Labor Immigration Law

Many of our readers and clients are already aware and are using the new Form I-9, but it is worth sending another alert to remind that the revised Form I-9 (revision date 03/18/2013) becomes the only acceptable version after May 7, 2013.

Please see our recent alert about the changes to the Form I-9.   Among the most notable changes in the new edition of the Form I-9 are:   improvements to include new fields (such as passport, telephone and email of the worker), reformatting to reduce errors, and clearer instructions to both employees and employers.

Those employers who are still using a Form I-9 edition other than revision date 03/18/2013 should immediately start using the new form for hiring and re-verification, when applicable.  USCIS has also updated the Handbook for Employers, Guidance for Completing Form I-9 to reflect the changes to Form I-9.

Conclusion

The newest version of Form I-9 represents the most significant revision of the Form since its last major revision in November 1991. Capitol Immigration Law Group is happy to answer any questions and will host a Form I-9 training seminar to assist employers with navigating and understanding the new Form I-9. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our I-9 compliance practice group can be of any help, please feel free to contact us.

The U.S. Citizenship and Immigration Service (“USCIS”) has issued new guidance to employers regarding the employment verification and documentation process for employees with valid and pending Deferred Action for Childhood Arrival (“DACA”) applications.     According to recent USCIS figures, there have been approximately 420,000 DACA applications filed and as approvals are starting to be sent out, more and more employers are likely to face the task of documenting the I-9 and employment eligibility for DACA workers.

Background of DACA

On June 15, 2012, USCIS announced the Deferred Action for Childhood Arrivals process for certain individuals without current valid immigration status and who meet specific criteria.  The process allows those individuals to request consideration of deferred action (and work permit) for up to two (2) years, with the option of renewal.  Deferred Action gives the Department of Homeland Security the authority to postpone removal proceedings and is not considered a lawful immigration status.   A valid work authorization document is also issued to successful applicants.  The required criteria for DACA applicants are:

• Must be under the age of 31 as of June 15, 2012;
• Must have arrived in the United States before the age of 16;
• Must have continuously resided in the United States from June 15, 2007 – June 15, 2012;
• Must have entered the United States without inspection or have expired status as of June 15, 2012;
• Must be in school, graduated, obtained a GED, or honorably discharged from the United States military force; and
• Must not have been convicted of a felony, significant misdemeanor, three or more misdemeanors, or pose a threat to national security or public safety.

USCIS Guidance for Companies Hiring or Employing DACA Employees

Approved DACA applicants are issued an Employment Authorization Document (“EAD”) cards by USCIS for up to two (2) years at a time.  Like all other employees, the DACA employee must complete and sign a Form I-9 within 3 days of hire.  For more information on employer responsibilities regarding Forms I-9, see our recent I-9 compliance article.   The employer is responsible for documenting the EAD and its validity dates on the Form I-9, under Section 2.  The employer should not request additional documentation to confirm DACA status, the EAD card is sufficient.

USCIS Guidance for DACA Employees Conflicts With General I-9 Requirements

The M-274 Handbook for Employers should be the ultimate resource for all Form I-9 related concerns.  While the USCIS DACA Guidance for Employers indicates that a new Form I-9 should be completed if an employee’s name, date of birth, signature, or social security number change, this directly conflicts with M-274 Handbook for Employers.  The M-274 Handbook for Employers advises that incorrect or outdated information on the Form I-9 simply be crossed out and updated on the same form.  USCIS’s own I-9 Central states the same.

Conclusion

Only in the case of major errors, such as full sections of the Form I-9 being left incomplete, should a new Form I-9 be completed.  Even then, the incorrect Form I-9 should be attached to the new form with an explanatory note detailing the errors and corrective steps taken.  Finally, the USCIS DACA Guidance also advises employers to submit a new e-Verify application, if the employer participates in the program for all employees, each time a new employment authorization documentation is provided.  This conflicts with the e-Verify program instructions to submit e-Verify only for newly hired employees.  While we applaud USCIS’s efforts to educate employers on completing Form I-9 and submitting e-Verify requests for potential DACA employees, their guidance should match the already existing I-9 and e-Verify rules and procedures.

How Can We Help

The Capitol Immigration Law Group is here to assist with pending DACA applications or questions regarding the DACA process or obtaining the associated EAD.  The Capitol Immigration Law Group can also provide various levels of I-9 compliance education, audits, and on-site employee training as well as training materials and guidance for performing regular audits and training.  We encourage all employers to mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance or you have any questions or comments.

The start of the new year is a perfect time to assess corporate compliance with U.S. immigration laws.  As Immigration and Customs Enforcement (“ICE”) and the Department of Labor (“DOL”) increase their number of company audits and fines each year, it is important for employers to perform annual audits of their employment law and immigration compliance.  In addition, companies are often financially responsible for any civil and/or criminal fines imposed when their staff does not correctly follow the letter of the law.  Thus, staff training on immigration compliance and employment laws should be a standard part of any business’s regular compliance audit.

Basic I-9 Requirements

Form I-9 is required by all employers to have each employee complete within 3 business days of hiring them, regardless of immigration status or citizenship.

I-9 Retention

A properly completed I-9 should be on file for every current employee.  For former employees, I-9’s should be retained for 1 year after termination or 3 years after start of employment, whichever is longer.

I-9 Storage

These confidential forms should be kept secured with access limited to trained staff only.  I-9’s and supporting documents may be retained electronically or in paper hard copies as long as the company correctly processes and consistently retains I-9’s in the same format.

Accepted Versions of I-9

New I-9’s should be filled out using the latest version of the form (either February 2, 2009 or August 7, 2009).  A new version does not need to be completed for current employees with a previously completed Form I-9.  The Spanish version I-9 may only be completed by employers and employees located in Puerto Rico.

I-9 Supporting Documents

If the employer utilizes e-Verify, e-Verify must be consistently performed and documented for every employee.  For non-U.S. citizens or non-permanent residents, evidence of current and valid employment authorization is required.

Common I-9 Errors

I-9 errors can be costly to employers if identified by the DOL or ICE during an audit.  Some common I-9 errors include:

• Not timely completed;
• Employer discrimination by requesting too few, too many, or only specific documents;
• Incorrectly completed forms, such as incorrect date of birth or wrong box checked, missing social security number, no signature, document list incomplete or incorrect, incorrect form version, etc., as well as inconsistent manner of completion by the various company representatives, including an inconsistent mix of electronic documents and paper documents;
• Not properly tracking immigration employment authorization expirations and documenting timely renewals or extensions of employment authorization;
• Improper retention by not timely removing expired I-9’s for former employees or not maintaining I-9’s in a safe and secure manner; and
• Incorrectly completing or not consistently documenting e-Verify, including situations where no-match letters are received and timely resolved.

Many of these pitfalls can be avoided through regular employee training and annual I-9 audits.

I-9 Auditing

We certainly recommend periodic internal I-9 reviews by companies.  However, such reviews should be done carefully.  It is not uncommon for self-audits of companies, once done incorrectly, to cause additional costly errors; therefore, an I-9 compliance audit by a qualified outside source is strongly recommended.

In addition to auditing actual completed I-9’s and supporting documents, employers are responsible for ensuring their hiring managers, human resources, executive staff, and other responsible employees are trained in employment law requirements, specifically what can and cannot be asked or requested.  For example: not all designated employees know how to avoid discrimination allegations when requesting documents by employees;  not all designated employees know who is authorized to sign I-9’s on behalf of the company, and not all designated employees know (or can easily find out) the difference between employees and contract workers?

I-9 Official Resources

We would like to share some general I-9 resources.

• USCIS’ I-9 Central Home
• USCIS’ Handbook for Employers, Instructions for Completing Form I-9
• USCIS’ E-Verify User Manual

How Can We Help

The Capitol Immigration Law Group can provide various levels internal I-9 compliance audits and on-site employee training as well as training materials and guidance for performing regular audits and training.  We can provide immigration compliance training and auditing to meet an employer’s specific needs.  We encourage all employers to mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance or you have any questions or comments.

Almost all non-US nationals who have traveled to the U.S. at least once are familiar with the little white (or green) card inserted into one’s passport upon admission into the U.S.  (sample)  Many people do not fully realize the significance of the Form I-94 — most importantly, it records the entry date into the U.S. and determines how long a foreign national is entitled to remain lawfully in the U.S.   Form I-94 card is important document serving to establish valid status in the U.S. and to obtain certain benefits, including driving licenses.

Proposed Elimination of Form I-94

In the near future, the U.S. Customs and Border Protection (CBP,  the agency which admits foreign nationals in the U.S.)  is expected to stop issuing Form I-94s to most foreign national at the U.S. ports of entry.    The Department of Homeland Security (which oversees CBP and Citizenship and Immigration Service) is instead proposing to use an automated entry system to record each nonimmigrant’s arrival.   Travelers will receive a passport stamp annotated with their immigration status and the date their period of stay expires.  After the I-94 is eliminated, CBP may create an online portal to allow nonimmigrants to check their status and period of stay and print out a record of their admission.  But until such time, foreign nationals will only have their passport stamp to prove entry and validity of status.

It should be noted that foreign nationals entering at land ports of entry will, for the time being, continue to receive a functional I-94 card, as will refugees and some other classes of foreign nationals.

What the I-94 Change Means to Employers and Foreign Nationals

Currently, the I-94 card is used as proof of lawful immigration status and the permissible period of stay. In addition, numerous federal and state agencies use the I-94 to verify whether a foreign national is entitled to certain benefits, including a Social Security number, a driver’s license, among others.  USCIS rules require nonimmigrants to carry the I-94 as proof of their status.

Further, along with a valid foreign passport, the I-94 is one of the documents used to verify a foreign national’s employment eligibility on Form I-9 and in the E-Verify database.  Since Form I-9 require employees to present and employers to inspect the actual paper I-94 card, it is important for employers to expect, and keep abreast of, the upcoming changes.  It is not yet clear how elimination of the I-94 will affect these critical procedures and requirements pertaining to completing the Form I-9. Though CBP has been meeting for some time now with interested government agencies about its paperless I-94 implementation program, specific plans to revise regulations that currently require Form I-94 are not yet known.

Conclusion

While we applaud the government’s efforts to create a more efficient paperless system of recording foreign nationals’ entry information, the impact of eliminating the paper Form I-94 is significant and, in many cases, not fully understood and analyzed.   We will continue monitoring this subject and provide updates to our clients and readers.   Please do not hesitate to contact us if we can help you.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.

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.