Employer Defense In a Complaint of Documentary Abuse

The Office of the Chief Administrative Hearing Officer (OCAHO) has direct purview over three types of cases stemming from the Immigration and Nationality Act (INA). In this case—Salim Hajiani vs. ESHA USA, Inc. and Sameer Ramjee—Hajiani, the complainant, alleged that the respondent engaged in two of the three areas of jurisdiction over which OCAHO resides: immigration-related unfair employment practices and immigration-related fraud, which are both in violation of the INA.

Hajiani registered a complaint against ESHA USA and Ramjee, accusing the respondents of document abuse, firing Hajiani due to his citizenship status, and taking revenge on him because of a religious discrimination complaint he filed against a former employer. Salim Hajiani is a lawful permanent resident of the US.

Hajiani was hired on October 10, 2011 at Sameer Ramjee’s gas station and convenience store, ESHA, which is in Philadelphia, Tennessee. Hajiani worked at the store until January 10, 2012, when he was fired. On June 26, 2012, he filed a complaint with OSC, to which OSC responded that the complaint didn’t fall under their jurisdiction. Hajiani then filed a charge with OCAHO in February 8, 2013.

Hajiani’s complaint against his employer was a detailed litany of purported incidents of document abuse and job complaints, such as long hours, no overtime pay, and double shifts. He also specified that one of the reasons he was fired was because Ramjee preferred to employ undocumented workers so that he wouldn’t have to pay them overtime or give them benefits.

Hajiani made various allegations against other employees that were not under the scope of OCAHO’s jurisdiction—complaints of undocumented workers also do not fall under the Immigration Reform and Control Act (IRCA). Such instances include cash register shortages, sexual harassment, allegations of tax fraud, selling tobacco to minors, and that he wasn’t hired for store’s first shift because only US citizens were allowed to work that shift. Hajiani also noted in his complaint that his claim was filed timely.

However, his claim of document abuse was not filed in a timely manner. Hajiani alleged that the document abuse occurred in October 2011, but didn’t file the charge with OSC until June 26, 2012. The IRCA strictly says, “no complaint may be filed respecting any unfair immigration-related practice occurring more than 180 days prior ot the filing of a charge with OSC.” Hajiani’s complaint would only have been valid for events after December 29, 2011.

None of Hajiani’s claims—his filed complaint of religious discrimination with the US Equal Employment Opportunity Committee (EEOC), nor his complaints about the terms and conditions of his job—come under the purview of OCAHO, or are protected by IRCA. OCAHO only covers hiring, recruitment, and discharge.

Moreover, Hajiani never submitted evidence that any discrimination occurred. If Sameer Ramjee had been prejudiced against Hajiani, then Ramjee would never have employed Hajiani. Hajiani provided too many explanations of why he was fired, allowing OCAHO to conclude that Hajiani did not divulge his own behaviors that caused Ramjee to fire him.

OCAHO dismissed Hajiani’s complaint against his employer.

See you in my next blog.
Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.Copyright 2014. All rights reserved.

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Employment Practices that Could Lead to Immigration Discrimination, Pt. 2

The Office of Special Counsel (OSC)‘s job is to enforce the Immigration and Nationality Act (INA), which disallows employment-related anti-discrimination based on immigration and citizenship status, and nationality. I previously wrote about OSC’s responses to some employers’ questions on unfair employment practices, such as an employee presenting either invalid or fraudulent documents. OSC also answers immigration-related questions posed by law firms’, pertaining to law firm clients.

If, for example, a general contractor, is hiring out to a subcontractor, and then requires the subcontractor’s employees to again produce original documents — such as a passport or driver’s license — that were already presented during the hiring process and upon completion of a Form I-9 by the subcontractor, then a host of problems can present themselves:

  1. The original documents have expired and the employee has obtained a new version of those documents;
  2. The employee’s immigration status has changed, and thus has different documents to prove work authorization; and
  3. The original documents have been stolen or lost.

This could all amount to a claim by the employees that the general contractor was discriminating against them due to their citizenship or immigration status. Employees could also maintain that they are discriminated against in this case: An employer, who is an E-Verify user, hires a private vendor to disseminate paychecks, also giving the vendor access to Forms I-9. The vendor is authorized to examine the Forms I-9 in order to confirm the identities of employees, who the employer wants to pay.

What could easily happen is that, because the vendor didn’t see the employees’ original documents, he/she inquires about the adequacy of the documents that were initially presented to the employer for I-9 purposes. If the employer feels persuaded to ask his/her employees for further documentation, such a request might be perceived as document abuse, which violates the anti-discrimination provision of the INA. OSC found that the INA was not applicable in either circumstance.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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DOMA Issues After the Passage of “US v. Windsor”

The Defense of Marriage Act (DOMA) is a federal law that gives states the choice to deny recognition of same-sex marriages performed under the laws of other states. Same-sex marriage is currently legal in 10 states; the remaining states have various alternatives on the lawfulness of same-sex unions, affecting the distribution of federal benefits for same-sex couples.

Section 3 of DOMA provides a federal definition of “marriage” as the union of a man and woman. In addition, Section 3 prohibits same-sex married couples from being acknowledged as “spouses” in terms of federal laws, for acquiring federal marriage benefits.

Earlier this summer, the constitutionality of DOMA — Section 3 in particular — was addressed in United States v. Windsor in the Supreme Court, where the plaintiff argued that the federal law encroaches on the Constitution’s equal protection clauses.

The plaintiff and her spouse were New York residents, who had legally wed in Canada. As residents of New York, their same-sex marriage was accepted under state law; however, due to Section 3, their marriage was not accepted by federal law. The federal government then taxed the plaintiff’s late spouse’s estate $363,053. If the marriage had been recognized by federal law, the estate wouldn’t be subject to taxes, and would have been authorized for a marital exemption.

In 2012, the New York Court of Appeals ruled that DOMA’s definitional section — Section 3 — was unconstitutional. More recently, the Supreme Court held that DOMA strips persons of the equal liberty protected by the Fifth Amendment.

Now that Section 3 of DOMA has been struck down, several federal benefits and protections of opposite-sex couples have been extended to same-sex couples in state-recognized marriages:

  • Taxes: The Department of Justice and IRS have ruled that same-sex couples, who have been legally married in states that acknowledge those marriages, will be taxed as married couples. This is applicable to same-sex couples who live in a state that recognizes their marriage as well as to same-sex couples who live in a state that doesn’t recognize their marriage.
  • Social Security Benefits: The Social Security Administration (SSA) now acknowledges same-sex marriages for deciding Social Security benefits.
  • Medicare: Private Medicare plan beneficiaries will now receive equal coverage for care in their spouse’s nursing home.
  • US Visas for Same-Sex Spouses: Same-sex couples’ visa applications will now be processed the same as opposite-sex couples.  Both the Department of State and the USCIS will process same sex applications and apply the same standards as would be applicable to a heterosexual marriage.
  • Benefits for Uniformed Service Members: Benefits from the Department of Defense will now apply to same-sex spouses of uniformed service members and civilian employees.
  • Benefits for Federal Employees: Benefits from the Office of Personnel Management will now apply to same-sex marriages of federal employees and annuitants.

Takeaway

This is a huge step towards equal application of the law and attendant benefits to same-sex couples. Many same-sex couples are returning to the US after spending years abroad with their foreign spouse. What a wonderful ending!

Read my other post on DOMA, USCIS releases FAQ on Immigration Benefits for Same Sex Marriages.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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USCIS releases FAQ on Immigration Benefits for Same Sex Marriages

USCIS Makes Good on its Promise

After the Defense of Marriage Act (DOMA) was struck down as unconstitutional, USCIS issued a two-point FAQ today on filing for same-sex spouses. Secretary of Homeland Security Janet Napolitano issued the following statement:

“After last week’s decision by the Supreme Court holding that Section 3 of DOMA is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed USCIS to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

Now Same-Sex Partners can be Sponsored for Immigration Benefits

US citizens married to a same-sex spouse can now sponsor them for a family-based immigrant visa, both overseas and in the US. They can file the petition for a green card and any accompanying application. Eligibility will be determined according to applicable immigration law, and will not be automatically denied as a result of the same-sex nature of the marriage.

Jurisdictional Issues

If the marriage was celebrated in a state that recognizes same-sex marriages, but domicile in a state where recognition is not legal, some deference will be given to the ‘Full Faith & Credit Clause’ of the US Constitution. This allows the couple to file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the state where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, USCIS may provide further guidance on this question in the future.

Questions Remaining

Can fiance petitions be filed for same-sex couples? Will a couples’ consular processing for these benefits be accorded the same deference by the Department of State? I suspect that issues of marriage fraud will be applied with equal vigor to these cases as well.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Deferred Status for Dreamers

In the last few months, there has been many reports on Obama’s new Deferred Action for Childhood Arrivals (DACA) Memorandum, a form of prosecutorial discretion. The memorandum states that children who entered before June 15 2012, and before they turn 15 years old, could be granted authority to work and lawful status for a period of two years. There are a lot of misunderstandings about the benefits offered, and not enough understanding about the dangers and caveats of filing this application.

Radio Stations Report Incorrect Facts about Deferred Status
Even reputable radio stations get the facts wrong. KMOX and NPR both erroneously reported the incorrect age of eligibility. The eligibility starts at age 15 and ends at age 31, not 30 as these stations reported.

No Path to Citizenship
Deferred action does not confer any lawful immigration status, such as the status enjoyed while waiting for an adjustment of status. Deferred action also does not change the current immigration status, such as a grant of a visa, or lead to US citizenship.

What deferred status provides is a period of authorized stay. In other words, the person in deferred status is allowed to stay in the US with the permission of the government. Any unlawful status before deferred action is granted, or after deferred action status ends, will still be unlawful (source). Immigration can review and/or withdraw the deferred action status at any time.

Presence in the US
In order to apply, individuals must be between the ages of 15 to 31 as of June 15, 2012. They must also have lived in the US continuously from June 15th 2007 to the present, and should have been physically present in the US on June 15th, 2012. Presence in the US is also required when filing an application.

Inspection at the border is not required; individuals could have ‘snuck’ over the border or have overstayed their visa.

Proving Presence in the US
It is fine to have left for a few days to Mexico or the Caribbean; this will not interrupt continuous physical presence. Documentation of stay could include medical and school records, or utility bills and tax filings. The evidence is weighed by USCIS using a ‘totality of circumstances’ standard to prove circumstantially that there is the required presence in the US. In addition, presence could be proved by evidence of stay in the US before and after June 15th, 2012.

Stay in school! Be “all that you can be.”
Applicants must be enrolled in elementary, secondary, high school or college to be eligible. A GED from a reputable school is fine, and a college education is great. An honorable discharge from the Coast Guards or Armed Forces is fine too. Anecdotally, there are only a few who will benefit from service in the armed forces. Only US citizens and permanent residents can enroll with a few exceptions from ‘those vital to the national interest’, and even then most would be eligible for naturalization and would not need deferred status.

Beware of Crimes
Applicants with significant criminal history need not apply. Those who are subject to removal orders from an immigration judge should apply for prosecutorial discretion. ICE may administratively close cases for individuals who are eligible for deferred action.
But if an individual has remained in the US after a grant of voluntary departure from a judge, then that person is subject to other immigration penalties, such as fines and bars to filing an immigration application for 10 years.

Being a Member of a Gang
Many law enforcement agencies maintain a ‘gang book’ of tattoos and the meaning of gang symbols. If an applicant has a gang tattoo or has been profiled in a ‘gang book,’ then that may be a problem, especially if the applicant is interviewed and the tattoos are revealed.

Traffic Offenses
Generally, traffic offenses are not considered fatal to an application. However, those with outstanding traffic tickets; unpaid parking tickets; accidents and arrest warrants for traffic violations; and accumulation points on a drivers’ license close to suspension of the license, need to exercise caution.

DWIs and Domestic Violence
Increasingly domestic violence and driving under the influence are being targeted as bars to immigration benefits. DWI convictions are already a bar to returning on a non-immigrant visa to the US. DWIs are a bar to applying, regardless of the sentence imposed.

Using a False Social Security Number
Using a false social security number is a federal crime with applicable jail time and fines. The applicant risks USCIS reporting the false document use to ICE, which could end in removal and federal prosecution. Chances are that false claims of US citizenship status have been made on I-9 forms, and taxes have been filed using the same social security number. In addition to all the federal crimes, there could also be immigration law violations due to the possible allegations of identity theft. Filing an application under these circumstances is very risky.

Entering Using False Documents
While a minor may not have a say on if the parents entered using false documents, USCIS can still share that information with ICE, and those facts could pose a problem for the parents and others who entered using false documents. All applicants are fingerprinted and photographed. There will be a background check on all applicants, and USCIS can share information about false documents and criminal history with ICE.

Arizona Decided Not to Issue Drivers’ Licenses
Gov. Brewer recently signed an executive order not to issue drivers licenses to conferees of deferred status on the basis that they were in unlawful status. Perhaps she did not read the relevant statutes. This statute is also called the Real ID Act.

Improved Security for Drivers’ Licenses and Personal Identification Cards

Pub.L. 109-13, Div. B, Title II, §§ 201 to 207, May 11, 2005, 119 Stat. 311, provided that:
“(2) Special requirements.–
“(A) In general.–To meet the requirements of this section [this note], a State shall comply with the minimum standards of this paragraph.
“(B) Evidence of lawful status.–A State shall require, before issuing a driver’s license or identification card to a person, valid documentary evidence that the person–
“(i) is a citizen or national of the United States;
“(ii) is an alien lawfully admitted for permanent or temporary residence in the United States;
“(iii) has conditional permanent resident status in the United States;
“(iv) has an approved application for asylum in the United States or has entered into the United States in refugee status;
“(v) has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States;
“(vi) has a pending application for asylum in the United States;
“(vii) has a pending or approved application for temporary protected status in the United States;
(viii) has approved deferred action status; or
“(ix) has a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence in the United States or conditional permanent resident status in the United States.

The Final Word
Deferred status could be used to keep a person in status while they are waiting for a priority date, in the family context. This status could stall unlawful status for a person shy of their 18th birthday. There is also a lot of discussion about filing for advanced parole after obtaining deferred status to exit and re-enter the US, and then, without filing a waiver, to file for immigrant status based on a relative.

The deferred status application is seemingly simple, but could be extremely complicated and lethal for the applicant and family members (see Arrabally, Yerrabelly). Those matters should be discussed with an immigration attorney before applying. Contact Nalini Mahadevan or Diane Metzger at Lowenbaum Partnership, LLC.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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Employers must not insist on ‘green cards’!

Documentary abuse and discrimination against work-authorized workers continues.

The Justice Department (USDOJ) announced today that it reached an agreement with Ross Stores Inc., resolving allegations that the company had engaged in a pattern or practice of discrimination based on citizenship status while verifying employment eligibility at its store in San Ysidro, CA. The allegation was that Ross Stores discriminated against a work-authorized individual when it refused to honor a genuine work authorization document and requested that she produce a green card, despite the fact that the company did not require US citizens to show specific work authorization documents.

The department’s investigation began in response to a charge of discrimination filed by a work-authorized, non-US citizen, who was not permitted to work at the San Ysidro store after showing a valid Employment Authorization Document (EAD) for the Form I-9. The worker complained that Ross Stores refused to allow her to work after presenting her EAD, and that Ross requested more or different documents for the Form I-9 and eventually withdrew her job offer. The worker had already produced sufficient documentation establishing her work authorization.

USDOJ alleged that Ross Stores subjected newly hired non-US citizens to excessive demands for documents, in order to verify their employment eligibility, but did not require the same of US citizens.

The Immigration and Nationality Act (INA) requires employers to treat all authorized workers equally during the employment eligibility verification process, regardless of their national origin or citizenship status.

Employers must not treat authorized workers differently during the employment eligibility verification process based on their citizenship status or national origin.

Under the settlement agreement, Ross Stores agrees to reinstate the charging party and pay $6,384 in back pay plus interest to the charging party and $10,825 in civil penalties to the United States. Ross Stores also agrees to comply with the law, to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process, and to be subject to reporting and compliance monitory requirements for 18 months.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Immigration Attorney

Copyright 2012.  All rights reserved.

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Civil Unions

Civil unions are usually viewed as a benefit to same sex couples, allowing the parties to legalize their relationship and recognize that they are a couple just like you and me. The Illinois Senate has passed the bill and it has gone up to Governor Pat Quinn for signature. Governor Quinn is scheduled to sign the bill next year. The law could take effect next summer, June 11, 2011. But with this law, Illinois has enacted a law that has widespread effects. The law is called The Illinois Religious Freedom and Civil Union Act. The law was enacted because same sex couples were denied marriage benefits, and there was no compelling state interest or rational basis to deny same sex couples these marriage benefits. The bill particularly mentions that the purpose is not to interfere with religious freedom or beliefs about marriage. The bill will apply equally to same and opposite sex partners (something new) who want to enter into a civil marriage or union. Same sex partners will be called ‘spouse’, ‘immediate family’, and ‘dependent’. This is important because it has implications for divorce, probate law and other domestic relations law. So same sex couples can marry, divorce and have standing in court to sue on these actions. They can also inherit under probate law as a civil union spouse, sue for emotional distress, wrongful death, loss of consortium under Illinois tort law. As spouse, they can apply for insurance benefits – health and accident, be eligible for group insurance in employee insurance plans. Under Illinois tax law, they will be eligible as spouses for taxes and tax deductions as spouses and dependents. Marriage, under the Illinois law, is prohibited between siblings, uncle and nephew, aunt and niece. Because same sex couples are treated as ‘spouses’ under the marriage and divorce law of Illinois, they can now share rights to make end of life decisions, nursing home decisions, transfer of property to spouses, and survivor benefits. Under workers’ compensation rules, ‘spouses’ can claim benefits. Did I say there was something different about this bill? Well, heterosexual couples who do not want to marry, can opt for a civil union and enjoy the same benefits as a married couple would do. Why, you ask? Let us say that a couple is interested in a domestic partnership because they face loss of health insurance and other benefits, or seniors who will lose their social security survivor benefits, pension or income if they remarry, then this bill offers a way out. Seniors can also now have the right to make emergency decisions for their ‘spouse’ under this new law. It recognizes the relationship without the concomitant problems of marriage. So it provides straight couples some legal support but no title of marriage. Employers should review their employee benefits, especially health insurance, and family leave benefits and their compliance with applicable labor laws. Couples who opt for civil unions under this law can also make end of life decisions–they do not have to have powers of attorney to end, for example, a vegetative state. Remember the Terry Schaivo case? They also have the right to make funeral home decisions and take charge of the remains. But these protections are offered only at the state level and have no application at the federal level. Tax law, immigration law and a host of other laws will not recognize these relationships as spouses. I guess you could then claim a ‘spouse’ under the new law as a dependent under state law but not federal law. The federal law, the Defense of Marriage Act, recognizes marriage as a union only between a man and a woman. DOMA does not recognize civil unions even if the union is recognized by the state. This is a legal conundrum because the full faith and credit clause of the US Constitution makes it mandatory to recognize the laws of another state in the Union, and accord foreign state laws equal application and status. But same sex unions or marriages are non-existent in federal law. A United States Citizen or legal permanent resident cannot sponsor a same sex partner of foreign citizenship to live with them in the United States as their ‘spouse’. Same sex marriage was banned in California after Proposition 8 was passed. But on August 4, 2010, a federal district court decided that such a ban violated the Equal Protection clause of the US Constitution. The equal protection clause does not guarantee equality among individuals or classes but only that the laws would be applied equally to all. The question remains for us: are some more equal than others? Is the federal government practicing discrimination by the unequal application of laws, or by denying rights to some? Is this a slippery slope we should not venture on?

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2011. All rights reserved.

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