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I-9 E-Verify Immigration Compliance

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  1. Can General Contractor Ask Subcontractor's Employees to Produce I-9 Original Document

    I am frequently asked whether a general contractor can order the subcontractor to produce its employees' I-9 forms and supporting documentation. In an Advisory opinion, the Office of Special Counsel (OSC) answered a similar question - can a general contractor require a subcontractor's employees to produce original I-9 verification documents before commencing work on the jobsite? OSC advised this could present a number of problems for the general contractor and/or the subcontractor. Specifically, OSC stated this practice may lead to an allegation that employees are being discriminated against due to their citizenship or immigration status, if they are barred from employment, and/or the practice is discriminatory in violation of the anti-discrimination provision of the INA. In a nutshell, there is very little good that can be gained by these practices. Instead, general contractors may consider requiring its subcontractors to certify they have followed the law and obtained I-9 forms which reflect all of its employees have authorization to work.

    Updated 08-27-2013 at 12:31 PM by BBuchanan

  2. OCAHO gives Company option on terms of paying Penalty; Bruce Buchanan, Siskind Susser

    OCAHO continues to issue lots of decisions in 2013. Today, I am writing about U.S. v. Monadnock Mountain Spring Water, 10 OCAHO no. 1193 (Aug. 2013). As frequently occurs, the inspection involved a small employer. In this case, about 41 employees. Everyone agreed the company failed to timely prepare I-9 forms for 18 employees/former employees. Additionally, the employer committed two other violations. Thus, Monadnock was found to have an error rate of about 49%, which equals $770 per violation on the ICE grid. The issue was whether a proposed penalty of $14,630 would be upheld by OCAHO, especially in light of the company's business losses, its small size, no history of previous violations, and no employment of any unauthorized workers. Usually, these factors will lead OCAHO to show leniency and reduce the penalty. In this case, ICE had already offered the company an opportunity to pay off the penalty over a three-year period of time. OCAHO agreed with both sides and gave the company an option - pay 100% of penalties over a three-year period or pay $10,500 in a lump sum immediately. With the number and amount of penalties increasing, ICE has been offering a payment plan for those companies who can establish financial hardship in paying the penalty. For employers, this is much appreciated and shows ICE is being pragmatic when it comes to paying penalties.
  3. Do Strip Club's I-9s "Make it Rain" for ICE?; by Bruce Buchanan, Siskind Susser

    Do you ever think Immigration and Customs Enforcement (ICE) only audits certain industries? Think again. In September 2010, ICE served a Notice of Inspection (NOI) on a strip club in New York. After its investigation, ICE sought penalties of $38,335 based upon 40 violations. The strip club's violations were failing to prepare the I-9 forms within 3 days and failing to ensure proper completion of employees' I-9 forms.

    In U.S. v. Pharaoh's Gentleman's Club, OCAHO determined Pharaoh’s had committed the alleged violations. However, OCAHO determined Pharaoh’s did show lack of good faith, a 5% aggravating factor, even though it backdated 22 Form I-9s because ICE failed to show the circumstances of the backdating.

    Pharaoh’s major argument was it was under extreme financial pressure as a result of a sales tax audit, which cost the company $120,000, and an assessment of $63,000 for failing to pay unemployment insurance when it classified the dancers as independent contractors. OCAHO decided the assessed penalties were too harsh in light of the “setbacks the company is experiencing.” Thus, it reduced the penalties to $400 per violation for the untimely preparation of the I-9 forms and $450 per violation for the remaining 10 violations. OCAHO reduced the penalty to $17,500; thus, causing a lot less “rain” for Pharaoh’s.

    This case shows the importance of timely preparation of I-9 forms as well as the willingness of OCAHO to consider an employer’s extenuating financial circumstances.
  4. OSC Publishes New Charge Form; by Bruce Buchanan, Siskind Susser

    The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, which is within the Departmentof Justice, has published a new charge form with a revision date of April 15, 2013 (although it was not introduced until recently). It is five pages (with a sixth page providing a Paperwork Reduction Act notice, thereby creating more paper). One must file by mail or e-mail the charge form within 180 days of the alleged date of discrimination. As this blog has discussed, the OSC has become much more aggressive against employers engaging in citizenship status discrimination, national origin discrimination (for those employers with four to 14 employees), document abuse and retaliation.

    Updated 07-25-2013 at 09:21 AM by BBuchanan (spacing problems)

  5. E-Verify adds Idaho Driver's Licenses to RIDE; by Bruce Buchanan, Siskind Susser

    Idaho became the third state to provide its driver's licenses to the E-Verify database. It was effective on July 14, 2013. Mississippi and Florida were the first two states in the database. This program is called RIDE (Records and Information from DMVs for E-Verify). Now, E-Verify will run a driver's license/identification check for those documents issued by Idaho, Mississippi and Florida. The purpose of the driver's license check is to add more data to determine the validity of AN employee for employment authorization. A fourth state, Iowa, will be added in the near future. It has been a slow start for RIDE as Mississippi was the first state to join in June 2011 with Florida following in December 2012.
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