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I-9 E-Verify Immigration Compliance

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  1. Owners of Temp Agencies Arrested for Immigration Conspiracy; by Bruce Buchanan

    On January 30, 2014, federal agents arrested the owners of two employment agencies in Houston and charged them with recruiting and placing undocumented immigrants at restaurant jobs around the country, among other federal crimes. If convicted, each defendant faces up to 10 years just on the immigration conspiracy charge.

    The raids on Hong Li Job Agency and the Tai Shan Employment Agency were part of a wider undercover investigation by U.S. Immigration and Customs Enforcement (ICE) that led to the arrest of 30 other suspects including operators and managers connected with Chinese restaurants in Arkansas, Colorado, Kansas, Louisiana, Oklahoma, Maine, Texas and elsewhere who are believed to have knowingly employed and exploited undocumented workers.

    Hiring of unauthorized workers is a violation of section 274A of the Immigration and Nationality Act (INA), which involves the failure of an employer to verify the employment eligibility of any person hired after November 6, 1986, by using the Form I-9.

    The workers, primarily from Mexico and Central America, were allegedly charged a fee of $300 to $480 for job placement which was deducted from their first month's pay. Once hired, they would work 12-hour shifts and 6 days per week at the restaurants, but were not paid overtime or allowed to keep their tips or gratuities. Workers were paid a set amount of $1,000 to $2,000 a month for putting in 72-hours of work per week. The restaurant operators paid less than the minimum wage, paid in cash to avoid employment taxes, and did not provide the workers with health insurance, vacation or sick time, ICE officials said.

    Copies of both indictments are available here and here .

    Click image for larger version. 

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ID:	706 Restaurants specifically identified in the indictments are:

    China Cafe - Brownwood, TX;
    Asian City - Nacogdoches, TX;
    China Star - Bastrop, LA;
    Super Taste China Buffet - Port Allen, LA;
    New China Buffet and Grill - Abbeville, LA;
    Grand Buffet - Nederland, TX;
    King Buffet - Port Arthur, TX;
    Asian Garden - San Marcos, TX;
    Buffet City Asian Cuisine - Rockwall, TX;
    Weng's Buffet City Asian Cuisine - Rockwall, TX;
    Dragon Buffet and Sushi - Sanger, TX

    Updated 02-04-2014 at 05:38 PM by BBuchanan

  2. Over 500,000 Employers Now Using E-Verify; by Bruce Buchanan, Siskind Susser

    The USCIS recently announced more than 500,000 employers now use its E-Verify program. The free tool allows employers, small businesses and large corporations alike, to confirm their new employees’ eligibility to work. This is a sharp increase in usage since the program began in 1996. Originally, just 11,474 companies in fiscal year 1996 signed up for E-Verify. That number jumped ten-fold to 111,671 companies in FY 2012.

    Why the increase?

    In FY 2013, employers’ use of E-Verify increased by almost 500%. Much of the increase can be attributed to improved accuracy since, according to USCIS, 98.8% of work-authorized employees are confirmed instantly or within 24 hours, requiring no further employee or employer action. Additionally, many states have passed their own E-Verify laws and federal contractors and subcontractors are often required to use E-Verify. A useful map of state by state E-Verify requirements is available here .

    It would also be hard to ignore the continued enforcement efforts by Immigration and Customs Enforcement (ICE) whereby certain companies have agreed to use E-Verify, conduct self-audits, and submit to an ICE audit as part of settlement agreements for violations or in acts of voluntary compliance under the “IMAGE” program.

    An immigration lawyer’s perspective

    From an immigration lawyer’s perspective, the increased use of E-Verify means employers are relieved of some of the burden of determining whether an employee’s I-9 Form documentation is authentic. Additionally, E-Verify can act as a safe harbor for employers in many instances.

    Businesses wishing to learn more about E-Verify should read USCIS’s Employer Manual located here .
  3. New and Revised MOUs for E-Verify by Bruce Buchanan, Siskind Susser


    On December 8, 2013, the USCIS issued new and revised sets of Memorandum of Understanding (MOU) for E-Verify agreements. The MOU states the various terms and conditions of all parties involved: employers, agents, and the government.

    The most important points of the new and revised MOUs are:

    1. E-Verify enrollment process has not changed;
    2. Existing users will not need to execute a new MOU; rather they are bound by all changes to E-Verify, including the new or revised MOU that applies to their access method, effective January 8, 2014;
    3. There are revised MOUs for Employers, Employer Agents, and E-Verify Employer Agents;
    4. There are new MOUs for Web Services Employers, Web Services Employer Agents, and Employers using a Web Services E-Verify Employer Agent; and
    5. New users must execute their new or revised version of the MOU that applies to their access method during enrollment.

    According to USCIS, the changes were necessary because of the complexity of E-Verify, the danger of privacy breaches, pre-screening, and illegal discrimination. Furthermore, there are a variety of potential users of E-Verify, each of whom has different rules and requirements.

    The USCIS has also added language that an Employer agrees to contact DHS at 1-888-464-4218 or E-Verify@dhs.gov, immediately in the event of a breach of personally identifiable information.

    To access the MOUs visit: http://www.uscis.gov/e-verify/public...ns-memorandums
  4. Prosecutors Seek $16 million for Immigration Violations; by Bruce Buchanan, Siskind

    An Ohio grand jury returned a 23-count indictment charging six people for their roles in a conspiracy to hire undocumented workers at a chain of restaurants in Ohio, called “Mariachi Locos” and “Mariachi Cocos” and pay them less than minimum wage. Prosecutors are also seeking for defendants to forfeit more than $16 million generated by the restaurants.

    According to the indictment, the defendants engaged in the practice of hiring undocumented workers who were illegally present in the United States and conspired to shield these workers from detection by paying them in cash, excluding them from payrolls, leasing housing for the workers, and aiding the workers in obtaining fraudulent work documentation.

    Prosecutors allege the defendants’ employment practices enabled them to enrich themselves because they paid the undocumented workers less than minimum wage, and did not pay the workers for overtime hours worked.

    The charges include harboring undocumented workers, conspiracy to harbor undocumented workers, aiding and abetting the harboring of undocumented workers, mail fraud, and conspiracy to commit mail fraud. Two defendants are also charged with making false statements to federal law enforcement officers.

    This indictment is just one more example of the high cost of committing employment-related immigration violations, especially when it involves harboring undocumented workers.
  5. Non-Compliance with E-Verify does not Render Company Ineligible for Work

    In Ashland Sales & Service Co. (Nov. 2013), the Government Accountability Office (GAO) dismissed a protest by Ashland Sales & Service Co. (Ashland), of Olive Hill, Kentucky, alleging that a contract for the Defense Logistics Agency was improperly awarded to Creighton AB, Inc. (Creighton), of Reidsville, Kentucky, because Creighton was not enrolled in the E-Verify system at the time of award.

    The issue involved the FAR clause - 52.222-54, Employment Eligibility Verification, which provides a contractor not enrolled in E-Verify at contract award “shall [enroll] within 30 calendar days of contract award.” According to the
    decision, Creighton was not enrolled in E-Verify at the time of award, but it enrolled the next day. The GAO found the requirement in the FAR clause allowing enrollment 30 days following award to be a matter of contract administration “having no effect upon the validity of an award.” Thus, the protest involved an issue outside of the GAO’s bid protest jurisdiction, under which it considers “challenges to the award or proposed award of contracts.”

    Furthermore, the GAO did not find the awardee’s previous noncompliance with the requirement in the FAR clause related to E-Verify, to be disqualifying. In its protest, Ashland stated the same contracting activity involved in the protest had awarded contracts to Creighton and allowed Creighton to perform work without enrolling in E-Verify as required by the FAR clause, which also was included in these earlier contracts. According to Ashland, this prior noncompliance rendered Creighton’s proposal technically unacceptable and ineligible for award. The GAO stated it did not condone Creighton’s prior failure to enroll in E-Verify, but this did not alter its view that Creighton’s proposal was acceptable or that compliance with the E-Verify requirement was a matter of contract administration that it would not review.

    This decision is just another instance of E-Verify becoming an issue in other areas of the law, besides immigration.
    [FONT=Times New Roman]

    Updated 12-10-2013 at 11:54 AM by BBuchanan

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