Tuesday, June 19, 2012

E-Verify Precedent for Unionized Employers

According to the law firm of  Epstein Becker Green, there has been a precedent setting settlement between the National Labor Relations Board (NLRB) and the Pacific Steel Casting Company (PSC) that makes E-Verify subject to Collective Bargaining in unionized companies.

"This proceeding began in February 2011, when PSC was subject to a Form I-9 audit conducted by ICE. At that time, PSC voluntarily enrolled into the federal E-Verify program without notifying its unionized employees or Local 164B, their union chapter. Later, when Local 164B discovered this enrollment, PSC claimed that it was required to take such action because the company was a federal contractor. This claim turned out to be incorrect, but PSC continued to use E-Verify. The union then filed a charge with the NLRB claiming that PSC was required to, but did not, bargain over its enrollment into E-Verify because this changed the terms and conditions of employment.

PSC recently settled the union's charges. Under the terms of the settlement, PSC agreed to terminate its participation in the E-Verify program and to reinstate and provide back pay to all employees terminated while contesting a tentative nonconfirmation ("TNC") received from E-Verify, as well as those employees not given the opportunity to contest their TNCs. Under the rules governing the use of E-Verify, employees cannot be terminated if they contest a TNC unless the federal government issues a final confirmation ("FNC") that they lack work authorization."

Granted, PSC was not following the E-Verify rules correctly by terminating employees after a Tentative Nonconfirmation (TNC), but the precedent is noteworthy in that it appears that unionized employers may need to review their collective bargaining agreements before deciding to enroll in E-Verify.  

*Employers should consult their legal counsel in this area as we are only reporting information and not providing legal advice, express or implied.

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Friday, June 15, 2012

Obama Immigration Policy Change for Young People

According to the Department of Homeland Security, the Obama Administration has changed their immigration policy.  Today's DHS press release states:  "effective immediately, certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings.  Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization."

Homeland Security Secretary, Janet Napolitano, stated that "our nation's immigration laws must be enforced in a sensible manner...[and] are not designed to be enforced without consideration given to the individual circumstances of each case."

Under this change, individuals that meet the following criteria will be eligible for this deferred action.

  1. Came to the United States under the age of sixteen;
  2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
  3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  5. Are not above the age of thirty.
For more information, you can visit the DHS press release:  http://www.dhs.gov/ynews/releases/20120612-napolitano-announces-deferred-action-process-for-young-people.shtm

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Thursday, June 7, 2012

New Form I-9: Public comment period has ended

The U.S. Citizenship and Immigration Services (USCIS) published a notice seeking public comment on a newly redesigned version of the Form I-9. This public comment period ended last week on May 29, 2012.

This will be the 12th version of the employment eligibility verification form which originally debuted in 1987. 

Click on this link to download the proposed new Form I-9:  http://www.formi9.com/newi9form.pdf

Once USCIS has reviewed all public comments and finalized the new version of Form I-9, we will provide you with a copy and let you know what the changes are.  And, of course, we will update our electronic I-9 to reflect the new version.

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