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I-9 E-Verify Immigration Compliance

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  1. OCAHO Reduces Company’s Penalty by 60 Percent; by Bruce Buchanan, Siskind Susser

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    OCAHO is on a roll this year as it issued its third decision in just the first six weeks of 2014. This time, it reduced a home healthcare company's penalty by about 60%.

    I-9 Form Violations

    In U.S. v. New Outlook Homecare, LLC, 10 OCAHO no. 1210 (2013), ICE sought a penalty of over $21,500 for substantive violations – failing to ensure completion of Section 1 and failing to property complete Section 2 or 3 of the I-9 forms. The company asserted the errors were “minor clerical errors”; however, OCAHO disagreed and found substantive violations.

    Calculation of Penalties and Company’s Arguments

    ICE calculated the penalties with a baseline penalty of $935 per violation because over 50% of the I-9 forms had substantive errors. ICE mitigated the penalty by 5% due to the small size of the business but enhanced the penalty by 5% based on the seriousness of the violations.

    The company argued the penalty was “unreasonable and excessive.” It argued for a penalty of $150 per violation because ICE did not give the company sufficient credit for following the law and not hiring unauthorized workers. Furthermore it asserted it possessed good faith.

    OCAHO Decision

    Although OCAHO found the violations to be serious, it determined the penalty was near the maximum allowed of $1100 per violation and that level of penalty should be reserved for “more egregious violations.” OCAHO did not find the violations to be egregious in this case. Finally, it noted that small companies should be given leniency under the Small Business Regulatory Enforcement Fairness Act. Thus, OCAHO reduced the company’s penalty to $9450.

    The reduction in the penalty of about 60% is greater than OCAHO’s average reduction of 46.5% and 45% in 2012 and 2013, respectively.
  2. OIG Report Shows ICE Makes Large Reductions in Penalties; by Bruce Buchanan

    [FONT=Times New Roman][COLOR=#000000]In fiscal years 2009 through 2012, Immigrations and Customs Enforcement (ICE) reduced proposed penalties in Notices of Intent to Fine (NIFs) from $52.7 million to $31.2 million in Settlement Agreements/Final Orders. This information was located in a Report, dated February 11, 2014, issued by the Office of the Inspector General (OIG), wherein it reviewed ICE’s performance related to worksite enforcement and its assessment and collection of penalties/fines nationwide and review of the performances of five field offices – Chicago, Denver, Los Angeles, Miami, and New Orleans.
  3. Company Ordered to Forfeit $185,000, Restaurant Owner Fined $10,000;by Bruce Buchanan

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    Premier Paving Inc. (PPI), a Denver-based corporation, was sentenced to forfeit nearly $185,000 in criminal proceeds for its criminal practice of hiring undocumented workers. The forfeited money will go to the Department of Transportation federal highway fund as some of the undocumented workers performed work on federal transportation projects.

    At approximately the same time, late January 2014, Juan Carlos Angel, owner of several Peppers Mexican Grill & Cantina locations in Jacksonville, Florida, who had previously pled guilty to engaging in a pattern of hiring undocumented workers, was ordered to pay a $10,000 fine for hiring five undocumented workers.

    PPI Hires Undocumented Workers and Settles with ICE for $11,000 in Penalties
    According to the plea agreement with PPI, the investigation began in 2007 when Immigration and Customs Enforcement (ICE) audited PPI's employment records and found it had committed violations of hiring employees not authorized to work in the U.S. PPI knowingly hired and continued to employ workers who were not authorized to work because they did not possess the documents required by law to complete an I-9 form. In 2008, PPI and ICE entered into a settlement agreement whereby PPI paid $11,000 in penalties and would only “hire only U.S. citizens and aliens authorized to work in the United States."

    PPI Continued to Employ Undocumented Workers - Forfeits $185,000
    Despite the 2008 agreement, PPI began working with an employment agency, “Servicios de Migracion Para Todos.” (“Immigration Services for Everyone”) and continued to employ workers who were not authorized to work in the U.S. Another review by ICE in September 2012 determined that the company employed unauthorized workers, and failed to adequately complete I-9 forms for a number of employees hired between January 1, 2011 and September 20, 2012.

    Owner of Restaurants Guilty of Hiring Undocumented Workers and Pays $10,000 fine
    In the Peppers Mexican Grill & Cantina case, in June 2013, ICE agents arrested four employees for document fraud after conducting an inspection of the restaurant’s Form I-9s, pursuant to a Notice of Inspection. Based on information gathered from the inspection, ICE agents determined Juan Carlos Angel hired five employees who were undocumented and not legally permitted to work in the United States. Thus, Angel pled guilty and paid a $10,000 fine. A copy of the Factual Basis and Plea Agreements are available here .
  4. OSC Issues Helpful Technical Assistance Letters; by Bruce Buchanan, Siskind Susser

    The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment practices just recently issued two interesting Technical Assistance Letters to answer common questions from employers.

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    Several questions were asked pertaining to Driver Authorization/Driver Privilege Cards, which were described as “cards issued by states to individuals who are unable to document proof of lawful status," and who are often not authorized to work in the United States. It was further explained that "different States currently or may in the future have different formats for these documents and/or annotations that specifically reference whether such documents are acceptable for federal identification purposes on the face of the documents."

    Specific employer questions were:

    1. Do such cards constitute acceptable List B documents to evidence identity during the Form I-9 completion process?

    2. May an employer employ an individual who presents this type of card given that such documents are statistically issued to predominantly undocumented individuals?

    3. May an employer employing an individual who has shown this type of card for I-9 or other purposes be deemed to have knowingly employed an individual who is not authorized to work in the United States?

    OSC’s answer:
    “According to the Form I-9 Lists of Acceptable Documents, a driver's license or ID card issued by a State or outlying possession of the United States [satisfies the criteria to be considered a List B document] provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address."

    To that extent, employers are cautioned against concluding that an individual is not legally authorized to work in the United States based on a perception that a List B document is "statistically issued to predominantly undocumented individuals." An employment-authorized individual whose List B document is rejected because an employer made this assumption may allege discrimination on the basis of national origin or citizenship status in violation of the anti-discrimination provision of the INA by filing a discrimination charge with OSC.

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    4. In the context of an internal Form I-9 audit, may an employer request the employment eligibility documentation presented at the time the Form I-9 was completed, if the copies of the documentation "are unclear and prevent [the] forensic evaluation of their genuineness?"

    5. May the employer, alternatively, request current employment authorization documentation if the documentation presented at the time the Form I-9 was completed is no longer available?

    OSC’s answer: “The employer may have a significant need to ensure an authorized workforce in a sale to another company or to avoid losing valued employees in an ICE audit. As a threshold matter, the standard for reviewing Form I-9 documentation during an internal audit does not change from the standard applied during the initial employment eligibility verification process. An employer is required to accept Form I-9 documentation that reasonably appears to be genuine and to relate to the individual presenting the documentation." OSC noted that this standard does not require an employer to utilize forensic techniques, and that different levels of scrutiny based on the type of document or the citizenship status or national origin of the employee may violate the anti-discrimination provision.

    Further, as employers are not required to photocopy I-9 documentation (except for certain documents when an employer uses E-Verify), OSC suggests an employer should not conclude, solely based on unclear photocopies of Form I-9 documentation, that an employee's Form I-9 documentation is not genuine or does not relate to the individual. Requesting such documents on the basis of citizenship status or national origin may also violate the anti-discrimination provision of the INA.

    Copies of the OSC Technical Assistance Letters are available here and here.

    Updated 02-12-2014 at 01:38 PM by BBuchanan

  5. OSC Settles with City over Citizenship Status Discrimination; by Bruce Buchanan

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    The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, an agency within the Department of Justice, reached a settlement with the City of Waterloo, Iowa, on January 30, 2014, resolving allegations that the city violated the anti-discrimination provision of the Immigration and Nationality Act (INA).

    An investigation was initiated after a charge was filed by a work-authorized, lawful permanent resident (Charging Party) alleging that the City of Waterloo refused to consider him for a firefighter position because he was not a U.S. citizen. The investigation confirmed that the City of Waterloo improperly restricted firefighter positions to U.S. citizens despite the fact that no law, regulation, executive order or government contract authorized the city to legally restrict employment in such a manner under the INA.

    Under the settlement agreement, the City of Waterloo must provide the Charging Party with a new opportunity to apply for the firefighter position. If the results of the firefighter testing process show he would have been previously hired, the City must pay him back pay for the period of time he would have been hired in the absence of discrimination. If the test results show he would not have been hired at that time, but had a qualifying score, he must be placed in line to be hired at a later date if a firefighter position becomes available for which his score qualifies him. In addition, the city must pay $13,000 in civil penalties to the United States, make changes to its policies and practices to ensure unlawful citizenship requirements are not imposed, provide training to city officials, and be subject to monitoring by the department for one year.

    This settlement demonstrates the OSC is continuing the trend of 2013 in vigorously investigating charges of discrimination under the INA and assessing fines against employers that violate the INA.

    A copy of the settlement agreement is available here .

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