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  1. 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.
  2. 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.





  3. 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.

  4. Letters of the Week: February 19 - February 23

  5. "Chain Migration" Was Originally Put in the 1965 Immigration Law to Please Nativists Who Wanted to Keep America White. They Were Wrong. Roger Algase

    This comment is a continuation of my January 19 ilw. com comment on the origins of the current family immigration system a/k/a "chain migration" which was once a neutral or even a scholarly term meaning extended family immigration beyond the immediate "nuclear" family. but has now become a term of animosity and opprobrium used by immigration restrictionists to refer to non-white immigrants in general.

    In my January 19 comment, I began a discussion of the paradox inherent in the fact that a provision which was originally inserted in the landmark 1965 immigration reform at the instigation of nativist Congressmen in both parties (chiefly, but not exclusively, Southern Democrats and Midwestern Republicans) in order to keep America white has had the opposite effect. See:

    "Chain Migration" and the Visa Lottery Originally Promoted White Immigration. That Changed. So Trump and the GOP Now Want to Abolish Them

    http://blogs.ilw.com/entry.php?10342

    Now, one month after my original post, the issue of extended family immigration has become even more contentious and has come under increasing scrutiny because of Donald Trump's efforts to use the issue of relief for Dreamers from the threat of deportation (which Trump himself created by cancelling DACA almost six months ago effective March 5) as a quid quo pro for his non-negotiable demand that Congress agree to abolish legal immigration beyond the nuclear family (and to eliminate the diversity visa lottery - another source of mainly non-white immigration which has been in effect for the past two decades).

    Therefore, it is instructive to look at the history of the "chain migration" provision of the 1965 law to see exactly how it became part of the law, what its purpose was, and how its nativist backers (and almost everyone else involved with this law) failed to predict what its actual effect would be.

    In this discussion, I will refer to two studies by independent experts who, as will be seen below, rely on objective facts for their conclusions and cannot be justly accused of partisanship or bias on either side. The first study is by the Migration Policy Institute, entitled:

    Fifty Years On,
    the 1965 Immigration and Nationality Act Continues to Reshape the United States (October 15, 2015)

    https://www.migrationpolicy.org/arti...-united-states

    The second study consists of an October 3, 2015 article by Tom Gjelten, an NPR policy analyst, member of the Council of Foreign Relations, and the author of a book on the 1965 immigration law. His article is entitled:

    In 1965, A Conservative Tried to Keep America White. His Plan Backfired.

    http://www.wbur.org/npr/445339838/th...mmigration-act

    To begin with, nothing could be less accurate than to think that the overall purpose of the 1965 immigration act was to institute or maintain a white supremacist immigration regime or to favor Europe over other parts of the world.

    To the contrary, the 1965 law was enacted at the instigation of liberal Democrats such as Congressman Emmanuel Celler (D-NY) and Senator Edward Kennedy (D-Mass) in order abolish the openly racist "national origins" immigration quota system of the previous 1924 law which had heavily favored immigration from the "Nordic" countries of Europe (or, to use Donald Trump's notorious January 11 phrase about his own preferred source of immigrants to America 94 years later: "countries like Norway").

    The 1924 law, as everyone who has even the slightest knowledge of US immigration history is well aware, had cut off immigration almost entirely from Asia, Africa and the Middle East, as well as heavily Jewish Eastern Europe and even more heavily Catholic Southern Europe.

    But as President Lyndon Johnson famously said when he signed the 1965 law abolishing these racially motivated quotas, America's new policy would be to ask immigrants: "What can you do for our country?" not"In what country were you born?".

    To be continued in a forthcoming post.

    Roger Algase
    Attorney at Law
    algaselex@gmail.com

    Updated 02-19-2018 at 12:56 PM by ImmigrationLawBlogs

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