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I-9 E-Verify Immigration Compliance


  1. OCAHO Upholds $300K Fine of Durable Inc

    By Bruce Buchanan, Siskind Susser

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    Durable, Inc., a manufacturer of aluminum products in Wheeling, Illinois, was cited by Immigration and Customs Enforcement (ICE) for 300 Form I-9 violations after a Notice of Inspection (NOI). ICE set the proposed fine for the 300 violations at $329,895.

    The Investigation
    ICE found Durable failed to ensure Section 1 of the I-9 form was properly completed for 178 employees, and failed to properly complete Section 2 of the I-9 form for 122 employees. ICE set the baseline penalty at $950 per violation based on a 46 percent I-9 error rate and Durable being a “repeat offender”. Therefore, the fine amount per violation was significantly greater than what would be expected for a first time offender with the same 46 percent I-9 error rate. Other aggravating factors adding to the penalty amount were Durable’s lack of good faith, its history of violations and the seriousness of the violations (15% increase); and allegations involving unauthorized workers (5% increase). Based upon all of the factors, the penalty set was $1,092.50 per violation.

    ICE also issued Notices of Suspect Documents which listed 613 employees who did not appear to be authorized to work. Of the 613 employees, only five contested the determination and established their authorization to work. Durable conceded 286 employees were unauthorized to work. Thereafter, Durable terminated 603 employees for lack of proper work authorization.

    The Litigation
    The major issue litigated at the Office of Chief Administrative Hearing Officer (OCAHO) – before the Administrative Law Judge (ALJ) and the Chief Administrative Hearing Officer (CAHO), was whether Durable should be found to be a “repeat offender” of IRCA. It was clearly established that in 1989, Durable entered into a Settlement Agreement with the former Immigration and Naturalization Service (INS) whereby it agreed to pay $30,000 in fines for “knowingly” employing 17 undocumented workers. Durable argued this settlement occurred almost 25 years ago under different ownership; thus, given these factors, it should not be found as having a history of prior I-9 violations.

    ICE asserted Durable was the same corporate entity regardless of any change in owners. Furthermore, ICE argued that the purpose of a fine is to have a deterrent effect on employers and apparently the $30,000 fine did not have the intended effect. Durable, on the other hand, stated that it provided Human Resource (HR) employees with informal I-9 training after the 1989 settlement, but OCAHO found Durable failed to provide any documentation on that training or what it entailed.

    Another issue before OCAHO was whether Durable’s execution of Section 3 excused its failure to execute Section 2. Durable argued it “complied with the spirit of Form I-9” and the 116 instances where this error occurred do not support a violation. OCAHO disagreed, pointing out that signing Section 3 in lieu of Section 2 was insufficient, especially given that Section 3 “does not require either the date of hire or any issuing authority for any documents examined.” OCAHO found that omitting the date of hire from the I-9 form “renders it impossible to determine whether the employee truly completed the attestation as to their citizenship or immigration status upon the date of hire” and whether it was timely completed. OCAHO concluded that this failure, to properly complete and sign Section 2 of the I-9 form within three business days of hire, was a substantive violation.

    Durable also argued that those 116 instances of signing Section 3 were valid reverifications because, although the original I-9 forms could not be located, HR believed I-9 forms were originally completed for those employees. Thus, HR was merely reverifying the employees’ work authorization. OCAHO rejected Durable’s argument and held that HR’s beliefs had “no reasonable basis in fact or law and employers are not entitled to simply make up their own rules.”

    The Takeaway
    Overall, OCAHO declined to reduce ICE’s proposed fine and was not impressed with Durable’s unique defenses. This case is a great example why any employer, large or small, would be wise to have an I-9 Compliance Policy in place, have periodic I-9 audits, provide training to HR personnel on best practices, and consult periodically with an immigration compliance attorney.

    Copies of both decisions and citations are available below:
    United States v. Durable, Inc., 11 OCAHO no. 1231 - click here for decision.
    United States v. Durable, Inc., 11 OCAHO no. 1229 - click here for decision.
  2. Speedy Gonzalez Subject to Fines for Immigration Violations

    By Bruce Buchanan, Siskind Susser

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    In U.S. v. Speedy Gonzalez Construction, Inc., the Office of the Chief Administrative Hearing Officer (OCAHO) faced several interesting issues in determining the potential liability of the company. Speedy Gonzalez is a husband-and-wife-owned construction company, located in Glendale, Arizona. After Speedy Gonzalez provided its I-9 forms to Immigration and Customs Enforcement (ICE), it was served with two Notices of Suspect Documents identifying 83 individuals who appeared to be unauthorized for employment.

    ICE’s complaint alleged the company failed to prepare and/or present I-9 forms for 101 employees and failed to ensure the proper completion of Section 1 and/or failed to complete Section 2 or 3 of the I-9 forms. There was not a material factual dispute on most of the issues in the Complaint.

    For the nine employees who the company failed to ensure proper completion of Section 1 of the I-9 form, the errors involved:

    - failure of the employee to sign the I-9 form
    - failure of the employee to check a status box; and
    - failure to record a permanent resident’s alien number.

    Speedy Gonzalez raised a number of defenses to assert there were material disputes of fact. One defense was that some former employees worked fewer than three days or never worked for the company. Another defense used by the company was that its use of the E-Verify system for some of those individuals constituted “good faith compliance” and “is equivalent to the examination certification in Section 2.”

    In determining whether the failure to complete the I-9 form is excusable based on an employee’s failure to continue employment for more than three days, “the expectations of the parties with respect to the duration of employment, as well as the specific facts and circumstances surrounding the hire, must be evaluated on a case by case basis.”

    The facts demonstrated some of these employees may have worked less than three days but their days of employment were spread over four to six days. Thus, OCAHO found these employees were on the payroll for at least three days after hire – meaning the company had an obligation to obtain completed I-9 forms.

    However, Speedy Gonzalez prevailed on its claim that four employees were never on its payroll because the Arizona Unemployment Tax and Wage Reports did not reflect any wages paid to these four individuals.

    OCAHO rejected the construction company’s defense that its use of E-Verify was equivalent to Section 2 certification. The E-Verify Memorandum of Understanding specifically states the “employer understands that participation in E-Verify does not exempt the employer from the responsibility to complete, retain and make available for inspection Forms I-9 that relate to its employees.” Thus, the company’s use of E-Verify does not excuse its failure to properly complete Section 2 of the I-9 forms and present the forms for inspection.

    Speedy Gonzalez was successful in arguing that the husband-and-wife owners did not have to complete I-9 forms. OCAHO has held owners with substantial control over the company do not have to complete an I-9 form. Unfortunately, ICE tends to ignore this case law and continues to allege violations for the failure of owners to prepare I-9 forms.

    Lastly, Speedy Gonzalez attempted another defense – arguing that it “recreated” some of the I-9 forms after the NOI when the original I-9 forms were missing. However, it was unsuccessful because OCAHO held the company failed to present “a scintilla of evidence that the original forms ever actually existed.”

    OCAHO did not assess any penalties at this time; rather, it ordered ICE to file its penalty request and Speedy Gonzalez to respond to the proposed penalty.

    A copy of the OCAHO decision is available here.
    Cite as U.S. v. Speedy Gonzalez Construction, Inc., 11 OCAHO no. 1228 (2014)

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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 .

    Updated 11-12-2014 at 10:09 AM by BBuchanan

  3. Restaurant Owner Faces Jail Time for Undocumented Workers

    By Bruce Buchanan, Siskind Susser

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    On October 20, 2014, the owner of two Chinese restaurants in Kansas and Missouri pleaded guilty to conspiring to employ and harbor undocumented workers. At sentencing, he faces up to 10 years in federal prison and a fine of up to $250,000. As part of a plea agreement, he admitted to employing at least 12 undocumented workers, paying them in cash and providing them housing.

    The investigation was led by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) and resulted in the arrest of more than a dozen suspects including operators, managers, and employees connected with Wei’s Super Buffet in Olathe, KS and Wei’s Super Buffet No. 2 in Kansas City, MO.

    ICE found six undocumented immigrants at an apartment leased by one of the restaurant owner’s family members. Five other defendants were found guilty at trial of harboring undocumented workers, and participating in a wider conspiracy to obtain motor vehicle registrations, license plates, and titles for undocumented immigrants.

    Hiring of unauthorized workers is a violation of the Immigration and Nationality Act (INA § 274A), 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.

    A copy of the press release from ICE can be found here.
    United States v. Wei Liu, et al., No. 13-20114-KHV (D. Kan.)
  4. OSC Settles Immigration Claim Against Construction 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 Constructor Services Inc. (CSI), located in the Atlanta, Georgia metropolitan area. The settlement resolves a claim that the company engaged in discriminatory documentary practices during the employment eligibility verification process in violation of the Immigration and Nationality Act (INA).

    An investigation found that CSI required non-U.S. citizens, but not similarly-situated U.S. citizens, to produce specific documentary proof of their immigration status for the purpose of verifying their employment eligibility. The INA’s anti-discrimination provision prohibits employers from making additional and unauthorized documentary demands based on citizenship status or national origin when verifying or re-verifying an employee’s employment eligibility.
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    As part of the OSC settlement agreement, CSI will pay $18,000 in civil penalties to the United States and revise its employment eligibility re-verification policies. Further the company will be subject to monitoring of its employment eligibility verification practices for the next two (2) years and 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 the company’s employment eligibility verification and re-verification policies, including all supervisors, managers, administrators, or other employees who have any role making or communicating employment eligibility verification matters, such as completing the Form I-9 and/or using the E-Verify system ("Human Resources 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 Human Resources Personnel to attend compliance training approved by the Office of Special Counsel – which will be video recorded and shown to all new Human Resources Personnel within sixty (60) days of hire.

    This is one of many OSC settlements in 2014 alleging a company had different standards for non-U.S. citizens and U.S. citizens.

    A copy of the CSI settlement agreement can be viewed here.
  5. OSC Settles Green Card Discrimination Case

    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 Serendipity Hearing Inc., doing business as Sonus Hearing Care, a hearing services provider headquartered in Huntington Beach, California, resolving a claim that it engaged in discriminatory documentary practices during the employment eligibility verification process.

    The investigation found that Sonus required an employee, who was a lawful Permanent Resident, to show a new employment eligibility document when her Permanent Resident Card expired. Under the Immigration and Nationality Act, an employer is prohibited from this practice because lawful permanent residents are still authorized to work in the United States, even after their Permanent Resident Cards expire. When the employee could not provide a new Permanent Resident Card, Sonus terminated her.

    As part of the OSC settlement agreement, Sonus will:

    - Pay $16,727 in back pay to the employee;
    - Pay $400 in civil penalties to the United States;
    - Revise its employment eligibility re-verification policies;
    - Be subject to monitoring of its employment eligibility verification practices; and
    - Undergo training on the anti-discrimination provision of the INA.

    The civil penalty assessed against Sonus was unusually low, presumably because this was a one-time occurrence. However, Sonus’s back pay was not low due to the alleged discriminating practice.

    The Takeaway

    Although it may seem logical to re-verify an employee’s expired document, it is unlawful for an employer to re-verify an expired Permanent Resident Card (also known as a “green card”). The reason for this is that Permanent Resident employees do not lose their Permanent Resident status or their work authorization when their green cards expire. Though they should renew their green cards, they remain Permanent Residents even after their cards expire. For a person to lose their Permanent Resident status, generally, it must be revoked by an Immigration Judge in Immigration Court.

    For employees who are not Permanent Residents, an employer must lawfully re-verify an Employment Authorization Document (EAD) after it expires since an employee’s authorization to work does end when their EAD expires.
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