Labor Immigration Law

The Department of Homeland Security (DHS), in a recent symposium, has provides some useful insight into its operations and policies.  We are happy to share some of DHS’s disclosures.

DHS Investigations on Employers to Continue and Increase

Janet Napolitano, the DHS Secretary, has indicated that employer investigations will continue and, possibly, intensify.  In 2009 there were $24 million in employer fines (compared to zero in 2006).  In 2009, 45 businesses and 47 individuals have been debarred while in 2008 only one was debarred.  Immigration and Customs Enforcement (ICE) has issued  over 1,000 I-9 Notice of Inspection (NOI) in 2009 to random employers with another 1,000 announced at the symposium.   I-9 audits, many of which are conducted randomly, may result in civil penalties, and where bad faith is found, lead to criminal prosecution.

DHS has clarified that it would continue under a two-prong approach:  (1) prosecute employers acting in bad faith and (2) work with employers to achieve compliance.

E-Verify Updates

DHS announced that there are more than 170,000 employers in the E-Verify system.  In 2008, there were 8.5 million queries run on new hires.  96.9% of those new hires were authorized by E-Verify within 24 hours; 2.8% are found to be ineligible to work; and 0.3% received tentative non-confirmation but were later confirmed as authorized to work.

DHS announced that the photo tool will be soon made available to designated agents, as well as to employers. The photo tool should also be expanded to include passport photos of U.S. citizens.

E-Verify Usage Issues.  DHS noted several E-Verify usage issues, as reported by a third party engaged to analyze E-Verify usage.

• It was reported that 16% of the E-Verify employers did not complete the tutorial – which can indicate, according to DHS, sharing of passwords by employers or insufficient training;
• 16% of the E-Verify employers use the system as a pre-screen, which is a violation of the E-Verify and can be prosecuted;
• 20% of employers took adverse action against prospective employees who received a tentative non-confirmation, again, in violation of E-Verify rules;
• 9% of employers received a tentative non-confirmation but failed to give notice to the employee of the election to contest.

FAR

Over 18,000 federal contractors are now enrolled in E-Verify following rules requiring such participation.  9,000 federal contractors have the FAR clause inserted in the federal contracts.

Conclusion

In light of these updates on DHS policies, it is clear that DHS will sharpen its focus on employers and require proper E-Verify participation (for E-Verify employers) and good Form I-9 compliance practices.  The increasing audits, fines and, in some cases, debarments, should serve as a notice to employers to create and follow proper employment authorization and immigration compliance programs.    Please contact us if we can help you evaluate and modify your programs.

The U.S. Immigration and Customs Enforcement (“ICE”) announced recently that ICE would be issuing Notices of Inspection (NOI) to 1,000 employers across the United States associated with critical infrastructure.   The NOIS will seek to determine the employers’ compliance with employment eligibility verification laws.

What is Critical Infrastructure Employer?

The announcement seems to focus on employers associated with critical infrastructure.  What exactly does this mean?  The 1,000 businesses served with audit notices have been selected for inspection as a result of investigative leads and intelligence and because of the business’ connection to public safety and national security—for example, privately owned critical infrastructure and key resources.

What Would the Audits Focus On?

The audits will involve a comprehensive review of Form I-9s, which employers are required to complete and
retain for each individual hired in the United States. I-9 forms require employers to review and record each individual’s identity and work eligibility document(s) and determine whether the document(s) reasonably appear to be genuine and related to that specific individual.

What Are the I-9 Audit Procedures and Fines?

By law, employers are required to maintain for inspection original Forms I-9 for all current employees. In the case of former employees, retention of Forms I-9 are required for a period of at least three years from the date of hire or for one year after the employee is no longer employer, whichever is longer.  The authority of ICE to perform I-9 audits is specifically granted by law and penalties range from $375 to $16,000 per violation.  Penalties for failing to produce a Form I-9 range from $110 to $1,100 per violation.  For employers with many employees, the potential fine amount can be substantial.

The procedures for I-9 audits and the applicable fines can be found in this Form I-9 Inspection Overview document.

We wrote last week about the new Employer Handbook which was released by USCIS in connection with the revised Form I-9.  The revised version of Form I-9 becomes mandatory on April 3, 2009 (barring any last-minute change by the Obama administration).  Employers will have to complete the new Form I-9 for all newly hired employees to verify their credentials and authorization to work in the United States.

Obtain the new version of Form I-9.

USCIS has released an updated Employer Handbook, Instructions for Completing Form I-9.  The new handbook describes in detail the requirements imposed by Form I-9, Employment Eligibility Verification.  Note that the new handbook contains procedures which should be used only on or after April 3, 2009.

The U.S. Citizenship and Immigration Services (USCIS) announced that it has delayed by 60 days, until April 3, 2009, the effective date for using the revised Form I-9, originally scheduled to go into effect today.  Copy of the USCIS notice.

Employers who use the new form prior to the April 3, 2009 effective date are subject to civil monetary penalties.

The requirement, imposed late last year on certain federal contractors to become E-Verify compliant or become ineligible for contracts with the federal government was due to become effective on January 15, 2009.  However, the requirement, after attack by a number of organizations special interest groups, has been postponed until at least May 21, 2009.

There are a number of legal challenges on the proposed rule and we will continue posting updates on the topic as they become available.

USCIS has updated Form I-9, Employment Eligibility Verification and the new form is available for us; however, two versions exist. Please note that the version dated 06/05/07 is only available if used BEFORE February 2, 2009. The version dated 02/02/09 will be appropriate for use ON or AFTER February 2, 2009.

UPDATE: the implementation of the updated Form I-9 has been delayed.

USCIS has announced that is has submitted for publication in the Federal Register an Interim Final Rule which modifies the Employment Eligibility Verification process.

The Interim Final Rule narrows the list of identity documents which are acceptable and specifies that expired documents are not considered acceptable forms of identification.   The changes included in the Interim Final Rule are intended to improve the security and the trustworthiness of the employment eligibility verification process.

The Interim Rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A on Form I-9.  These documents are no longer issued and those that were in circulation have expired. The Rule also adds to List A of the Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands.  The Rule makes other, technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A.

Form I-9.

USCIS has released a new version of the Form I-9, Employment Eligibility Verification.  Employers should start using the revised form (it has Rev. 06/16/08 in the bottom right corner) effective immediately because USCIS will no longer accept older versions.

Because employers are required to complete a Form I-9 for each new hire, the change in the form should be noted.  The substantive changes in the form are minor.

The following documents are no longer acceptable evidence both as identity and as employment eligibility:

• The Certificate of United States Citizenship (Form N-560 or N-561);
• The Certificate of Naturalization (Form N-550 or N-570);
• The Form I-151, a long out-of-date version of the Alien Registration Receipt Card (“green card’”);
• The Unexpired Reentry Permit (Form I-327); and
• The Unexpired Refugee Travel Document (Form 1-571)

The revised List A of the List of Acceptable Documents now includes the most recent version of Form I-766, Employment Authorization Document.

Finally, the instructions regarding Section 1 of Form I-9 now indicate that the new hire is not required to provide a social security number unless the employer participates in the E-Verify program.

USCIS just announced a couple of significant enhancements to the E-Verify program which should increase its accuracy and appeal to employers.  One of the main concerns of E-Verify is that a fair number of legitimately authorized workers receive a non-confirmation which has consequences, ranging from embarrassment to potentially losing their employment.

About E-Verify. E-Verify is a program which provides an automated link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers.  The program is operated by USCIS in cooperation with the Social Security Administration (SSA) and it has evolved over the past 10 years to allow employers a quick (and ideally) accurate way to determine the employment eligibility of a new hire.  Currently, there are 64,000 employers who participate in the program with approximately 1,000 new enrollments weekly.  Our firm regularly provides advice to employers on E-Verify participation and compliance and we have noticed increased interest from employers.

The Changes.  Starting immediately, the E-Verify system will include naturalization data, which will help instantly the citizenship status of naturalized U.S. citizens hired and subject to verification by E-Verify employers.  According to USCIS, naturalized citizens who have not yet updated their naturalization records with the SSA are the largest category of properly authorized employees who face an initial E-Verify mismatch.

The second immediate change is that E-Verify will also include real-time arrival data from the border inspection and arrival system.  The goal of this integration is to reduce the number of mismatches related to immigration status for newly arriving workers who enter the U.S. legally through a point of entry.

Among the future plans for E-Verify – have USCIS sent back information to SSA to avoid future mismatches from happening and integrate Department of State passport records.