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I-9 E-Verify Immigration Compliance


  1. OCAHO Rejects More Arguments from GA Company; by Bruce Buchanan, Siskind Susser

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    M&D Masonry of Americus, GA is back again, appealing last month’s Final Order from Administrative Law Judge (ALJ) Ellen K. Thomas who assessed the company $228,300 in civil money penalties, and found it liable for 338 violations related to I-9 Form documentation. I covered that decision in a previous article (here), and the case is now cited as United States v. M&D Masonry, Inc., 10 OCAHO no. 1211.

    The company filed a timely request for administrative review and the case was reviewed de novo this month by Chief Administrative Hearing Officer Robin M. Stutman of the Office of the Chief Administrative Hearing Officer (OCAHO). After M&D raised a number of issues on appeal, OCAHO still determined that M&D received “generous” treatment from ICE given the facts in this case, and it received a significant reduction in penalties from the ALJ.

    Highlights of OCAHO’s decision
    - M&D is not a large business deserving of an aggravated penalty, nor is it a small business deserving a mitigated penalty. However, the ALJ still mitigated (lowered) the penalties in M&D’s favor by more than $200 per violation. ALJ decision upheld.
    - M&D’s pre-signing of more than 100 I-9 forms was wrong, and ALJ’s analogy to Broussard-Wadkins (a RICO case from federal district court) regarding false attestations was legally and factually right. ICE was unduly generous in treating good faith as a favorable consideration in this case. ALJ decision upheld.
    - M&D’s challenges to ICE’s “penalty matrix” used for calculating penalties are not a basis for modifying the ALJ decision when the ALJ has wide discretion in determining a penalty amount. The ALJ’s $104,513.25 reduction of ICE’s originally proposed penalty is upheld.

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    No business can afford to absorb a six-figure penalty from the U.S. Government. This case is a great example why any employer, large or small, would be wise to have an I-9 Compliance Policy in place and self-audit periodically under the supervision of an immigration compliance attorney.

    A copy of the decision is available here. Cite as United States v. M & D Masonry, Inc., 10 OCAHO no. 1215 (2014).
  2. Immigration Discrimination costs Employers $155,500 in OSC Penalties; by Bruce Buchan

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    The Justice Department, through the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), has settled cases with Potter Concrete of Dallas, TX, and SK Food Group Inc., of Seattle, WA, resolving claims that the companies used discriminatory document practices when verifying the employment eligibility of non-citizens in violation of the Immigration and Nationality Act (INA).

    Double Standards Used by Two Companies
    OSC was tipped off by U.S. Citizenship and Immigration Services (USCIS) in both cases. The OSC investigations concluded the companies subjected non-citizen new hires to unlawful demands for specific documentation issued by the U.S. Department of Homeland Security in order to verify their employment eligibility, while U.S. citizens were allowed to show their choice of documentation. In the Potter Concrete case, the investigation also revealed the company selectively utilized E-Verify to confirm the employment eligibility of individuals they knew or believed to be non-citizens or foreign born.

    The INA’s anti-discrimination provision prohibits employers from placing additional documentary burdens on work-authorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin.

    Terms of the Two Settlements
    Under Potter Concrete's settlement agreement, it will pay $115,000 in civil penalties to the United States; undergo training on the anti-discrimination provision of the INA; revise its employment eligibility verification policies; and be subject to monitoring of its employment eligibility verification practices for one year.
    Under SK Food’s settlement agreement, it will pay $40,500 in civil penalties to the United States; identify and provide back pay to any individuals who suffered lost wages as a result of the company’s alleged discriminatory documentary practices; undergo training on the anti-discrimination provision of the INA; and be subject to monitoring of its employment eligibility verification practices for one year.

    After several months without a press release, these two settlements reflect that the OSC is continuing to pursue discrimination cases against employers. See my blog post on OSC’s last press release from January, here: “OSC Settles with City over Citizenship Status Discrimination”. Employers need to be aware that they cannot use separate standards in requesting documentation from U.S. citizens and non- U.S. citizens.
  3. ICE Fined 14 Mass. Employers for I-9 Violations in FY 2013; by Bruce Buchanan

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    Immigration and Customs Enforcement (ICE) has provided a rare opportunity to see the number of Notices of Inspection (NOIs) in a particular state and the amount of penalties for various companies. Several years ago, ICE stopped producing national reports on the names of companies fined and the fine amounts.

    According to a new report from the Boston field office, Homeland Security Investigations (HSI) fined 14 Massachusetts employers over $175,000 in FY 2013 for I-9 violations discovered during employer inspections. The largest fine was $38,491 while the smallest was $1,716. The chart below breaks down the fines by company, industry, city and amount:

    Company Name
    Lighthouse Masonry Construction New Bedford $22,500
    Pureview LLC Service Chelsea $30,000
    GM Employment Services, LLC Service Brockton $6,350
    Calamari's III d/b/a Cal's Wood-Fired Grill & Bar Retail Trade West Springfield $24,000
    Today's Temps, Inc. Service Lawrence $1,716
    Precision Cleaning Co. Service East Boston $8,360
    Demoulas Super Markets Retail Trade Ashland $38,491
    Cruz Environmental Services Construction Lawrence $7,480
    Green Stamp Corp. Construction Waltham $2,415
    Top Shelf Retail Trade Boston $2,566
    Joymark, Inc. Service Boston $10,000
    Corolla Roofing Construction Winthrop $7,500
    Mota Construction Corp Construction Hopedale $6,591
    Framing Specialist Group Construction Hopedale $7,152

    Of the 14 companies fined, six were in the construction industry, five in the service industry, and three in the retail trade industry. The construction and service industries usually have the highest rate of NOIs.

    The number of ICE inspections in Massachusetts has more than tripled since 2009 – from just 17 to a FY 2013 total of 56:

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    Interestingly, and despite the increased number of employer inspections by ICE, the fine amounts ordered against Massachusetts employers decreased nearly 50% between 2012 and 2013:

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    Based on these statistics, employers would still be wise to take I-9 compliance seriously by having an internal audit of their I-9 forms conducted/supervised by an immigration compliance attorney and having an I-9 Compliance Policy in place so that all relevant personnel are aware of their duties and responsibilities.

    Click here for a copy of the ICE HSI Boston press release.

    Updated 04-16-2014 at 12:58 PM by BBuchanan

  4. OCAHO Issues Opinion Ruling Against Golf Club; by Bruce Buchanan, Siskind Susser

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    OCAHO has issued another decision, U.S. v. Golf International d/b/a Desert Canyon Golf, 10 OCAHO no. 1214 (2014), involving a company committing numerous I-9 violations. Desert Canyon is a public golf course near Scottsdale, Arizona.

    After Immigration and Customs Enforcement (ICE) served Desert Canyon with a Notice of Inspection and Subpoena on August 14, 2012, the company produced the I-9 forms for 157 active and terminated employees, payroll records, and other documents. After ICE auditors reviewed the documents, they issued a Notice of Suspect Documents to Desert Canyon on September 27, 2012 concerning the employment of alleged unauthorized workers. A Notice of Intent to Fine was issued on April 10, 2013 with ICE seeking approximately $105,000 in penalties.

    ICE filed for summary judgment on the issue of liability for the I-9 violations. In response, Desert Canyon argued it had corrected all of the alleged violations and they were technical, not substantive, violations. OCAHO disagreed finding that “all” of Desert Canyon’s violations were substantive. For the definition of a technical versus substantive violation, click here for a copy of the Virtue Memo -cited as Interim Guidelines,74 No. 16 Interpreter Releases 706 (Apr. 28, 1997).

    Desert Canyon also argued it did not violate the law because it used E-Verify. ICE attorneys pointed out that the “E-Verify Memorandum of Understanding that must be signed by a participating employer provides that ‘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.’”

    OCAHO ultimately determined that ICE met its burden of proof for summary judgment on three of the four counts with the fourth count still pending.

    Some of the errors cited by OCAHO were:

    -failure to complete any information in Section 2 on 93 Form I-9s;
    -failure to ensure that an employee who indicated they were a Permanent Resident entered an alien number, which “prevents the government from verifying the employee’s work authorization status”;
    -failure to provide the expiration date or attach a copy of an employee’s driver license that was used as a List B document;
    -failure to ensure that an employee checked a box in Section 1 to identify his or her status as a U.S. citizen, lawful permanent resident, or alien authorized for work;
    -failure to ensure the signing of the Section 1 attestation, which “defeats the purpose of the verification process.”

    Overall, OCAHO found Desert Canyon liable for 129 violations, and left the amount of penalties to be determined after further filings by the parties.

    A copy of the OCAHO decision is available here.

    Updated 04-11-2014 at 05:06 PM by BBuchanan

  5. I-9 Guidance on Employment of Asylees & Refugees; by Bruce Buchanan, Siskind Susser

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    For employers, there is a good possibility that an asylee or refugee could apply for employment at your company. The most recent annual report from the U.S. Department of Health and Human Services reflected a total of 58,238 arrivals to 49 states in a single year.

    The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices and the Office of Refugee Resettlement (ORR) has published a letter detailing the employment eligibility requirements for asylees and refugees. One of the highlights of the letter was frequently asked questions, and below is a selection of those questions:

    1. Must non-U.S. citizens provide a DHS-issued document, such as an Employment Authorization Card (Form I-766), to fulfill the Form I-9 document requirements?

    No. An individual who is not a U.S. citizen does not have to submit a DHS-issued document if he or she can fulfill the Form I-9 requirements with other documents. For example, an asylee who presents an unexpired state driver's license (List B document) and an unrestricted Social Security card (List C document) fulfills the Form I-9 requirements and may not be required to present a DHS-issued document.

    2. What is the "receipt rule" for refugees?

    Under the "receipt rule" for refugees during the first 90 days in the U.S., a refugee may meet the Form I-9 requirements by presenting to his or her employer the departure portion of the Form I-94, containing a refugee admission stamp. This submission only completes the Form I-9 temporarily. Within 90 days, the refugee must provide the employer with either (1) an unrestricted Social Security card and an unexpired List B document or (2) an unexpired employment authorization document issued by DHS.

    3. Is a Form I-94 with an asylee stamp considered a receipt as well?

    No. The Form I-94 with an asylee stamp is considered an unexpired employment authorization document issued by the Department of Homeland Security appearing on List C, item number B. Therefore it could be presented in conjunction with a document from List B. An I-94 with an asylee stamp does not expire and should not be reverified.

    4. Does an employee need to submit the same proof of identity and employment eligibility at reverification as he or she did on the initial Form I-9?

    No. An employee may present an unexpired document that shows either an extension of his or her initial employment authorization or a new unexpired document evidencing work authorization from either List A or List C, including an unrestricted Social Security card. The employee is not required to present proof of identity at reverification.

    Updated 04-07-2014 at 11:42 AM by BBuchanan

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