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I-9 E-Verify Immigration Compliance


  1. E-Verify Extended Through September 30, 2015; by Bruce Buchanan, Siskind Susser P.C.

    On September 28, 2012, President Barack Obama signed SB 3245, which provides for a three year extension, through September 30, 2015, of E-Verify, the EB-5 Regional Center Program and the Conrad 30 J-1 Waiver program. Congress passed this legislation, which was a mere four pages, on September 13, 2012.
  2. Company’s Response to E-Verify Tentative Non-confirmation is Costly by Bruce Buchanan, Siskind Susser

    Diversified Maintenance Systems LLC (DMS), a Tampa-based provider of janitorial and facilities maintenance services, has agreed to settle a case with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), a part of the Department of Justice, resolving allegations that the company violated the anti-discrimination provision of the Immigration and
    Nationality Act (INA) when it failed to fully reinstate an employee in retaliation for asserting her right to work in the U.S.
    An employee alleged DMS failed to provide her with proper notice and instructions for contesting a tentative non-confirmation in E-Verify.  While the employee immediately visited the Social Security Administration (SSA) after receiving verbal notice of the initial data mismatch and instructions from her supervisor, the employee alleged the supervisor failed to give her the proper E-Verify paperwork which would have enabled the SSA to resolve the mismatch.   As a result, E-Verify provided an erroneous "final non-confirmation" to DMS, stating the employee was not eligible to work in the U.S.   
    Thereafter, DMS terminated the employee, and the employee contacted the E-Verify hotline for
    help.   An E-Verify agent notified DMS that the employee was authorized to work, but the employee's manager refused to reinstate her, allegedly because she contacted E-Verify and asserted her right to work under the anti-discrimination provision of the INA.    
    The INA protects employees from discriminatory practices in the employment eligibility verification process, including E-Verify, and prohibits employers from retaliating against individuals who assert their rights or oppose a practice that is illegal under the provision. 
    Under the settlement agreement, DMS agreed to pay $6,800 in backpay and interest to the employee and a $2,000 civil penalty.  The company also agreed to training by the Justice Department on the anti-discrimination provision, and training by the Department of Homeland Security on proper E-Verify procedures.   
    This settlement is a wonderful example of how employers should obtain immigration counsel. Specifically, someone who is experienced in employment compliance to help them decide whether to implement E-Verify, guide them on its implementation and confer with when dealing with tentative non-confirmations.
  3. Company and its Owner Plead Guilty to Cover-up of Unlawful Hiring by Bruce Buchanan, Siskind Susser

    In another instance of Immigration and Customs Enforcement (ICE) cracking down on employers who are hiring undocumented workers, the owner of Wazana Brothers International, which does business as Micro Solutions Enterprises (MSE), agreed to plead guilty to one felony count of false representation of a Social Security number. Yoel Wazana admitted in the plea agreement that he caused two employees to use the Social Security numbers of relatives in order to remain employed after ICE's Homeland Security Investigations (HSI) began an investigation of the company. 
    MSE agreed to plead guilty to one misdemeanor count of continuing employment of unauthorized aliens. MSE admitted hiring approximately 55 unauthorized workers, and then continuing to employ them after the ICE audit had begun. Furthermore, the company admitted it knew, or deliberately avoided knowledge of the fact, that the individuals were not authorized to work in the
    United States.
    Under the terms of the plea agreement, MSE agreed to pay $267,000 in civil and criminal fines. Beyond the monetary sanctions, the plea agreement requires the company to be on probation for three years, during which time it will implement a series of stringent measures to ensure it is complying with the nation's hiring laws. Those steps include retaining an independent compliance monitor to oversee the completion and maintenance of the firm's hiring records, and providing training to employees regarding federal hiring laws.
    The charges against Wazana and his company are the result of an investigation into MSE's hiring practices that was initiated by HSI in 2007. According to court documents, shortly after MSE received notification in April 2007 that HSI planned to audit the company's payroll and hiring records, Wazana directed that about 80 of MSE's most experienced employees - at least 53
    of whom did not have work authorization - be relocated to another manufacturing facility. When investigators requested hiring records from MSE on three separate occasions, the company failed to provide paperwork for those unauthorized workers. After learning of the ICE audit, Wazana conducted meetings with MSE's assembly line workers, instructing them to obtain valid work authorization documents and return with those documents, suggesting that he did not care if the documents were actually theirs.
  4. DOJ Settles Discrimination Claim against MicroLink Devices; by Bruce Buchanan, Siskind Susser

    The Justice Department has reached a settlement agreement with MicroLink Devices, an Illinois manufacturer of semiconductor structures and advanced solar cells.  The agreement resolves allegations that the company violated the anti-discrimination provision of the Immigration and
    Nationality Act (INA), when it placed six online job postings that explicitly stated citizenship status requirements that excluded certain work-authorized non-citizens from consideration.
    Under the INA, employers may not discriminate on the basis of citizenship status unless required to comply with law, regulation, executive order or government contract.   Although MicroLink Devices is a party to several federal contracts subject to the International Traffic in Arms
    Regulations (ITAR), which control the export and import of sensitive technology, ITAR does not require or permit employers to limit job applicants to or prefer U.S. citizens in the hiring process.  The job postings therefore impermissibly discriminated against non-citizen workers eligible for the advertised positions, such as lawful permanent residents, refugees and asylees.
    Under the settlement agreement, MicroLink Devices will pay $12,000 in civil penalties, revise its hiring and recruiting procedures, conform future job postings to the requirements of the law, and to be subject to training, reporting and compliance and monitoring requirements.  
    This settlement is just another example of how companies need to consult with their immigration and employment attorneys (usually separate attorneys though in my case, I am both) about job postings and requirements.
  5. I-9 form with August 31, 2012 Expiration Date is Still Valid by Bruce Buchanan, Siskind Susser

    On August 13, 2012, the USCIS  announced employers should continue using the current I-9 form version even though the I-9 form's expiration date is August 31, 2012. Employers should use the
    current version of Form I-9, but the USCIS instructions for the Form I-9 state that the agency also accepts the prior version of the Form I-9, which bears a  revision date of February 2, 2009.
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