Immigration in Business Alert for Employers
an Educational Service by Badmus Law Firm
In This Issue
Immigration Discrimination Settlement
Citizenship Status Discrimination Settlement
DOL's New H-1B Advisor Tool
Five Indefensible I-9 Mistakes
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Recent cases demonstrate how easily companies, large and small, can cross the fine line between employment eligibility verification and immigration discrimination. As the government continues to aggressively monitor and audit employers as an overall strategy of tough immigration enforcement, businesses must be vigilant but not overzealous. In this issue, you will learn information, tips, and tools to help you and your business survive government scrutiny and avoid the fines, penalties, and negative publicity associated with immigration violations.
 
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Ann Massey Badmus
Badmus Law Firm
  
 

Justice Department Settles Immigration Discrimination Suit Against John Jay College

The Justice Department recently that John Jay College, a New York City public college in the City University of New York system, has agreed to pay $23,260.00 in civil penalties and $10,072.23 in back pay to a former employee in order to settle a lawsuit filed by the Justice Department on April 15, 2010. The lawsuit alleged that John Jay College engaged in a pattern or practice of citizenship status discrimination by requesting documents issued by the Department of Homeland Security (DHS) from non-U.S. citizens, but not from U.S. citizens, during the employment eligibility verification Form I-9 process.

As part of the settlement, John Jay has also agreed to train its recruitment personnel on their responsibilities not to discriminate, implement a policy prohibiting discrimination on the basis of citizenship status, and provide periodic reports to the Department of Justice for three years.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) in the Civil Rights Division, which conducted the investigation in this matter, will continue to monitor John Jay College to ensure compliance with the settlement agreement. OSC is responsible for enforcing the antidiscrimination provisions of the Immigration and Nationality Act (INA), which protect U.S. citizens and certain work-authorized individuals from citizenship status discrimination. The INA also protects all work-authorized individuals from national origin discrimination, over-documentation in the employment eligibility verification process, and retaliation.

"All workers authorized to work in the United States have the right to look for a job without encountering discrimination because of their immigration status or national origin," said Thomas E. Perez, Assistant Attorney General for Justice Department's Civil Rights Division. "We are pleased to have reached the settlement with John Jay College, and look forward to continuing to work with all employers, both public and private, to educate them about the protections and obligations under the law."

 
This case demonstrates that any employer, large or small, can cross the fine line between IRCA enforcement and discriminatory practices.  To avoid and defend against claims of citizenship discrimination, write and implement an immigration compliance plan combined with an annual training program for your employees who are responsible for I-9 compliance.  For more information and assistance with developing an effective immigration compliance policy, you are invited to email Ann Badmus at [email protected].
 
Government Settles Citizenship Status Discrimination Matter Against ValleyCrest Landscape
 
The Justice Department announced a settlement agreement with ValleyCrest Landscape Companies to resolve charges of hiring discrimination against U.S. citizens and other work-authorized domestic workers at its Virginia locations.  Under the agreement, ValleyCrest will modify its hiring policy to extend significantly the time period during which it will recruit U.S. workers for jobs that would otherwise be filled with H-2B temporary visa holders. Specifically, ValleyCrest will recruit and hire domestic workers up until two weeks before H-2B workers are scheduled to begin work. It has also made other changes to its personnel practices and will provide full back pay of $11,173 to a U.S. citizen who applied for but was not given a job.

"Every individual who is authorized to work in this country has the right to know they will be free from discrimination, and that they will be on the same playing field as every other applicant or worker," said Thomas E. Perez, Assistant Attorney General for the Justice Department's Civil Rights Division.

The charges were filed by the Mid-Atlantic Regional Organizing Coalition (MAROC) of the Laborers' International Union of North America. The Civil Rights Division's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the antidiscrimination provisions of the Immigration and Nationality Act (INA), which protect U.S. citizens and certain work-authorized individuals from citizenship status discrimination. The INA also protects all work-authorized individuals from national origin discrimination, over-documentation in the employment eligibility verification process, and retaliation.

 
This case demonstrates that employers who appear to legally hire only foreign-born workers can be found to violate anti-discrimination rules.   To avoid and successfully defend against claims of citizenship status discrimination when legally hiring foreign-born talent, write and implement an immigration compliance plan.  For more information and assistance with developing an effective immigration compliance policy, you are invited to email Ann Badmus at [email protected].
 
 
 
U.S.Labor Department Unveils New Tool to Help Businesses Understand H-1B Visa Certification
 
The U.S. Department of Labor has unveiled a new tool to help employers and others understand how to comply with requirements under the H-1B visa program, which allows for the temporary employment of foreign workers in the U.S. in certain specialty occupations.

An online "advisor," available at http://www.dol.gov/elaws/h1b.htm, describes the program's standards and provides detailed information about employers' and workers' rights and responsibilities. It outlines notification requirements, monetary issues, worksite issues, recordkeeping, worker protections and enforcement. "The Labor Department's goal is to provide employers and the public with user-friendly information regarding both rights and responsibilities under the H-1B program," said Secretary of Labor Hilda L. Solis. "The new online advisor harnesses technology to help take the mystery out of the new rules, and it offers an important resource to workers and employers alike."

The H-1B nonimmigrant visa classification was created under the Immigration and Nationality Act to help employers who cannot obtain needed skills and abilities from the U.S. workforce by authorizing the employment of qualified individuals who are not otherwise authorized to work in the U.S. The act establishes certain standards to protect similarly employed U.S. workers from being adversely affected by the employment of foreign workers under the H-1B program, as well as to protect H-1B workers themselves.
 
Responsibilities for the H-1B visa program are shared among the Labor Department's Office of Foreign Labor Certification and the department's Wage and Hour Division, the U.S. Department of Homeland Security's U.S. Citizenship and Immigration Service and the U.S. Department of State. The new advisor tool focuses solely on compliance with the requirements enforced by the Wage and Hour Division. The tool does not review the process for participating in the program or for invoking H-1B visa portability.

The H-1B Advisor is one of a series of Employment Laws Assistance for Workers and Small Businesses, or "elaws," advisors developed by the Labor Department's Office of the Assistant Secretary for Policy, working with other department agencies, to help employers and employees understand federal employment laws. To access the set of advisors, visit the elaws website at http://www.dol.gov/elaws/. To learn more about the Labor Department's role in administering the Immigration and Nationality Act and the H-1B visa program, visit the department's Office of Foreign Labor Certification website at http://www.foreignlaborcert.doleta.gov and its Wage and Hour Division site at http://www.dol.gov/whd/.
 
H-1B rules are very complex.  While the DOL H-1B Advisor can be a helpful educational tool, employers should seek legal advice from  an immigration attorney for specific H-1B issues that arise in the workplace.  For assistance with H-1B compliance, you are invited to email Ann Badmus at [email protected]

 
 
Five Indefensible I-9 Mistakes That Employers Must Avoid
 
Recently, the Department of Justice's Office of the Chief Administrative Hearing Officer (OCAHO) determined that an employer's (New China Buffet Restaurant) failure to properly complete Section 2 of the Form I-9 Employment Eligibility Verification within three (3) business days of hiring an employee, is a substantive violation, rather than a procedural or technical violation.  The distinction is important for employers to note.  In general, employers who are audited are given 10 days to correct technical and procedural I-9 form errors to avoid fines associated with those errors.  The OCAHO confirmed that "no such relief is available" for substantive violations.
 
Substantive violations can result in civil money penalties ranging from $110 for a minimum first offense penalty per individual form to $1,100. In the case against New China Buffet Restaurant, the Department of Homeland Security (DHS) sought penalties of $981.75 for seven violations, or a total of $6872.25.  The OCAHO did not grant the DHS's motion for judment on the penalty amount but required the DHS and New China Buffet Restaurant to present evidence of aggravating or mitigating factors at a later date.
 
Recently and after threat of litigation,  DHS' Immigration and Customs Enforcement Agency (ICE) released its internal guidance on administrative fines in civil worksite enforcement proceedings. According to ICE, the test of whether a verification violation is either technical or substantive lies in the seriousness of the error and whether or not it could have led to the hiring of an unauthorized alien. In the guidance, ICE has identified numerous I-9 form violations that it finds substantive.  There is no "good faith" defense to these violations and they can not and will not be forgiven.
 
Here are five of these indefensible mistakes that employers must avoid:

1. Failure to timely prepare or present the Form I-9 - employers must begin the I-9 form with the employee on the first day of employment and complete it within three days.
2. Failure to ensure that the employee checks a box in Section 1 of the I-9 form indicating their immigration status.
3. Failure to provide the date employment begins in the attestation portion of Section 2 of the Form I-9.
4. Failure to date Section 2 of the Form I-9.
5. Failure to sign Section 3 of the Form I-9.

There and many other seemingly "minor" mistakes can result in substantial fines to companies. With the exponential increase in government audits, employers must take stock of their I-9 and other business policies and procedures to ensure compliance. A good way to start is an I-9 self-audit with the assistance of an immigration attorney to find these mistakes before the government does. For more information about substantive I-9 violations and how to protect yourself and your company, you are invited to email Ann Badmus at [email protected].
 
Ann Massey Badmus featured in University of Delaware's Alumni Magazine
 
The UD Messenger, University of Delaware's alumni magazine, recently published a profile of attorney Ann Massey Badmus' career as an immigration attorney.  Ms. Badmus, founder of Badmus Law Firm, earned a Bachelor of Mechanical Engineering from the University of Delaware in 1984 and a law degree from Widener University School of Law in 1989.  To read the article, click here
 
 

Badmus Law Firm is a law firm focusing on business immigration services to companies and individuals for over 15 years. Our attorneys help businesses avoid the fines, penalties, and negative publicity of I-9 and other immigration violations.  The problem for most businesses is that the I-9 form is deceptively simple but the immigration rules behind the form are enormously complex. Consequently, innocent mistakes are made that can cost businesses thousands in fines and an unwelcome induction into the ICE Hall of Fame.  Businesses that use our expertise and follow our Immigration Audit Defense Program can steer clear of these mistakes, protect themselves against an ICE attack, and save themselves from hefty fines and public embarrassment.  Contact us to build an impeccable defense before ICE contacts you.  
 
Call 469-916-7900  to schedule a complimentary 15 minute assessment of your current compliance program and learn more about our Immigration Audit Defense Program. 
 
Badmus Law Firm is certified as a Women's Business Enterprise (WBE) by the Women's Business Council - Southwest (WBCS), a regional certifying partner of the Women's Business Enterprise National Council (WBENC), a corporate member of Texas Organization of Rural and Community Hospitals, and a vendor member of the National Associaton of Physician Recruiters.  For more information, visit us at www.badmuslaw.com.
 

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The information in this newsletter has been provided as an educational service.  If you have specific questions or issues related to immigration, you are invited to call us at 469-916-7900 or email me at [email protected].
 
Until next time,
 
Ann Massey Badmus
Founding Attorney and CEO
Badmus Law Firm
NOTE: Immigration law changes frequently.  The resources and information provided in this newsletter are intended to help you understand basic issues involved in the immigration process, and are offered only for general informational and educational purposes.  This information is not offered as, nor does it constitute legal advice or legal opinions.  Although we strive to keep this information current, we neither promise nor guarantee that the information is the latest available, or that it applies to your specific situation.  You should not act or rely upon the information in these articles without seeking the advice of an attorney.  To consult with Badmus Law Firm regarding your case, click here