For those of you who might rather listen to our news than read it, we are releasing a podcast of a previous Blog post on the topic of the I-9 Revised Employer Handbook that was released by USCIS last month that provides additional guidance on many of the most frequently asked questions that we see in our employer compliance practice.  Have a listen and please take our Survey.   For a list of our compliance services and solutions we link here.

Last week the House subcommittee on immigration policy and enforcement held their first hearing on “ICE Worksite Enforcement – Up to the Job?” The major agenda item was whether or not Immigration and Customs Enforcement (ICE) was adequately enforcing worksite immigration laws.  The Republican members called upon ;their usual sources to diminish the Obama administration’s enforcement efforts, even though Deputy Director of ICE, Kumar Kibble stated quite clearly that ICE has achieved record numbers of investigations, audits, fines, and deportations by citing the below  statistics.  Frankly, after listening to the majority members, one can’t help but wonder if any amount of enforcement would be sufficient to meet their expectations.

Under the Obama administration, ICE has moved  away from raids, and stepped  up the pace of auditing businesses who may be suspect to employing undocumented workers.  However, the emphasis today is more on employers who hire immigrants and not just arresting undocumented immigrants who are working in the factories, the hotels, restaurants and construction businesses.  The vehicle being used to police the workforce is the auditing of I-9 forms,  levying fines and utilizing employer verification tools such as E-Verify and the Ice Mutual Agreement Between the Government and Employers Program.

The Deputy Director cited the following statistics as evidence of the success of ICE’s worksite enforcement: for FY 2010:

• A record 2,746 worksite enforcement investigations, more than doubling the 1,191 cases initiated in FY 2008.
• ICE criminally arrested 196 employers for worksite related violation, surpassing the previous high of 135 in FY 2008.
• ICE also issued a record 2,196 notices of inspection to employers, surpassing the prior year’s record of 1,444 and more than quadrupling the 503 inspections in 2008.
• ICE issued 237 final orders – documents requiring employers to cease violation the law and directing them to pay fines – totaling $6,956,026, compared to the 18 issued for $675,209 in FY 2008.
• The total of $6,956,026 last year represents the most final orders issued since the creation of ICE in 2003.
• In addition worksite investigations resulted in a record $36,611,320 in judicial fines, forfeitures, and restitutions.
• Finally ice brought a new level of integrity to the contracting process by debarring a record 97 businesses and 49 individuals preventing unscrupulous companies from engaging in future business with the government.

The glaring facts that came out of the hearing are that no matter whether it’s worksite raids or company audits with deportations of undocumented aliens, the current state of how foreign born workers are processed into the country is no longer working.  The conversation that we all should be having is the comprehensive reform of how workers are brought into the USA.  We can only hope that the GOP and the Democrats can have civil and reasonable debate that results in meaningful change.  Let’s see what happens.

As previously reported in our blog post and newsletter,on January 12, 2011, USCIS Director Alejandro Mayorkas released the revised version of the I-9 Employer Handbook known as the M-274.  After reviewing the new release, the following is a summary of the additional guidance and answers to FAQs that we think you need to be aware of in order to continue to remain I-9 compliant as well as update your policies and procedures in relation to managing your I-9s.   

Is this a perfect employer handbook? … No — but it is improved and does address many of the questions that we hear from employers in our practice; i.e, questions about name changes, conditional resident status, how to handle H-1B portability, clarifying the Thursday Rule for when the employer must complete Section 2 of the form, and assistance in how to calculate and determine the I-9 retention date for separated employees. So, let’s get started with the issues that produce the most questions:

 Clarifying the Thursday Rule (Page 3)   The Handbook states that employers must review the employee’s documents and complete Section 2 of the form within 3 business days of the first day of work for pay, but not including the actual date of hire – or, Thursday if the employee begins work on Monday.

Clarifying Conditional Residency (Page 9)  Permanent Resident Cards with either an expiration (Conditional Cards) date or no expiration date are List A documents that should not be re-verified.  An example of the new Form I-551 Permanent Resident Card that was issued May 11, 2010 has been included in the examples of “reasonable” authorization documents

Name Changes (page 18)   An employer is not required to update the I-9 form when an employee changes their name, but may do so in Section 3.  The new Q&A section instructs that employers may accept a document with a different name than what is entered in Section 1 (due to married names, compound names, or misspellings) if the documentation presented by the employee reasonably relates to the employee and appears genuine.  USCIS further suggests that if the employer is not satisfied that the presented documents appear genuine and relate to the individual, to request additional documentation to assist in making the determination.  The employer may wish to attach a brief memo to the I-9 detailing the employee’s reason for the name discrepancy, including copies of any supporting documentation the employee chooses to provide; this is referenced on pages 41-42.  There is a reminder for government contractors required to comply with FAR E-Verify that a name change in the system triggers the completion of a new I-9 form under the FAR rule.

Interruptions in Employment (Page 20)    The Handbook now provides guidance to employers about whether a new I-9 form is required after an employee has had a brief interruption in employment.  The Handbook provides examples of continuing employmentsituations such as maternity or paternity leave,  leaves of absence, transferring from one business unit to another unit for the same employer, changing jobsite locations with the same employer.  An employer is not required to fill out a new I-9 form in these situations where there is an expectation of continued employment.

The Temporary Employment Authorization Tablehas been replaced instead with narrative content for refugees and asylees, employees in TPS status (Temporary Protected Status), exchange visitors (J visas), students (F and M visas), H-1B professionals and H-2A agricultural workers.  More on this below.

H-1B Employees Changing Employers (a/k/a “Portability” or an H-1B Transfer) – Page 17   The Handbook restores the ability to “port or transfer” and start working immediately for an employee in valid H-1B status who changes to a new employer upon filing an H-1B petition with USCIS.  The prior 2009 version of the Handbook required the porting H-1B employee t o obtain a Form I-797 receipt notice from USCIS prior to starting employment.  One of the benefits of H-1B portability is that the employee can start right away, so it’s good to see them finally get this right as it applies to the Form I-9.  Further guidance states that the H-1B employee’s Form I-94/I-94A issued for  employment with the previous employer, with the foreign passport, would qualify as List A documents.  You should write “AC-21” and record the date you submitted the I-129 Petition to USCIS in the margin of the I-9 form next to Section 2. 

Page 18 further states that “you should” retain the following documents with the Form I-9 to show that you filed for an extension of stay:  1) A copy of the new Form  I-129;  2) Proof of payment for filing a new Form I-129; and  3) Evidence that you mailed the new I-129 petition to USCIS.  No further guidance has been provided on when or if to re-verify the H-1B petition after it’s approved.   We recommend that you calendar re-verification of H-1B status based upon the dates provided on the I-797 USCIS  approval notice.

Extensions of Status (Page 17-18)   Guidance states that an employee with a petition for extension of status, timely filed before work authorization expires, are eligible for continued employment for up to 240 days beyond the expiration date of the authorization as long as the extension remains  pending.  Details are provided for how to complete the I-9 and the documentation to be attached for those in E-1, E-1, H-1B, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1 and TN classification who have timely filed extensions with the same employer. 

For H-1B extensions, the employer should write “240-Day Ext” and record the date the employer submitted the I-129 Petition Extension to USCIS in the margin of the I-9form next to Section  2 (Page 17).  Further guidance is provided as to what documentation should now be attached to the I-9 form, as follows:

• A copy of the Form I-129 that was filed
• Proof of payment
• Evidence that the new I-129 Petition was mailed to USCIS
• After the extension is filed, USCIS will issue a receipt notice (Form I-797C) which should also then be added and retained with the I-9

Upon approval of the case, the employer should record in Section 3 the document title, number and expiration date listed.  The Handbook further states that the employer must give to the employee the Form I-94A attached at the bottom of the approval notice, which is evidence of the employee’s nonimmigrant status.

J-1 Exchange Visitors and M-1 and F-1 Students Changing to H-1B Status (“The Cap Gap”) – Pages 11-13   This section now includes details on how to complete Section 2 and confirms that the student’s employment authorization will remain valid through September 30^th of the calendar year for which the H-1B is filed, so long as the student’s H-1B status will begin on October 1^st.  The Handbook also informs that an employer must re-verify a student’s Form I-20.  The Form I-20 must show that the cap-gap extension was endorsed by the student’s designated school official.  Re-verification must be done no later than October 1^st.

I-9 Retention Calculator (Page 23)   The Handbook now includes an IRS retention calculator to help employers determine the retention date for terminated or separated employee I-9s.

Electronic Retention of the I-9 Form and Documentation of Electronic Storage Systems – What’s New?  (Page 24)   The Handbook expands guidance to employers that use paper, electronic systems or a combination of paper and electronic.  Employers must follow particular guidelines should they choose to retain their I-9s in an electronic storage system.  Employers who are currently using an electronic retention system or contemplating the future use of an electronic retention system should review the information outlined in the Handbook and consult with their immigration or attorney.

Employees with Temporary Protected Status (TPS)…Page 10   The Department of Homeland Security (DHS) may extend a country’s TPS designation by issuing a Federal Register notice that automatically extends expiring Employment Authorization.  A TPS employee may choose to present an Employment Authorization Document (EAD card) that is expired so long as it has been automatically extended.

 So, how do you determine if the TPS EAD card is a valid List A document?  There is now guidance on how to determine whether DHS has issued an automatic extension of expiring EADs, and how to explain that the status has been extended, as well as sample images of an EAD card that has been issued.  There is additional guidance on how to re-verify refugees and asylees.

Federal Contractors (Page 19)   The new Handbook provides  additional guidance to Federal Contractors about their responsibilities under the amended FAR related  to employment eligibility verification and states that the regulation requires contractors with a federal contract that contains the FAR E-Verify clause to use E-Verify for their new hires and all employees (existing and new) assigned to the contract.  Additionally, guidance is provided that where an employee working for a FAR employer undergoes a name change and the employer chooses to verify existing employees by updating existing I-9s, and then a new I-9 form must be completed.

Check out the new Q&A section on pages 37-49

For questions pertaining to the revised Handbook and how to implement the new guidance into your current I-9 policies and procedures, please contact our office.

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Tyson Foods, Inc. is the newest member of U.S. Immigration and Customs Enforcement’s (ICE) nationwide program designed to encourage businesses to collaborate with ICE and use hiring best practices to ensure they are maintaining a lawful workforce. Tyson Foods Senior Vice President and Chief Human Resources Officer Ken Kimbro and ICE Director John Morton signed the IMAGE or “ICE Mutual Agreement between Government and Employers,” agreement during a ceremony at ICE headquarters.

Tyson Foods, Inc., which employs almost 100,000 people at locations throughout the United States, is the first major food company to become a full member of ICE’s IMAGE program.

For those of you who are not familiar with the IMAGE program — it’s voluntary and allows businesses to partner with ICE as part of their efforts to maintain an authorized workforce and protect themselves from the use of fraudulent identity documents by current or prospective employees. This program compliments the ICE  worksite enforcement strategy, which focuses on holding employers accountable who knowingly hire unauthorized workers to minimize operating costs and boost profits.

“ICE’s collaboration with Tyson Foods illustrates this administration’s commitment to working with industry to encourage a culture of compliance with U.S. employment laws,” said Morton. “Tyson Foods is setting the gold standard for Fortune 500 companies everywhere, and ICE is proud to be partnering with the company in this significant effort to protect our nation’s lawful workforce.”

“We believe our participation in IMAGE confirms Tyson uses best hiring practices to maintain a lawful workforce,” Kimbro said. “We use all available tools provided by the U.S. government to verify the documents of the people we hire. We’ve also gone beyond government tools, spending millions of dollars over the years on such things as training, computer systems and help from outside consultants to make sure we’re employing people who are authorized to work in our country.”

To become certified, Tyson was subject to an I-9 audit and other checks by ICE. The company met other IMAGE requirements with programs it already has in place. For example:

• The company conducts regular self-assessments or internal audits of its hiring activities. The company also uses an independent, outside company to conduct its own audits of the company’s hiring practices.

• Tyson voluntarily participates in the online government employment verification program known as E-Verify and has since 1998. The company also voluntarily uses the ‘Social Security Number Verification Service.’

• Tyson trains all of its employment managers on the hiring process, proper completion of the Form I-9 and on document examination and fraud detection.

All IMAGE members must participate in the Department of Homeland Security (DHS) E-Verify employment eligibility verification program. Through this program, employers can verify that newly hired employees are eligible to work in the United States.

Upon enrollment in and commitment to the IMAGE Best Employment Practices, program participants are deemed “IMAGE certified,” a distinction DHS and ICE believe will become an industry standard. IMAGE also provides to all employers free training on the Form I-9, fraudulent document detection, and building a solid immigration compliance model.

The Announcement of a New Compliance Inspection Center to support Worksite Enforcement and Expedite Form I-9 Audits

Note that during today’s signing ceremony, Director Morton also announced the creation of an employment compliance inspection center in Crystal City, Va. This center will be home to 15 auditors who will support ICE’s worksite enforcement strategy by helping agency field offices around the country expedite Form I-9 audits of businesses selected for inspection by ICE. ICE considers Form I-9 audits as now being one of the most powerful tools the federal government has to ensure that businesses are complying with U.S. employment laws. From fiscal year 2009 to date, ICE has initiated Form I-9 inspections against 3,769 businesses across the nation.

Our January 2011 newsletter with I-9 and E-Verify updates and US and Canadian immigration news is now available.

If you haven’t had a look at our I-9 Employer Resource Center, please take a minute to do so, fill out the Survey and send it along to us:  www.I-9Audits.com

USCIS released a revised January 5, 2011 version of the I-9 Employer Handbook today.  Our office received an emailed  Press Release from USCIS Director Alejandro N. Mayorkas announcing the release of the Handbook that is published in cooperation with the Department of Homeland Security partners. Director Mayorkas states:

“By law, U.S. employers must verify the identity and employment authorization for every worker they hire after November 6, 1986, regardless of the employee’s immigration status. To comply with the law, employers must complete Form I-9, Employment Eligibility Verification. The Handbook for Employers is a guide for employers in the Form I-9 process.

It has been revised and updated with new information about applicable regulations, including new regulations about electronic storage and retention of Forms I-9; it clarifies how to process an employee with a complicated immigration status; and, it addresses public comments and frequently asked questions. We thank the many stakeholders who have provided comments on the Form I-9 process and the Handbook since the Handbook was last revised (Rev. 7/31/2009).

Some of the many improvements, new sections, and tools included in The Handbook for Employers are:

• New visual aids for completing Form I-9
• Examples of new relevant USCIS documents
• Expanded guidance on lawful permanent residents, refugees and asylees, individuals in Temporary Protected Status (TPS), and exchange visitors and foreign students
• Expanded guidance on the processing of employees in or porting to H1-B status and H2-A status; and
• Expanded guidance on extensions of stay for employees with temporary employment authorization.

The Handbook for Employers now also includes information for employers in the Commonwealth of the Northern Mariana Islands (CNMI) who must verify their employees’ employment authorization on Form I-9 CNMI. It also highlights information about documents CNMI employers may accept from their employees.

We are pleased to release this revised and updated handbook. We are hopeful it will serve as a useful guide for employers complying with the Form I-9 process.”

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Should you have questions following the reading and review of the new Handbook, please contact our compliance team at Immigration Solutions.  Should you require compliance services and solutions, our talented team is ready to assist you.

Further to our series on site visits for the purposes of administrative, benefit and compliance reviews – we’ll look closer at FDNS areas of oversight…

What does FDNS Do?

FDNS officers resolve background check information and other concerns that surface during the processing of immigration benefit applications and petitions.  Resolution often requires communication with law enforcement or intelligence agencies to make sure that the information is relevant to the applicant or petitioner at hand and, if so, whether the information would have an impact on eligibility for the benefit.  

FDNS officers also perform checks of USCIS databases and public information, as well as other administrative inquiries, to verify information provided on, and in support of, applications and petitions.  Administrative inquiries may include:

•  Performance of fraud assessments – FDNS officers engage in fraud assessments (including Benefit Fraud and Compliance Assessments) to determine the types and volumes of fraud in certain immigration benefits programs;
• Compliance Reviews – Systematic reviews of certain types of applications or petitions to ensure the integrity of the immigration benefits system, and
• Targeted site visits – Inquiries conducted in cases where fraud is suspected.

FDNS uses the Fraud Detection and National Security Data System (FDNS-DS) to identify fraud and track potential patterns. 

USCIS has formed a partnership with ICE, in which FDNS pursues administrative inquiries into most application and petition fraud, while ICE conducts criminal investigations into major fraud conspiracies. 

Additional FDNS Functions

FDNS also conducts Benefit Fraud and Compliance Assessments to identify the types and volumes of fraud and develop mitigation strategies to deter and disrupt fraud.

What is the ASVVP and what does it do?

In July 2009, FDNS implemented the Administrative Site Visit and Verification Program (ASVVP) to conduct unannounced site inspections to verify information contained in certain visa petitions.  USCIS provides petitioners and their representatives of record (if any) an opportunity to review and address the information before denying or revoking an approved petition based on information obtained during a site inspection.

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Immigration Solutions always welcomes your feedback.  If you are interested in becoming a client of our office, please contact us at 562 612.3996 and request a consultation. We handle a broad range of business related immigration matters and have an active employer compliance practice, consulting on proper I-9 (Employment Eligibility Verification) best practices, auditing, training, and guiding our clients in achieving compliant immigration policies and procedures.  

Visit our new I-9 Employer Resource center here

Over the last year, employers have continued to experience unannounced site visits by U.S. Citizenship and Immigration Services’ Office of Fraud Detection and National Security (FDNS), and it is expected that site visits will increase in 2011.  FDNS conducts site inspections to verify the information that employers provide in their immigration petitions. Most recently, site visits have focused on approved H-1B, L-1 and some O-1 petitions. Some employers have reported receiving multiple site visits pertaining to separate petitions and foreign workers.

In this series, we will address questions and inquiries that we have received pertaining to USCIS site visits.  If your company is contacted by an FDNS officer, you should call your designated Immigration Solutions professional immediately to discuss options, including the possibility of having counsel present during a site visit.

1)  Why is USCIS making employer site visits?   Site visits are conducted as part of a Benefits Fraud Assessment (BFA). BFAs are initiatives that review specific immigration programs – such as the H-1B or L-1 program – to determine the incidence of fraud in that particular program. A BFA typically lasts for several months. During this time, USCIS will randomly select a large number of petitions or applications for benefits in the particular category being assessed. These cases are assigned to FDNS officers, who visit the premises of sponsoring employers to verify the existence of the employer, the validity of the information the employer has provided in an immigration petition, and whether sponsored foreign nationals are working in compliance with the terms of their admission to the United States.

In addition to verifying the validity of data contained in an immigration petition, FDNS officers use information collected during site visits to help USCIS develop a fraud detection database. FDNS officers gather information to build profiles of the types of companies that have records of good faith use of immigration programs and records of immigration compliance, and also to identify factors that could indicate fraud. 

2)  Does USCIS give advance notice of a site visit?   Not necessarily. In most cases, officers from the FDNS unit will arrive at the worksite unannounced, though occasionally an officer may call the company to inform it of an impending visit.

3)  Can your attorney be present during the site visit?  You can ask to have counsel present during the site visit, especially because your attorney has submitted a Form G-28 notice of appearance of attorney, confirming that the company has legal representation in connection with each petition it files.  FDNS officers will not typically reschedule a site visit to accommodate the presence of an attorney, but may agree to allow counsel to be present by phone. In the alternative, you may contact your Immigration Solutions with questions during a site visit. If the officer is resistant, you should explain that having the company’s immigration counsel present or available by phone will help the employer respond fully and accurately to the officer’s questions and requests for information.

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As always, we welcome your feedback. If you are interested in becoming an Immigration Solutions client, please call our office at 562 612.3996 and request a consultation. We handle a broad range of business related immigration matters and have an active employer compliance practice and consult on proper I-9 (Employment Eligibility Verification) best practices, auditing, training, and work with our clients to develop compliant immigration policies and procedures.  We offer these services, as well, to government contractors and advise on FAR E-Verify enrollment and compliance issues.  Visit our new I-9 Employer Resource center here

USCIS earlier this week, published new guidance on how to enter an employee’s US passport or visa number into E-Verify when the system doesn’t accept it.

There are occasions when E-Verify won’t accept an employee’s US passport or visa   The usual rule is that you should enter a document number exactly as it appears on the employee’s Form I-9, but sometimes doing exactly that doesn’t work.

USCIS announced that it has updated the help screens for US passport and visa numbers to reflect new guidance on how to enter these numbers in E-Verify.  A permanent fix for entering these numbers is in development and will be implemented in 2011.

In the meantime…What you need to know:

• If an employee’s US visa number isn’t exactly 8 digits, don’t enter it; leave the field blank (it’s an optional field)
• If an employee’s US passport consists of a letter followed by 7 digits, replace the letter with two zeroes (00) so that you enter exactly 9 digits
• For US passport cards, always use an uppercase ‘C’ when entering the number – the field is case sensitive

You may be wondering, why restrict what can be entered?

USCIS does this because they want to minimize the number of typos and incorrect information entered into E-Verify.  For example, several sets of numbers appear on a US visa.  If the field isn’t restricted to 8 digits, it would be easy for a user to enter the wrong number.

We reference below what’s new with E-Verify for those of our readers who are enrolled in the system.

E-Verify Has Expanded Photo Matching!

E-Verify has launched a new U.S. Passport photo matching capability. Employers using E-Verify can now view photos to help confirm the validity of identity documents. Available documents include:

U.S. Passports and Passport Cards

• Permanent Resident Cards (Green Cards)
• Employment Authorization Documents

Visit here for more information about Photo Matching.

Did You Hear About the I E-Verify Seal?

Employers who use E-Verify can now prominently display the official I E-Verify™ seal at their workplace—on bulletin boards, doors or windows. E-Verify enrollees who would like a seal can send a request to uscis.verlogo@dhs.gov.

Designated Agents Get a New Name

The name “E-Verify Employer Agent” has replaced “Designated Agent” to refer to businesses that use E-Verify to confirm the employment eligibility of another company’s employees.

Puerto Rico Birth Certificate Guidance

On July 1, 2010, the Vital Statistics Office of the Commonwealth of Puerto Rico began issuing new, more secure, certified copies of birth certificates to U.S. citizens born in Puerto Rico. After Oct. 30, 2010, all certified copies of birth certificates issued prior to July 1, 2010, became invalid. This new law does not affect the U.S. citizenship status of individuals born in Puerto Rico. It only affects the validity of certified copies of Puerto Rico birth certificates. See the USCIS Update for more information.

New on the E-Verify Website

Updated Manuals are now available

The latest E-Verify guidance can be easily downloaded or viewed online. E-Verify User Manuals, Quick Reference and Supplemental Guides for Employers, Federal Contractors, and E-Verify Employer Agents (formally Designated Agents) were all updated in September and are available on the Publications web page.

How Well is E-Verify Performing?

E-Verify recently updated the Statistics and Reports page on the web site. The updated statistics are based on E-Verify cases in Fiscal Year 2009 (October 2008 through September 2009).

History and Milestones

Check out the history of E-Verify—from the original legislation (1986 Immigration Reform and Control Act) to present-day major milestones. Visit the updated History and Milestones web page for more information.

E-Verify Outreach

E-Verify Offers Free Webinars!  Go to the E-Verify website and click on Sign Up for a Webinar for a complete schedule.

E-Verify Overview

• E-Verify for Existing Users
• E-Verify for Federal Contractors
• Form I-9, Employment Eligibility Verification

E-Verify gives live presentations and workshops, and participates in conferences and exhibits. If you would like a speaker for an event or conference, please e-mail us at E-Verify@dhs.gov or call 1-888-464-4218.

E-Verify in the Community

• Small, Minority, Women and Veterans Business Owners
  San Antonio, Texas                December 8, 2010
• 29th Annual Government Contract Management Conference
  Arlington, Virginia                    December 9-10, 2010
• The Agriculture Employer Forum
  Provo, Utah                             December 15, 2010
• The West Valley Chamber of Commerce
  Salt Lake City, Utah                December 16, 2010
• Human Resource Council of the Manufacturers Association of Central New York
  Syracuse, New York               December 21, 2010

Here’s the link to the new E-Verify Newsletter