GOVERNMENT RULES, NOTICES and ANNOUNCEMENTS
- USCIS Advises of E-Verify Availability and Steps To Be Taken by Employers and Employees
United States Citizenship and Immigration Services (USCIS) confirmed that E-Verify operations have resumed following the federal government shutdown. USCIS advised on how the federal government's shutdown affected E-Verify and I-0 processes and allowed employers until November 5, 2013 to create E-Verify cases for employees hired during the federal government shutdown (90 IR 2057; October 21, 2013).
- Office of Special Counsel Issues Technical Assistance Letter on Pre-Populating I-9's
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) of the US Department of Justice issued a Technical Assistance Letter (TAL) addressing the question of whether pre-population of employee information in Section 1 of Form I-9 by electronic I-9 programs is permissible. OSC refused to issue an advisory opinion on a specific case, but advised generally against pre-population of employee information in Section 1 for several reasons. The TAL memo and additional guidance is available on the OSC website (90 IR 1774; September 2, 2013).
- SSA Revises Guidance on Evidence Required by Aliens Seeking Social Security Numbers
The Social Security Administration issued revised guidance pertaining to the evidence required to issue Social Security Numbers to foreign nationals. Dated August 2013, the guidance outlines acceptable documentation for demonstrating identity and work-authorized immigration status. It also recommends applicants wait ten days after arriving in the United States before applying to allow for online documentation verification (90 IR 1585; August 5, 2013).
- USCIS Releases Executive Summary of Engagement on E-Verify's New Ability to Communicate Directly to Employees
The latest improvement to the E-Verify program provides employees the option of being notified directly via email if there is a records mismatch that needs to be resolved before the employee's employment authorization can be confirmed. The recent revision of the Form I-9, adding a field in Section 1 for the employee's email address made this direct employee access possible (90 IR 1835; September 9, 2013).
AGENCY and COURT DECISIONS
- Infosys to Pay Record $34 Million to Settle Allegations of Systemic Visa Fraud
The Department of Justice (DOJ) announced that Infosys Corporation, an Indian company involved in technology consulting and outsourcing, has agreed to a $34 million civil settlement with the Department of Justice and Department of Homeland Security. The settlement agreement also called for additional I-9 audits and specific requirements for B-1 visa usage. Infosys denied any wrongdoing in its use of the B-1 and H-1B visa program, but did acknowledge widespread failure to complete, update, or re-verify I-9 records, particularly for a large percentage of its foreign national employees that only possess temporary employment authorization. (90 IR 2125; November 4, 2013).
- Second Circuit Holds that Hoffman Plastics Bars Award of Backpay to Unauthorized Workers, Notwithstanding IRCA Violation by Employer
In Palma v. NLRB, 196 L.R.R.M. (BNA) 2328, 2013 WL 3455518 (2d Cir. July 10, 2013), the US Court of Appeals for the Second Circuit upheld a decision by the National Labor Relations Board (NLRB) that pursuant to the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137(2002) (Hoffman Plastics), the petitioners, who were unlawfully discharged by their employer after they engaged in protected concerted labor activity, are not entitled to an award of backpay because they were not authorized to work in the U.S. (90 IR 1598; August 5, 2013).
- 8th Circuit Holds that Unauthorized Workers May Recover Unpaid and Underpaid Wages under the FLSA
In Lucas v, Jerusalem Café, LLC, 2013 WL 3868144 (8th Cir. July 29, 2013), the U.S. Court of Appeals for the Eight Circuit held that noncitizens, authorized to work or not, may recover unpaid and underpaid wages under the Fair Labor Standards Act (FLSA). (90 IR 1598; August 5, 2013).
- Louisiana Supreme Court Holds that State Statute Requiring Noncitizen Motor Vehicle Operators to Carry Documentation Demonstrating Lawful Presence is Preempted by Federal Law
In State v. Sarrabea, 2013-K-1271 (LA. Oct. 15, 2013), the Supreme Court of Louisiana upheld a challenge to La. Rev Stat. Ann §14:1000.13, which provides in part, "No alien student or nonresident alien shall operate a motor vehicle in the state without documentation demonstrating that the person is lawfully present in the United States". The Court found that based on the US Supreme Court Case Arizona v. U.S., 132 S.Ct. 2492 (2012), that the statute in question operates in the field of alien registration and is therefore preempted by federal law under the Supremacy Clause of the U.S. Constitution. (90 IR 2105; October 28, 2013).