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  1. DOJ Settles National Origin Discrimination Claim Against New York Restaurant

    By: Bruce Buchanan, Sebelist Buchanan Law

    The Division’s Immigrant and Employee Rights Section (IER), within the Department of Justice has reached a settlement with Food Love 125 Inc., d/b/a Ichiba Ramen, a New York City restaurant, to resolve an investigation into whether the restaurant violated the Immigration and Nationality Act’s (INA) anti-discrimination provision.

    The investigation was initiated by a worker, who filed a complaint with IER, alleging Ichiba Ramen’s former chef discriminated against a job applicant when it refused to hire him as a server because he was not Korean or Japanese. The investigation also revealed that prior chefs had not placed such limitations on the restaurant’s hiring of servers. The INA’s anti-discrimination provision prohibits employers with four to 14 employees from discriminating against individuals because of their national origin.

    Under the settlement agreement, Ichiba Ramen will pay a civil penalty of $2000, undergo training on the INA’s anti-discrimination provision, and post notices informing workers about their rights under the INA. The restaurant previously paid $1,760 in back pay to the affected applicant.

    This national origin settlement with the IER is fairly rare as the IER only has jurisdiction on national origin claims involving employers with four to 14 employees. Most national origin claims are filed with the EEOC, who has jurisdiction on national origin claims involving employers with 15 or more employees.

    For answers to many other questions related to the IER, national origin discrimination, and immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.
  2. ICE Wants Warrantless Mass Surveillance Info Amassed by the NSA

    by , 02-21-2018 at 10:01 AM (Matthew Kolken on Deportation And Removal)
    What could possibly go wrong?

    Via The Daily Beast's Betsy Woodruff:

    Officials at Immigration and Customs Enforcement are actively exploring joining the U.S. Intelligence Community, The Daily Beast has learned.

    The effort is helmed by a small cohort of career Immigration and Customs Enforcement (ICE) officials, and has been underway since the Obama administration, according to an ICE official familiar with the matter.


    Internal advocates for joining the America’s spy agencies—known as the Intelligence Community or the IC—focus on the potential benefits to the agency’s work on counterproliferation, money laundering, counterterror, and cybercrime. The official added that joining the IC could also be useful for the agency’s immigration enforcement work––in particular, their efforts to find and arrest undocumented immigrants with criminal arrest warrants (known in ICE as fugitive aliens).


    Click here to find out why this is a tremendously bad idea.

    Updated 02-22-2018 at 11:15 AM by MKolken

  3. OCAHO Reduces Penalties for Two Related Companies

    By: Bruce Buchanan, Sebelist Buchanan Law

    In a calendar year with few decisions, Office of Chief Administration Hearing Officer (OCAHO) issued its last one in U.S. v. Integrity Concrete/American Concrete, 13 OCAHO no. 1307 (2017). In this decision, OCAHO substantially reduced the penalties assessed against Integrity Concrete, Inc. and American Concrete, Inc., which essentially acted as joint employers. This decision only involves the amount of the penalties as Respondents agreed to the liability.

    Factual Scenario for Integity

    Integrity, located in San Diego, CA, was served with a Notice of Inspection (NOI) in January 2015. Thereafter, ICE served Notice of Suspect Documents on Integrity listing eight employees whose I-9 forms could not be verified as authorized to work. Integrity responded none of the eight employees were employed anymore.

    About seven months later, Integrity was served with a Notice of Intent to Fine (NIF), which charged the company with the failing to timely prepare I-9 forms for five employees, failing to ensure that three employees properly completed Section 1 of their I-9 forms, and failing to properly complete Section 2 or 3 of the I-9 forms for 16 employees. ICE assessed a fine of $24,684 based upon a baseline penalty of $935 and 5% enhancement for lack of good faith and seriousness of the violations.

    In Integrity’s answer, it challenged the penalties asserting it was a small employer, numbering 28 employees, which should account for a 5% statutory reduction in the penalty, bad faith should not have been found, and the penalties assessed would place an undue hardship on the company.

    Factual Scenario for American

    American, also located in San Diego, CA, was served with a Notice of Inspection (NOI) in January 2015. Later, American was also served with a Notice of Suspect Documents listing four employees whose I-9 forms could not be verified as authorized to work. American responded none of these employees were employed at its company. ICE assessed a fine of $24,684 based upon a baseline penalty of $935 and a 5% enhancement for lack of good faith and seriousness of the violations.

    ICE also served a separate NIF on American alleging it failed to timely prepare I-9 forms for 10 employees. ICE proposed a fine of $5,390 based on a baseline penalty of $440 plus 5% enhancements for lack of good faith, seriousness of the violations, and employment of three undocumented workers. American filed an Answer asserting it should have received 5% mitigation for each of these factors: small size of its workforce (48 employees), good faith, and the non-statutory factor of leniency toward small businesses.

    OCAHO’s Decision

    The first factor discussed was whether Integrity and American should receive 5% mitigation for being a small employer. ICE asserted the fact that both employers had small workforces, 48 and 28 employees, was inappropriate for determining whether they were small employers. ICE argued it should focus on gross sales and gross assets. The Administrative Law Judge (ALJ) for OCAHO disagreed and applied appropriate caselaw to find both to meet the definition of small employers; thus, they were entitled to the statutory 5% mitigating factor.

    Next the ALJ focused on whether Integrity and/or American should be assessed 5% enhancement for bad faith or 5% mitigation for good faith. ICE asserted three reasons for a finding of bad faith: Integrity backdated one I-9 form; both companies did not complete I-9 forms for some employees until after the NOIs issued; and their failure to present evidence that they utilize E-Verify.

    Although backdating alone is insufficient to support a finding of bad faith, the ALJ found several factors supported a finding of bad faith. However, the ALJ noted the use or non-use of E-Verify is not a factor which should be reviewed in determining good faith/bad faith.

    Concerning the employment of undocumented workers as an enhancement factor, the ALJ stated ICE failed to provide any evidence of their undocumented status. Rather, their enhancement was based on inclusion in the Notice of Suspect Documents. As the ALJ correctly pointed out, an allegation of undocumented status, which is essentially what placement on a Notice of Suspect Documents means, is not sufficient to prove undocumented status. Thus, no enhancement was added for this factor.

    Another issue involving Integrity was whether it established an inability to pay/hardship. The ALJ did not find such, despite a loss of over $600,000, because Integrity paid approximately $500,000 in salaries and benefits – much of which was paid to its shareholders.

    In determining the amount of the penalties, the ALJ was disturbed by the fact that $935 was the baseline penalty for Integrity while only $440 was the baseline penalty for American. Although the ALJ correctly noted the difference in the percentage of errors on the I-9 forms was the basis of the different baseline penalty, he found the companies should be assessed at approximately the same dollar amount and compliance rate alone is insufficient to justify wide variation. Thus, the ALJ assessed $400 baseline penalty for substantive paperwork violations and $500 for failure to prepare I-9 forms.

    Based on this analysis, Integrity was found to have committed five violations for failing to prepare and/or present I-9 forms. Each of these violations will be assessed at $500, with the enhancement factor for seriousness of the violations and mitigation factor for the small size of the business cancelling each other. Accordingly, Integrity is liable for $2,525 under Count I. Under Counts II and III, Integrity was liable for substantive violations for failure to properly complete three I-9 forms and 19 substantive paperwork violations, all assessed at $400 each. Therefore, Integrity is liable for $11,325.

    American was found liable for 11 substantive violations for failing to prepare and/or present I-9 forms. Each of these violations will be assessed at $500, which includes the $500 base fine, with the enhancement factor for seriousness of the violations and mitigation factor for the small size of the business cancelling each other. Accordingly, American is assessed a total civil penalty of $5,500.

    Conclusion

    OCAHO may have slowed down on adjudication of cases but they will be back to speed once they get their allotment of ALJs. In the meantime, now is a great time to conduct an internal I-9 audit under the supervision of an experienced immigration compliance attorney. To find out more about internal I-9 audits as well as other employer immigration compliance issues, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.
  4. Make the compromise: Ending chain migration is a small price to legalize Dreamers. By Nolan Rappaport


    © Getty

    The most controversial of the four pillars in President Donald Trump’s "Framework on Immigration Reform & Border Security" is his demand for an end to chain migration.

    It would be a shame if Trump’s proposal, which offers legalization for 1.8 million Dreamers, is rejected to maintain a practice that was originally established to ensure that immigrants would continue to come mainly from white, European countries.

    “Chain migration,” is a legitimate sociological term that has been used for more than 60 years. The Routledge Handbook of Migration and Language(2017) defines it as:

    “A process where relatives who have previously migrated to a new country sponsor family to migrate to the same country. It entails a tendency by foreigners from a certain city or region to migrate to the same areas as others from their city or region.”

    Trump would make an exception for the spouses and children of American citizens and lawful permanent residents (LPRs). They are part of the citizen or LPR’s nuclear family.


    The history of chain migration.


    The 1924 Johnson-Reed Act established a quota system based on national origins. It reserved about 70 percent of the visas for immigrants from Great Britain, Ireland, and Germany.

    In 1964, President Lyndon Johnson supported a bill that would replace the national origins quota system with a preference system that would allocate 50 percent of the immigrant visas to applicants who have special occupational skills or education that would benefit America’s economic interests. The rest would be distributed to refugees and immigrants with close family ties to citizens or LPRs.


    The House Judiciary Committee Chairman, Rep. Michael Feighan (D-Ohio), mobilized bipartisan resistance to Johnson’s immigration bill. Ultimately, however, he agreed to accept Johnson’s bill if he eliminated its emphasis on merit and skills and reserved most of the visas for immigrants with family ties to citizens and LPRs (chain migration).

    Read more at http://thehill.com/opinion/immigrati...ce-to-legalize

    Published originally on The Hill.

    About the author. Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.





  5. H-1B CAP: PAST DEMAND AND 2018 DEMAND

    by , 02-19-2018 at 01:59 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    This year’s H-1B filing date of April 1, 2018 is coming fast. MU Law predicts that H-1B petitioners will file fewer than the 200,000 petitions that were filed last year.

    When the USCIS receives more H-1B petitions than slots available it holds an “H-1B lottery”. Last year, the USCIS held an H-1B lottery because it received over twice as many H-1B petitions as there are slots available.

    If you are considering filing an H-1B cap-subject petition, MU Law urges you to begin that process now.

    The H-1B is usually associated with IT positons. Most of the H-1B slots are used by IT professionals. Many healthcare professions also qualify for H-1B status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

    International workers who are working in the U.S. on an H-1B visa with another H-1B employer are not subject to H-1B cap. These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

    Employees that need a "cap-subject" H-1B include:

    * International students working on an EAD card under an OPT or CPT program after having attended a U.S. school
    * International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case
    * Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1
    * H-1B workers with a cap exempt organization
    * Prospective international employees currently living abroad

    Past H-1B Demand:


    Year: H-1B Cap Numbers: Date H-1B Cap Reached:
    H-1B 2003 (FY 2004) 65,000 October 1, 2003
    H-1B 2004 (FY 2005) 65,000 October 1, 2004
    H-1B 2005 (FY 2006) 85,000 August 10, 2005
    H-1B 2006 (FY 2007) 85,000 May 26, 2006
    H-1B 2007 (FY 2008) 85,000 April 1, 2007
    H-1B 2008 (FY 2009) 85,000 April 1, 2008
    H-1B 2009 (FY 2010) 85,000 December 21, 2009
    H-1B 2010 (FY 2011) 85,000 January 25, 2011
    H-1B 2011 (FY 2012) 85,000 November 22, 2011
    H-1B 2012 (FY 2013) 85,000 June 11, 2012
    H-1B 2013 (FY 2014) 85,000 April 1, 2013
    H-1B 2014 (FY 2015) 85,000 April 1, 2014
    H-1B 2015 (FY 2016) 85,000 April 1, 2015
    H-1B 2016 (FY 2017) 85,000 April 1, 2016
    H-1B 2017 (FY 2018) 85,000 April 1, 2017
    H-1B 2018 (FY 2019)(projected) 85,000 April 1, 2018




    __________
    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook, Twitter and LinknedIn.

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