Bloggings on I-9 E-Verify Immigration Compliance

Bruce Buchanan

OSC Enters into Memorandum of Understanding with NLRB; by Bruce Buchanan, Siskind Susser

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has entered into a Memorandum of Understanding (MOU) with the National Labor Relations Board (NLRB), formalizing a collaborative relationship that allows both agencies to share information, refer matters to each other and coordinate investigations as appropriate.

OSC is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act, which prohibits citizenship status and national origin discrimination in hiring, firing and recruitment or referral for a fee, as well as discriminatory Form I-9 and E-Verify practices. The NLRB enforces the National Labor Relations Act, which protects the rights of most private sector employees to join together through union activity and/or protected concerted activity to improve their wages, hours and working conditions.

The MOU will allow 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, the OSC will refer matters to the NLRB that appear to fall within that agency’s authority. The MOU also provides for cross-training and technical assistance to ensure that staff within each agency can identify appropriate referrals.

OCAHO Rejects Employer’s Speculative Argument and Finds Appeal Untimely; by Bruce Buchanan, Siskind Susser

In U.S. v. Silverado Stages, Inc. (May & June 2013), OCAHO declined to reduce the employer’s penalties of $7480, assessed by Immigration & Customs Enforcement (ICE) or hear the employer’s request for review.

Silverado Stages is the largest private motor coach operator in California with four locations, 140 employees and a gross annual income of $11 million. ICE alleged Silverado Stages failed to timely complete I-9 forms on 16 employees, two of which were undocumented workers. ICE's NIF sought penalties of $440 per violation (meaning 20 to 29 % of the I-9 forms had substantive errors).

ICE determined Silverado Stages was a mid-size company; thus, the size of the employer was a neutral factor. ICE found two aggravating factors - seriousness of the violations and the presence of two undocumented workers; but for some unexplained reason, ICE did not increase the penalties by 5% each for these aggravating factors.

Silverado Stages argued ICE does not know for a fact "that the forms were prepared but then misplaced, lost or destroyed." Thus, ICE cannot assume the I-9 forms were not initially timely prepared. OCAHO found Silverado Stages' "hypothesis" to be "no more than speculation" and held ICE is not obligated to "rebut whatever 'plausible' imaginary scenarios can be postulated."

The Administrative Law Judge concluded $440 per violation was "well within the statutory parameters" and appeared "reasonable in light of the record." Thus, OCAHO upheld the assessment of $7480. Silverado Stages unsuccessfully attempted to request OCAHO to review the ALJ’s decision because OCAHO found the Request to be untimely and improperly filed and served. 

This decision is contrary to most OCAHO decisions in that OCAHO did not reduce the penalties assessed by ICE. It is only speculation to say why but two reasons may be that Siverado Stages is not a small employer and its "hypothesis" was totally discredited by OCAHO.  

About The Author

Bruce E. Buchanan is an attorney at the at Nashville Office of Siskind Susser, P.C. He represents individuals and employers in all aspects of immigration law, with an emphasis on immigration compliance for employers, and employment/labor law. Mr. Buchanan received his law degree from the Vanderbilt University School of Law in 1982 and a B.S. degree from Florida State University, where he graduated magna *** laude. Mr. Buchanan has been in private practice since 2003. Beforehand, he served as Senior Trial Specialist for the National Labor Relations Board for 20 years. He also served from 1991 to 2003 as Adjunct Professor at William H. Bowen UALR School of Law, where he taught courses in Labor Law and Employment Law. Mr. Buchanan was chair of the Tennessee Bar Association's Immigration Law Section from 2011 to 2012 and has been the editor of the TBA's Immigration Law Section Newsletter and the TBA's Labor and Employment Law Section Newsletter since 2009. Mr. Buchanan is a frequent writer and speaker on immigration compliance as well as labor law, wage & hour law and proposed federal legislation. He is a member of American Immigration Lawyers Association (AILA) and serves as the Advocacy Liaison of the Mid-South Chapter of AILA. Mr. Buchanan also serves on the Board of Directors for the Nashville International Center for Empowerment (NICE) and is an associate member of the Mid-Tennessee Chapter of the Associated Builders & Contractors. Mr. Buchanan is admitted to practice in Tennessee, Florida, and Arkansas, before the U.S. Court of Appeals for the Fifth, Sixth, Eighth, and D.C. Circuits and the U.S. District Courts for the Middle District of Tennessee and the Eastern and Western Districts of Arkansas.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.