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I-9 E-Verify Immigration Compliance

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  1. Will more States Pass E-Verify Legislation?; by Bruce Buchanan, Siskind Susser

    In the aftermath of the November 2012 elections, most immigration law pundits are focused on the increased chances for Comprehensive Immigration Reform (CIR) to pass Congress. But another area to consider is whether more states will pass E-Verify legislation. Obviously, this will be impacted on whether mandatory E-Verify is included in CIR. A second consideration is the strong majorities that Republicans hold in many state legislatures.
    Currently, 7 states, Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina and Utah, require all employers to utilize E-Verify while Tennessee and Louisiana make the use of E-Verify advantageous for employers but not mandatory. Nine states, Colorado, Florida, Idaho, Indiana, Missouri, Nebraska, Oklahoma, Pennsylvania and Virginia (the last two effective in 2013) require employers contracting with state and/or local government to utilize E-Verify.
    What states might pass E-Verify legislation or expand it to include all employers in 2013? Based upon the political landscape, Arkansas is a likely candidate due to the fact that Republicans tookover both chambers of the legislature. Kansas came close in 2012 to passing E-Verify legislation and it is likely to be a topic in the 2013 legislature though the political makeup of the legislature remained about the same. Republicans in Tennessee now have a super majority in both the House and Senate so one can expect an effort to pass new legislation making the use of E-Verify mandatory. There are other states, Florida, Idaho, North Dakota, Oklahoma, South Dakota and Texas, where the Republicans continue to hold significant majorities.  However, it is unclear whether any of these states will pass E-Verify legislation or expand E-Verify legislation.
  2. OSC issues Letter on Application of Employer's Dishonesty Policy and Fraudulent Documents; by Bruce Buchanan, Siskind Susser

    The Office of Special Counsel for Immigration-Related Employment Practices (OSC) issued a Technical Assistance letter on November 1, 2012 to Information Solutions of Lowell, Arkansas concerning an employer's dishonesty policy and acceptance of fraudulent documents from employees in the I-9 process.
    OSC initially reminded employers that if it "knows a document to be fraudulent but nevertheless accepts it", it may have violated the law. It also discussed whether a "company policy that deems individuals that presented false documents ineligible for rehire" is lawful. The OSC stated "consistent application of a dishonesty policy would not constitute a per se violation of the antidiscrimination provision."
    However, the OSC explained "if an employer rejects a presently work-authorized individual from employment based on the individual's prior undocumented status, that employee might choose to file a charge under the anti-discrimination provision." OSC stated its investigation would focus on whether an employer's "dishonesty policy" is consistently applied to employees who make false representations on their applications for employment or other forms without regard to citizenship status or perceived national origin, and whether the employer's claimed reason for termination is in fact a pretext for citizenship status discrimination.
    This is a timely reminder on the importance of having consistently-applied policies concerning dishonesty. This is especially true as many individuals receive work authorization cards through DACA and may be presenting their card to their present employer.  
     
  3. McDonald's Franchisee Admits Knowingly Employing Undocumented Worker as Manager; by Bruce Buchanan, Siskind Susser

    A McDonald's restaurant franchisee in Wichita, Kansas agreed to plead guilty to one felony count of knowingly accepting a fraudulent identification document offered as proof that an employee was eligible to work.  As part of the plea agreement, McCalla Corporation agreed to pay a $300,000 fine and an additional $100,000 forfeiture judgment.
    McCalla admitted, in March 2011, the company's director of operations became aware that one of its store managers was using a false Social Security number. The director told the McDonald's store manager she needed to provide him new documents to confirm her eligibility to work. Two days later, the store manager presented a resident alien identification card. The director knew the new card was not genuine. Nevertheless, he updated her paperwork and McCalla took no further action. She worked as a store manager for about 3 and ½ years.
    This is the second recent Kansas case involving the employment of undocumented workers. The other one involved two hotels. Just another reminder that companies need to be vigilant in their immigration compliance or they will be facing the consequences. Industries, such as restaurants, hotels, construction and defense, are especially on ICE's radar.
  4. OSC Settles Discrimination Claim against Advantage Home Care; by Bruce Buchanan, Siskind Susser

    The Office of Special Counsel of the Department of Justice has reached an agreement with Advantage Home Care LLC, a home health care provider based in Hackensack, N.J., resolving
    claims that the company violated the Immigration and Nationality Act (INA), when it required newly-hired lawful permanent residents to provide more or different documents during the Form I-9 employment eligibility verification process.
    The investigation stemmed from a charge filed by an individual after Advantage Home Care had a
    criminal background check run that erroneously concluded the individual's Social Security number was invalid.  The individual visited the Social Security Administration, which told him that his number was valid, but Advantage Home Care still refused to employ him based on the background check. The subsequent investigation revealed Advantage Home Care imposed greater requirements to verify employment eligibility for lawful permanent residents than U.S. citizen employees.  
    Under the settlement agreement, Advantage Home Care will pay $1,633 in back pay to the individual charging party and $46,575 in civil penalties to the United States.  The company will also work with the OSC to identify and pay back pay to additional potential victims that suffered economic harm as a result of the practice. 
  5. New Jersey company fined $625,000 by ICE; by Bruce Buchanan, Siskind Susser

    Infinite Visions, LLC, a New Jersey-based clothing manufacturer, was recently fined $625,000 for I-9 violations discovered during an audit and inspection conducted by Immigration and Customs Enforcement - Homeland Security Investigations (ICE-HSI) after receiving an anonymous tip about allegations that the company engaged in unlawful hiring practices.  The government's audit revealed numerous violations of the INA  and serious deficiencies in the company's employment records.
     
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