By:  Timothy Sutton, Communications Editor

Today, recruiters, human resource managers, and small business owners utilize the Internet to recruit new employees. Online recruiting is cheap, efficient, and reaches a much broader audience than traditional forms of media. While there are numerous advantages to employing a professional staffing agency to locate prospective employees through the Internet, many employers choose to self-publish want ads through popular websites like monster.com or craiglist.org. Self-publishing online job posting gives the employer complete control over when, where, and how long a post will be visible to the public. Ultimately, do-it-yourself recruiting can be personally tailored to suit a particular employer’s needs.

But recruiters beware. The Internet is much more sophisticated than a virtual corkboard. Keywords and phrases in your job listings can be tracked and monitored by government software, then stored in databases. Recently, the Civil Rights Division of the Office of Special Counsel (OSC) released a Best Practices notice for online job posting. Whether this notice foreshadows future litigation over civil rights violations in hiring practices is yet to be determined; regardless, the message is clear, employers need to exercise caution when recruiting online because the OSC is monitoring online want ads.

Immigration laws prohibit the use of discriminatory language regarding U.S. Citizenship, lawful permanent residence, citizenship status, or national origin unless required by law, regulation or executive order. Curiously, the OSC notice was released shortly after a handful of states attempted to curtail the rights of Deferred Action Childhood Arrival qualifiers to obtain state identification (see our previous post here). There is no data revealing any increase in discriminatory language found in online job postings, but a simple keyword search on either monster.com or craigslist.org reveals numerous non-compliant ads. For instance, if the word “citizen” is entered into Craigslist, ads for dishwashers, personal assistants, security guards, and caregivers pop up. Each ad contains some version of the following discriminatory language that the OSC notice clearly forbids pursuant to the Immigration and Nationality Act at § 1324b that prohibits discrimination based on the citizenship status or national origin in the hiring, firing unfair document practices (“document abuse”) during employment eligibility verification process, and retaliation:

•  “Only U.S. Citizens”
• “Citizenship requirement”*
• “Only U.S. Citizens or Green Card Holders”
• “H-1Bs Only”
• “Must have a U.S. Passport”
• “Must have a green card”

One explanation presented by the OSC for the common use of such language is the misinterpretation of federal employment laws. Employers are not limited to the recruitment of U.S. citizens. In fact, we recently published an article on the proper method of verifying the legal employment status of refugee/asylees. Due to the complexity of adhering to the legal requirements of recruiting, hiring, and employing individuals in today’s diverse workplace, employers should seek the professional guidance of an attorney. The cost savings and convenience of self-publishing job postings are heavily outweighed by the potential financial penalties and negative publicity of losing an anti-discrimination lawsuit.

Our office has the experience and successful track record necessary to protect the interests of your enterprise.  For more information, contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

By Timothy Sutton, Communications Editor

The California Board of Food and Agriculture met with labor experts from across the country last week in Santa Cruz, to discuss recent labor shortages. In the midst of the worst drought in fifty-six years, crops are being left to rot in fields across the country due to a lack of legally available agriculture workers. Ag-Vision, a progress report complied by the California Department of Food and Agriculture, highlights the devastating impact immigration laws have on the available agricultural labor force in the state:

An estimated 75 percent of California’s agricultural workforce is foreign-born, primarily in Mexico, and about half the workers are believed to be unauthorized under current immigration laws. Reform of those laws is needed to alleviate a shortage of farm labor that is putting stress on the harvest and processing of California’s crops, as well as to offer opportunities to those immigrant families who are responsibly seeking greater opportunity in America. In particular, mandating the use of E-Verify in agriculture could force California farmers to let go many of their employees without any realistic chance of replacing them.

The report also sites a number of state bills that propose immigration alternatives to the “cumbersome” H2-A. The Employment Acceleration Act, AB1236 (Paul Fong, D-Cupertino), prohibits state and local governments in California from forcing private employers to use E-Verify, except where required by federal law. The Agricultural Job Opportunities, Benefits, and Security Act (AgJOBS) introduced by California Sen. Dianne Feinstein (S. 1038) and Rep. Howard Burman (D-28thDistrict, Van Nuys), the bill represents a compromise between farm labor organizations and major agricultural employers. The bill proposes an “earned legalization” program enabling many undocumented farmworkers and H-2A guest workers to earn a “blue card” temporary immigration status with the possibility of becoming permanent residents. H.R. 2895, the Legal Agricultural Workforce Act and AB 1544, the California Agricultural Jobs and Industry Stabilization Program, authorize guest worker programs permitting undocumented aliens to work in the domestic agriculture industry and allows their families to legally reside in the state.

According to Feinstein, at least 84,155 production acres and 22,285 jobs have moved to Mexico. The current lack of available workers is evidence that the system in place, including the H2-A visa, is inadequate. The H2-A visa requires a lengthy approval process from both the Department of Labor (DOL) and United States Customs and Immigration Services (USCIS). Visa holders are eligible to work for a year, renewable for up to a three-year period, but limited to travel outside the country for a maximum of three months. Many of the visa’s requirements are difficult for employers to comply with, including the provision of standard housing, meals, daily transportation, workers compensation, and adherence to the fifty percent rule (maintain at least a 50% US workforce per availability).

Until state legislation is adapted to create a more reliable source of agricultural workers, employers should seek legal assistance to secure lawful seasonal laborers. For more information on how to secure visas, comply with E-Verify, and attract a secure and suitable workforce, contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

By: Timothy Sutton, Communications Editor

The State of Arizona behind Governor Jan Brewer has made their position clear, they do not support Deferred Action Childhood Arrivals. Brewer signed her own executive order to “defend” Arizona from President Obama’s Deferred Action Program. Executive Order 2012-06 alleges that because DACA workers are not given lawful status, but merely deferred status, DACA recipients can be legally denied the right to obtain a driver’s license or any public benefit.

Brewer justifies her executive order as a defense against DACA which she refers to as “federal paperwork,” that will result in “significant and lasting impacts on the Arizona budget, it’s healthcare system and additional public benefits that Arizona taxpayers fund.” A Brewer spokesperson sited specific public benefits that DACA holders will not be eligible for: KidsCare, a children’s health-insurance program; unemployment benefits; business and professional licenses and government contracts.

Legal challenges to Brewer opposition of Obama’s DACA program are expected this week. Under the REAL ID Act of 2005 Sec.202(C)(B)(2)(viii), a federal law that modified requirements for state driver’s licenses and ID cards, “deferred action” is a term used for those eligible for state issued identification and driver’s licenses. According to NBC News, Regina Jefferies a local Phoenix attorney, criticized Brewer’s executive order saying, “Immigrants in Arizona have in the past been granted “deferred action” for other reasons long before the new Childhood Arrivals program was announced.” Additionally, Brewer’s spokesperson said that DACA students would not receive in-state tuition pricing.

After Brewer’s announcement, protester’s outside of the Arizona state capital waived signs that read, “Why the hate?” This sentiment raises the question, is Brewer guilty of playing politics with immigrant lives? Certainly, extreme curtailing of the DACA program by states like Arizona (and Florida) appears to be less about state preservation than politics. This preemptive strike against the Presidential Executive Order is a sign of the strong resistance to come for future immigration reform that favors inclusion over deportation.

California officials announced they would honor the DACA program and issue driver’s licenses to eligible persons. As temporary California residents, DACA beneficiaries will be afforded in-state tuition pricing, driver’s licenses, and the temporary ability to seek employment.

The national success of the DACA program shall remain closely monitored. We will continue to keep you updated on this and other breaking immigration news. If your business has questions about the DACA program or hiring from this temporary workforce, contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

Please check out our news and stay informed.

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Driver’s Licenses Vary by State

The Department of Justice Office of Public Affairs recently published a press release pertaining to the employment of two refugees resolving allegations that the company discriminated under the anti-discrimination provision of the Immigration and Nationality Act (INA), when it impermissibly delayed the start date of two refugees after requiring them to provide specific Form I-9 documentation.  Best Packing’s violations occurred when they required the refugees to supply the company with additional Form I-9 verification documents in excess of the law. The claim alleged that other non-refugee employees were not required to supply documents other than state issued licenses and social security cards.

In two charges filed with the department, the refugees alleged that they were not allowed to begin employment until they produced unexpired, Department of Homeland Security-issued employment authorization documents, despite the fact that they initially presented sufficient documentation for employment eligibility verification purposes. The charging parties had presented unexpired state identification cards and unrestricted Social Security cards.  The state ID’s and unrestricted SS cards were deemed insufficient proof of work authorization.

It is necessary for all those charged with Form I-9 processing at your organization to be very familiar with the list of acceptable documents and to have a thorough understanding of the fact that each employee has the right to present a list A document or a combination B plus C document as long as they are acceptable documents, appear to be genuine and represent the employee that is before you.

Under the settlement agreement, Best Packing agreed to pay $4,379 in back pay and comply with all the requirements of the INA.  Understanding the Form I-9 requirements for verifying refugee/asylee(s) will prevent your company from falling victim to similar discriminatory hiring practices.

The process by which an employer is required to verify the employment eligibility of a refugee/asylee(s) when presented with documentation other than the above-referenced List B plus List C combination, can be a bit complicated.  Let’s review this.

Asylees and Refugees are individuals seeking the protection of the United States due to persecution suffered in the home country based upon: race, religion, nationality, social group, or political ideology. These individuals are authorized to work in the US because of their immigration status. When presented with documentation of asylum or refugee status, it is advisable to be aware of the following in regard to examining the I-9 form and the documents presented:

SECTION 1:

1. The employee should check the “An alien authorized to work” box
2. Write the I-94 or Alien Registration Number in the first space
3. Write “N/A” in the second space, because their employment authorization does not expire

By:  Timothy Sutton, Communications Editor

The biggest  names in banking, Goldman Sachs, JP Morgan, Wells Fargo, Bank of America, Lehman Brothers, MF Global, Countrywide, and Chase have been subject to financial misconduct investigations for imprudently squandering hundreds of millions of dollars. Last week the Justice Department made the unfortunate announcement that Goldman Sachs would not be charged for its infamous trades.  Yet over the past few years, despite the devastating impact hedging bad debt has done to our economy, virtually no criminal or civil penalties have ensued. Economists and legal analysts have a range of theories attempting to explain how crimes of “greed” go virtually unpunished; one plausible explanation is we are all to blame: investors, bankers, consumers, government and regulators all contribute to the degradation of our banking system. The SEC has become somewhat of a paper tiger launching costly and intricate investigations resulting in piles of reports that ultimately assign no guilt.

Conversely, ICE investigations almost invariably result in hefty civil and even criminal fines. Deportation raids and I-9 audits are typically swift and allow few of the procedural processes that SEC, Department of Treasury, or Department of Labor investigations require. Over the past few years, there have been record numbers in both deportations and employer sanctions issued by ICE and the USCIS. Unlike greed, failure to maintain a lawful workforce endures the cold chill of ICE.

Shockingly, the public reaction to the financial crisis has been fractured and highly politicized. Remember the Tea Party and Occupy movements? Alternatively, punishing companies employing immigrant workers has found a stronghold in national politics. While it is unjustifiable to violate any law of the United States, it is alarming that those who protest against the corruption of financial institutions are considered extremists, but those who protest against hiring immigrants are nationalists? It is possible that the simpler the crime the harsher the time explains this phenomenon. Americans don’t understand how billions of dollars could disappear from the banks they entrusted their life-savings to; but can easily conceptualize how an immigrant workforce may under-cut “American” employment.

As business owners, violating simple duties like Form I-9 compliance and employment verification through E-Verify may result in the most damaging penalties. There are no congressional investigations, lengthy judicial proceedings, or public sentiment to lessen the blow of an ICE audit. In light of our current social political environment it would be a prudent investment to seek the advice of immigration professionals to proactively prepare for an immigration audit. For more information contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

By:  Timothy Sutton, Communications Editor

On August 10, 2012, the 3^rd Circuit Court of Appeals ruled in favor of Wal-Mart Stores Inc., facing charges for acts of transporting illegal immigrants, harboring illegal immigrants, encouraging illegal immigration, conspiracy to commit money laundering, and involuntary servitude. Zavala et al. v. Wal-Mart Stores Inc., spanned eight years and four judicial opinions. The allegations against Wal-Mart suggested that senior officials knowingly and willingly permitted contractors and sub-contractor to hire illegal immigrants to perform after-hour janitorial services.

In their defense, Wal-Mart asserted that the plaintiff janitorial workers were not employees (therefore, not under their control), but also performed work at a Marriott hotel, a movie theater, and remodeling homes. Further, Wal–Mart often used store associates (regular, non-contract employees) to clean its stores. As a result, the court found that Wal-Mart did not knowingly hire illegal immigrant workers or encourage their contractors to do so. The court refused to certifying the class action based upon the shared discrete characteristic of plaintiffs as undocumented immigrants, stating: “Being similarly situated does not mean simply sharing a common status, like being an illegal immigrant.”

Moving forward, it is likely that Wal-Mart will amend its screening and compliance policies when hiring contractual workers. Many of the allegations against the big-box retailer reveal suspect employment practices that should be avoided including:

• Management commenting on immigration status of workers
• Using out-of-state relief workers immediately following the arrest of workers by federal immigration authorities
• Allowing workers to store personal belongings in store
• Allowing workers to sleep in store

For more information about the latest immigration court rulings and other breaking immigration news, subscribe to our blog and contact our office to discuss your I-9 audits, training and compliance program needs, 562 612.3996, info@immigrationcompliancegroup.com.