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No Summer Vacation for the Office of Special Counsel


The Office of Special Counsel for Immigration Related Discrimination (OSC) has been very busy in the last few weeks. While many employers and their employees have been enjoying traditional August vacations, the OSC has been conducting investigations, bringing suit and issuing advisory opinions on discrimination and compliance in the I-9 process. A rundown of their latest actions is below: 

Requiring Green Cards for I-9 Completion

Forever 21, a popular clothing retailer, has been fined for the illegal practice of requiring a foreign national to provide a green card during the I-9 process. Forever 21 made the mistake of refusing to accept an Employment Authorization Document (EAD) and telling the employee to present a green card for completion of the I-9. The individual, who was employment-authorized as an applicant for permanent residence, was forbidden to work following the rejection of her EAD. Pursuant to the settlement agreement, Forever 21 will pay $1,705.50 in back pay to the charging party, pay $280 in civil penalties to the U.S., and receive training on the anti-discrimination provision. To read more, click here This situation is an example of document abuse, when an employer refuses to accept legal documents and/or requests more or different documents than what the employee presents.  This situation can be easily avoided by the training of employees who are responsible for the I-9 process.

Requiring an EAD for I-9 Completion

SOS Employment Group made the mistake of rejecting an un-restricted social security card and valid driver’s license of a foreign national with refugee status. The company committed document abuse when it rejected these documents and asked the employee to present an EAD at both initial hire and when subsequently re-verifying the refugee's employment authorization. Pursuant to the settlement agreement, SOS Employment Group will pay back pay in the amount of $9,157.50 to the charging party and $1,200 in civil penalties to the U.S. and receive training on the anti-discrimination provision. To read more, click here. 

Re-Verification of I-9 Documents by General Contractor Discouraged

The OSC has issued a Technical Assistance Letter in response to a question from an employer as whether it is permissible for a general contractor to re-verify I-9  documents presented by the employees of a subcontractor at any time during the contractor-sub-contractor relationship.  The answer according to the OSC is No, as this practice may constitute document abuse and citizenships status discrimination.  

 The OSC explains that this practice is problematic due to the  passage of time and the fact that the employee many no longer have the documents originally presented: The document(s) has expired and the employee now has a newer version of the originally presented document The employee has a different document due to adjustment of immigration status (i.e., from a lawful permanent resident to a U.S. citizen) and has forfeited his or her originally presented document; or The document has been lost, stolen or misplaced.  

 The OSC also explains that  “To the extent such individuals are barred from employment, they may perceive that the general contractor and/or subcontractor has discriminated against them based on their citizenship or immigration status. Because the proposed practice relates to the original 1-9 verification process, such employees might also allege discriminatory I-9 practices in violation of the anti -discrimination provision.”

Sharing I-9s with Payroll Companies Prohibited

In another Technical Assistance Letter, the OSC addresses an employer’s question as to whether when changing payroll companies it would be permissible to provide the new company with all I-9 forms for the purpose of data sharing. The OSC, relying on I-9 privacy requirements, answers in the negative.

8 C.F.R. § 274a.2(b)(4) states the following: (4) Limitation on use of Form 1-9. Any information contained in or appended to the Form 1-9, including copies or electronic images of documents listed in paragraph (c) of this section used to verify an individual's identity or employment eligibility, may be used only for enforcement of the Act and sections 1001 , 1028, 1546, or 1621 of title 18, United States Code. As a result, the OSC stated, “[i]n our view, sharing Forms 1-9 with a private entity in order to have that entity verify employees' identities for payroll purposes is not a use related to enforcement of the Act or one of the specified criminal laws, as set forth in the statute and accompanying regulations.” The OSC also reaffirms that the practice of allowing a third party vendor to review I-9 forms  may result in the  third party vendor questioning the sufficiency of documents presented to the employer, which documents the vendor would have not seen in their original form. “To the extent the employer requests additional or different documents from an employee based on the vendor's scrutiny of Forms 1-9, the request could be perceived by the employee to constitute document abuse in violation of the antidiscrimination provision of the INA."

Similarly, use of information gathered during the E-Verity process, such as print-outs of E-Verify results is also subject to similar restrictions on its use. Under the E-Verify MOU, an employer must "use the information it receives from SSA or DHS pursuant to E-Verify and this MOU only to confirm the employment eligibility of employees as authorized by this MOU." Art.H, C.l3. Further, an employer is required to ensure that the information is "not disseminated to any person other than employees of the Employer who are authorized to perform the Employer's responsibilities under this MOU, except for such dissemination as may be authorized in advance by SSA or DHS for legitimate purposes." Id. Additionally, the E-Verify MOU states that information which the employer receives from SSA is governed by both the Privacy Act and the Social Security Act, and that misuse of the information may result in criminal penalties. Id.; Art. II, C14. There may be other relevant federal, state, or local laws, regulations or executive orders regarding the dissemination of personally identifiable information (PH) similar to that contained in the E-Verify print out and Form 1-9 by which your client must abide.

New Information Sharing Agreement between OSC and NLRB

The OSC and the National Labor Relations Board executed a Memorandum of Understanding allowing the NLRB to make referrals to OSC, with the express authority of the NLRB charging party, when a matter before the NLRB suggests a possible violation of the anti-discrimination provision, such as verification of employment authorization, in the I-9 or E-Verify process, that appears to be discriminatory based on citizenship status or national origin. 

Similarly, OSC will refer matters to the NLRB that appear to fall within that agency’s authority, such as infringement on the right to form, join, decertify or assist a labor organization, and to bargain collectively through representatives of their own choosing or to refrain from such activities.  The MOU also provides for cross-training and technical assistance to ensure that staff within each agency can identify appropriate referrals.  OSC has more than 50 partnership agreements with federal, state and local agencies, including U.S. Citizenship and Immigration Services and the Equal Employment Opportunity Commission.  For More information click here. 

 
 
 
 

OCAHO Decisions Imposing Lower Fines Reflect A Trend


By Hector A. Chichoni

During 2012 and 2013, The Office of the Chief Administrative Hearing Officer (OCAHO) rendered an important number of decisions imposing lower fines in connection with employers’ violation of the Immigration Reform and Control Act of 1986 (IRCA). These OCAHO decisions seem to reflect a trend towards reducing fines from those sought against employers by the Immigration and Customs Enforcement (ICE). Moreover, these OCAHO decisions seem to show a "well-entrenched" preference, in the absence of egregious violations, for a “middle-of-the-road” approach when it comes to imposing fines. The OCAHO has clearly stated in several of these decisions that fines must reflect an “amount closer to the mid-range of possibilities.”

The following is a list of selected decisions issued by OCAHO during 2012 and 2013 showing a trend in the imposition of fines, which reflect an “amount closer to the mid-range of possibilities”:

U.S. v. Pagasus Restaurant, fines were reduced from $131,554 to $47,427 (1/5/12);

U.S. v. H&H Saguaro Specialists, fines were reduced from $18,700 to $3,350 (2/15/12);

U.S. v. Four Seasons Earthworks, fines were reduced from $15,361 to $9,500 (6/7/12);

U.S. v. Stanford Sign & Awning, fines were reduced from $12,523 to $9,600 (6/21/12);

U.S. v. Forsch Polymer, fines were reduced from $11,827 to $4,600 (8/24/12);

U.S. v. Santiago’s Restaurant, fines were reduced from $52,529 to $20,100 (8/24/12);

U.S. v. March Construction, fines were reduced from $86,933 to $17,120 (11/13&26/12);

U.S. v. Taste of China, fines were reduced from $13,900 to $5,100 (1/10/13);

U.S. v. Nebeker, Inc. d/b/a Aire Serv., fines were reduced from $22,627 to $10,800 (1/16/13);

U.S. v. Occ. Res. Mgmt., Inc., fines were reduced from $187,000 to $108,000 (1/23/13);

U.S. v. La Hacienda Mexican Café, fines were reduced from $22,400 to $9,600 (1/24/13);

U.S. v. Fowler Equipment Co., fines were reduced from $77,418 to $41,400 (2/20/13);

U.S. v. MEMF LLC (Black & Blue S&C), fines were reduced from $44,165 to $32,850 (3/1/13);

U.S. v. El Azteca Dunkirk, Inc., fines reduced from $11,000 to $2,200 (3/13/13);

U.S. v. Seven Elephants Distrg. Corp., fines were reduced from $34,900 to $14,500 (03/18/13);

U.S. v. Siam Thai Sushi Restaurant, fines were reduced from $16,830 to $8,350 (3/18&21/13).

Although, many employers may be relieved to read about this trend, OCAHO’s recent willingness to apply fines that are “closer to the mid-range of possibilities”, it still remains true that compliance is always better.  ICE can be expected to persist in its effort to extract the highest possible penalties.

 
 
 
 

Immigration Reform Could End US Employers’ Compliance Nightmares


By Hector A. Chichoni

For quite some time now, the government has been carrying out immigration enforcement actions which have become a nightmare for employers in the United States. Although this nightmare often results from employers’ lack of compliance; the government shares a great deal of the blame for not providing employers with avenues to resolve those problems. In other words, because of political pressure, the government has created an immigration compliance imbalance by enacting laws which only provide for compliance and enforcement, but no solutions. Moreover, this imbalance can only be resolved by business-smart sweeping changes, which will allow employers to meet their human resource needs, avoid fines, and encourage compliance while protecting the domestic work force.

The following hot-off-the-press immigration information quoted directly from The Washington Post, Associated Press, and Politico, seems to suggest that an immigration reform deal being worked out in Congress will contain proposals that could end the nightmare. If these proposals are enacted, a wide variety of industries, such as hospitality, construction, retail, information technology, agriculture, meatpacking, healthcare, and others will be among the first industries to benefit. In his article, Business, Labor Dispute Holds Up Senate Immigration Proposal (Washington Post, March 22, 2013), David Nakamura states that:

"The AFL-CIO and Chamber of Commerce have agreed to a general framework that would add up to 200,000 new visas per year for a new guest worker program for foreigners. The Chamber has pushed for the workers – who would include maids, waiters, child care workers, home nannies and meat packer — to be paid one step below the median hourly wage scale in their respective industries. But the labor union wants them to be paid one step higher than the median. In the case of a waiter, for example, the difference would be between $8.93 per hour (or $18,600 a year) and $10.61 per hour ($22,100), according to the sources … Randy Johnson, the Chamber’s senior vice president of Labor, Immigration, and Employee Benefits, said in a statement: “Our position has consistently been that the wage issue should be resolved by sticking with current law.  Any temporary worker program would require that an immigrant worker be paid the greater of actual wages being paid to comparable American workers or the prevailing wages.  In some cases, the prevailing wage determination by the U.S. Department of Labor concludes that the employer’s actual wages are less than prevailing. If DOL so determines, then the employer must pay the prevailing wages in order to hire a foreign worker. The requirement to rely on a DOL prevailing wage determination has been in US immigration law since 1990. All the business community is saying is that we want to retain this standard.” Erica Werner, in her article Senate Gang Of 8 Close On Immigration Deal (The Associated Press, March 22, 2013) states that:

"A bipartisan group of senators is nearing agreement on a comprehensive immigration bill that would put illegal immigrants on a 13-year path to citizenship, officials with outside groups keeping up with the talks said Thursday. . . .  The legislation also would install new criteria for border security, allow more high- and low-skilled workers to come to the U.S. and hold businesses to tougher standards on verifying their workers are in the country legally, according to outside groups and lawmakers involved. Together, the measures represent the most sweeping changes in immigration law in decades . . . .   Several officials with outside groups said the biggest remaining areas of disagreement dealt with legal rather than illegal immigration. Top among them was a proposed program to bring in tens of thousands of new immigrants to fill low-skilled jobs. It had been the subject of difficult negotiations between the U.S. Chamber of Commerce and AFL-CIO . . . .  The two sides made substantial progress, including agreeing on a cap of 200,000 visas in the new program, but they continued to disagree on wages for the new workers, according to one official. Senators were mediating offers and counteroffers . . . .  The officials described the status of the discussions on condition of anonymity because they were not authorized to speak publicly about them . . .  The new bill would contemplate a 10-year wait for illegal immigrants already in the U.S. before they could get a green card allowing them permanent residency, senators have said. During that time they would be in a provisional legal status and would not have to return to their home countries as current law requires. Once they got the green card, they would have to wait three years to be able to apply for citizenship, compared to the five-year wait that most green-card holders currently have to abide, outside officials say they've been told. The new three-year wait was first reported by The New York Times. The bill will be lengthy and cover numerous other thorny issues, including mandating a currently voluntary program called E-Verify that helps businesses check their workers' papers, as much as doubling visas that go to high-tech workers, and limiting family-based immigration to put a greater emphasis on skills and employment ties instead."

Lastly, Kate Nocera, Manu Raju, and Anna Palmer in their article Senators Hit Late Snag In Immigration Talks (Politico, March 22, 2013), wrote that:

"Under the bipartisan outline of a deal the Gang of Eight reached in January, businesses would be able to hire lower-skilled immigrant workers when Americans were not available or willing to fill jobs. The outline calls for a program for immigrants to fill farm worker positions when Americans are unavailable. It would create a sliding scale based on the economy’s strength, allowing for more lower-skilled immigrants to enter the country in periods of job growth and for fewer foreign low-skilled workers when the economy is sagging."

The reality is that the U.S. Immigration and Customs Enforcement (ICE) will continue to send a very clear message that, for employers, their worst immigration compliance nightmare continues. Therefore, the present immigration compliance situation in our country is unsustainable. As we move towards a solution, Congress and the President will have to forge an agreement on immigration reform.  A reform with sweeping changes, which will try to cure the immigration compliance imbalance that has been created by previous laws and regulations, seems now within reach.  But the devil does not seem to be so much in the detail, but in the deal.

 

 
 
 
 

Is OCAHO Gone Soft on Fines?


By Hector A. Chichoni

This is a brief report on some of the most recent, and somewhat surprising, decisions issued by the Office of the Chief Administrative Hearing Officer (“OCAHO”)  in connection with the employer sanction provisions of the Immigration and Nationality Act (“INA”), as amended by the Immigration Reform and Control Act of 1986 (“IRCA”).  Although, these decisions do not completely side with employers; they are surprisingly more benign to employers than past decisions. Some of these decisions appear to auger a somewhat “kinder and gentler” course in the application of employer sanction rules and policies with respect to fines. However, the U.S. Immigration and Customs Enforcement (“ICE”)’ continues to initiate high numbers of investigations and audits, and pursue the highest possible fines and penalties available under statute and regulations, regardless of whether such high fines are warranted.

Here are a few examples of recent OCAHO decisions:

In US v. MEMF LLC d/b/a/ Black & Blue Steak & Crab – Buffalo (“MEMF”) (03/01/2013), a case in which a small company had no prior history of violation, no presence of unauthorized workers found at the time of the investigations, ICE determined that the company, although acting in good faith, nonetheless failed to ensure that each of seventy-three hired employees properly completed “section 1 of Form I-9, or failed itself to properly complete section 2.” True to form, ICE sought highest penalties in the amount of $605 for each violation, or a total of $44,165.

In this particular case, OCAHO reduced the fine, finding that:

"MEMF’s point is well taken that most of the statutory factors weigh in its favor. First, the record does not support the government’s finding that the restaurant is a large employer. The memorandum accompanying the government’s submission states unequivocally that the number of employees was 234, but the record makes clear that MEMF never had that many employees during a single time period. Our case law has previously noted the high turnover inherent in the restaurant industry, and in assessing the number of employees has focused on the number that were actually working at a particular time rather than on the aggregate number of total employees and former employees. Cf. United States v. Pegasus Rest., 10 OCAHO no. 1143, 6-7 (2012) (also considering the Small Business Administration standards for code 5812, noninstitutional “eating and drinking places”);United States v. Snack Attack Deli, Inc., 10 OCAHO no. 1137, 7 (2010)." [Emphasis added.]

In other words, the number of employees who must be considered for purposes of calculating fines is the number of employee that actually worked at a particular time rather than “the aggregate number of total employees and former employees.”

OCAHO reduced the fine, concluding that:

"Apart from seriousness, all the other factors are favorable to the employer. The company is small, it acted in good faith, and it had no unauthorized workers or previous history of noncompliance. MEMF did not argue an inability to pay the amount requested but invoked a different nonstatutory factor of equity, and said that the proposed penalty would create an undue hardship for the business and was disproportionate in light of all the favorable factors. Considering the record as a whole in light of all the facts and circumstances, the penalties will be adjusted as a matter of discretion to $450 each or a total of $32,850." [Emphasis added].

In U.S. v. El Azteca Dunkirk, Inc. (“El Azteca”)(03/13/2013), which also involved a small restaurant with no history of prior violations, ICE sought high penalties of $11,000 for twenty violations (substantive violations of failure to enter proper List A, B, or C documents in section 2 and bad faith), for all past and present employees. Moreover, ICE alleged that illegal conduct on the part of the owners had taken place, but offered no evidence.

In this particular case OCAHO stated that “the facts recited in the memorandum may support an assertion that the violations are serious, but they do not support a finding of bad faith.” Moreover, OCAHO further explained that “the government has the burden of proof to demonstrate the existence of any aggravating factor by a preponderance of the evidence, see United States v. Carter, 7 OCAHO no. 931, 121, 159 (1997), and that burden has not been met with respect to the assertion of bad faith.”

OCAHO concluded that:

"The record here does not support enhancement of the government’s baseline penalties on the bases requested. Were I approaching the question de novo, a somewhat higher penalty would be assessed, but here there is no compelling reason not to give the company the benefit of the government’s original baseline penalty without the enhancements. In view of the minimal fine assessed no payment schedule will be established … El Azteca Dunkirk is liable for twenty violations of 8 U.S.C. § 1324a(b) and is directed to pay penalties in the amount of $2200." [Emphasis added.]

In US v. Seven Elephants Distributing Corp. (“Elephant”)(03/18/2013), a case in which OCAHO found that an employer’s copying of documents and attaching them to a form I-9, cannot “substitute for properly completing section 2 of an I-9 form.” Elephant’s failure to complete section 2 of the I-9s, a substantive violation, was aggravated by the fact that seven unauthorized workers were found in connection with the inspection. Yet, OCAHO reduced the fines in its decision stating that:

"The penalties the government requested are very near the maximum permissible, and appear disproportionate to the current size and status of the employer. As explained in United States v. Pegasus Restaurant., Inc., 10 OCAHO no. 1143, 7 (2012), proportionality is critical to setting penalties, and penalties so close to the maximum should be reserved for more egregious violations than are shown here, United States v. Fowler Equipment Co., 10 OCAHO no. 1169, 6 (2013). They will accordingly be adjusted to an amount closer to the mid-range of permissible penalties. For the most serious violation, that in Count I, the penalty will be assessed at $600. For the seven violations in Count II that involve the I-9s of unauthorized workers, the penalties will be assessed at $500 each. For the remaining twenty-six violations in Count II the penalties will be assessed at $400 each. The total penalty is $14,500." [Emphasis added].

In U.S. v. Siam Thai Sushi restaurant, d/b/a Four Siamese Company, Inc. (“Siam”)(03/27/2013), a case in which ICE found the employer had committed serious violations (made substantive errors) and lacked good faith for failing to complete a Form I-9 for each employee, OCAHO decided that “neither the fact that an employer’s I-9s are missing nor that they are defective is sufficient to show a lack of good faith.” And that:

"[The] penalty should be sufficiently meaningful to accomplish the purpose of deterring future violations, United States v. Jonel, Inc., 8 OCAHO no. 1008, 175, 201 (1998), without being “unduly punitive” in light of the respondent’s resources, United States v. Minaco Fashions, Inc., 3 OCAHO no. 587, 1900, 1909 (1993). Here, while Siam Thai’s violations are considered serious, most of the statutory factors weigh in its favor. Yet ICE’s proposed penalty of $935 per violation is close to the maximum permissible fine. Based on the totality of the circumstances reflected in the record as a whole and, in particular, on the respondent’s circumstances and resources, the proposed penalty will be modified to an amount closer to the mid-range of possibilities. The penalties will be set at $500 each for the eleven I-9s prepared in March and April of 2009, $450 for the I-9 prepared in September of 2009, and $400 each for the six I-9s prepared in June and July of 2010, resulting in a total of $8350." [Emphasis added].

In other words, although the government was seeking high fines for “serious violations” due to  incomplete and missing I-9s forms, because Siam is a “mom and pop” operation, OCAHO reduced the fines in accordance to Siam’s “circumstances and resources” to an “amount closer to the mid-range of possibilities.”

Although many employers may be relieved at the OCAHO’s recent willingness to be measured in its application of fines and penalties, or gone soft on fines, it still remains true that compliance is always better.  ICE can be expected to persist in its effort to extract the highest possible penalties.

 
 
 
 

CBP Publishes Interim Rule on Automation of Form I-94 Arrival/Departure Record - Eliminates Paper Forms, Streamlines Admission Process


U.S. Customs and Border Protection (CBP) today published an interim final rule in the Federal Register to automate Form I-94, Arrival/Departure Record. Effective on April 26, 2013, the rule streamlines the admissions process for individuals lawfully visiting the United States.

Readers of our alerts would recall that CBP had announced on 03/21/2013 that it has submitted to the Federal Register a rule that would automate Form I-94 Arrival/Departure Record to streamline the admissions process for individuals lawfully visiting the United States.

Form I-94 provides international visitors evidence they have been lawfully admitted to the U.S. which is necessary to verify alien registration, immigration status, and employment authorization. The automation means that affected visitors will no longer need to fill out a paper form when arriving to the U.S. by air or sea, improving procedures and reducing costs.

It is expected that once the process is fully implemented, it will facilitate security and travel while saving CBP an estimated $15.5 million a year.

Travelers wanting a hard copy or other evidence of admission will be directed to www.cbp.gov/I94* to print a copy of an I-94 based on the electronically submitted data, including the I-94 number from the form, to provide as necessary to benefits providers or as evidence of lawful admission. (www.cbp.gov/I94 ).

CBP’s technology and automation to the passenger processing environment, records of admission will now be generated using traveler information already transmitted through electronic means. This change should decrease paperwork for both the officer and the traveler.

If you wish to obtain additional information in connection with this post, please contact Hector A. Chichoni at: 305.960.2277 or at hchichoni@duanemorris.com.

This post does not constitute legal advice for, or establish an attorney-client relationship with, the reader. 

 
 
 
 

CBP Announces Automation of Form I-94 Arrival/Departure Record - Eliminates Paper Forms, Streamlines Admission Process


On March 21, 2013, the U.S. Customs and Border Protection (USCBP) announced that it submitted to the Federal Register a rule that will automate Form I-94 Arrival/Departure Record. 

This rule should streamline the admissions process for individuals lawfully entering the U.S.  Many readers of this blog would recall that CBP has already eliminated the use of Form I-94 for visitors entering the U.S. under the Visa Waiver Program (ESTA).

Form I-94 provides foreign national visitors and workers entering the U.S. evidence they have been lawfully admitted to the U.S. which is necessary to verify alien registration, immigration status, and employment authorization.

 The automation means that affected visitors will no longer need to fill out a paper form when arriving to the U.S. by air or sea, improving procedures and reducing costs. The change will go into effect 30 days after the rule is published in the Federal Register. 

 Travelers wanting a hard copy or other evidence of admission (which is important to have for those authorized for employment for purposes of Form I-9) will be directed to ww.cbp.gov/I94* to print a copy of an I-94 based on the electronically submitted data, including the I-94 number from the form, to provide as necessary to benefits providers or as evidence of lawful admission. (www.cbp.gov/I94 ).

As part of CBP’s work to bring advances in technology and automation to the passenger processing environment, records of admission will now be generated using traveler information already transmitted through electronic means. This change should decrease paperwork for both the officer and the traveler and will allow CBP to better optimize its resources.

For more information about this post, pleae contact Hector A. Chichoni at: 305.960.2277 or hachichoni@duanemorris.com.

This post does not constitute legal advice and does not establish an attorneyclient relationship.

 

 

 

 

 
 
 
 

The H-1B Visa Filing Deadline Is Almost Upon Us


The H-1B cap for Fiscal Year 2014 consists of only 65,000 regular visas, and an additional 20,000 are available to only individuals with advanced degrees from American universities.

 H-1B petitions for the 2013 to 2014 Fiscal Year (FY 13-14) must be received by the U.S. Citizenship and Immigration Services (USCIS) on April 1, 2013.

The April 1, 2013, deadline for the filing for new H-1B visas is approaching, and the time for employers needing to hire foreign nationals in specialty occupations in H-1B status is now. If employers do not act, they will be unable to secure an H-1B (subject to the cap) for the October 1, 2013, start date and will have to wait another year until they are able to file for H-1Bs again.

There are many reasons why employers do not meet the H-1B filing deadline. Sometimes employers simply are not acquainted with immigration law intricacies. For example, an employer may be relying on the fact that a foreign national employee in F-1 status working pursuant to Optional Practical Training (OPT) still has “plenty” of time left on his or her employment authorization. Employment authorization under OPT is only good for 12 months (or 29 months if the foreign national has a STEM degree and his or her employer is using E-Verify). Depending on when the 12 (or 29) months of OPT employment authorization cycle ends, the foreign national employee may have to stop working because he or she is unable to continue being authorized for employment until the next fiscal year’s start date. Thus, it is vital for an employer to file the H-1B visa petition under the fiscal year prior to the OPT’s expiration, even though there still may be plenty of time left of employment authorization.

Furthermore, employers often hire foreign nationals in other nonimmigrant classifications whose status may also be soon expiring and whose only option to continue working for that same employer is to file for a change of status to H-1B, subject to the cap now.

Likewise, last year during the “crazy” H-1B filing season, many applicants did not get an H-1B visa because the petitions were not filed in a timely manner. In addition, many H-1B cases failed to make the deadline because they were not “properly filed.”

Every year, many employers experience economic hardship as a direct result of failing to meet the H-1B cap filing deadline. It is impossible to predict when the new FY 13-14 H-1B cap will be exhausted, but it is anticipated to be exhausted very quickly.

The U.S. Department of State’s April 2013 Visa Bulletin provides additional information on the availability of immigrant numbers during April 2013.

For Further Information If you have any questions about this Alert, please contact any Hector A. Chichoni at hachichoni@duanemorris.com or 305.960.2277.

 
 
 
 

Revised Handbook for Employers: Instructions for Completing Form I-9 (M-274)


The newly revised Employment Eligibility Verification Form I-9 (Rev. 03/08/13 N) is now available for immediate use by all employers. To help inform employers of the revisions, the United States Citizenship and Immigration Services (USCIS)  is also  offering free educational webinars that highlight the new features and changes made to Form I-9, which includes fields and format, and expanded and clearer instructions. The webinars offered by USCIS also include an overview of how to use Form I-9.

USCIS has also published a revised version of the Handbook for Employers (M-274).  The M-274 contains not only the instructions to complete the newly revised Form I-9, but also answers to substantive and procedural Form I-9 questions. The M-274 is available at USCIS’s I-9 Central website (www.uscis.gov). The updated revision of the M-274 is dated: January 5, 2011. The prior M-274 revision was July 31, 2009.

Director Alejandro Mayorkas has stated that the M-274 has been revised and updated with new information about applicable regulations, including new regulations about electronic storage and retention of Forms I-9; it clarifies how to process an employee with a complicated immigration status; and, it addresses public comments and frequently asked questions.

Some of the many improvements, new sections, and tools included in the M-274 are:

New visual aids for completing Form I-9

Examples of new relevant USCIS documents

Expanded guidance on lawful permanent residents, refugees and asylees, individuals in Temporary Protected Status (TPS), and exchange visitors and foreign students

Expanded guidance on the processing of employees in or porting to H1-B status and H2-A status

Expanded guidance on extensions of stay for employees with temporary employment authorization

The Handbook for Employers now also includes information for employers in the Commonwealth of the Northern Mariana Islands (CNMI) who must verify their employees’ employment authorization on Form I-9 CNMI. It also highlights information about documents CNMI employers may accept from their employees.

If you need assistance with Form I-9, we would be happy to assist you.  Please contact Hector A. Chichoni at hachichoni@duanemorris.com or at 305.960.2277. 

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an atttorney-client relationship. 

 
 
 
 

USCIS Announces Today The Release of a New and Revised Form I-9


Today, Thursday, March 7, 2013, the U.S. Citizenship and Immigration Services (USCIS) announced that it will release tomorrow a new and revised version of Form I-9.  After several rounds of revisions and changes, the new and revised Form I-9 will be made officially available through the Federal Register. As required by the Immigration Reform and Control Act of 1986 (IRCA), the Form I-9 is used by employers to verify a new employee’s identity and to establish and employee’s employment eligibility in the United States. According to USCIS, the new Form I-9 contains formatting changes and the inclusion of additional data fields, including employee’s foreign passport information, telephone number, and email address.  Moreover, the new Form I-9 has been expanded from one to two pages and the form’s instructions provide additional clarifications. USCIS’s notice states that:  

 Employers must use the new Form I-9 immediately; however, USCIS recognizes that some employers may need additional time in order to make necessary updates to their business processes to allow for use of the new Form I-9. USCIS recognizes that modifications to electronic systems may be particularly necessary for employers utilizing electronic Forms I-9.  For these reasons, USCIS is providing employers 60-days to make necessary changes. USCIS believes that the 60-day period will help alleviate the burden that immediate implementation of the newly revised Form I-9 would have imposed on employers. Note that employers do not need to complete the new Form I-9 “(Rev. 03/08/13)N” for current employees for whom there is already a properly completed Form I-9 on file, unless re-verification applies. Unnecessary verification may violate the anti-discrimination provision at section 274B of the INA, 8 U.S.C. 1324b, which is enforced by DOJ’s Office of Special Counsel for Immigration Related Unfair Employment.

USCIS’s notice also contains the dates that employers should begin using the newly revised Form I-9 and announces the date that employers can no longer use prior versions of the form.  The new Form I-9 with a revision date of “(Rev. 03/08/13) N” is available for use beginning from the date of its publication in the Federal Register.  Prior versions of Form I-9 “(Rev. 08/07/09) Y” and “(Rev. 02/02/2009) N” can no longer be used by the public effective 60 days from the publication date of the new Form I-9 in the Federal Register. Failure to use the new and revised Form I-9 can result in the imposition of penalties under the Immigration and Nationality Act.  U.S. Immigration Customs Enforcement will be responsible for enforcing compliance with the new and revised Form I-9.

Employers can obtain the new Form I-9 by calling USCIS’ National Customer Service Center at 1-800-375-5283 or by visiting USCIS’s I-9 Central web page at www.uscis.gov/I-9Central. A Spanish-language version of the new Form I-9 is available at www.uscis.gov for use in Puerto Rico only.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an atttorney-client relationship.

 

 

 

 

 

 

 

 
 
 
 

Bill to Make E-Verify Mandatory Introduced in the Senate


The first bill of the annual “let’s make E-Verify permanent” ritual has been introduced in the Senate. The  Accountability Through Electronic Verification Act of 2013 would permanently fund the E-Verify program and make it a national mandate for all employers.

E-Verify is an internet-based system that assists employers in determining the eligibility of employees to work in the U.S.. It is currently voluntary for many employers, but required for Federal Contractors and by some states..  E-Verify was established in 1996 as a pilot program and is currently funded through 2015.  The Accountability Through Electronic Verification Act of 2013 will do the following:

  • Permanently reauthorizes the E-Verify program;
  • Makes the program mandatory for all employers within one year of date of enactment, requires federal contractors and agencies to use the program immediately, and directs “critical employers,” as identified by the Secretary of Homeland Security, to use the system immediately upon designation;
  • Increases penalties for employers who illegally hire undocumented workers;
  • Reduces the liability that employers face if they participate in E-Verify when it involves the wrongful termination of an individual;
  • Allows employers to use E-Verify before a person is hired, and requires them to check the status of all current employees within 3 years;
  • Requires employers to terminate the employment of those found unauthorized to work due to a check through E-Verify;
  • Helps ensure that the Social Security Administration catches multiple uses of Social Security numbers by requiring them to develop algorithms to detect anomalies;
  • Establishes a demonstration project in a rural area or area without internet capabilities to assist small businesses in complying with the participation requirement;
  • Amends the criminal code to make clear that defendants who possess or otherwise use identity information not their own without lawful authority and in the commission of another felony is still punishable for aggravated identity fraud, regardless of the defendant’s “knowledge” of the victim; and,
  • Requires employers to re-verify an employee’s immigration status if the employment authorization is due to expire.

The provisions of the Act are far-reaching and would completely change the current E-Verify landscape, which prohibits pre-screening of potential employees and "E-Verification" of current employees. Yet in many instances these changes are desired by employers so that they may attain more certainty in the hiring process and more confidence in their existing workforce.

It is likely that some form of national E-Verify will be included in any comprehensive immigration reform package, although agreement on other elements of that package are still far off.  The I-9 Compliance Monitor will keep our readers up to date on legislation as it is introduced.

For additional information regarding E-Verify or any other immigration matter, contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

 
 
 
 

E-Verify Adds Florida DMV Records to Electronic Records Check


90% of persons completing the I-9 form provide a driver’s license and social security card. As a result of this high number, it has long been a goal of USCIS  to have state Department of Motor Vehicle (DMV)  records included in the databases checked by E-Verify. The difficulty has been in getting the states, the technology and the logistics to cooperate. Florida has now joined the E-Verify RIDE program, allowing E-Verify users electronic access to state DMV records  whenever a Florida license or state ID is presented in conjunction with completion of the I-9 form. The RIDE program was initiated in June 201l. The only other state to currently participate is Mississippi.

Under the RIDE program, the E-Verify system now checks driver’s license and state-issued identification cards from the state of Florida when presented by a new hire as a List B document for Form I-9.  When completing the E-Verify query, the employer is prompted to enter the document number and expiration into the E-Verify system, which then checks the document against DMV records.  The system will verify that the data is valid. 

In the case that there is no match, a tentative non-confirmation (TNC) will be issued.  At that time, the employee will be advised to contact the E-Verify customer service number  and fax in a copy of their driver’s license.  E-Verify employees will attempt to resolve the TNC by comparing the information on the fax copy to the information in Florida’s database. If unable, they will issue a final non-confirmation (FNC) in the E-Verify system. 

The RIDE program is intended to improve the accuracy and strengthen the integrity of the E-Verify system by adding the review of driver’s license data against state records when determining employees’ eligibility to work in the United States. With the new capability, E-Verify can  confirm the authenticity of an additional identity document. Without access to state motor vehicle records, when an employee presents a driver’s license as proof of identity and a social security card as proof of employment authorization, E-Verify is only able to confirm the validity of the social security card. With RIDE E-Verify employers are able to confirm the validity of both documents, at least in Florida and in Mississippi for the time being. USCIS is currently in negotiations with several other states to join RIDE.

For more information regarding E-Verify, I-9s, or any immigration matter, please contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

 

 

 
 
 
 

I-9 Enforcement and E-Verify Compliance Monitoring will Increase in 2013


With the presidential election behind us and the Obama administration settling in for another 4 years, everyone is looking ahead to see what the new year might bring. There is one thing we can definitely count on:  A continued emphasis on worksite and interior enforcement. I anticipate that 2013 will be a banner year for E-Verify and another strong year for ICE in the collection of I-9 fines and penalites.

E-Verify: On January 1, 2013 three more mandatory state level E-Verify measures took effect including North Carolina, Tennessee and Pennsylvania. The Pennsylvania's Public Works Verification Act requires contractors and subcontractors on all public works projects to verify whether their workers are authorized to work in the US by using E-Verify. The Pennsylvania law applies to construction projects where the estimated cost is at least $25,000. See our upcoming blog post for more details on the PA law.

E-Verify already is required for either all or most employers in Arizona, Utah, Louisiana, Mississippi, Alabama, Georgia and South Carolina. A few other states have taken a similar stance as Pennsylvania and made its use mandatory only for public employers and/or contractors.

In 2013, it is possible that E-Verify could become mandatory nationwide, as a nationwide requirement will certainly be an important part of the immigration reform debate. However, even without a new nationwide requirement, employers can expect to see more E-Verify enforcement from the States as well as investigations of E-Verify related discrimination by the Department of Justice. In late 2012, we saw the first two such reported investigations and settlements.

E-Verify users should ensure that all personnel are well-trained on the system and on the documents presented during the I-9 and E-Verify process, especially when the system indicates that there is a tentative non-confirmation of employment eligibility. Care must be taken to follow all E-Verify requirements in the Memorandum of Understanding, so that employers do not run afoul of the immigration-related anti-discrimination provisions or the E-Verify requirements themselves.

I-9 Enforcement: DHS Secretary Napolitano testified before Congress in July regarding the progress that the DHS has made on immigration policies in this country. During her testimony, she indicated that worksite enforcement efforts will remain a top priority for the DHS. With record fines being imposed against employers for I-9 violations in FY 2012, the remainder of FY 2013 will be no different, and could be worse based upon DHS budget projections and funding requested.

Employers should ensure that their I-9 process is sound and I-9 personnel training is up to date. Procedures for completing I-9s must ensure that proper documentation is reviewed by employers while at the same time ensuring that the civil rights of employees are not violated through inadvertent immigration-related discrimination such as document abuse, or citizenship status discrimination.

 

 
 
 
 

Employers get Early Christmas Present: Reduction in I-9 Fines


In recent weeks, the Office of the Chief Administrative Hearing Officer (OCAHO) has issued numerous decisions promoting a trend of reducing penalty amounts.   The decisions including the following employers: March Construction, Inc., Forsch Polymer Corp., BKR Restaurants (d/b/a Burger King), and Barnett Taylor (d/b/a Burger King). 

Under the Immigration and Nationality Act, the Office of the Chief Administrative Hearing Officer (OCAHO)  has jurisdiction over three types of cases, including those involving allegations of: (1) knowingly hiring, recruiting or referring for a fee or the continued employment of unauthorized aliens and failure to comply with employment verification requirements; (2) immigration-related unfair employment practices; and, (3) immigration-related document fraud. 

When ICE issues a Notice of Intent to Fine an employer for I-9 violations, the employer has 30 days to request a hearing on ICE’s findings or to pay the fine as assessed. Based upon the cases discussed below, it will be  in many employers’ best interest to request a hearing to seek a reduction in fines, as in most cases the cost of the legal fees will be minimal in comparison with the reductions in fines that are possible. When determining I-9 fines, ICE looks at five factors:

  1. The size of the business of the employer;
  2. The good faith of the employer;
  3. The seriousness of the violation (s);
  4. Whether or not the individuals involved were unauthorized aliens; and,
  5. History of previous violations.

In the case of March Construction, Inc. (March),  OCAHO reduced fines in connection with 103 I-9 violations based on the preponderance of evidence.  March is a  concrete for water treatment plants business, based out of San Antonio, Texas.  After being served with a Notice of Inspection and administrative subpoena in September of 2008, March turned over the requested I-9 forms and employment records for current and past employees and revised them as per ICE’s request.  Shortly thereafter, a Notice of Intent to Fine was served to March alleging 103 I-9 violations. In ICE’s motion for summary decision, they sought penalties in the amount of $86,933.00, reflecting a baseline fine of $770.00 then aggravated to reflect a lack of good faith, seriousness of the violations, and for the involvement of unauthorized aliens, bumping the fine to $885.50 per violation, which March disputed. Upon analysis, OCAHO stated that “A poor rate of I-9 compliance is insufficient to show bad faith absent some culpable conduct going beyond the mere failure to comply” and although they agreed with ICE on the seriousness of the violations, they found that ICE failed to prove that March employed undocumented workers.  In addition, March’s financial situation was assessed with regard to their ability to pay the penalties.  Ultimately, the total penalty was reduced to $17,020.

 Forsch Polymer, a small urelane consulting firm based in Englewood, Colorado exemplifies that no case is too small for ICE.  A Notice of Inspection was served in June 2010 and resulted in 12 Form I-9s being produced.  Forsch Polymer was subsequently charged with 11 violations, including failure to complete a Form I-9 and failure to properly complete all sections of Form I-9.  As a result, ICE pursued a fine of $11,827.75.  OCAHO found that three of the ten employees involved the failure to complete Form I-9 within three days of hire, which ICE should have provided notice and an opportunity for Forsch Polymer to correct.  Since ICE failed to do so, all allegations were dismissed in that regard.  ICE prevailed on other allegations including charges that the employer back-dated several I-9s.  As a result, it was determined that the base penalty was $935 per violation, aggravated 5-15% each due to the seriousness of the violations, lack of good faith, and employment of four unauthorized aliens; however, OCAHO reduced the total fine to $4,600.

Lastly, BKR Restaurants and Barnett Taylor, both operating as Burger Kings in Phoenix, Arizona were charged with not preparing Form I-9 for employees as well as failing to properly complete Form I-9.  With 87 violations, ICE proposed a fine of $54,945 for BKR Restaurants and Barnett Taylor was charged with a total of 83 violations.  In defense, the restaurants claimed that omissions in Section 1 of Form I-9, such as immigration status, could be cured by entries in Section 2; however, the claim is not supported by case law and was rejected by the court.  In addition, Barnett Taylor asserted that the violations were a result of a clerical error by a “rogue” employee.  OCAHO found that regardless of the excuse provided, none establish a defense of impossibility.  In both cases, no final penalties were assessed; rather, the parties were granted 30 days to make additional filings related to the penalties.

So what does this mean for employers who are doing everything they can to comply with very complicated I-9 rules?  It means that in almost all cases, employers should request OCAHO review of I-9 fines:  While requiring employers to present compelling evidence to support their claims,  OCAHO will look fairly at arguments and evidence presented by employers and will hold ICE accountable for procedural errors and unsubstantiated I-9 fines. Most importantly, OCAHO will significantly reduce unfair and unsupportable I-9 fines.  

 For more information regarding I-9s or any immigration matter, please contact Valentine at 215-979-1840 or at vbrown@duanemorris.com. E

 
 
 
 

Questionable Documents During the I-9 Process: Guidance from the OSC


Employers often encounter unfamiliar documents during the I-9 Employment Eligibility Verification Process.  Not only are there numerous types of documents issued by the Department of Homeland Security to foreign nationals, but there are also numerous versions of the social security card and at least 50 different state driver’s licenses. With so many possibilities it is often difficult for employers to decide when to reconsider a document that looks questionable and when not to.

The Office of Special Counsel (OSC) a division of the Department of Justice is  responsible for investigating immigration-related discrimination in the workplace.  The OSC has provided guidance to employers regarding presentation of questionable documentation during the I-9 process.  Employers should use this advice to create a standard policy to be followed in all circumstances. With consistency in implementation of the policy, employers may reduce their likelihood of violating any of the anti-discrimination provisions in the immigration law. The OSC recommends that to avoid even the appearance of a violation, employers should inspect documents in the same manner for all employees.

If an employer believes that a document being presented during the I-9 process does not reasonably appear to be genuine or relate to the person presenting it, the employer may reject the document.  In making this determination, employers should look to the photograph, the personal details, such as date of birth, height, and weight, as well as the quality of the document itself to make this determination. Presented documents may also be compared to photographs of official documents provided in the USCIS Employer I-9 Handbook.  Because, there are so many versions of immigration-related documents, it would be difficult to refuse to accept a document on this basis alone, although it is a helpful guide for employers.

Refusing I-9 Documents: When an employer decides that a document is not acceptable for whatever reason, the employer should ask the employee if he or she is able to provide other documents from the List of Acceptable Documents on page 2 of the I-9 form. The OSC advises that this will not be document abuse, if the originally presented documents were genuinely problematic.

The best way to approach an employee in this circumstance is to explain the problem with the existing documents and provide the employee with the List of Acceptable Documents and ask the employee to return with new documents, within 3 days of hire. No adverse action should be taken prior to the fourth day after hire, thus giving the employee the full legally allotted time to present the new documents.

The OSC also cautions, however, that if a work-authorized employee’s genuine documents are erroneously rejected based on the belief that they are fraudulent, the employee may choose to file a charge with the OSC.  In this instance, the OSC’s investigation will focus on the intent of the employer.  Therefore, as long as the employer had a non-discriminatory intent in requesting more or different documents, no charge will be brought against the employer.  

On the other hand, if an employer knows that a document is fraudulent and chooses to accept it during the I-9 process, the employer may be deemed  to have  knowingly hired an undocumented worker,  which is a civil and criminal violation of federal law.

Honesty Policies: The OSC also considers the situation wherein an employer refuses to rehire an employee who it believes provided fraudulent documents in the past. This could happen in two scenarios: (1) An employee whose documents were rejected within 3 days of hire and was thus terminated returns sometime later with new documents  or (2) an employee admits to the employer that he or she used fraudulent documents in the past, but now has valid documents.

In the first scenario, the OSC considers the evidence of fraudulent documents being  presented as  circumstantial and cautions that the rejection of a presently work-authorized individual from employment based on prior undocumented status, could allow for the employee to file a charge under the anti-discrimination provision.  The OSC does not provide guidance on the second scenario, but in general it is in the employer’s long-term best interest not to rehire the employee using the new documents.

If a claim were filed by an employee in either scenario described above, the OSC’s investigation would focus on  the following factors:

  • Does a company have an Honesty Policy?
  • How consistently is the employer’s Honesty Policy applied to employees who make false representations on employment applications or other employment forms?
  • Is the employer using enforcement of the honesty policy in this circumstance as a pretext for national origin or citizenship status discrimination?

         In general, the more consistently an employer follows its own honesty policy on a regular basis in all applicable instances, the less likely the OSC will be to find a violation when the claim involves I-9 documentation issues. If a company does not have an honesty policy or does not regularly follow it, decisions will have to be made on an ad hoc basis, but should always be guided by legal considerations, and prior company actions.

In any of the difficult  situations described above, whether it be reviewing questionable documents, completing I-9s with new documents, or terminating employees for false information, seeking the advice of employment and immigration law counsel is always advisable prior to making any decisions that could ultimately result in legal action against the employer.

For additional information regarding I-9s, immigration-related discrimination, or any other immigration matters, please contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

 

 
 
 
 

Social Security Numbers, I-9s and On-Boarding: Employers Beware


How can something so simple as a field on the I-9 form requesting an employee’s social security number be so complicated? “It’s the government, stupid.” In an attempt to clarify the issues surrounding social security numbers and the I-9 form, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has provided guidance to employers on when and how social security numbers and social security cards should be requested from employees.

The Basics:  There are three basic rules for social security numbers and I-9s: (1) If an employee refuses to provide his or her social security number when completing Part 1 of the form, the employer must accept this decision and may not take any adverse action against the employee for refusing to provide the number. (2) If an employee does not yet have a social security number, but is authorized to work, the employer cannot delay I-9 completion or hiring solely for this reason (3) The employer may never request to see specific documents, such as a social security card, for completion of Part 2 of the form.  Doing so would be considered to be Document Abuse, a form of I-9 based immigration related discrimination.

Making Requests for Social Security Numbers: In its recent guidance, the OSC addresses the situation when an employer requests the social security number or card from an employee for purposes other than completing the I-9 form such as for payroll or benefits. In this circumstance, OSC recommends communicating clearly the purpose for the request, as well as making the request outside of the I-9 completion process. Being clear about the purpose and keeping the request outside of the I-9 completion process will ensure that there is no confusion on the employee’s part and no appearance or suggestion of document abuse or other immigration-related discrimination. As always, employers should ensure that such requests remain consistent irrespective of the citizenship status or national origin of the employee. 

Electronic On-Boarding Systems: The OSC also warns employers against asking to see an original or even a copy of an employee’s social security card for any  purpose, even those unrelated to employment eligibility verification as it too may create the appearance of violating immigration-related anti-discrimination provisions. Similarly, the request for a social security card  during an electronic payroll or on-boarding process that combines various payroll and new hire procedures, including the employment eligibility verification process, may constitute a request for a specific document for employment eligibility verification purposes, potentially implicating the immigration related discrimination provision prohibiting document abuse.  

Late Issuance of SSNs: When foreign nationals who have been sponsored for work-related visas, such as H-1B, L-1A or TN, first enter the United States, it is often the case that the issuance of their social security numbers will take 4-8 weeks. Employers should develop a process to pay these  individuals while they are waiting for social security numbers to be issued.  The Internal Revenue Service (IRS) advises employers that no federal law prohibits either the employment of, or payment of wages to a person solely because that person lacks a social security number. State and federal labor laws may also be implicated if wages are delayed.  When facing this situation, employers should consult with counsel and follow IRS guidance to pay individuals who do not yet have social security numbers.

For additional information regarding Social Security Numbers, I-9s, or any other immigration matters, please contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

 
 
 
 
 

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.