New Look to Green Cards & EAD Cards  

USCIS will start issuing redesigned cards with enhanced graphics to applicants.  The new cards will start being issued on May 1, 2017.

These redesigns use enhanced graphics and fraud-resistant security features to create cards that are highly secure and more tamper-resistant to prevent document tampering, counterfeiting and fraud; than the ones currently in use.

The Redesigned Cards

The new Green Cards and EADs will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
  • Green Cards will have an image of the Statue of Liberty and a predominately green palette;
  • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Have embedded holographic images; and
  • No longer display the individual’s signature.

Also, Green Cards will no longer have an optical stripe on the back.

How To Tell If Your Card Is Valid

Some Green Cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.

Certain EADs held by individuals with Temporary Protected Status (TPS) and other designated categories have been automatically extended beyond the validity date on the card.

Employers, please note that both the older version and the new cards are acceptable for Form I-9, Employment Eligibility Verification, E-Verify, and Systematic Alien Verification for Entitlements (SAVE).

Some older Green Cards do not have an expiration date.  These older Green Cards without an expiration date remain valid.

Individuals who have Green Cards without an expiration date may want to consider applying for a replacement card bearing an expiration date. Obtaining the replacement card will reduce the likelihood of fraud or tampering if the card is ever lost or stolen.

Nalini S Mahadevan, JD, MBA ▪ nsm@mlolaw.us ▪ Office: 314.932.7111 & 314.402.2024

Disclaimer:  Not meant as legal advice! For information purposes only.

 

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Students at at UNNJ lose their visa!

ICE cancels F-1 Student visas

On April 4 and 5, 2016, the Student and Exchange Visitor Program (SEVP) terminated the visa of nonimmigrant students who had enrolled at the University of Northern New Jersey (UNNJ), and the visas of nonimmigrant students who had transferred from UNNJ.

Why?

The students were found to have knowingly participated in visa fraud because they enrolled at UNNJ to obtain an illegal to maintain their F-1 nonimmigrant status.

UNNJ is a school operated by Homeland Security Investigations (HSI) Newark. It was created as a part of an enforcement action that targeted SEVP-certified schools and officials who sought to fraudulently utilize SEVP and the Student and Exchange Visitor Information System (SEVIS) to commit various violations of federal law.

There are approximately 60 students who are affected and who will receive notification of cancellation of their visa.

Students who are terminated because they were currently  or  enrolled before at UNNJ and choose not to file for reinstatement or have applied to USCIS for reinstatement and whose application is denied, must depart the country immediately.

Not Eligible for Transfer

These students are not eligible for to transfer to another SEVP-certified school unless U.S. Citizenship and Immigration Services (USCIS) approves the student for reinstatement following the student’s termination. Students who transferred to another school from UNNJ will also be terminated and their new school will be notified of the cancellation of their visa.

What to do now?

Call SEVP Response Center at 703-603-3400. This number is staffed from 8 a.m. to 6 p.m. (ET), Monday through Friday, except holidays. The SEVP Response Center is closed every Wednesday from 12:45 to 1:30 p.m. ET for system maintenance and testing.

Provide the following information when calling:

  • First and last name
  • SEVIS ID number
  • Address
  • Telephone number where you can be reached
  • E-mail address
  • Current SEVP-certified school

Nalini Mahadevan JD, MBA

Attorney at Law

314-932-7111 office

nsm@mlolaw.us

website: Mlolaw.us

Disclaimer:  Not meant as legal advice. NOT meant to create an attorney client relationship.  Please call an attorney to obtain advice pertaining to your legal situation.

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The Good Faith Criterion: Lessons Learned From US vs. M&D Masonry and Form I-9

In 2010, ICE alleged in two counts that M&D Masonry committed 364 violations against the Immigration and Nationality Act (INA). The first count charged that 277 of M&D’s employees didn’t correctly complete section 1 and 2 of Form I-9; the second count charged that M&D didn’t have proper paperwork for 87 additional employees. The company refuted ICE’s allegations, and protested to 40 of the 277 violations named in Count I, and six of the 87 violations named in Count II.

For Count I, the government contests that M&D failed to ensure that:

  • 34 employees signed the attestation in section 1 of Form I-9;
  • 60 employees checked a box in section 1;
  • three employees attested to only one status in section 1; and
  • 10 employees who attested to status as lawful permanent residents entered their respected alien numbers on the adjacent line.

For Count II, M&D failed to:

  • complete section 2 of Form I-9 properly;
  • sign section 2;
  • record the issuing authority for a List B document;
  • provide the document number for List A, List B, and List C documents; and
  • review both List B and C documents.

Additionally, M&D instead accepted unacceptable documents, and didn’t examine or authenticate many I-9 forms within three business days of the individual’s hire date.

Among the defenses, the company alleges that the proposed monetary fines are exorbitant and do not consider the M&D’s financial abilities; and that ICE’s enforcement practices are unreasonable and impulsive. On January 6, 2014, ICE revised its complaint and retracted 25 of the named persons in Count I. According to the US government, M&D supplied satisfactory evidence that demonstrated that those employees had been dismissed before ICE’s inquiry, and wasn’t within the purview of the audit.

Lesson 1

A newspaper article is actually what led ICE to inspect and fine M&D Masonry. On April 30, 2010 an article titled “Illegal hiring for airport construction?” was printed in the Atlanta Journal Constitution. The article cited a hiring foreman for M&D who said that the company was hiring people without sufficient work authorization. ICE conducted a worksite enforcement inquiry on May 7, 2010; subsequently, ICE served M&D with a Notice of Inspection (NOI) for current and past employee I-9 forms from May 7, 2007 to May 7, 2010, and for employment records, payroll data, and wage and hour reports. ICE then issued M&D with slew of other notices throughout 2010 and 2012, including a Notice of Technical and Procedural Failures (NTPF), a Notice of Suspect Documents (NSD), and a Notice of Intent to Fine (NIF).

Lesson 2 & 3

M&D was timely in their response to ICE, and filed a Request for Hearing a month after ICE issued the NIF.

After acquiring and studying M&D’s Wage Inquiry by Employer Number records—obtained from the Georgia Department of Labor—Count II of ICE’s allegations concluded that M&D failed to prepare I-9 forms for 87 employees. M&D’s violations in Count II are far more egregious than Count I because failure to properly prepare and/or present I-9 forms destroys the purpose of the INA.

Penalties

M&D believed that ICE should fine the company based on its financial means; however, the governing statute asserts that such consideration is only applicable in five certain circumstances; M&D did not fall within the scope of those circumstances. While some OCAHO cases have previously taken financial means into consideration when determining penalties in a case, such leeway is not required of the government.

ICE fined M&D $332,813.25 for 339 violations, where each violation cost $981.75. Each violation incurred a baseline penalty of $935, also taking into account the employer’s 84% error rate. ICE heightened the penalties by 5 percent for the significance of the violations—over 100 I-9 forms were purportedly verified by signature stamp, although section I of the forms reflected various dates—and 5 percent for the size of the company: M&D had been in business for over 20 years, employed over 400 workers in a three year period, had a payroll of $4.3 million, and a large amount of contracted work. ICE handled the inclusion of unauthorized workers and absence of previous violations as neutral; ICE also lessened the penalties by 5 percent due to the good faith criterion.

ICE was charitable by applying the good faith criterion in M&D’s case. The good faith criterion is gauged by a study of whether the employer tried to comply with the INA obligations before the delivery of the NOI. Since M&D’s case isn’t the most extreme example of the INA violations, the penalties were lessened to a grand total of $228,300.

Takeaway

Incorrectly preparing and/or presenting a Form I-9 is one of the grievous paperwork violations an employer can make. Good faith is only taken into account when an employer actually attempts to determine its legal duties and yield to them. When judging suitable violations of the INA, the following must be favored:

  1. size of the employer;
  2. employer’s good faith;
  3. gravity of violations;
  4. whether an individual is an unauthorized alien; and
  5. employer’s history of previous violations.
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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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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The New and Improved I-9 Form

On March 8, 2013, USCIS published a new Form I-9 for employers to use for new hires, which is for immediate use. USCIS received over 6,000 comments on the form and has tried to incorporate some of the suggestions. To ensure that the correct form is being used, look for the form’s date in the lower right-hand corner of the form.

When Should Employers Use the New I-9

The new form is to be used for all new hires. The 3 day rule remains, which is to fill Section 1 within 3 days of starting work. The form can also be filled in advance, as long as an offer of employment has been made and accepted. If the old form was used and the employee has not started work, a new form should be used in lieu of the old form.

The new form should be used for both US citizens and non-citizens, if they are working within the geographical boundaries of the United States of America. If a new office or an employee is hired in Mexico or Canada, there is no obligation to maintain a Form I-9 for the new hire. Employers should use the new Forms I-9 from 8 March, 2013 onwards. Older forms dated 02/02/2009 and 08/07/2009 can be used until May 7th, 2013.

The Spanish version can be filled out by new hires only in Puerto Rico. On the mainland, the Spanish version can be utilized as a translation tool for Spanish speaking new hires, but only an English language version Form I-9 can be filled out by both the employer and employee and retained by the employer.

The New Form

The new form is 7 pages of instruction and two pages of form to be filled. Section 1 occupies its own page, with expanded areas for the employee to fill personal identifying information. The expanded area allows work-authorized non-citizens to complete their information.

Page 2 of the form is divided between Section 2 and 3. Section 2 is renamed to include authorized representative review and Section 3 is now called “Reverification and Rehires”, instead of “Updating and Reverification”. Section 3 is to be used for employees who return to work after an absence of time. Once the initial I-9 is filled out by the employee, the employer cannot ask legal permanent residents or US citizens to present new documents to complete reverification for work authorization.

The Takeaway

The form is more detailed and thus, may have more pitfalls. Print the new form on both sides of the paper to keep both pages together. The 67 page book of “Instructions” is now called “Guidance”. The important step is to start using the new form and to cease using the old form. Section 1 cannot be populated by electronic programs used to ‘onboard’ new hires. Employer liability, audits and monetary fines remain the same under the old and new forms.

We are available to discuss the new form or needs for training and assistance.

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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Planning For the New Year: Form I-9 and E-Verify

With the new year approaching, employers can make some changes and improvements to processing and maintaining Form I-9s. There are Form I-9 best practices that employers should follow to avoid being fined by ICE in an audit. The following are methods to ensure that you, as an employer, are complying with Form I-9 guidelines that have been implemented by USCIS and enforced by ICE. Please also see my Form I-9 series.
  1. Train your team in-house on how to complete I-9 forms and use E-verify successfully.
  2. Don’t be creative while completing forms. If, for instance, the HR specialist forgot to date the form, or the employee did not fill in Section 1 fully — don’t attempt to back-date the form and ask to the employee to complete Section 1. There is always someone who knows the situation and is watching. You could be threatened with punishment, or other employees could rat you out.
  3. The days of the wild, wild west are gone. Today requires a culture of compliance with the rules and laws. It is too expensive for employers and companies to do otherwise.
  4. Hire outside counsel to conduct a year-end audit of all the new forms created since the beginning of the year. At a recent immigration conference, I heard that more than 85% of I-9 forms are filled incorrectly, which means that self-audit is probably not a good idea. Having another employee conduct an audit can be a tricky situation because he/she may not want to point out a superior’s mistakes. The best way is to engage outside counsel to perform the audit; this audit can be part of a wage and hour audit.
  5. Brainstorm about your on-boarding policies and your “exit” interviews. Review policies for document examination; and recording and re-verification of documents for various visa-based and non-visa-based employees. Aim for consistent employee procedures — this means creating a handbook for procedures. Ensure your employees review the handbook before they attempt to examine and record documents on the I-9.
  6. Beware of audits by other federal agencies — they share information and are looking to collect fines. A wage and hour audit can turn into an I-9 and E-verify audit nightmare.
  7. Audits take time and are an unproductive task: they cost company money and employee time, and lead to lost profits. Take the time to understand the I-9 process.
  8. Audits ruin company reputations — names of companies that are audited are made public on federal websites. ICE, OSC and DOL publish announcements of audits.   Sushi Zushi, a San Antonio restaurant, lost workers and shut down after an announcement of an ICE audit. Employees left in droves; without employees, the restaurant had to shut down 8 locations.
  9. The new I-9 will create new challenges. Allocate a budget for training and compliance.
  10. Reduce liability by purging old I-9s.

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 2012. All rights reserved.

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OSC Document Abuse Settlements

The Errors that Employers Commit

Some hiring mistakes end up costing employers a lot of money and time, and loss of reputation. This past October, the Office of Special Counsel (OSC) arrived at an agreement with the New Jersey-based home healthcare provider, Advantage Home Care, LLC, which was charged for violating the anti-discrimination provision of the Immigration and Nationality Act (INA). Advantage Home Care was asking new hires, who were lawful permanent residents, to present additional and different documents during the Form I-9 employment eligibility verification process.

The claim was brought to OSC by an individual who applied for a job. When the individual applied to Advantage Home Care, the company ran a criminal background check and wrongly determined that the individual was using an invalid Social Security number (SSN). The individual went to the Social Security Administration, which concluded that the SSN was valid; however, Advantage Home Care would not employ the applicant. Upon further investigation, OSC found that Advantage Home Care required lawful permanent residents to provide more documents to validate work authorization than US citizens. The INA prohibits such discrimination.

In early October, similar charges were brought upon Las Vegas-based Tuscany Hotel and Casino, LLC. The company was also found to be using discriminatory practices during the employment eligibility verification and re-verification processes.

A complaint was filed with OSC in May 2012, asserting that Tuscany was asking non-citizen job applicants to provide additional or different documents during the work authorization process; US Citizen applicants were not asked to present more documents. Once hired, and in order to remain employed, the company then asked non-citizen employees to provide further document requests during the re-verification process. Moreover, non-citizen employees were subject to severe reviews, which US citizen employees didn’t have to endure.

Expensive Mistakes for Employers

Per OSC’s agreement with Advantage Home Care, the company will pay $1,633 to the individual and $46,575 in civil penalties to the US. Advantage Home Care must also pay back pay to previous job applicants who suffered financially from the company’s policy. Additionally, the company’s human resources staff will be trained in employers’ responsibilities and best practices to prevent discrimination during the employment eligibility verification process. In order to ensure compliance, Advantage Home Care’s staff will also be monitored by OSC for three years.

Under the agreement, Tuscany will pay $49,000 in civil penalties to the US and make payments to the complainant. Tuscany will administer new employment eligibility verification policies and practices that will eradicate any employment-based discrimination. Additionally, the company will train its staff on how best to avoid discrimination in the verification process, and will be monitored for compliance.

Lessons Learnt

Employers must train HR personnel on the proper documentation methods for ‘onboarding’ employees. In addition to training, written guidance or manuals for proper intake are necessary to avoid financial penalties, and work stoppage due to worksite audit. Losses may occur because workers are redirected to answering the government, providing requested documents and undergoing mandatory training as part of the worksite enforcement action. An employer’s reputation can suffer because the audit and fines are reported on government and public websites, and news media. Employers can use an immigration attorney to prevent these costly mistakes.

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 2012. All rights reserved.

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Justice Department Finds Practices of Discriminatory Policing in North Carolina

The Justice Department found that the Alamance County Sheriff’s Office (ACSO) in North Carolina operates in a practice of discriminatory policing, specifically targeting Latinos.

Policing Practices in Violation of the Constitution and Federal Law

By using methods that discriminate against Latinos, ACSO has violated the Equal Protection Clause of the Fourteenth Amendment; the Fourth Amendment; the Violent Crime Control and Law Enforcement Act; and Title VI. ACSO’s modes of discriminatory policing are as follows:

  • ACSO deputies target Latino drivers for traffic stops;
  • A study of ACSO’s traffic stops on three major county roadways found that deputies were between four and 10 times more likely to stop Latino drivers than non-Latino drivers;
  • ACSO deputies routinely locate checkpoints just outside Latino neighborhoods, forcing residents to endure police checks when entering or leaving their communities;
  • ACSO practices at vehicle checkpoints often vary based on a driver’s ethnicity.   Deputies insist on examining identification of Latino drivers, while allowing drivers of other ethnicities to pass through without showing identification;
  • ACSO deputies arrest Latinos for minor traffic violations, while issuing citations or warnings to non-Latinos for the same violations;
  • ACSO uses jail booking and detention practices, including practices related to immigration status checks, that discriminate against Latinos;
  • The sheriff and ACSO’s leadership explicitly instruct deputies to target Latinos with discriminatory traffic stops and other enforcement activities;
  • The sheriff and ACSO leadership foster a culture of bias by using anti-Latino epithets; and
  • ACSO engages in substandard reporting and monitoring practices that mask its discriminatory conduct. (source)

Policing Reforms

The Justice Department’s inquiry allowed for a thorough investigation, comprising of a detailed analysis of ACSO policies, procedures, training materials and records on traffic stops, arrests, citations, vehicle checkpoints and other archived evidence. For the inquiry, the Justice Department also interviewed former ACSO employees and Alamance County residents.

In order to reform ACSO’s discriminatory policing, the police department must accept structural and fundamental change by creating and employing new policies, procedures, and training so as to promote constitutional policing. ACSO must also be held accountable for their actions, and guarantee the Justice Department that any unlawful bias has been eradicated. The Justice Department will request a court-enforced, written document that will help to solve ACSO’s violations.

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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Employer Liability on DACA Issues

Mike is 27 and has a GED; he is employed by XYZ company. He applies for an Employment Authorization Document (EAD) card under the Deferred Action for Childhood Arrivals (DACA) Memorandum. When he goes to his boss at XYZ, he tenders the EAD as evidence of his newly minted status as being allowed to work legally. While DACA does not confer status on Mike, he is now allowed to work legally for XYZ. Many employer liability issues arise from this scenario.

Employer Liability

Firstly, as the employer, XYZ could have constructive knowledge of the employee‘s prior unauthorized status. Hence, the employer could be charged under Missouri Omnibus immigration law as ‘knowingly’ employing an unauthorized worker in the US. In addition, XYZ could be charged with violating Form I-9 laws.

Secondly, the employer may have other potential Form I-9 issues. Now that the employer has constructive knowledge of the employee not having work authorization in the US, the employer may have to seriously consider terminating the employee, or could potentially become liable of knowingly retaining an employee whose immigration status is under question.

However, an employer is not supposed to be an immigration document expert. If the employer previously employed a worker who provided false documents that appeared to be valid and to relate to the individual employee, then the employer may provide a “good faith argument” if there is an ICE audit.

Yet, if a prior employee now declares that he/she is eligible for DACA work authorization, the employer needs to make certain that this policy of terminating this ‘newly discovered’ unauthorized employee does not discriminate against other similarly placed employees in the employer’s workforce. In other words, the employer cannot have one policy towards ‘seemingly foreign looking individuals’ and another policy towards ‘seemingly US born individuals’ if both populations present with similar DACA-related issues. This is called national origin discrimination.

Form I-9 Issues

The employer, under I-9 guidance, may have to terminate the employee who needs DACA employment authorization in order to continue working with the employee. The employer may have to terminate the employee and, if needed, rehire after new DACA-related employment authorization has been produced by the employee. The employer may also have to manage employer liability, and purge their employment records of all unnecessary I-9 documents in line with USCIS guidance.

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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