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I-9 E-Verify Immigration Compliance

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  1. Retaliation is an Issue in Immigration Law, Too; by Bruce Buchanan, Siskind Susser

    For years, employment law lawyers have seen that an employee’s retaliation claim against an employer for filing a charge, complaint or lawsuit, is often a greater problem than the original issue which precipitated it. Recently, in Breda v. Kindred Braintree Hospital, 10 OCAHO no. 1202 (2013), a retaliation claim in an immigration-related unfair employment practice setting was addressed by OCAHO.

    Kindred Braintree Hospital LLC entered into two agreements with John A. Breda, M.D. in 2009, for performing overnight emergency services and scheduling other physicians for overnight emergency services. In April 2010, Kindred notified Breda that it was terminating both agreements.

    The case began when Breda filed a charge with the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices in June 2010, alleging Kindred discriminated against him based on his U.S. citizenship by terminating the agreements and replacing him with an H-1B visa holder. OSC advised Breda that he could file a complaint with OCAHO. Breda declined to do so and filed an action in Massachusetts state court. Kindred filed a counterclaim alleging the original OSC charge was frivolous and sought to recoup its attorney’s fees and expenses as well as seek damages from Breda. The State Court dismissed Kindred’s counterclaim.
    Breda filed a second OSC charge alleging Kindred’s counterclaim was made in retaliation for Breda filing the original OSC charge. Breda’s second charge proceeded to litigation before OCAHO.

    Kindred asserted OCAHO did not have jurisdiction over the second charge alleging retaliation. OCAHO disagreed and found jurisdiction because 8 U.S.C. §1324b(a)(5) states it is “an unfair immigration-related employment practice for a person or other entity to …retaliate against any individual for engaging in protected conduct.” Since the initial OSC charge was protected conduct and thereafter Kindred filed a retaliatory counterclaim in state court, Breda met the statutory requirements.
    OCAHO explained Kindred’s conduct has a “chilling effect” on Breda as well as “protected charging parties or witnesses who may become aware of Kindred’s counterclaim and be deterred” from having contact with the OSC or other agencies.
    To remedy its unlawful conduct, Kindred was barred from relief under its counterclaim, ordered to post a notice advising employees of their rights (similar to a notice under the National Labor Relations Act due to an unfair labor practice) and remove negative information from Breda’s personnel file.
  2. Where did Infosys go Wrong?; by Bruce Buchanan, Siskind Susser

    The U.S. government’s recent $34 million settlement with India-based Infosys Limited over alleged visa fraud and I-9 violations sheds more light on the H-1B visa program at a time when proposed immigration reform would change the number of visas that employers may obtain.

    With a current annual cap of 65,000 visas for the H-1B category, the U.S. government alleged Infosys circumvented the H-1B cap by misusing a different, and cheaper, visa category –the temporary B-1 visitor visa– to bring computer programmers and coders from India to the United States to perform work that required legitimate H-1B visa holders or authorized workers. Generally, B-1 visitors are not authorized for employment and may only enter the United States temporarily for limited business purposes; for example, to attend business meetings or conventions. B-1 visitors are not permitted to remain in the United States and accept employment, regardless of whether they perform skilled or unskilled labor.

    The investigation into Infosys’s conduct involved numerous federal agencies, including the U.S. Attorney’s Office, Immigration and Customs Enforcement (ICE) and its Homeland Security Investigations (HSI) division; U.S. Citizenship and Immigration Services (USCIS); Diplomatic Security Service (DSS); and the Department of State (DOS).

    In addition to visa fraud, the U.S. government investigated I-9 form violations by Infosys. The government alleged Infosys “failed to maintain accurate I-9 forms and records” and did not “update and re-verify the employment authorization status of a large percentage of its foreign national employees for each foreign national as required by law” - the Immigration Reform and Control Act of 1986.

    As part of the settlement agreement, Infosys agreed to undergo I-9 form audits for two years at its own expense to ensure compliance. For the same period, Infosys’ B-1 visa filings and related documents submitted to the government’s immigration bureaus will be subjected to further scrutiny and random sampling. The findings for both years will be reported to the U.S. Attorney for the Eastern District of Texas to determine whether Infosys remains in compliance with the settlement agreement.

    Infosys’ $34 million penalty is a reminder that employers must institute policies and internal control systems, and abide by such, to prevent violations of immigration laws when employing domestic or foreign workers.
  3. 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.
  4. 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.
  5. 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.
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