DHS/ICE continues to issue Notices of Intent to Fine (NOFs) at an unprecedented rate for Form I-9 related infractions.  Mistakes occur in the I-9 process, it’s inevitable.  While establishing a written compliance policy, training and careful prevention is the best approach.  All employers should take time at the beginning of each year to conduct an internal audit and self-examination of their systems, operating procedures, and past and present practices for handling I-9s, as well as to access training needs for the employees charged with handling and supervising the I-9 process.  We also recommend that you review your E-Verify submissions, as well as revisiting just how compliant your I-9 software really is with your vendor if you are using an electronic system.

While there are many checklists and do-it-yourself guides and webinars available on the Internet and elsewhere, consulting a licensed attorney or specialist in the field who is familiar with I-9 and E-Verify compliance issues can save employers hours of research, provide a solution tailored to your organization, and save you thousands of dollars in fines and penalties should ICE knock on your door.

When ICE notifies an employer of their intention to perform an audit, it opens the door for an onslaught of inquiries and investigation from other government agencies that range from SSA mis-match issues to Department of Labor (DOL) wage and hour, USCIS, IRS, and more if you have areas of incompliance in your operating procedures.  This is not the time during an audit when under pressure to clean up compliance problems.

New employers are often more at risk because many are not even aware of the I-9 requirement, and probably are also unaware of the need for all employees to complete the I-9 Form.  Some are aware, but they lack knowledge concerning the regulations that govern the form; such as, timeframes, acceptable documents, form retention, and other important details that are integral to the process. Particularly, there are problems with industries such as IT consulting, healthcare, staffing agencies, and other organizations with multiple locations in regard to completing the I-9-Form remotely with the employer’s designated agent and employee in different locations.   

These are just a few reasons why we urge you to assess the strengths and weaknesses of your present compliance program, and start the New Year fresh with a renewed commitment to implement best practices that will provide the foundation upon which you can develop and maintain a more compliant business and workforce.

You might be interested in joining our LinkedIn group, I-9/E-Verify: Smart Solutions for Employers,” and signing up to receive via RSS feed or email our Blog posts.

The Justice Department has reached a settlement agreement with University of California San Diego Medical Center for $115,000 (one of the higher civil penalties we’ve seen) for a complaint filed on Dec. 6, 2011, alleging that the medical center failed to comply with proper I-9 Form employment eligibility verification processes for non-citizens who are authorized to work in the United States.

Specifically, the DOJ’s complaint alleged that UCSD medical center engaged in a pattern of subjecting newly hired non-U.S. citizens to excessive demands for documents issued by the Department of Homeland Security in order to verify their employment eligibility, but did not require the same of US citizens. The Immigration and Nationality Act’s (INA) anti-discrimination provision prohibits employers from placing unfair documentary burdens on work-authorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin. Clearly put, it is illegal to discriminate against work authorized individuals.  You simply cannot specify which documents are to be presented.  This is considered document abuse.

The medical center has taken appropriate action to ensure compliance with INA’s anti-discrimination provision and has received Department of Homeland Security/U.S. Immigration & Customs Enforcement (ICE) training on the proper use of work authorization documents.  They have also agreed to work with the DOJ to ensure compliance with proper I-9 processes across all University of California campuses, medical centers and facilities.

Under the terms of the settlement agreement, the medical center agrees to implement new employment eligibility verification policies and procedures that treat all employees equally regardless of citizenship status. In addition, the medical center has agreed to pay a civil penalty of $115,000, conduct supplemental training of its human resources personnel on their responsibilities to avoid discrimination in the employment eligibility verification process and work with the department to ensure compliance with proper employment eligibility verification processes across all University of California campuses, medical centers and facilities.

Heightened Enforcement Continues

During the past few years, we have seen unprecedented enforcement and legislative activity relating to Form I-9 and E-Verify worksite compliance.  Since fiscal year 2009, ICE has audited more than 6,000 employers, debarred 441 companies and individuals, and imposed more than $76 million in financial sanctions.  We have also seen an unprecedented increase in the number of enforcement actions brought about by the Department of Justice (DOJ) for discrimination in the I-9 process.  The Office of Special Counsel (OSC) has robustly prosecuted claims of discrimination in the I-9 process resulting in fines and penalties against employers, as well as back pay to injured parties.

What employers need to know

You just cannot presume that the employees charged with  managing your I-9 program are compliant with the law and adhering to anti-discrimination rules and regulations.  If you are not training your employees, then you are turning a blind eye to establishing a compliant workforce, the consequences of which today are severe and expensive – not to mention the bad press that accompanies such an investigation.

Employers cannot request specific documents (such as a green card), reject documents that reasonably appear to be genuine and relate to the employee presenting them, request that employees produce more documents than are required or treat groups of applicants differently when completing the I-9 form. You must examine ANY acceptable document from List A that appears to be genuine and that relates to the worker, or a combination List B plus a List C document, regardless of whether or not

Let’s re-visit ICE’s list of best practices that include the following as a reminder to employers:

• Use E-Verify,
• Use the Social Security Number Verification Service (SSNVS) for wage reporting purposes
• Establish a written hiring and employment eligibility verification policy.
• Establish an internal compliance and training program related to the hiring and employment verification process
• Require the I-9 process to be conducted only by individuals who have received appropriate training and include a secondary review as part of each employee’s verification to minimize the potential for a single individual to subvert the process.
• Arrange for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in theI-9 process.
• Establish a protocol for responding to letters or other information received from federal and state government agencies indicating that there is a discrepancy between the agency’s information and the information provided by the employer, such as SSA “No-Match” letters
• Establish and maintain appropriate policies, practices and safeguards to ensure that authorized workers are not treated differently with respect to hiring, firing, or recruitment or referral for a fee or during the Form I-9, E-Verify or SSNVS processes because of citizenship status or national origin.
• Maintain copies of any documents accepted as proof of identity and/or employment authorization for all new hires.

For more, refer to:

1) DOJ Press Release

2) DOJ Press Release on one of the largest settlements against a major healthcare system

3)  Our list of services and solutions

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About Immigration Compliance Group

For those of you who may be first time readers, Immigration solutions provides US and Canadian business immigration services to employers and individuals and additionally provides a full range of I-9 employment eligibility compliance services for employers that require I-9 audits, training, and compliance policy development.

CHICAGO, IL, May 12 (MARKET WIRE) --
In keeping with its vision to advance regulatory excellence worldwide, the National Council of State Boards 
of Nursing (NCSBN(R)) (www.ncsbn.org) announces the signing of a "Memorandum of Understanding" between 
itself and the following organizations: An Bord Altranais; College of Nurses of Ontario; College of 
Registered Nurses of British Columbia; Nursing and Midwifery Board of Australia; Nursing Council of
New Zealand; Nursing & Midwifery Council - United Kingdom; and Singapore Nursing Board on May 5, 2011.

The impetus for this collaboration arose out of an acknowledgement that nursing regulatory bodies across
the world face many of the same challenges; are charged with the similar mission of protecting the 
public's health, safety and welfare; and have a desire to share best practices. The unique relationship 
between these organizations provides the opportunity for them to learn from, share with, and assist each other
with individual and mutual goals. The unique relationship between these organizations provides the 
opportunity for them to learn from, share with, and assist each other with individual and mutual goals.
NCSBN will also take the information gained through this new international relationship back to its 
own member boards of nursing for use in their mission of public protection.
				

Our March 2011 news is now available.  You can access our Immigration News here and our I-9 Compliance Newsletter here.  Should you wish to discuss your immigration case with us, we can be contacted at info@immigrationsolution.net or by phone at 562 612.3996.

We have a volume of free information on our websites that includes newsletters, news flashes, podcasts, blog, and articles.  Please feel free to sign up on our website:  www.immigrationsolution.net to receive our information through email or iTUNES.

We think this could well be the wave of the future for the USA as healthcare reform rolls out and increased demand is put upon primary care providers – physicians and nurses.  We have more on this in our newsletter (link below)

We link to the article here and also link to our special edition healthcare news letter here

Follow these steps to ensure proper registration for the NCLEX examinations:

1. Submit an application for licensure to the board of nursing where you wish to be licensed. Then, verify that you meet all of the board of nursing’s eligibility requirements to take the NCLEX examination.

2. Register for the NCLEX with Pearson VUE via the Internet, telephone or by mailing in a registration form obtained from your board of nursing (photocopies of the registration form are not accepted).

3. Receive an acknowledgement of receipt of registration from Pearson VUE.

4. Receive an Authorization to Test (ATT) letter from Pearson VUE once eligibility is granted by the board of nursing.

5. Schedule to take the exam.

6. You will receive your results approximately one month after taking the examination. Please note, some boards of nursing allow candidates to access their unofficial results 48 hours after the examination via the Quick Results Service for a fee. Contact your board of nursing for more information about this service.

Additional important information for candidates taking the NCLEX examination is available by visiting www.ncsbn.org/1213.htm.

The Federation of State Boards of Physical Therapy (FSBPT) recently announced that the new redesigned NPTE-i (formerly NPTE-YRLY) for Physical Therapists will be offered twice in 2011 for PT candidates –  May and December 2011.  Registration opens on November 1, 2010 with FSBPT.   For a detailed schedule visit the FSBPT website.

The exam will be given in all 50 states, along with the District of Columbia,  Puerto Rico and the Virgin Islands. The NPTE-i is expected to be quite similar to the regular NPTE, and the  registration fee will remain the same as the NPTE registration fee, which is currently at $370.00.

It was also announced earlier in the month that the PTA NPTE testing restrictions will be removed for graduates of Egypt, India, Pakistan and the Philippines effective November 1, 2010.

In revisiting its previous decision, the FSBPT Board of Directors concluded that there is not a sufficiently high level of forensic irregularity to justify any further temporary suspension of graduates from Egypt, India, Pakistan and the Philippines from sitting for the PTA NPTE.

The Justice Dept announced today that it reached a settlement with Catholic Healthcare West (CHW) to resolve allegations that they engaged in a pattern of citizenship discrimination by imposing discriminatory hurdles to employment for work-authorized individuals by requesting that non-US citizen and naturalized US citizens present more work authorization than required by law. CHW is the 8th largest hospital provider in the nation, operating facilities in California, Nevada and Arizona. CHW agreed to pay $257,000 in civil penalties – the largest amount of civil penalties ever paid to resolve such allegations.

This settlement sends a strong message to all employers how vitally important it is to have staff that is charged with the I-9 process properly trained on the laws governing I-9’s and specifically on each section of the form.  All workers who are authorized to work in the USA have the right to look for a job without encountering discrimination because of their immigration status or national origin”, said Thomas E. Prerez, Asst. Attorney General for the Justice Department’s Civil Rights Division.

The day following President Obama signing Public Law 111-230, the fee increase on H-1B and L-1 visas became effective (August 14, 2010) through September 30, 2014.

What exactly is this law and what does it stipulate? It requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010.  We were surprised that this announcement  which our office just saw posted today, is retroactive and being implemented before USCIS revises the I-129 Petition.  The fees apply to initial H-1B or L-1 employment – change of status and change of employer cases, in the same instances that require the Fraud Prevention Fee.  It is not required if an employer is filing to extend an H-1B or L-1 employee’s status.

What employers are subject to the new fee increase? The fee increase apply to employers who employ 50 or more employees in the USA with more than 50% of its employees in the USAS in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed.  It is noted that L-2 dependents of L-1 employees, are eligible for employment authorization documetns (EADs).  The USCIS recognized the difficulty for employers in adding such individuals into the count, but concluded that it is required under the law.  We are interpreting that this means that an employer who hires an L-2 dependent that has work authorization will be required to pay an additional fee of $2,250 to continue to employ them where an EAD is required for authorized employment.

USCIS will issue RFE’s: According to the August 19, 2010 public teleconference that USCIS held, cases filed without the new fee will not be rejected.  USCIS will issue Requests for Evidence (RFEs) on the cases that the new fee appears to be required.  Where USCIS does not any notation or attached evidence with the initial filing, it may issue an RFE to determine whether the petition is covered by the  Public Law. An RFE may be required even if such evidence is submitted, they advise, if questions arise.

Recommendations: USCIS encourages employers to include the additional fee as a separate check rather than adding this amount to the other filing fee checks, making it easy to simply return a check rather than reject an entire case filing for an incorrect filing fee.  Until such time as the form is revised, it has been recommended that the petitioner include a notation of whether the fee is required in bold capital letters at the top of the cover letter and, if it is required, pertinent documentation.

Issues: There are questions pertaining to L-1 petitions under the L-1 blanket program and how to work this out abroad at the US Consulates.  We will continue to keep you informed on this issue.

An interesting sidebar that came to light yesterday on the fee increase had to do with the fact that since it is common knowledge that the law targets Indian staffing agencies and consulting companies as well as medium to large IT employers, that it is probably a violation of the General Agreement on Trade and Services, an agreement that is vital to ensuring US companies are able to employ many of the 6,000,000 Americans working around the world.

Further, reported by Computerworld, the Department of State revealed this week that the U.S. is reviewing whether a law that increases some visa fees is compliant with World Trade Organization (WTO) rules and are also talking to Indian officials about the law and its implications.  India’s Commerce Secretary Rahul Khullar told reporters in Delhi on Tuesday that the visa fee hike is incompatible with the WTO.

We encourage you to sign up to receive our free information and join our worldwide readership.

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Immigration Solutions provides US and global 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 and outstanding individuals in science, business, education, athletics and entertainment.  We additionally provide employer compliance consulting services on proper I-9 (Employment Eligibility Verification) 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.

We have received many emails and telephone calls regarding the new position taken by the CA Board of Nursing that now requires that an RN have a work authorized social security number in order to apply for licensure.

There is a general misunderstanding concerning this issue; namely, there are social security cards that are issued for identification purposes that do not permit work – and there are SS cards that permit work and are annotated with work authorization.

There are 3 types of Social Security Cards:

1) Unrestricted Social Security Card:  If you are a US citizen or a permanent resident, you are permitted to work with any US employer without permission from a government agency.

2) Restricted Card:  This social security card has an annotation: VALID FOR WORK WITH  USCIS AUTHORIZATION.  This type of card is issued to temporary visa holders such as H-1B, TN, E-3 or L-1 who are working for a US sponsoring employer.  Note that H-4 visa holders are not eligible to obtain a Social Security Number and cannot be employed, but can hold a driver’s license, open bank account(s) and obtain ITIN (see below) for IRS Tax purposes.

3) A Non-Work Social Security Card: This card has the annotation NOT VALID FOR EMPLOYMENT. This card is issued on a limited basis in certain types of situations such as in order to receive federal, state or locally funded benefits or if a state requires it to receive public assistance.

What is an ITIN number? ITIN numbers are for IRS identification and tax purposes and do not authorize work or provide social security benefits.  For more information:  http://www.irs.gov/individuals/article/0,,id=96287,00.html

What is an EIN Number? EIN numbers, also known as FEIN (Federal Employer Identification Numbers) or TIN (Tax Identification Numbers), are issued by the IRS to employers operating in the USA for identification purposes.  In essence, it is the corporate equivalent to a social security number.  It is issued to individual business owners for identification purposes and for paying withholding taxes on their employees.  For more information:  http://www.irs.gov/businesses/small/article/0,,id=98350,00.html

Applying for Permanent Residency:  If you have a pending permanent residency case (I-485) and are in the USA and have filed and received approval of an I-765 Application for Employment Authorization, you can obtain a social security number for work purposes while you case is pending approval.

Consular Processing your Immigrant Visa:  If you have processed your immigrant visa (green-card) outside the USA at a US Consulate, you are entitled to apply for a work authorized SSN card upon entry to the USA.

If you are a Student: If you are an F-1 student who has completed a course of study, USCIS will grant temporary work authorization or training directly related to your course of study.  Optional Practical Training (OPT) can be authorized pre or post-completion of studies. The on-campus Designated Student Officer (DSO) will assist with the application process.  We link to more information concerning OPT.

How to apply for OPT:  http://www.ice.gov/sevis/students/opt.htm Fact Sheet:  http://www.ice.gov/sevis/factsheet/061404emp_fs.htm

Other Resources:

►  To locate a Social Security Office in your area

►  Applying for a Driver’s License

►  Student Fact Sheet on Obtaining an SSN

We have recommended that RN licensure be obtained through states that do not require the above SSN Restricted Card requirements such as NV, TX or AZ.  If your job offer is in the state of California, following approval of your immigration case, you will be permitted to endorse your licensure over to CA.  It is important not to let your CA licensure lapse (expire), otherwise you will be required to re-take the NCLEX exam.  Give yourself plenty of time to endorse to another state if CA will not grant an extension of your current licensure.

Should you wish to consult with our office regarding this matter or any other immigration related issues, please contact our office.