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I-9 E-Verify Immigration Compliance

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  1. OSC Settles with Kelly Services; Bruce Buchanan, Siskind Susser

    Office of Special Counsel has reached an agreement with Kelly Services Inc., a staffing company based in Troy, Michigan, resolving an allegation of discrimination based on citizenship status during the employment eligibility re-verification process at one of its branch locations in Schaumburg, Illinois. The investigation concluded that Kelly Services terminated an individual’s employment during the employment eligibility re-verification process when he did not produce a new USCIS-issued document, even though he had a valid unrestricted Social Security card at the time, which is also acceptable to show continued employment eligibility. To resolve the matter, Kelly Services agreed to compensate the former employee for lost wages in the amount of $1,888.60 and pay a $1,100 civil penalty to the United States.
  2. No History of Violations is not Automatic Mitigation; Bruce Buchanan, Siskind Susser

    The Employer, in United States v. The Red Coach Restaurant, 10 OCAHO no. 1200 (2013), appealed an ALJ's decision over several matters, including the refusal of the ALJ to mitigate the penalties by 5% because Red Coach did not have a history of previous violations. The Employer asserted OCAHO "must" mitigate the penalties in this situation. OCAHO stated this could be a factor in the decision-making process but there is no requirement of mitigation based on no history of previous violations. OCAHO cited several cases in support of their position. From counsel's position, this means you should seek mitigation for this factor, especially in settlement negotiations, but be aware it is not required to be utilized as a mitigating factor.
  3. OSC on Re-Verification of Conditional LPR; Bruce Buchanan, Siskind Susser

    [FONT=arial]The Office of Special Counsel (OSC) has recently been busy issuing many Technical Assistance letters. In this situation, an employer requested an opinion as to what to do when an employee, who is a conditional legal permanent resident (LPR), [COLOR=black][FONT=Arial]will not, in the employer's opinion, be able to file for an 1-751 waiver to remove the residency conditions by the expiration date on the employee's green card because the employee's divorce is not yet final. The employer had informed the employee that upon the green card's expiration, he will not be allowed to work until his I-751 waiver request has been filed and he has received his extended work authorization. [COLOR=black][FONT=Arial]
  4. OSC Discourages Pre-Population of Section 1 of I-9; by Bruce Buchanan, Siskind Susser

    One of the hotter I-9 compliance questions these days is whether an employer may pre-populate the data in Section 1 and then have the employee sign and date it. Office of Special Counsel (OSC) has weighed in on the issue through a Technical Assistance letter, dated August 20, 2013. OSC stated it discouraged the practice because it "increases the likelihood of including inaccurate or outdated information. . . . (which) may lead an employer to reject documents presented or demand specific documents for Section 2 purposes." It added this was particularly true if the employee did not get an opportunity to review the information. However, if the employee is still attesting to the information, through their signature, it seems they would have the opportunity to review the information. So, employers should beware of OSC's view of pre-population. On the other hand, ICE has given several inconsistent verbal statements on the matter. In my opinion, to be on the safe side do not pre-populate.
  5. Employer Prevails in Document Abuse Case; by Bruce Buchanan, Siskind Susser

    OCAHO recently held an employer did not engage in document abuse against the charging party. See Guth v. Kaiser Permanente Hawaii, 10 OCAHO no. 1190 (2013). The employee, Guth, stated on his I-9 form that he was a U.S. citizen; however, he was actually a lawful permanent resident (LPR). Kaiser began verifying all current employees when it received a federal contract and opted to do so under FAR E-Verify. When Kaiser submitted Guth’s information listing him as a U.S.citizen, it received a tentative non-confirmation due to the discrepancy between listing himself as a U.S. citizen and actually being a LPR. Thereafter, Guth was referred to Social Security Administration which issued a final non-confirmation. After Guth admitted he was a LPR, Kaiser still tried to help him and spoke to Department of Homeland Security, who advised to close the case and start a new E-Verify request with the LPR information. But Guth presented a LPR card in someone else’s name; thus, it could not be submitted to E-Verify. Subsequently, Kaiser terminated Guth due to final non-confirmation. Guth’s assertion that there was an “E-Verify error” was incorrect as it was Guth’s error in identifying himself as a U.S. citizen when he was a LPR. Furthermore, Kaiser’s request for more documentation was an attempt to assist Guth after he incorrectly identified himself as a U.S. citizen. Thus, OCAHO did not find Kaiser committed any document abuse. This was a nice victory for employers as clearly Kaiser correctly followed the E-Verify procedures and the employee was just looking for someone to blame for his error.
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