DISCLAIMER: THE INFORMATION IN THIS BLOG IS PROVIDED FOR GENERAL INFORMATION ONLY. THE OFFICE OF NORKA M. SCHELL, LLC AND/OR ITS MEMBERS AND/OR EMPLOYEES MAKE NO WARRANTY REGARDING THE ACCURACY OF THIS INFORMATION. WHILE SOME OF THE INFORMATION IS ABOUT LEGAL ISSUES, IT IS NOT LEGAL ADVICE.
Posted by NYC Attorney Norka M. Schell
Law Offices of Norka M. Schell, LLC - 11 Broadway, Ste. 615 - New York, NY 10004
Tel. (212)564-1589 - Website www.lawschell.com
FAMILY-BASED CATEGORY
Family-Sponsored
All Chargeability Areas Except Those Listed
CHINA-mainland born
INDIA
MEXICO
PHILIPPINES
F1
01JAN07
01JAN07
01JAN07
01OCT93
15AUG01
F2A
08SEP13
08SEP13
08SEP13
01SEP13
08SEP13
F2B
08JUL06
08JUL06
08JUL06
01MAY93
22MAY03
F3
15MAY03
15MAY03
15MAY03
01JUN93
08FEB93
F4
22OCT01
22OCT01
22OCT01
08NOV96
08AUG90
EMPLOYMENT-BASED CATEGORY
Employment- Based
All Chargeability Areas Except Those Listed
China - mainland born
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
2nd
C
08JAN09
15NOV04
C
C
3rd
01JUN12
01JUN12
01SEP03
01JUN12
15APR07
Other Workers
01JUN12
01JUN12
01SEP03
01JUN12
15APR07
4th
C
C
C
C
C
Certain Religious Workers
C
C
C
C
C
5th Targeted EmploymentAreas/ Regional Centers and Pilot Programs
Posted by NYC Attorney Norka M. Schell Law Office of Norka M. Schell, LLC-11 Broadway, Suite 615, New York, NY 10004- Tel. (212)564-1589 Website www.lawschell.com
FAMILY-BASED CATEGORY
Family-Sponsored
All Chargeability Areas Except Those Listed
CHINA-mainland born
INDIA
MEXICO
PHILIPPINES
F1
15NOV06
15NOV06
15NOV06
22SEP93
01JUL01
F2A
08SEP13
08SEP13
08SEP13
01SEP13
08SEP13
F2B
01MAY06
01MAY06
01MAY06
01APR94
22MAR03
F3
08MAR03
08MAR03
08MAR03
01JUN93
22JAN93
F4
08SEP01
08SEP01
08SEP01
22OCT96
01JUN90
EMPLOYMENT-BASED CATEGORY
Employment- Based
All Chargeability Areas Except Those Listed
China - mainland born
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
2nd
C
08NOV08
15NOV04
C
C
3rd
01OCT11
01OCT11
01SEP03
01OCT11
08JAN07
Other Workers
01OCT11
01OCT11
01SEP03
01OCT11
08JAN07
4th
C
C
C
C
C
Certain Religious Workers
C
C
C
C
C
5th Targeted EmploymentAreas/
Regional Centers
and Pilot Programs
Posted by Norka M. Schell, NYC Business Immigration Lawyer Law Offices of Norka M. Schell, LLC www.lawschell.com
To qualify for one of the U.S. Customs and Border Protection (CBP) Trusted Traveler Programs, all applicants must voluntarily undergo a thorough background check against criminal, law enforcement, customs, immigration, agriculture, and terrorist indices to include biometric fingerprint checks, and a personal interview with a CBP Officer.
In the event you are denied or revoked from the SENTRI, NEXUS, FAST or Global Entry programs, you will be provided information in writing detailing the reason for this action.
Individuals who feel that their trusted traveler application was denied due to inaccurate or incomplete information may provide additional documentation to the CBP Trusted Traveler Ombudsman and request reconsideration. Additional information should be sent to the CBP Trusted Traveler Ombudsman at:
U.S. Customs and Border Protection P.O. Box 946 Williston, VT 05495 Attention: CBP Ombudsman
Calls to the Enrollment Centers or correspondence to the Trusted Traveler Ombudsman should contain supporting information that can demonstrate the denial or revocation was based on inaccurate information.
Having a criminal record or past violation of CBP laws/regulations/policies may render you ineligible for participation in the NEXUS, SENTRI, and Global Entry programs.
For more information about the Trusted Traveler Program Denials, visit www.cbp.gov.
Posted by Norka M. Schell, NYC Business Immigration Attorney
Law Offices of Norka M. Schell, LLC
Tel. (212)564-1589 www.lawschell.com
Release Date: January 23, 2014
WASHINGTON - More than 500,000 companies now use E-Verify, the free online service that allows United States employers to confirm their new employees’ eligibility to work.
"Since it was established, E-Verify has experienced exponential growth, increased accuracy and high customer-satisfaction ratings," said Lori Scialabba, Acting Director of U.S. Citizenship and Immigration Services (USCIS). "Participation in E-Verify is largely voluntary, so the fact that half a million companies have signed up demonstrates significant confidence in the program.
Employers using E-Verify find it helps them maintain a legal workforce in a quick, secure and accurate way."
Employers who use E-Verify receive a response on an employee’s work authorization status within seconds. 98.8 percent of work-authorized employees are automatically confirmed instantly or within 24 hours, requiring no further employee or employer action. Users gave E-Verify a score of 86 out of 100 on the 2012 American Customer Satisfaction Index (ACSI) survey. The average score for all government agencies was 67.
USCIS has worked over the years to strengthen the system’s integrity. These efforts have led to E-Verify agreements with select states' departments of motor vehicles to ensure the authenticity of driver's licenses that employees use as identity documents; the introduction of Self Check, which allows workers to look up their own employment eligibility status and correct their records before they seek employment; and a program that combats identity fraud by locking Social Security numbers suspected of being misused for employment eligibility verification.
E-Verify has experienced significant growth since its establishment in 1996. Annual enrollments increased tenfold during the program’s first 16 years, from 11,474 in fiscal year (FY) 1996 to 111,671 in FY 2012. During FY 2013, employers used E-Verify more than 25 million times.
To commemorate the half-million-participant milestone, USCIS has released "E-Verify for Business Leaders ," a new video that introduces the program’s benefits to prospective users. USCIS has also launched an updated E-Verify website that has more plain-language content and easy-to-follow graphics. The site's new E-Verify History and Milestones page shows the program’s advances through the years.
Contact us at (212)564-1589 for information on the E-Verify Program or visit www.uscis.gov/E-Verify.
Reform of the permanent employment-based visa program in 2014 is urgently needed in order for U.S. employers to hire the foreign talent necessary for the American economy to strive and compete in the global economy.There simply are not enough American workers available to meet U.S. employer demands for high-skilled labor in this country. Over half of all science, technology, engineering, and mathematics graduates of American universities are foreign born. Our current system, however, forces most of these graduates to leave the U.S. and apply their valuable skills in other countries, a scenario that is beneficial to all but the United States. Needless to say,foreign countries are not complaining, but are instead poised to take advantage in their increasingly successful attempts to surpass us. Simply put, Congress must pass immigration reform in 2014, so the United States does not lose the competitive economy edge that generations of Americans have worked so hard to achieve.
Law Offices of Norka M. Schell, LLCTel. (212)564-1589 Website: www.lawschell.com
While you are planning your holidays trip to another, here is some information on Duty-Free Exemption which you should remember.
Duty-Free Exemption also called the personal exemption, is the total value of merchandise you may bring back to the United States without having to pay duty. You may bring back more than your exemption, but you will have to pay duty on it. In most cases, the personal exemption is $800.00, but there are some exemptions to this rule.
Depending on the countries you visited, your personal exemption will be $200.00; $800.00; or $1,600.00. There are limits on the amount of alcoholic beverages, cigarettes, cigars, and other tobacco products you may include in your duty-free personal exemption.
Duty-Free Exemptions ($200.00; $800.00; $1,600.00) apply if (a) the items are for personal or household use or intend to be given as gifts; (b) they are in your possession, that is, they accompany you when you return to the United States. Items to be sent later may not be included in your $800.00 duty-free exemption; (c) they are declare to Customs Border Protection (CBP). If you do not declare something that should have been declared, you risk forfeiting it. In in doubt, declare it. (d) you have not used all of your exemption allowance, or used any part of it, in the past 30 days; (e) the items are not prohibited or restricted. Note the embargo prohibition on products from Cuba.
Final note. Family members who live in the same home and return together to the United States may combine their personal exemptions. Children and infants are allowed the same exemption as adults, except for alcoholic beverages and tobacco products.
Most children born abroad to a U.S.
citizen parent or parents acquire U.S. citizenship at birth. As soon as
possible after the birth, the U.S. citizen parent should contact the nearest
U.S. Embassy or Consulate. If the consul determines that the child has
acquired U.S. citizenship, a consular officer prepares a Consular Report of
Birth Abroad of a Citizen of the United States of America (Form FS-240). This
document is recognized in the United States as proof of acquisition of U.S.
citizenship, and it is acceptable evidence of citizenship for obtaining a
passport, entering school, and most other purposes. Failure to document a child
promptly as a U.S. citizen may cause hardship for the parents or child later on
when attempting to obtain a passport or register for school.
Albuquerque Hotel Refused Muslim Woman's Request to Wear Head Scarf, Federal Agency Charged
ALBUQUERQUE, N.M. - 704 HTL Operating, LLC and Investment Corporation of America, doing business as MCM Elegante Hotel in Albuquerque, has agreed to settle a religious discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) for $100,000 and other relief, the agency announced today.
The settlement resolves an EEOC lawsuit filed on Sept. 21, 2011,EEOC v. 704 HTL Operating, LLC, and Investment Corporation of America, d/b/a MCM Elegante, 11-cv-00845 JCH/LFG, for alleged religious discrimination against Safia Abdullah, who was hired for a housekeeping position at the hotel. The EEOC's lawsuit charged that this employer would not allow Abdullah to work unless she removed her religious head covering, and fired her when she declined to do so.
Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which makes it unlawful to refuse to hire or discharge any applicant or employee because of religion or religious practices including requesting religious accommodation. The law further provides that employers have a duty to provide reasonable accommodation for sincerely held religious beliefs and practices of applicants and employees, unless doing so would cause an undue hardship. Such accommodations, for example, may include allowing individuals to wear religious clothing or take time off for religious observances.
The EEOC filed suit in U.S. District Court for the District of New Mexico after first attempting to reach a pre-litigation voluntary settlement through its conciliation process. The case was set for trial to commence on Dec. 2, 2013.
In addition to monetary relief for Ms. Abdullah, the consent decree settling the suit provides for other important relief, including an injunction prohibiting future discriminatory practices; institution of policies and procedures to address religious discrimination and retaliation; training for employees of MCM, and managers and human resource officials of both defendants on religious discrimination; and posting a notice advising employees of their rights under Title VII.
"Employers should be aware that they have a duty to provide reasonable accommodation to employees' religious beliefs and practices," said Regional Attorney Mary Jo O'Neill of the EEOC's Phoenix District Office, which has jurisdiction over Arizona, Colorado, Wyoming, New Mexico and Utah. "Wearing a religious head covering is a common religious practice which employers can usually accommodate without any undue hardship."
EEOC Area Director Derick Newton of the Commission's Albuquerque office said, "Religious discrimination continues to be a high priority for the EEOC, and we take this issue very seriously."
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site atwww.eeoc.gov.
Posted by Attorney Norka M. Schell
Law Offices of Norka M. Schell
Tel. (212))564-1589
Petitioner Raul Ruiz-Ibanez, an alien who was admitted to the United States on July 13, 1982, with IR2 immigration status (Immediate Relative - Unmarried Child Under 21 Years of Age of a United States Citizen). He was under a final order of removal from the United States, because he pleaded guilty of a felony without knowing of the immigration consequences in his immigration status. He filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. sec. 224 seeking release from detention in the custody of United States Department of Homeland Security, Immigration and Customs Enforcement ("DHS"), pending the execution of a final immigration order of removal.
'On November 6, 2013, the New York Supreme Court, Appellant Division ruled that due process compels state court judges to warn defendants in criminal proceedings who are not U.S. citizens that pleading guilty to a felony may result in their deportation. The court found that “deportation is a plea consequence of such tremendous importance, grave impact and frequent occurrence that a defendant is entitled to notice. Due process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony.”
The court partially overruled the 1995 case of People v. Ford , which held that a court’s failure to advise a defendant of the possibility of deportation never affects the validity of a guilty plea.
When Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, many more minor crimes became grounds for automatic deportation. Moreover, Congress largely stripped prosecutors of the discretionary ability to prevent the deportation of noncitizens who pled guilty to such crimes, making deportation “practically inevitable,” regardless of whether people have been here legally for many years, have U.S. citizen family members or children, or make significant contributions to their communities.
Many immigrants, both documented and undocumented, who are deported due to criminal convictions have pled guilty, often without advice about the immigration consequences or any legal representation at all."
Federal Judge Approves Settlement Agreement
in National Class Action Lawsuit on
Work Authorization for Asylum Seekers
November 5, 2013
Washington,
D.C.
– On Monday, November 4, U.S. District Court Judge Richard Jones ordered the
final approval of a nationwide class action settlement
agreement. The settlement will help ensure that asylum seekers, who have
fled persecution in their home countries, are not unlawfully prevented from
working and supporting their families while the government adjudicates their
cases. The changes will commence on December 3, 2013. The
agreement stems from a case
filed in December 2011 by the American Immigration Council and the Northwest
Immigrant Rights Project (NWIRP), with co-counsel from the Seattle law firm
Gibbs Houston Pauw and the Massachusetts Law Reform Institute. The complaint
challenged widespread problems with the “asylum clock”—the system government
agencies use to determine when immigrants who have applied for asylum may
obtain permission to work lawfully in the United States. The case,
filed on behalf of asylum seekers around the country, alleged that the current
system unlawfully denies asylum applicants the opportunity to obtain employment
authorization if their asylum applications have been pending for six months or
more. Some end up waiting several months or years for the government to make a
decision on their asylum applications. Indeed, one plaintiff from China
had been waiting nearly 10 years for his case to be resolved. “Under the
settlement agreement, the process for getting work permits will be more transparent
and fair, and the government will be more accountable for errors in determining
asylum seekers’ eligibility for work authorization,” according to Mary Kenney,
Senior Staff Attorney with the American Immigration Council. “We are very
excited that after the Court’s order, we are only four weeks away from changes
that will help thousands of asylum seekers, people who were placed in desperate
circumstances, unable to seek employment to support themselves and their
families while waiting for their asylum applications to be resolved,” said
Chris Strawn, director of the asylum unit at NWIRP. Among the
benefits of the settlement: asylum seekers with Immigration Court cases may now
present their asylum applications to the Court immediately, without having to wait
months for an initial hearing before an Immigration Judge; certain asylum
seekers whose cases have been pending on appeal will now be able to obtain work
authorization when the Board of Immigration Appeals remands their cases to an
Immigration Judge; asylum seekers and their attorneys will be provided with
more effective notice so that they do not inadvertently accept hearing dates
which preclude work authorization. The successful conclusion of this lawsuit will
bring clarity and accountability to a problem that has plagued the asylum
process for decades and has impacted thousands of immigrants trapped in a cycle
of delay and denial of the right to work. For more information about the settlement, please contact my offices at (212)564-1589 or visit my website at www.lawschell.com
Despite of the government shutdown, immigration courts nationwide are continuing to adjudicate detained cases. Court functions that support the detained caseload will continue, but other functions are suspended.
During the government shutdown, the Office of the Chief Administrative Hearing Officer will maintain its ability to issue subpoenas and accept for filing any complaints that must be filed to comply with statutory deadlines.
United States Citizen and Immigration Services said on his website "Each year 10,000 visas are available for victims of crime who have suffered substantial mental or physical abuse and are willing to help law enforcement authorities to investigate or prosecute those crimes. The U-Visa requires certification of assistance from law enforcement.
The U-Visa program was created by Congress to strengthen the law enforcement community is ability to investigate and prosecute cases of domestic violence, sexual assault, human trafficking, and other crimes while offering protection to victims. More than 76,000 victims and their family members have received U-visa since the program was implemented.
USCIS will continue to accept U-Visa petitions and process them in order in which they are received. USCIS will resume issuing U Visa on October 1, 2013, the first day of fiscal year 2014 and is when visas will be available again." See www.uscis.gov
For information on U-Visa, please give us a call at (212)564-1589 or visit our website at www.lawschell.com
Posted by NYC Immigration Lawyer Norka M. Schell Law Offices of Norka M. Schell, LLC Tel. (212) 564-1589 Website: www.lawschell.com
A removal proceeding is an immigration court hearing to determine whether a non-citizen will be removed from the United States. Under the immigration laws, all persons who are not citizens of the United States may be removed from this country if she falls within one of the grounds of inadmissibility or deportability contained in the Immigration and Nationality Act. Even lawful permanent residents may lose their residency status and be removed from the United States if they violate certain immigration law provisions. On August 23, 2013, the Obama Administration issued an administrative Directive for the U.S. Immigration and Customs Enforcement (ICE) officers which will facilitate parental interests in the course of civil immigration enforcement activities. The Directive establishes ICE policy and procedures to address the placement, monitoring, accommodations, and removal of certain alien parents. The Directive is particularly concerned with the placement, monitoring, accommodation, and removal of alien parents or legal guardians who are: 1. primary caretakers of minor children without regard to the dependent's citizenship; 2. parent and legal guardians who have a direct interest in family court involving a minor or child welfare proceedings in the United States; and 3. parents or legal guardians whose minor children are U.S. citizens or lawful permanent residents. The Directive is intended to complement the immigration enforcement priorities and prosecutorial discretion previously issued, as well as other related detention standards and policies that govern the intake, detention, and removal of alien parents. The security and safety of any ICE employee, detainee, ICE detention staff or member of the public will be paramount in the exercise of the procedures and requirements of this Directive. ICE personnel is advised to ensure that the agency's immigration enforcement activities do not unnecessarily disrupt the parent rights of both alien parents or legal guardians of minor children. Particular attention should be paid to immigration enforcement activities involving: 1. parents or legal guardians who are primary caretakers; 2. parents or legal guardians who have a direct interest in family court or child welfare proceedings; 3. parents or legal guardians whose minor children are physically present in the United States and are U.S. citizens or lawful permanent residents. ICE will maintain a comprehensive process for identifying, placing, monitoring, accommodating, and removing alien parents or legal guardians of minor children while safeguarding their parental rights. The Field Office Directors (FODs) is specifically advised to continue to weigh whether an exercise of prosecutorial discretion may be warranted for a given alien and shall consider all relevant factors in this determination, including whether the alien is a parent or legal guardian of a U.S. citizen or lawful permanent resident minor, or is a primary caretaker of a minor. While the FODs may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is general preferable to exercise such discretion as early in the case or proceeding as possible. The identification whether an alien is a parent or legal guardian may be sought at any time during the alien's arrest, processing or identification. If an alien is found to be a parent or legal guardian of a U.S. citizen or legal permanent resident minor, or a primary caretaker of a minor, the FODs should reevaluate any custody determination for the alien to the extent permitted by the law in accordance with the existing ICE policy. This Directive could help help the thousands of children of undocumented immigrants who are in adult detention facilities while their parents undergo deportation proceedings. If you are facing removal proceedings and would like to consult with us about your relief from removal or any immigration matter, please call our Manhattan immigration office at (212) 564-1589 to schedule you personal consultation with our Immigration Lawyers.
Posted by NYC Immigration Business Attorney Norka M. Schell
Law Offices of Norka M. Schell, LLC
Tel. (212)564-1589
Website: www.lawschell.com
USCIS Seeks Volunteers for Enhanced Form I-9 Study
U.S. Citizenship and Immigration Services sent this bulletin:
"U.S. Citizenship and Immigration Services (USCIS) has been developing a new version of the Form I-9, Employment Eligibility Verification, that contains enhancements designed to assist employers in complying with the law and reducing errors employers and employees commonly make when completing Form I-9.
Before we propose the enhanced form and invite public comment on the proposal as mandated under the Paperwork Reduction Act, USCIS is seeking nine employers from the public to volunteer to assist in a study to determine how much time it takes employers to complete an enhanced version of Form I-9 that USCIS is developing.
The study will be administered at USCIS offices in Washington, D.C., on September 3, 2013; September 5, 2013; or September 6, 2013 between the hours of 8 a.m. and 5 p.m. Administration of the study will be no more than 1.5 hours. USCIS will not provide any compensation to reimburse participants for any expenses, including time or travel.
All interested employers, large and small, are invited to submit a request to volunteer to participate in the study. USCIS will randomly select four large employers and five small employers from all submissions received by the deadline of August 15, 2013. Multiple submissions by the same employer will not be included in the random selection process.
USCIS will contact the Point of Contact provided on the volunteer request submission of selected employers by August 23, 2013 to schedule an appointment to participate in the study. The Point of Contact provided by the employer must be an individual who will represent the employer at the study. At the study, the individual will be requested to play the role of an employer completing Section 2 and/or Section 3 of the Form I-9.
Employers interested in participating in the study may submit a request to volunteer by e-mailing the following information to I-9Central@dhs.gov by August 15, 2013 with “Enhanced Form I-9 Study” in the subject line:
Name of Company:
Address of Company:
Is your company/entity considered “small” under SBA guidelines? (Yes) (No)
Point of Contact:
Telephone Number of Point of Contact
E-mail Address of Point of Contact:
Availability: (September 3) September 5) (September 6)
deal Time Availability: (Morning) (Afternoon)
USCIS signature
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Travis John Guth is a
U.S. lawful permanent resident (LPR). He filed a complaint against Kaiser
Permanente Hawaii, a California health maintenance organization (“Organization”)
doing business in several states, including Hawaii. Mr. Guth alleged that Organization discriminated
against him by firing him because of his citizenship status and national origin
and that Organization engaged in document abuse.
Mr. Guth was hired on
or about January 12, 2010. He presented a driver's license and social security
card in connection with his I-9 on which he indicated to Organization that he
was a U.S. citizen. On or about March 23, 2011, Mr. Guth filed a charge with
the OSC. He also filed a charge with the Equal Employment Opportunity
Commission (EEOC). The OSC sent him a determination letter dated August 3,
2011, authorizing him to file a complaint with OCAHO, which he did on October
20, 2011.
OCAHO Administrative
Law Judge (ALJ) Ellen K. Thomas first dismissed the national origin charge,
noting that Mr. Guth acknowledged that Organization has more than 15 employees
and pointing out that by statute a national origin discrimination complaint
against an employer with 15 or more employees is outside OCAHO jurisdiction.
Rather, INA § 274B(a)(2)(B) provides that the INA's prohibition of national origin
discrimination does not apply in cases covered under § 703 of the Civil Rights
Act of 1964, 42 USCA 2000e-2 (2006) (Title VII), and
these claims must be directed to the EEOC. ALJ Thomas then dismissed the
citizenship charge because an action for citizenship status discrimination
under § 274B may only be maintained by a protected individual, which Mr. Guth
is not. INA § 274B(a)(3)(B) provides
that an LPR may be a “protected individual” but not if he or she fails to apply
for naturalization within six months of becoming eligible or, after applying on
a timely basis, fails to naturalize within two years after the date of
application (with exceptions not applicable to this matter). Since Mr. Guth's
complaint asserted that he became an LPR on September 14, 1979, and that he
became eligible to apply for naturalization on May 27, 1984, but he did not
apply until December 15, 1996, and he apparently never naturalized, he was not
a protected individual within the meaning of INA § 274B(a)(3) at the time of
the alleged discrimination, and he therefore lacked standing to maintain the
claim before OCAHO.
Thus, the only claim
that OCAHO could consider was the claim of document abuse. This claim was
dismissed for lack of merit.
ALJ observed that
Organization in its motion for summary decision or dismissal asserted that, as
a federal contractor, it was obligated to participate in E-Verify and, in a
human resources (HR) representative's declaration accompanying that motion,
that Mr. Guth's information was first put through E-Verify on May 31, 2010, as
part of a bulk upload of I-9s, and that Organization received a tentative non-confirmation
(TNC) because of a conflict about his citizenship status.
In the Section 1 of his
I-9, Mr. Guth stated that he was a U.S. citizen, but other records could not confirm
that. An HR representative met with Mr. Guth on November 15, 2010, at which
time he continued to insist that he was a U.S. citizen but denied that he ever
had a permanent resident alien card or a certificate of naturalization, so his
information was resubmitted to E-Verify, and another TNC was received. Mr. Guth was then referred to the Social
Security Administration (SSA). On November 22, 2010, Organization received a
final non-confirmation (FNC) notice, and Mr. Guth was notified of this FNC, at
which time, the HR representative
again inquired about a permanent resident alien card or a certificate of
naturalization. This time Mr. Guth said that he had a permanent resident alien
card but that he did not have it with him. Mr. Guth was advised that the
Department of Homeland Security (DHS) might be able to help him, and the HR
representative spoke to DHS, which advised Organization to close the case and
start a new E-Verify request. Mr. Guth then presented an alien resident card, a
foreign birth certificate, and adoption papers, but the alien card did not have
Mr. Guth's name on it; rather, it was in the name of another person, “Ruiz
Arevalo, Walter Orlando.” The HR representative could not submit the case to
E-Verify for that reason. The declaration of Organization's manager of employee
and labor relations in Honolulu, Hawaii, stated that she was informed of the
FNC on or about December 3, 2010, and she then informed Mr. Guth that his
employment was being terminated. That declaration also stated that no employee
who receives a FNC from E-Verify is retained by Organization.
Mr. Guth in response
asserted that an E-Verify error was the motivating factor in his termination,
but, in the words of ALJ, “wholly missing ... [was] any evidence that could support
any inference that Organization intended to discriminate against Mr. Guth on
any prohibited basis”; rather, she said, it appeared that Organization wanted
to keep Mr. Guth as an employee but was unable to do so. Moreover, she said, even assuming argued that Mr.
Guth could present a prima facie case, Organization proffered a legitimate
nondiscriminatory reason for terminating him--it was required to do so after
receiving a FNC from E-Verify and had no choice in the matter. She pointed out
too that what Mr. Guth characterized as an E-Verify error was in fact his own
error--he checked the box stating that he was a U.S. citizen when in fact he
was not, and E-Verify could not reconcile this claim with other records because
Mr. Guth did not indicate his correct status as a LPR. Accordingly, the
complaint was dismissed.
