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I-9 Newsletter August 2008 Vol. 1

PERM:  Firm Seeks Injunction to End PERM Audit, Bar DOL's Interpretation of Rules The immigration law firm Fragomen, Del Rey, Bernsen & Loewy Aug. 8 filed a lawsuit seeking both a preliminary injunction and a permanent halt to the Labor Department's audit of permanent labor certification applications filed by the firm (Fragomen, Del Rey, Bernsen & Loewy LLP v. Chao, D.D.C., No. 1:08-cv-01387, filed 8/8/08).

According to an Aug. 11 Fragomen statement, the firm believes it was necessary to file a lawsuit "because DOL's actions have been unlawful and unconstitutional." Specifically, Fragomen asserts that DOL has "sought to deny our clients' right to counsel under the Constitution, and is retroactively applying a new interpretation of its own regulations."

In the suit, filed in the U.S. District Court for the District of Columbia, Fragomen seeks to prevent DOL from enforcing its "new interpretation" of the PERM regulations, because DOL has "banned attorney-client consultations about specialized questions of immigration law, and has attempted to bias the advice attorneys must give their clients when confronted with questions about the permanent labor certification program administered by the Department's Office of Foreign Labor Certification." DOL's system of processing permanent labor certification applications is called "program electronic review management," more commonly known as PERM.

DOL Ramping Up PERM Enforcement, Immigration Bar Concerned.  In the first eight months of fiscal year 2008, the Department of Labor initiated more audits of permanent labor certification applications than in all of fiscal year 2007--raising concerns among some immigration attorneys about the implications of ramped up enforcement. Since last fall, when DOL's Office of Foreign Labor Certification "completed its goal of eliminating the PERM backlog, OFLC has shifted substantial resources to auditing applications," --a DOL spokesman

DOL June 2 announced that it has begun auditing all PERM applications filed by lawyers at Fragomen, Del Rey, Bernsen & Loewy.

Additionally, DOL July 8 announced two separate enforcement actions relating to the PERM program--one formally debarring a software company from filing PERM applications and another ordering a Pittsburgh law firm to participate in department-supervised recruitment

Title VII Anti-Discrimination ProvisionsMixed-Motive Case Doomed by Failure to Rebut 'Objective' Evidence  An Egyptian-born aviation security researcher's mixed-motive discrimination claim failed because he did not rebut his employer's assertion that he was suspended because he lost his security clearance, the Third Circuit holds in a case of first impression. 

Noting the dichotomy between pretext cases under McDonnell Douglas v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973), and mixed-motive cases under Price Waterhouse v. Hopkins, 490 U.S. 792, 49 FEP Cases 954 (1989), the court said that McDonnell Douglas's burden-shifting approach does not apply to mixed-motive cases in the way it applies to pretext cases because the issue in the former type of case is not whether discrimination played the dispositive role but simply whether it played a motivating role in the challenged employment decision. But that did not mean that Makky did not need to refute TSA's objective evidence that he was not qualified for his job because he lacked national security clearance, it held.

To prevail under the mixed-motive theory of employment discrimination, an employee must challenge any "objective" evidence that he or she was not qualified for his or her job at the time of the allegedly discriminatory employment act, Judge Dolores Korman Sloviter said, affirming summary judgment for the Transportation Security Administration on the claim brought by Dr. Wagih Makky under Title VII of the 1964 Civil Rights Act.

House Passes Five-Year E-Verify Extension. On a 407-2 vote, the House approved, without amendment, the proposed Employee Verification Act. Under the legislation, E-Verify would remain a voluntary program. H.R. 6633 now moves to the Senate for consideration, joining three other bills to extend E-Verify that have been introduced in the Senate.

"By re-authorizing E-Verify for five years instead of 10, we can move to a federal mandatory system more quickly," Rep. Giffords (D-Ariz.) told lawmakers during House floor remarks. "Within five years or less, the federal government must develop a mandatory system that operates uniformly across all 50 states."

House Subcommittee Approves Bill to 'Recapture' Unused Visas.  Legislation that would "recapture" previously unused employment-based visas is approved by the House Judiciary Committee's Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. The bill (H.R. 5882) was introduced by Rep. Lofgren (D-Calif.), chairman of the subcommittee, and Rep. Sensenbrenner (R-Wis.).

The bill aims to amend the Immigration and Nationality Act to recapture visas that were authorized between fiscal year 1992 and 2007, but went unused due to bureaucratic delay. According to Lofgren, Citizenship and Immigration Services and the State Department "consistently fail to issue the number of immigrant visas currently authorized by law each year" while the "line for visas gets longer and longer."

The bill also would prevent visas from being lost in the future by rolling them over to the following fiscal year. The visa recapture applies to both employment-based visas and family-based visas.

Ninth Circuit Revives Pay Bias Claims of Hispanic Grocery Employees.  The Ninth Circuit gives Hispanic employees of the Food City grocery store chain a chance to proceed as a class action on their claims of pay discrimination on the basis of national origin. Food City employs a predominantly Hispanic workforce, some of whom are immigrants, that until after the suit was filed had a lower pay scale than the predominantly non-Hispanic workforce of the other two Arizona grocery chains owned by Bashas' Inc. (Parra v. Bashas' Inc., 9th Cir., No. 06-16038, 7/29/08).

Workers Paid Less Than Those at Other Two Chains--Bashas' owns and operates approximately 150 grocery stores in Arizona that do business as Bashas', A.J.'s Fine Foods, and Food City. Approximately 75 percent of the employees at Food City are Hispanic, compared with only about 15 percent at the other two chains. Wages for similar jobs at the three chains differed, with Food City workers having the lowest wages, until the pay scales were equalized around 2003. The plaintiffs submitted evidence showing that the hourly wage disparities for comparable jobs ranged from $0.15 to $2.94 per hour, which amounts to $300 to $6,000 per year.

The 9th Circuit court reversed the U.S. District Court for the District of Arizona's denial of class certification of the pay discrimination claims under Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1866 (42 U.S.C. § 1981), the appeals court found that the lower court abused its discretion in finding a lack of commonality of legal and factual issues among members of the proposed class.

The appeals court remanded the case for the district court to consider whether the plaintiffs can meet the other requirements for class certification of their pay bias claims. The lower court certified their national origin discrimination claims regarding working conditions.

Increased Enforcement Has Led to Decrease of 1.3 Million Immigrants.  Increased enforcement of immigration laws has led to a decrease of about 1.3 million undocumented immigrants in the United States since last year, according to a report issued by the Center for Immigration Studies. The report finds "a significant decline in the number of less-educated, young Hispanic immigrants in the country." However, several immigrant rights group said the study lacked hard data and used "faulty logic."

E-Verify comment period ended August11, 2008 on federal contractor requirement for E-verify use

I-9:  New U.S. passport card is acceptable I-9 document. The Department of Homeland Security's Citizenship and Immigration Services Aug. 8 announced that the new U.S. passport card may be accepted as valid documentation for the I-9 employment eligibility verification process.

The passport card is considered a "List A" document that newly hired employees may present during the employment eligibility verification process to show work authorized status, CIS said. List A documents are those used by employees to prove both identity and work authorization when completing an I-9.  The card "attests to the U.S. citizenship and identity of the bearer" and may be used for both the I-9 process and by employers participating in E-Verify, the federal government's electronic employment verification system, CIS said.

I-9:  Strong internal controls constitute an employer's best defense against an enforcement action for employing undocumented immigrant workers, a former federal immigration agent told an Aug. 9 session of the American Bar Association annual meeting.

Mark A. Cangemi, an attorney with the Minneapolis law firm Igbanugo Partners, urged employers to look to their own corporate practices and operations in assessing the risk they may face from any investigation by the Homeland Security Department's Immigration and Customs Enforcement.

"If you can document a system of internal checks and balances, you can end an investigation," Cangemi said, pointing to cross-checks of prima facie discrepancies in employee identity documents as an example. "The government will go elsewhere, where there's more chance of finding culpability."

Employer Response to Probe - In the Swift case, he said, the key factor in the government probe was the "arrogant attitude" of the employer's representatives. They seemed to take a stance of "Bring It On," he said, despite findings that more than one third of the workforce had engaged in document fraud.

"The key is how you respond to the government," he said. "Challenging the government is not going to get you very far. The government has shown a willingness to put up a tremendous amount of resources and not back off."

Having a written policy and records that show that the policy is taken seriously, a record of an audit, or other evidence of a good faith effort to comply "will go a long way toward addressing an investigation," Cangemi said. Such a cooperative attitude, he said, "can put a damper on a criminal proceeding and turn it into an administrative matter."

Unrelated circumstances of undocumented workers can snowball into an immigration investigation of an employer, Cangemi suggested. In one case, an undocumented worker driving a car on his own time ran a stop sign, hit a school bus, and ended up facing vehicular homicide charges for the fatalities in the accident.

Under the ICE 287(e) program, which connects the immigration agency with local law enforcement, the incident led to a probe of the worker's employer, he reported. So employers should consider the need for an incident response and media team as part of their internal program, he recommended.

E-Verify should be viewed as is one tool among many, not a panacea, Cangemi said. "I am concerned with some corporations who will look at E-Verify, but look no further into their own corporate procedures and operations," he added.

Government investigations, he said, "go up the food chain," working their way from first-line supervisors to the human resources director and higher, since cases with multiple defendants are better for yielding evidence. That approach makes it imperative for employers to ensure that their policies are followed at every level, he suggested.

National Origin: A fishing company did not commit national origin discrimination under state or federal law when it rehired a pair of Mexican national fishermen instead of two African American fishermen due to the former's H-2B visa status, the Louisiana Court of Appeals held July 16 in a case of first impression (Scott v. Omega Protein Inc., La. Ct. App., No. 07-227, 7/16/08).

"We find Omega Protein met its burden of proving a legitimate, neutral reason for rehiring Ibanez and Zamora rather than Plaintiffs Scott and Thomas. Omega Protein was compelled to fulfill its obligations under the H-2B visa program or suffer financial consequences, and it had responsibilities to Ibanez and Zamora personally which had to be met,"

Omega Protein's business is catching and processing Menhaden, or locally, "Pogy," in the Gulf of Mexico. The six-month fishing season for Menhaden requires the company to maintain a seasonal employment schedule, with each member of a season's fishing crew "cut out"--so he or she can collect unemployment benefits or seek work elsewhere--at the end of the season. Crew members are allowed to reapply for a job with Omega the following season.

Scott and Thomas worked for Omega Protein throughout the 1990s. They were hired again in April 2001 as fishermen on the Diamond Reef for the 2001 Menhaden fishing season. However, halfway through the season, the boat was called back into port and the crew and captain were dismissed due to deficient performance. When the vessel reached port, 10 crew members--all of whom were African American, including Scott and Thomas--were "cut out," meaning they had to give a cut-out statement, remove their gear from the boat, and leave the premises, but the two Mexican crewmembers--Ibanez and Zamora--were not cut out and were not required to leave the premises.

Dissent: National Origin, Not Alienage - Anti-Discrimination Provisions against US citizens? Judge Sylvia R. Cooks dissented. "Though Title VII does not protect against alienage discrimination, it does protect against national origin discrimination," she wrote. "I am firmly convinced Title VII's protections should extend to native born U.S. citizens fighting employer preferences for alien workers," she said.

"Defendant's practice of favoring continued employment of foreign nationals holding H-2B visas had the purpose and effect of discriminating against U.S. workers because of the U.S. workers' place of origin," Cooks wrote. "Thus, the discrimination in this case occurred on national origin grounds," she argued.

State Laws: Three-fourths of Arizona's small business owners (76 percent) say the Arizona employer sanctions law is having no impact on their businesses, according to a poll released July 28 by O'Neil Associates Inc., a Tempe, Ariz.-based public opinion firm.

Rhode Island Governor Cancels Contracts With Firms Raided by ICE. Rhode Island Gov. Carcieri (R) terminates state government contracts with two cleaning companies that allegedly employed illegal alien workers. The governor's decision follows an Immigration and Customs Enforcement raid of six Rhode Island courthouses where 31 employees of Tri-State Enterprises and Falcon Maintenance Co. worked as cleaners.

Workplace Immigration Laws Enacted in 14 States in First Half 2008  Nearly 200 immigration-related employment bills were introduced in state legislatures during the first six months of 2008, and 20 laws have been enacted in 14 states, according to a new report from the National Conference of State Legislatures.

Nearly 200 immigration-related employment bills were introduced in state legislatures during the first six months of 2008, and 20 laws have been enacted in 14 states, according to a report issued July 24 by the National Conference of State Legislatures.

As of June 30, 1,267 immigration-related bills have been considered in 45 states, NCSL said. Of those, 190 bills and resolutions have passed in 39 state legislatures, although 12 are pending approval by a governor, and three were vetoed.

"We're witnessing a trend of states willing to take the lead in responding to immigration challenges when Congress will not," NCSL Executive Director William T. Pound said in a statement. "States are looking at creative solutions to law enforcement and work-site enforcement as well as considering the needs and contributions of legal immigrants to the United States."

NCSL said a total of 175 immigration-related laws were enacted in 39 states during the first six months of the year. In addition to employment, other areas dealt with by immigration laws included driver's licenses and other identification documents, law enforcement, education, health, and human trafficking.

Of the total number of immigration-related bills introduced in state legislatures so far this year, 198 were employment-related, the report said. States that enacted laws relating to immigration and employment included Alaska, Arizona, Colorado, Florida, Idaho, Maryland, Missouri, Mississippi, Tennessee, Virginia, Washington, and West Virginia. Another state, South Carolina, enacted an omnibus immigration bill that contained provisions relating to employment, as well as law enforcement, public benefits, and education. A similar omnibus bill containing employment provisions also was enacted in Utah

E-Verify: Updates to the E-Verify System.  The United States Citizenship and Immigration Services (USCIS) announced a series of enhancements to the E-Verify system, intended to improve the accuracy of the system's automatic confirmation process. The E-Verify system has been plagued by errors and often returns what is known as a "tentative non-confirmation," meaning that the system cannot verify that an employee is authorized to work in the U.S., when in fact many employees are authorized to work.

Correcting the database is a time consuming task for the affected employee. Although employers are prohibited from firing an employee while such status is tentative, many employers unknowingly (or sometimes intentionally) violate the law by terminating an employee when they still possess the legal right to work. The E-Verify system now includes naturalization data to address the fact that naturalized citizens whose records have not yet been updated with the Social Security Administration (SSA) comprise the largest category of work-authorized persons initially facing tentative non-confirmations when processed through E-Verify. A naturalized citizen who receives an SSA mismatch may resolve the issue by calling USCIS, or visiting a field office in person.

An additional enhancement will incorporate real-time arrival data from the Integrated Border Inspection System (IBIS), which is expected to reduce the number of immigration status-related mismatches for newly arriving workers. Finally, USCIS initiated citizenship status records information sharing with SSA in an effort to enhance E-Verify's accuracy rate.

The E-Verify system has been plagued with issues, including the lack of biometric identifiers that can withstand identity theft. Currently, the phototool software is not limited enough to combat identity theft issues, and results in employers hiring employees who pass through the E-Verify system, but in fact, are undocumented workers. In order for the E-Verify system to be successful, the underlying databases must be updated and maintained. This includes funding the SSA's efforts to update, correct, and maintain its own databases.

L-1A "Executive": Ninth Circuit Upholds Denial of Petition to Extend L-1A Visa for Executive. Citizenship and Immigration Services did not abuse its discretion in denying a California granite company's petition to extend the L-1A visa of its Brazilian president, the Ninth Circuit rules. CIS did not abuse its discretion in finding that Brazil Quality Stones Inc. failed to show that its president "was primarily engaged in overseeing essential functions of BQS's business rather than performing them himself," the court finds.

The Department of Homeland Security's Citizenship and Immigration Services did not abuse its discretion in denying a small California granite company's petition to extend the L-1A visa of its Brazilian president and chief executive officer, the U.S. Court of Appeals for the Ninth Circuit ruled July 10 (Brazil Quality Stones Inc. v. Chertoff, 9th Cir., No. 06-55879, 7/10/08).

L visas are "designed to allow multinational firms to transfer employees from the firm's overseas operations to its operations in the United States," Judge Diarmuid F. O'Scannlain said. He explained that the Immigration and Nationality Act requires that an employer seeking an L-1A visa show, among other things, that the alien employee serves primarily in a managerial or executive capacity.

CIS did not abuse its discretion in finding that Brazil Quality Stones Inc. failed to show that Eugenio Tavares dos Santos "was primarily engaged in overseeing essential functions of BQS's business rather than performing them himself," O'Scannlain said. He found that "[w]hile the record contains evidence that dos Santos performed managerial tasks, it does not compel the conclusion that such tasks comprised his primary responsibilities at BQS."

Dos Santos Incorporated BQS as Affiliate--Dos Santos, who is a Brazilian citizen, in 1998 created the Brazilian corporation Granite Ebenezer, which sells and exports granite and other decorative stones for use in residential and commercial construction. He incorporated BQS in California in 2002 as an affiliate of Granite Ebenezer. Dos Santos owns 99 percent of the stock of each corporation, while his wife owns the remaining 1 percent.

QS filed a petition for an L-1A visa for Dos Santos to work in the United States. The INA requires that an "intra-company transferee" have been employed by the sponsoring entity for at least a one-year period during the three years prior to the petition (8 U.S.C. § 1101(a)(15)(L)). The statute also provides that the noncitizen must seek "to enter the United States temporarily in order to continue to render his services to the same employer ... in a capacity that is managerial, executive, or involves specialized knowledge." The L-1A classification is for managerial and executive employees, while employees in a position requiring specialized knowledge are eligible for L-1B status.

BQS later filed a second petition, seeking to extend Dos Santos's L-1A visa for another three years.

Program Not Intended for Self-Employed Persons--When INS issued regulations in 1987 regarding the L visa program, O'Scannlain said, the agency commented that the rules were intended to prevent self-employed persons from using the program by setting up a corporation in the United States, adopting an executive title, and moving operations to this country with no intent to return abroad.

The 1987 regulations required a showing that the noncitizen primarily be engaged in directing the organization, a department, or a subdivision; supervise and control the work of other supervisory, professional, or managerial employees; have the authority to make or recommend personnel actions; and exercise discretionary authority over day-to-day operations.

However, the Immigration Act of 1990 amended the INA to provide that an employee acts in a "managerial capacity" if he or she primarily is engaged in supervising "other supervisory, professional, or managerial employees" or "manages an essential function within the organization, or a department or subdivision of the organization" and meets the other requirements regarding personnel actions and daily operations.

CIS found that Dos Santos did not act in a managerial capacity in part because he only supervised one employee who qualified as a supervisor, professional, or manager. O'Scannlain acknowledged that the amendment "renders managers of an essential business function eligible for an L-1A classification even if they supervise no employees at all" and that Dos Santos held the top leadership position at BQS. But O'Scannlain emphasized that the employee must "primarily" be engaged in managerial responsibilities.

Although BQS argued that Dos Santos oversaw capital investment opportunities and cited a major equipment purchase, O'Scannlain said DHS found no evidence that Dos Santos oversaw equipment investments on a regular basis or that it was a significant part of his responsibilities. BQS also argued that Dos Santos oversaw the company's domestic and international sales and its distribution chains. But O'Scannlain said DHS found that Dos Santos primarily was engaged in operational, rather than managerial, duties.

Domestic Workers: Montgomery County, Md., executive signs into law a bill that requires employers in the county to offer written contracts to domestic workers.  The new law comes in response to a 2006 study examining the working conditions of domestic workers in the county, according to a memorandum on the law prepared by county legislative attorney Robert H. Drummond. Key findings from the survey revealed that 73 percent of such workers said they spoke Spanish as their primary language, 56 percent did not speak English at all, 75 percent of live-in domestic workers did not receive overtime pay, and the average workweek for live-ins was 58 hours.

The law, believed to be the first of its kind in the nation, aims to end years of abuses such as long working hours and underpayment from employers.

The measure was approved July 15 by the Montgomery County Council and requires employers to give domestic workers written notice of their legal rights guaranteed under state law, including the state minimum wage rate of $6.15 an hour, and specifying the terms and conditions of employment. The law does not mandate any term or condition of employment except for certain living accommodations for live-in workers.

The law requires employers to provide most live-in domestic workers who have a private sleeping room with a lock and reasonable access to a kitchen, bathroom, and laundry facility.

The law defines employer as "a person who hires a domestic worker to perform at least 20 hours of work each week during any period that is 30 days or longer." It defines a domestic worker as an individual who cares for a child or provides housekeeping, cooking, cleaning or laundry service in a home located in the county.

Excluded from the law are individuals working as registered nurses, licensed practical nurses, or certified nursing assistants. The measure also excludes a child, parent, spouse or other member of the immediate family of the recipient of the service and a person working as an au pair.

Violators could be fined up to $1,000 under the law, which takes effect 180 days after it was signed into law.

The law also prohibits retaliation against a domestic worker who requests a written contract, attempts to enforce the terms of a contract, files a complaint, or participates in an investigation of a complaint.

Day Laborers: The Los Angeles City Council approves an ordinance that requires new or newly expanded home improvement stores to set aside space for day laborers who congregate to look for work.

ICE Enforcement

Construction/Critical Infrastructure:  ICE arrests 42 workers suspected of being illegal aliens during a raid at Dulles International Airport.

ICE agents, with the support of airport security agencies, arrested the workers inside airport grounds at a checkpoint established to verify the immigration status of workers entering a service gate, the agency said.

During the Dulles operation, ICE said agents interviewed more than 200 individuals to verify their identities and eligibility for lawful employment. Most of the individuals encountered at the checkpoint worked on construction projects at the airport, ICE said.

All of the arrested workers were men, among whom 29 were from Bolivia, five from El Salvador, five from Mexico, and one each from Guatemala, Peru, and Argentina, ICE said. One of the workers was 16 years old, and he was released to the custody of family members, the agency said.

Raid Protects 'Critical Infrastructure' - ICE prioritizes enforcement efforts by focusing on the sites related to critical infrastructure and national security, the agency said. Critical infrastructure protection operations like the one carried out at Dulles reduce vulnerabilities at critical facilities to prevent potential attacks, ICE said.

Unauthorized workers employed at sensitive facilities such as airports may compromise the integrity of these key assets, ICE said.  So far in fiscal year 2008, ICE agents have made more than 700 administrative arrests and 100 criminal arrests at critical infrastructure facilities, ICE said.

Chief financial officer of Kentucky drywall firm sentenced to probation for harboring aliens.  Contracting firm's owner turns on company in deal with feds after his tax evasion conviction.  The chief financial officer of a Kentucky commercial drywall firm was sentenced July 30 in U.S. District Court for the Eastern District of Kentucky to three years probation for harboring illegal aliens for commercial advantage and private financial gain (United States v. Robison, E.D. Ky., No. 2:07-cr-0098-DLB, sentencing 7/30/08).

Robison, chief financial officer for Spectrum Interiors, violated the Immigration and Nationality Act by conspiring with the company's president Jeffery Wolnitzek to use contracting companies owned by Luis Garcia and others that provided illegal aliens to perform drywall at several job sites.

Spectrum is one of the largest drywall businesses in the greater Cincinnati area, with offices in Erlanger and Lexington, Ky.

On July 21 Wolnitzek was sentenced to eight months in prison (2 WIR 436, 7/28/08). In addition, Spectrum received two years probation and must pay the federal government $2 million in fines.

In November 2005, Garcia pleaded guilty in Ohio federal court to tax evasion, and he agreed to cooperate with Immigration and Customs Enforcement officials in an investigation into Spectrum before being deported to Mexico, Immigration and Customs Enforcement said.

Garcia recorded a meeting with Robison and Wolnitzek in May 2006, ICE said. During the meeting, Garcia told them that half of the workers he provided to Spectrum were undocumented aliens, and Robison and Wolnitzek agreed to continue using Garcia's laborers despite their unlawful status, ICE said.

ICE agents conducted worksite enforcement actions at various Spectrum job sites in November 2006, arresting 31 illegal aliens, the agency said.

"ICE aggressively targets egregious employers who knowingly and recklessly employ an illegal alien workforce," Paul Chambers, resident agent in charge of the ICE Office of Investigations in Ft. Mitchell, Ky., said in a July 30 statement.

"We will continue to use all our investigative tools to pursue employers who take advantage of illegal labor to make an unlawful profit," Chambers said.

Owner of a Florida painting company pleads guilty to harboring illegal aliens by picking alleged illegal aliens up at their residences and driving them to worksites in company car.  The owner of a Florida painting company July 29 pleaded guilty to one count of harboring illegal aliens in violation of the Immigration and Nationality Act (United States v. Tinoco-Tinoco, M.D. Fla., No. 3:08-cr-00133-HLA-MCR, plea entered 7/29/08).

An Immigration and Customs Enforcement-led investigation revealed that from February 2007 through March 2008 numerous alleged illegal aliens were picked up at residences and driven to worksites in cars owned by Tinoco-Tinoco or his business, ICE said.

Tinoco-Tinoco faces a maximum sentence of 10 years in prison and $250,000 in fines. In addition, under the terms of the plea agreement, Tinoco-Tinoco agreed to pay $50,000 and surrender two houses in forfeiture.

"The recruitment, harboring and transportation of illegal aliens are very serious crimes that we will simply not tolerate," Robert Weber, special agent in charge of the ICE Office of Investigations in Tampa, said in a July 29 statement.

"My office devotes significant resources to identify, prosecute and incarcerate these criminals and is determined to continue identifying and shutting down vulnerabilities to our immigration system such as harboring illegal aliens," Weber said.

Health Care Services:  Employment agency owners in California indicted for hiring illegal aliens for elder care jobs. A Filipino man and his ex-wife who own an employment agency were indicted Aug. 20 on charges of knowingly hiring illegal aliens to fill jobs at elder care facilities in California (United States v. Ngo, C.D. Cal., No. 8:08-cr-00216-UA, indictments 8/20/08). The pair were charged with inducing aliens to reside in the United States, knowingly employing illegal aliens, knowingly harboring illegal aliens, and counseling persons to engage in marriage fraud.

The Ngos, who are both legal permanent residents originally from the Philippines, own A-Plus Senior Planning Services Inc., an employment agency based in Lake Forest, Calif., Immigration and Customs Enforcement said. The firm provides caregivers for at least 10 major elder care facilities in Orange County as well as workers for individual in-home care. 

ICE began an undercover probe of the company in December 2007 after the agency received a lead involving an alien with an expired visa who worked for A-Plus. The investigation revealed at least 40 of the employment agency's workers were in the United States illegally, most of whom arrived as visitors and overstayed their visas, ICE said.

According to court documents, the Ngos counseled their illegal workers to enter into fraudulent marriages with U.S. citizens so that they could remain in the country legally. The couple allegedly advised employees about good locations to find potential spouses, including the dating Web site eHarmony.com.

If convicted of all of the charges, the Ngos each face a maximum sentence of 15 years in prison.

"The allegations in this case are disturbing when you consider that the illegal alien workers hired by these defendants were entrusted with caring for the infirm and elderly," Robert Schoch, special agent in charge for the ICE Office of Investigations in Los Angeles, said in an Aug. 20 statement.

"People who enter the United States on visitor visas do not undergo the same degree of scrutiny as individuals who are coming into the country as legal foreign workers or immigrants,' Schoch said.

Building Services:  ICE agents arrest 31 immigrants in Rhode Island courthouse raid.  Federal agents raided six Rhode Island courthouses July 15 to arrest 31 alleged illegal immigrants who were accused of using false identification documents and who were employed by contractors as cleaners.

The Rhode Island Capitol Police developed initial information on the case based upon information brought to their attention by a staff member of the Rhode Island judiciary system, according to ICE.

The information then was brought to ICE, which contacted the Rhode Island State Police and initiated a joint investigation.  The workers arrested in this operation were working after hours in courthouses where sensitive and personal information could potentially be available, ICE said.

Landscaping: Texas couple pleads guilty to fraudulently obtaining H-2B visas for Mexican workers. 
The husband and wife owners of two businesses in Stanton, Texas, July 18 pleaded guilty in U.S. District Court for the Western District of Texas to conspiracy to commit visa fraud in violation of federal criminal law (United States v. Decker, W.D. Tex., No. 7:07-cr-00206-RAJ, plea entered 7/18/08).

David Wayne Decker and his wife Nancy Mintle Decker owned a landscaping business and a golf course. The couple submitted fraudulent applications to Citizenship and Immigration Services requesting H-2B visas for Mexican workers, according to Immigration and Customs Enforcement.

As a part of their guilty pleas, the Deckers admitted that between 2003 and 2006 they submitted a series of false I-129 forms to CIS, in which they attested under oath that they needed to hire H-2B temporary workers for their businesses. As a part of the H-2B application process, the Deckers promised that any worker granted temporary visas would work solely in the Stanton area as a landscaping or golf course employee at their businesses.

The Deckers admitted that they had no intention of hiring the individuals for whom they obtained visas, and many of the workers who were granted H-2B visas illegally went to work for other employers in Texas, ICE said.

As part of the plea agreement, the Deckers admitted they accepted payments from other employers that wished to hire the H-2B visa workers sponsored by the Deckers. In addition, the couple exacted fees from workers from Mexico in exchange for the visas.

More than 100 visas were illegally issued to workers from Mexico under false pretenses as a consequence of the scheme, ICE said. The guilty pleas follow a two-year investigation led by ICE, the agency said.

Manufacturing/Critical Infrastructure:  ICE arrests 59 workers at parachute plant in North Carolina on immigration charges.  Agents from the Department of Homeland Security's Immigration and Customs Enforcement raided an Asheville, N.C., parachute manufacturing plant Aug. 12, arresting 59 workers and charging them with administrative immigration violations.   ICE agents raided Mills Manufacturing Corp., a Department of Defense contractor responsible for manufacturing parachutes for the U.S. military.

ICE said it places a priority on worksite enforcement actions at critical infrastructure locations, adding that illegal aliens employed at sensitive facilities--such as military bases, nuclear plants, chemical plants, airports, and DOD contractors--pose a homeland security threat.

The agency's investigation revealed that the alleged illegal aliens used fraudulent Social Security numbers to obtain employment at the plant, ICE said. No criminal charges have been filed against the alleged illegal aliens, but the investigation is ongoing, ICE said.

ICE does not believe that those arrested at MMC "had any ill intent against the United States; however, their illegal status could have made them susceptible to blackmail by those with ill intent," the agency said. "Today, ICE has neutralized a potential vulnerability," ICE said.

"Protecting the integrity of our nation's critical infrastructure is among ICE's highest priorities," Delburt Richburg, assistant special agent in charge of the ICE Office of Investigations in Charlotte, said in an Aug. 12 statement.

"When individuals use fraudulent Social Security numbers to get jobs, they hide their true identity and history,' Richburg said. "We need to know who is working on our critical infrastructure sites," he said.

Meatpacking:  Employees of a South Carolina poultry plant indicted for falsifying I-9 forms for aliens   Six employees of a South Carolina poultry plant were indicted in the U.S. District Court for the District of South Carolina July 8 for charges related to falsified I-9 forms (United States v. Crump, D.S.C., No. 6:08-cr-00683-HMH, indicted 7/8/08; United States v. Neri-Templos, D.S.C., No. 6:08-cr-00680-HMH, indicted 7/8/08; United States v. Macias-Rodriguez, D.S.C., No. 6:08-cr-00678-HMH, indicted 7/8/08; United States v. Juarez-Suarez, D.S.C., No. 6:08-cr-00679-HMH, indicted 7/8/08; United States v. Gutierrez-Gomez, D.S.C., No. 6:08-cr-00676-HMH, indicted 7/8/08; United States v. Merino-Vasquez, D.S.C., No. 6:08-cr-00681-HMH, indicted 7/8/08).

According to the indictment, Elaine C. Crump, an employee of House of Raeford, a Raeford, N.C.-based poultry processor, knowingly and willfully aided and abetted the falsification of I-9 forms.  Crump is charged with violating federal criminal law on 20 counts of instructing employees at Raeford's Greenville, S.C., plant to use fraudulent I-9 forms.

The indictment alleges that from December 2006 through May 2007 Crump instructed human resources employees to use "previously signed Immigration Employment Eligibility Verification Form I-9s" to fraudulently verify work eligibility for 20 applicants.

The I-9 forms indicated that a specific employee had witnessed the required documentation and completion of the forms, but Crump "then well knew" that the employee had not witnessed the completion of the I-9 forms and was no longer employed by Raeford, according to the indictment.

In addition, five supervisors at the South Carolina plant were also indicted. The supervisors each were charged with federal criminal violations relating to the use of false documents to obtain employment and aggravated identity theft.

The supervisors--Guadalupe Neri-Templos, Juan Ramon Macias-Rodriguez, Juan Juarez-Suarez, Simon Gutierrez-Gomez, and Evaristo Merino-Vasquez--allegedly used fake alien registration cards and stolen Social Security numbers to lie on their I-9 forms.

Restaurants:  ICE arrests 58 workers during restaurant raids in Ohio.  ICE Agents arrested 58 workers on administrative immigration charges July 23 after raiding eight Casa Fiesta restaurant locations in northern Ohio, the agency announced.

Casa Fiesta is a chain of Mexican restaurants located in Ashland, Fremont, Norwalk, Oberlin, Oregon, Sandusky, Vermillion, and Youngstown, Ohio. The worksite enforcement action was the culmination of a year-long investigation,

The individuals arrested during the raids were allegedly all citizens of Mexico, ICE said. Of those arrested, 54 were men and four were women.

Nevada McDonald's franchisee pleads guilty to immigration charges, fined $1 million.  A Nevada company that owns 11 McDonald's franchise restaurants pleaded guilty July 16 in federal court to two felony immigration charges and was fined $1 million (United States v. Mack Assocs. Inc., D. Nev., No. CR-53-JCM-RAM, plea entered 7/16/08).

Mack Associates Inc. pleaded guilty in U.S. District Court for the District of Nevada to encouraging and inducing an alien's unlawful residence in the United States as well as aiding and abetting an alien's unlawful residence in the United States in violation of the Immigration and Nationality Act.

In addition, two top executives of the company, Jimmy Moore and Joe Gillespie, each pleaded guilty to charges of encouraging and inducing an alien's unlawful residence, and each faces up to five years in prison, as well as a $250,000 fine when sentenced Oct. 15.

The charges arose from a federal investigation after a work site raid by federal agents of the restaurants in the Reno, Nev., area last September at which the Department of Homeland Security's Immigration and Customs Enforcement agents arrested 58 workers for alleged immigration violations

According to court documents, the company employed illegal immigrants by giving them names and Social Security numbers that belonged to other people.

"This case should serve as a reminder to employers that knowingly hiring illegal aliens violates federal law," U.S. Attorney Gregory A. Brower said in a July 16 statement.

DHS Assistant Secretary for ICE Julie Myers agreed, noting that "on television, criminal cases are wrapped up in an hour; but in real life these investigations are complex and can take months, or even years, to build."  "We will invest whatever time it takes to ensure that those who flout the law are brought to justice," Myers said.

Chart summarizes recent Immigration and Customs Enforcement and other workplace actions.

INDUSTRY

ACTION

DATE

PARTIES

CITATION

Health Care

A Filipino man and his ex-wife who own an employment agency were indicted on charges of knowingly hiring illegal aliens to fill jobs at elder care facilities in California.

8/20/08

Wilfredo Ngo and Teresa Ngo of A-Plus Senior Planning Services Inc., in Lake Forest, Calif.

(United States v. Ngo, C.D. Cal., No. 8:08 - cr-00216 - UA)

Construction

ICE arrested 42 workers suspected of being illegal immigrants during a critical infrastructure operation at Dulles International Airport.

8/13/08

Various construction companies working on projects at Dulles International Airport in Virginia.

-

Manufacturing

ICE agents raided an Asheville, N.C., parachute manufacturing plant arresting 59 workers and charging them with administrative immigration violations.

8/12/08

Mills Manufacturing Corp., in Asheville, N.C.

-

Construction

A Missouri couple pleaded guilty to employing and harboring illegal aliens who worked for them as roofers.

8/7/08

Dionel Barrios-Fraire and Ana Elda Barrios, of Taylor Made Roofing in Missouri.

(United States v. Barrios-Fraire, W.D. Mo., No. 08-cr-03044-GAF-1)

Cleaning Services

ICE agents arrested 42 workers at a janitorial service in Pennsylvania, and union representatives say the employer lured workers to a meeting to facilitate the arrests.

7/31/08

ABM Janitorial Services in King of Prussia, Pa.

-

Regulations:  OPT Extension - A federal judge in New Jersey Aug. 5 declined to issue a preliminary injunction barring the Department of Homeland Security's extension of optional practical training (OPT) for foreign students from 12 to 29 months (Programmers Guild Inc. v. Chertoff, D.N.J., No. 2:08-cv-02666-FSH-PS, injunction denied 8/5/08). Judge Faith S. Hochberg of the U.S. District Court for the District of New Jersey found that the organizations failed to demonstrate likelihood of success on the merits of the case and there are "serious questions" related to whether or not the plaintiffs have standing to bring the lawsuit.

The professional organizations alleged that without a preliminary injunction they would face an "immediate increase in job competition" from students who qualify for the extension. The groups said the injunction would serve the public interest of "protecting the jobs and wages of U.S. workers."  The organizations argued that they would be harmed by admission of alien guestworkers because of their impact on job opportunities and wages.

This argument "attacks the underlying DHS policy of nonimmigrant employment, rather than addressing an irreparable harm faced by Plaintiffs," Hochberg wrote.

 

 

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