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I-9 E-Verify Immigration Compliance

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  1. Immigration Compliance Provisions in Immigration Reform Bill; by Bruce Buchanan, Siskind Susser

    There are a number of immigration compliance provisions for employers in the proposed Comprehensive Immigration Reform bill, called "Border Security, Economic Opportunity and Immigration Modernization Act" (the Act).
    A major component in the Act for employers is that all employers would be required to utilize E-Verify. Immediately, federal agencies and federal contractors would be required to utilize E-Verify. After one year, the Department of Homeland Security (DHS) may require "employers responsible for protecting, securing, operating, part of the critical infrastructure" to use E-Verify. Applicable employers would be required to use E-Verify according to the following, after passage of the Act and publication of applicable regulations: (a) 2 years - employers with 5000+ employees; (b) 3 years - employers with more than 500 workers; (c) 4 years - agricultural employers and all other employers; and (d) 5 years - Indian tribes. 
    The amended version of the Act makes it clear that if E-Verify is currently required in one's state(s) where it conducts business, an employer must continue to comply with the state law even if the federal provisions for E-Verify have not gone in effect.
    Another important aspect of this legislation for employers is that if an employee received  "registered provisional immigration (RPI) status", which would provide for lawful employment status, an employer would not be considered to have previously employed an undocumented worker in violation of IRCA. 
    As the bill makes it through the House and Senate, you can probably expect some of these provisions to be amended.
  2. OSC Settles Immigration-Related Discrimination Claim Against Property Management Company; by Bruce Buchanan, Siskind Susser

    The Office of Special for Immigration-Related Unfair Employment Practices (OSC), a part of the Department of Justice reached an agreement with Milestone Management Company, a residential property management firm headquartered in Dallas, resolving claims that the staffing company violated the anti-discrimination provision of the Immigration and Nationality Act (INA).
    A lawful permanent resident alleged that after working for Milestone for three years, the company improperly demanded he produce an unexpired lawful permanent resident card, despite the fact that  he had presented proper work authorization documentation at the time of hire.   The company discharged the worker when he was unable to present the document.   The investigation revealed that Milestone had also improperly reverified the documentation of other lawful permanent residents when their documentation expired and it did not reverify expired documentation of U.S. citizens. The anti-discrimination provision generally prohibits treating employees differently in the employment eligibility verification and reverification processes based on citizenship or national origin unless required by law.
    In resolution of the matter, Milestone immediately reinstated the charging party and provided full backpay for his six weeks of lost wages.  Under the terms of the agreement, Milestone agreed to pay $20,000 in civil penalties to the United States, undergo Justice Department training on the anti-discrimination provision of the INA and be subject to monitoring of its employment eligibility verification practices for a period of three years.    The case settled prior to the Department of Justice  filing a complaint in this matter.
  3. USCIS Clarifies new Form I-9 must be Used by May 7, 2013; by Bruce Buchanan, Siskind Susser

    On March 8, 2013, U.S. Citizenship and Immigration Services(USCIS) published a
    notice in the Federal Register announcing the new Form I-9, stating that
    employers can no longer use prior versions of Form I-9 effective May 7, 2013.
    However, in the Supplementary Information section of the notice, USCIS

    incorrectly described the effective date as being after May 7, 2013. USCIS has

    corrected this error and clarified that employers may no longer use prior
    versions of the Form I-9 beginning May 7, 2013.
  4. Office of Special Counsel Settles with Georgia Company over Immigration-related Unfair Employment Practices; by Bruce Buchanan, Siskind Susser

    The Office of Special
    Counsel for Immigration-related Unfair Employment Practices, within the Department
    of Justice, has reached an agreement with Poulan Pecan, located in Poulan,
    Georgia, resolving allegations that the company violated the
    anti-discrimination provision of the Immigration and Nationality Act (INA).
    An investigation of Poulan
    Pecan was initiated in 2012, based on a claim by an individual who called a
    department hotline and complained that the pecan-producing company requested
    specific documentation from her to establish her work authorization. The investigation
    concluded Poulan Pecan discriminated against work-authorized non-U.S. citizens
    by requiring specific and more documents than necessary from them when
    completing the Form I-9, while not imposing similar requirements of U.S.
    citizens.
    Under the terms of the
    agreement, Poulan Pecan will pay $500 in civil penalties and be subject to
    monitoring of its employment eligibility verification practices for a period of
    one year. 
    This is just another example of what occurs when a company requires more documentation for non U.S. citizens than U.S. citizens.
     
  5. Undocumented Workers Entitled to Backpay for FLSA Violations; by Bruce Buchanan, Siskind Susser

    In Lamonica v. Safe
    Hurricane Shutters, Inc. (11th Cir. Mar. 7, 2013), an employer
    unsuccessfully argued an undocumented worker should not be entitled to backpay under the Fair Labor Standards
    Act (FLSA) and cited Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137
    (2002).    However,
    the Court distinguished Hoffmann and relied upon Patel v. Quality Inn,
    846 F.2d 700 (11th Cir. 1988) (undocumented aliens are "employees" who may
    recover unpaid wages under the FLSA).
    In Hoffman, the
    Supreme Court held the NLRB cannot award backpay to undocumented aliens who are
    terminated for union activity in violation of the National Labor Relations Act
    ("NLRA"). However, the Court did not disturb its prior holding that
    undocumented aliens "plainly come within the broad statutory definition of
    'employee' " contained in the NLRA. Sure-Tan, Inc. v. NLRB, 467 U.S.
    883, 892 (1984). Instead, the Court emphasized that it was merely limiting the
    remedies available to undocumented aliens under the NLRA. In Quality Inn,
    the Court found the statutory definitions of "employee" in the NLRA and FLSA to
    be analogous, and drew upon Sure-Tan's analysis of the NLRA in
    concluding that undocumented aliens are also "employees" under the FLSA.
    The NLRA, which was at issue
    in Hoffman, grants the NLRB broad discretion to devise remedies that
    effectuate the policies of the Act, subject only to limited judicial review." Sure-Tan,
    467 U.S. at 898-99, 104. This limited judicial review includes the authority to
    reject the NLRB's chosen remedy where it "trenches upon a federal statute or
    policy outside the Board's competence to administer." Hoffman was an exercise
    of that judicial authority; the Court rejected the NLRB's remedy on the ground
    that it trenched upon the policies underlying the Immigration Reform and
    Control Act of 1986 ("IRCA").
    In contrast, no
    administrative body or court is vested with discretion to fashion an appropriate
    remedy under the FLSA. Instead, the FLSA unequivocally provides any employer
    who violates its minimum wage or overtime provisions "shall be liable to the
    employee or employees affected in the amount of their unpaid minimum wages, or
    their unpaid overtime compensation, as the case may be, and in an additional
    equal amount as liquidated damages." 29 U.S.C. § 216(b). Unlike the NLRA, there
    is nothing in the FLSA that would allow one to conclude that undocumented
    aliens, although protected by the FLSA, are nevertheless barred from recovering
    unpaid wages thereunder.
    In Hoffman, the Court
    concluded awarding backpay to undocumented aliens under the NLRA would be
    inconsistent with the IRCA, which "'forcefully' made combating the employment
    of illegal aliens central to '[t]he policy of immigration law.' " 535 U.S. at
    147. The Court reasoned "awarding backpay in a case like this not only
    trivializes the immigration laws, it also condones and encourages future
    violations." Id. at 150.
    In contrast, an FLSA plaintiff
    "is not attempting to recover back pay for being unlawfully deprived of a job"
    that he could never have lawfully performed. Quality Inn, 846 F.2d at
    705. "Rather, he simply seeks to recover unpaid minimum wages and overtime for
    work already performed." Id.  In such circumstances, the immigration law
    violation has already occurred. The award of unpaid wages does not itself
    condone that violation or continue it. It merely ensures that the employer does
    not take advantage of the violation by availing himself of the benefit of
    undocumented workers' past labor without paying for it in accordance with
    minimum FLSA standards.
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