was unavailable, the employer should now initiate the referral process in E-Verify. If an employee received a Final Non-confirmation (FNC) because of the federal government shutdown, the case should be closed.Then, select “The employee continues to work for the employer after receiving a FNC result.” The employer must then enter a new case in E-Verify for that employee. This step is necessary to ensure the employee is afforded the opportunity to timely contest and resolve the TNC that led to the FNC result.
  2. OSC Reaches 3 Settlements at end of FY 2013; by Bruce Buchanan, Siskind Susser

    At the end of Fiscal Year 2013, the Office of Special Counsel for Immigration-Related Unfair Employment Practices reached settlements with three companies – Paramount Staffing, IBM and Huber Nurseries. In the Paramount Staffing case, the investigation revealed the company was routinely requiring specific, DHS-issued documentation for lawful permanent residents while not doing so for U.S. Citizens. In the IBM case, it placed on-line job postings for application and software developers that contained preferences for F-1-OPT and H-1B visa holders over others, such as U.S. Citizens and lawful permanent residents (LPRs). Huber Nurseries’ requirements were similar in that it preferred to hire temporary visa holders, specifically H-2A visa holders. The anti-discriminatory provision of the INA prohibits employers from using discriminatory documentary policies or requirements based on citizenship status. All of the above practices allegedly violated this anti-discriminatory provision. Each of the employers settled their case by paying civil penaltiesand/or back pay, agreeing to revise its hiring and recruiting procedures, training HR personnel to comply with the INA and being subject to reporting requirements. Huber Industries paid $2250 in civil penalties and $59,617 in back pay; IBM paid $44,400 in civil penalties; and Paramount Staffing paid $21,000 in civil penalties.
  3. OSC Settles with IG concerning discrimination; by Bruce Buchanan, Siskind Susser

    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) reached an agreement with Infinity Group (IG), based in Clute, Texas and its related entities resolving allegations that the companies violated the anti-discrimination provision of the Immigration and Nationality Act (INA). IG provides project-based temporary skilled labor to client companies. IG entities, which utilized E-Verify, required non-citizens to present specific U.S. Department of Homeland Security-issued documents, such as Permanent Resident cards or Employment Authorization documents (EADS) to establish their identity and employment authorization while not making similar requests of U.S. citizens. Under the settlement agreement, IG will pay $53,800 in civil penalties to the United States; create a $35,000 back pay fund to compensate any individuals who suffered lost wages as a result of its practices; and train its human resources personnel on the INA’s anti-discrimination provision. This is approximately the 15th settlement that OSC has reached with employers in 2013, an indication of the high level of enforcement by OSC concerning the INA’s anti-discrimination provision. Employers should realize that their use of E-Verify can be a great benefit but it does not mean they cannot violate the immigration laws.
  4. OSC Settles with Kelly Services; Bruce Buchanan, Siskind Susser

    Office of Special Counsel has reached an agreement with Kelly Services Inc., a staffing company based in Troy, Michigan, resolving an allegation of discrimination based on citizenship status during the employment eligibility re-verification process at one of its branch locations in Schaumburg, Illinois. The investigation concluded that Kelly Services terminated an individual’s employment during the employment eligibility re-verification process when he did not produce a new USCIS-issued document, even though he had a valid unrestricted Social Security card at the time, which is also acceptable to show continued employment eligibility. To resolve the matter, Kelly Services agreed to compensate the former employee for lost wages in the amount of $1,888.60 and pay a $1,100 civil penalty to the United States.
  5. No History of Violations is not Automatic Mitigation; Bruce Buchanan, Siskind Susser

    The Employer, in United States v. The Red Coach Restaurant, 10 OCAHO no. 1200 (2013), appealed an ALJ's decision over several matters, including the refusal of the ALJ to mitigate the penalties by 5% because Red Coach did not have a history of previous violations. The Employer asserted OCAHO "must" mitigate the penalties in this situation. OCAHO stated this could be a factor in the decision-making process but there is no requirement of mitigation based on no history of previous violations. OCAHO cited several cases in support of their position. From counsel's position, this means you should seek mitigation for this factor, especially in settlement negotiations, but be aware it is not required to be utilized as a mitigating factor.
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