On Nov. 14, 2016 USCIS released a revised version of Form I-9, Employment Eligibility Verification.  Employers may continue using Form I-9 with a revision date of 03/08/2013N  through Jan. 21, 2017.  By Jan. 22, 2017, employers must use the revised form.

Employers should continue to follow existing storage and retention rules for all of their previously completed Forms I-9. Refer here for more information.

Remember to login to our webinar on Wednesday Nov. 16^th, 3pm EST/12pm PST for training on the new I-9 form:  http://www.immigrationcompliancegroup.com/webinars2016/ and save the date for the E-Verify webinar as well on December 15, 2016.

USCIS released details of proposed new changes to the E-Verify program on June 8, 2015 that were published this week.  The notice, found here, proposes several changes to E-Verify and seeks public comments until August 7, 2015 and links to new Q&A.   These changes will affect all employer users, including Federal Acquisition Regulation (FAR) contractors.

The three critical changes entail:

1)  Requirement that employers re-verify the continuing work authorization of employees within three “Employer” days of the expiration of the employee’s “last” grant of work authorization.

a)  This requirement tracks the current continuing duty of employers to re-verify expiring work authorization of employees in Section 3 of the I-9 form or, in the alternative, to complete a new I-9.

b)  This differs from the I-9 process in that the E-Verify time frame for re-verification of the employment authorization is three days after its expiration, whereby the I-9 regulations state that an employer re-verify the expiring work authorization of an employee on or before the day it expires. In E-Verify, the proposed process cannot be started until after the expiration of the employment authorization.

c)  The re-verification requirement extends to employees hired before an employer began participating in the E-Verify program. Thus, the proposed change would require that employers re-verify an employee’s expiring work authorization regardless of whether they have previously created an E-Verify case for that employee or not. This again differs from the current E-Verify program rules that explicitly prohibit an employer verifying the work authorization of employees hired before the employer began participating in the program (with the exception of FAR E-Verify employers).

2)  Requirement that employers print the re-verification confirmation page and retain it along with an employee’s I-9 records or record the E-Verify re-verification case number on the employee’s I-9 Form.

3)  Provides a process for employees to seek review of E-Verify Final-Nonconfirmations.

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Immigration Compliance Group provides US inbound visa services to individuals and employers throughout the USA and abroad. We specialize in business immigration and have a depth of experience in the IT, healthcare, arts, entertainment and sports industries, amongst others. Our services include complex business visas for investors, multinational managers, skilled professionals, outstanding individuals of high achievement and PERM Labor Certification. We additionally provide employer compliance consulting services on proper I-9 (Employment Eligibility Verification) management, auditing, training, and work with our clients to develop a culture of immigration compliance.

While DHS/ICE continues to issue Notices of Intent to Fine (NOFs) at an unprecedented rate for Form I-9 related infractions, this is yet another reminder that you can choose to pay the fine or you can contest the fine and file for a  hearing (within 30 days of receipt of the NOF) before an Administrative Law Judge (ALJ) who handles cases related to employer sanctions, document fraud and unfair immigration-related employment practices.  OCAHO has more than proven that they are willing to reassess and lower fees in just about every case in recent months.

Note that many employer sanctions cases never proceed to the hearing stage because either the parties reach a settlement with the approval of the ALJ, or the ALJ resolves a case through a prehearing ruling.

We recommend that your first step in the process be to retain experienced representation that specializes in the practice area of employer compliance to guide you step by step through the process – don’t attempt to go this alone. The next step is to understand the process that has been summarized very efficiently in the recent Fact Sheet that we refer to here

Should you have any questions or wish to become a client of our office, please contact us or refer to our services & solutions page.

We have written many articles over the years on what happens when ICE serves an employer with a Notice of Inspection (NOI); see below for links to our articles and resources.  Today, ICE released a new Fact Sheet that referrences the  IRCA law in the 1st paragraph, and then summarizes the order in which an ICE administrative inspection proceeds, the types of notices that are issued following an I-9 ICE audit, how fines are determined based upon knowingly hiring and continuing to employ violations, to substantive and uncorrected techical violations, and how these fines and penalties are calculated.

The penalties for ignoring the legal requirements of the I-9 process can be quite severe, even in cases of unintentional omissions and uncorrected I-9 mistakes. Civil penalties for such errors may range from $110 to $1,100 for each effected employee. A business with thousands of employees and multiple worksites may face a significant financial burden in noncompliance penalties. The fines may be further increased if ICE determines that an employer knowingly hired unauthorized foreign nationals, and can range from $375 to $16,000 per violation with repeat offenders on the high end. Employers and their representatives convicted of having engaged in a pattern or practice of knowingly hiring unauthorized foreign nationals, may also face criminal charges and fines of up to $3,000 per employee and/or six months’ imprisonment. Other federal criminal statues may provide higher penalties in certain fraud cases.

Employers and individuals who commit citizenship status or national origin discrimination may be ordered to pay civil fines and attorneys’ fees. The penalties range from $375 to $3,200 for the first offense for each individual discriminated against; from $3,200 to $6,500 for the second offense; and for subsequent offenses, not less than $4,300 and not more than $16,000 for each person effected.

The trend toward increased scrutiny of immigration employment practices will likely continue in the foreseeable future. With immigration reform still uncertain, ICE continues to step up enforcement activities with a deluge of NOI’s to employers every few months.  These recent developments have made it even more critical that employers maintain a strong immigration compliance profile.  Employers can no longer afford to think that because they don’t hire foreign nationals, they don’t have any I-9 issues or need to comply with I-9 immigration regulations.

The key to I-9 compliance for most organizations starts with a thorough self-examination of existing paper I-9’s, E-Verify submissions (if applicable), standard operating procedures, and past practices. While there are many checklists and do-it-yourself guides, free webinars and Podcasts available on the Internet and elsewhere, consulting an experienced immigration consultant or attorney in the practice area can save employers hours of research, provide a solution tailored to your organization and save you thousands of dollars in fines and penalties.

You should strongly consider an independent I-9 audit if…

1. You’ve had a turnover in the HR position(s) charged with the responsibility of handling and processing I-9 Forms
2. None of the staff charged with the I-9 process has been formally trained
3. You already know that you have I-9 document violations, errors and unintentional mistakes
4. You have recently gone through a corporate reorganization, merger or acquisition
5. You know you have an on-boarding process that is complex, such as multiple jobsite locations where the I-9 process takes place
6. When you haven’t documented your I-9 Form policies and procedures in a policy statement or procedures manual
7. If you have a large volume of foreign worker I-9 forms
8. If you do not have a calendar system for re-verification or terminated employee retention
9. If you do not have a centralized I-9 recordkeeping process
10. If you are photocopying documents presented during the I-9 process for some and not for others
11. You participate in government contracts and have been asked to perform an I-9 audit
12. You have not performed a random or full audit within the last year by either an internal individual who is familiar with I-9 compliance rules but does not deal with I-9s on a regular basis, or by a reputable independent I-9 auditor.
13. You’ve never performed a self-audit or had any outside provider perform an I-9 audit
14. You do not know how to make corrections to the I-9 form
15. You’ve received SSA No Match Letters
16. Your industry is being targeted by ICE
17. You’re unaware that a new I-9 form was released and do not have a process in place for staying current with regulations and procedures

Immigration Compliance Group regularly represents clients from all industries to develop effective I-9 policies and compliance programs.  By establishing and maintaining effective corporate policies and procedures, many of the above-mentioned warning signs can be addressed proactively in an audit before the government does one for you.

New ICE Fact Sheet

I-9Audit.com – Our Employer Resource Center Articles

House Judiciary Committee holds Hearing Feb 27, 2013 on E-Verify to determine how it works and how it benefits American employers and workers

Areas of discussion were:

• Penalties for using E-Verify as a Pre-Screening Tool:  Doing so is abuse of the system and totally prohibited, although at this time there are no penalties for pre-screening candidates prior to the acceptance of a job offer.    The Monitoring and Compliance Unit of USCIS has indicated that they do indeed  investigate employer usage particularly when there are patterns of abuse, and can be referred to OSC.
• The panel discussed that Mandatory E-Verify as part of a CIR bill should not require employers to verify their entire workforce – but just their existing employees.
• Identity Fraud:  the Social Security Administration is working on a fix to identity fraud whereby one will be able to lock in their SS# to prevent multiple usage of numbers.  SSA anticipates that this feature will be ready to roll out by the end of the year.  As it stands now, a prospective employee can present fraudulent documents for the entire I-9 process for all 3 lists and be ‘work authorized’.

Further discussion ensured regarding the “phase in” process and whether or not the national usage mandate should become effective with the existing system while changes are implemented or wait until the system is further perfected.  Additional discussion took place around establishing an official procedure for those workers who have been terminated due to incorrect Final Non-Confirmation (FNC) notices so that they can rectify the incorrect data.

The following is a statement by Rep. Gutierrez:

“Today’s hearing is remarkable because we are talking about employment verification systems in their proper context.  We are discussing how to actually make them work and work for American workers with the right sorts of protections and appeals processes that make sure any errors are corrected in a timely manner.  And we are talking about electronic verification systems as part of a broader reform that legalizes the current workforce and allows for legal immigration in the future.”

There’s certainly more to track as discussions ensue, and we will keep you posted on this topic.

As follows:

•Georgia: Companies employing more than 10 persons must register for E-Verify by July 1, 2012.
•North Carolina: Companies employing more than 100 persons must be registered for and using the E-Verify system on January 1, 2013.
•Pennsylvania: State contractors and sub-contractors must register for E-Verify beginning January 1, 2013 – but only if the project is greater than $25,000.
•Tennessee: Companies employing more than 5 persons must register and begin using E-Verify by January 1st.

Businesses within the above 4 states will need to collect an employee’s Social Security number and E-Verify all candidates before employing.

For more on E-Verify by state, we link here, compliments of LawLogix (www.lawlogix.com).

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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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.

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