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I-9 E-Verify Immigration Compliance


  1. OSC Enters into Memorandum of Understanding with NLRB; by Bruce Buchanan, Siskind Susser

    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has entered into a Memorandum of Understanding (MOU) with the National Labor Relations Board (NLRB), formalizing a collaborative relationship that allows both agencies to share information, refer matters to each other and coordinate investigations as appropriate.
    OSC is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act, which prohibits citizenship status and national origin discrimination in hiring, firing and recruitment or referral for a fee, as well as discriminatory Form I-9 and E-Verify practices. The NLRB enforces the National Labor Relations Act, which protects the rights of most private sector employees to join together through union activity and/or protected concerted activity to improve their wages, hours and working conditions.
    The MOU will allow the NLRB to make referrals to OSC, with the express authority of the NLRB charging party, when a matter before the NLRB suggests a possible violation of the anti-discrimination provision, such as verification of employment authorization, in the I-9 or E-Verify process, that appears to be discriminatory based on citizenship status or national origin. Similarly, the OSC will refer matters to the NLRB that appear to fall within that agency's authority. The MOU also provides for cross-training and technical assistance to ensure that staff within each agency can identify appropriate referrals.
  2. OCAHO Rejects Employer's Speculative Argument and Finds Appeal Untimely; by Bruce Buchanan, Siskind Susser

    In U.S. v. Silverado Stages, Inc. (May & June 2013), OCAHO declined to reduce the employer's penalties of $7480, assessed by Immigration & Customs Enforcement (ICE) or hear the employer's request for review.
    Silverado Stages is the largest private motor coach operator in California with four locations, 140 employees and a gross annual income of $11 million. ICE alleged Silverado Stages failed to timely complete I-9 forms on 16 employees, two of which were undocumented workers. ICE's NIF sought penalties of $440 per violation (meaning 20 to 29 % of the I-9 forms had substantive errors).
    ICE determined Silverado Stages was a mid-size company; thus, the size of the employer was a neutral factor. ICE found two aggravating factors - seriousness of the violations and the presence of two undocumented workers; but for some unexplained reason, ICE did not increase the penalties by 5% each for these aggravating factors.
    Silverado Stages argued ICE does not know for a fact "that the forms were prepared but then misplaced, lost or destroyed." Thus, ICE cannot assume the I-9 forms were not initially timely prepared. OCAHO found Silverado Stages' "hypothesis" to be "no more than speculation" and held ICE is not obligated to "rebut whatever 'plausible' imaginary scenarios can be postulated."
    The Administrative Law Judge concluded $440 per violation was "well within the statutory parameters" and appeared "reasonable in light of the record." Thus, OCAHO upheld the assessment of $7480. Silverado Stages unsuccessfully attempted to request OCAHO to review the ALJ's decision because OCAHO found the Request to be untimely and improperly filed and served. 
    This decision is contrary to most OCAHO decisions in that OCAHO did not reduce the penalties assessed by ICE. It is only speculation to say why but two reasons may be that Siverado Stages is not a small employer and its "hypothesis" was totally discredited by OCAHO.  
  3. Macy's Settles OSC case by Paying $275,000; by Bruce Buchanan, Siskind Susser

    The Office of Special Counsel (OSC) for Immigration-Related Unfair Labor Practices, which is within the Department of Justice, has reached an agreement with Macy's resolving allegations that the company violated the anti-discrimination provision of the Immigration and Nationality Act. 
    The investigation was initiated based on several calls to the OSC's worker hotline regarding potential immigration-related unfair employment practices. The investigation determined Macy's engaged in unfair documentary practices against work-authorized immigrant employees during the employment eligibility reverification process and some employees suffered economic harm through lost work or seniority as a result. The INA's anti-discrimination provision prohibits employers from treating workers differently in the employment eligibility verification or reverification process by demanding more or different documents, or by limiting the worker's choice of documents, based on an individual's immigration status or national origin.

    According to the settlement agreement, Macy's agreed to revise its employment eligibility reverification policies and procedures and to provide training to its human resources personnel across the country on the INA's anti-discrimination provision.  Macy's also agreed to pay $175,000 in civil penalties to the United States, and to create a $100,000 back pay fund to compensate any individuals who suffered lost wages or loss of seniority as a result of its practices. 
    This is one of the larger fines recently agreed to by the OSC and is similar to other OSC settlements - employers requiring too much in the revertification process. Employers must be vigilant in their immigration compliance or the OSC and/or Immigration and Customs Enforcement will come knocking on your door and assesess large penalties.
  4. Senate's Immigration Reform Bill, Mandatory E-Verify and Increased Penalties for I-9 Form Violations; by Bruce Buchanan, Siskind Susser

    The "Border Security, Economic Opportunity, and Immigration Modernization Act" (SB 744) passed the Senate by a vote of 68 to 32 on June 27, 2013.  If it became law, how would this bill affect employers through E-Verify and penalties for I-9 form violations.
    All employers would be required to utilize E-Verify, although the system would be gradually implemented. Within 90 days after the Act's enactment, federal agencies and federal contractors would be required to utilize E-Verify. One year after the Department of Homeland Security (DHS) publishes its implementing regulations, it may require employers involved in the country's "critical infrastructure" to use E-Verify. All other employers would be required to use E-Verify based on this schedule after publication of the regulations: (a) 2 years - employers with more than 5000 employees; (b) 3 years - employers with more than 500 workers; (c) 4 years - all other employers, including agricultural employers; and (d) 5 years - Indian tribes.  Moreover, an employer, who has been found to have violated the Act through the hiring of undocumented workers, may be required to implement E-Verify at an earlier date even if it is not scheduled to do so.
    The penalties for immigration violations will greatly increase. The civil penalties for "knowingly hiring" unauthorized workers will increase from $375 - $3200 to $3,500 - $7,500 for each unauthorized alien, for the first offense; from $3,200 - $6,500 to $5,000 - $15,000 - second offense; and $4,300 - $16,000 to $10,000 - $25,000 - third or more offenses. Substantive or uncorrected technical violations will result in an increase of civil fines from $110 - $1100 for first offense/per violation to $500 - $2,000; from $550 - $1100 to $1000 - $4000 - second offense; and
    $1,100 to $2,000 - $8,000 - third or more offenses.
    Employers, who hire undocumented workers after their mandatory enrollment date in E-Verify, but fail to verify the employee in E-Verify, will be presumed to have knowingly hired an unauthorized worker.  The verification of a worker's authorization through E-Verify is evidence of an employer's good faith and is grounds to avoid liability, if an individual is later determined to be undocumented.  
    The Senate bill adds additional time and appeals after receipt of a tentative non-confirmation (TNC). Individuals who wish to appeal a TNC will have 10 business days to contact the DHS or SSA.
    Thereafter, the agency will normally have 10 business days to resolve the matter. The Senate bill adds an additional procedure to appeal a non-confirmation by filing an administrative appeal, then to an Administrative Law Judge and to the Circuit Court of Appeals. Currently, there is not any such procedure.  Employers would have a three-day grace period to re-verify existing workers upon expiration of the workers' employment authorization.  Currently, there is no grace period.
  5. USCIS Will be Using Employee E-Mail Address in Case of TNC; Bruce Buchanan, Siskind Susser

    USCIS has just announced if an employee voluntarily provides his or her email address on the I-9 Form, E-Verify will notify the employee of a Tentative Non-confirmation (TNC) at the same time it notifies the employer. Currently, if there is a record mismatch that needs to be resolved before the employee can be confirmed as work authorized, a TNC is issued to the employer, who must then contact the affected employee.  
    This enhancement to E-Verify is made possible by a recent revision recent to I-9 Form, which now allows employees to voluntarily provide their email address. Employers are still required to notify all employees when there is a mismatch of information and a TNC is received. 
    In addition to providing the initial notice of a TNC, E-Verify will send reminder emails to employees if no action to resolve the TNC has occurred within four days of a decision to contest and to notify them about the possible need to update a Social Security or Department of Homeland Security record.
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