The IRS issues ITIN’s (Individual Tax Identification Numbers) to individuals who are required to have a U.S. taxpayer identification number but who do not have, and are not eligible to obtain a Social Security Number (SSN) from the Social Security Administration (SSA).  ITIN’s are for federal tax reporting purposes only and not for any other purpose.  An ITIN does not provide work authorization in the USA, and does not provide eligibility for social security benefits.

The key change is that, for the first time, new ITINs will expire after five years. The IRS speculates that this change will help ensure ITINs are being used for legitimate tax purposes. Taxpayers who still need an ITIN will be able to reapply at the end of the expiration period. This step will provide additional safeguards to the ITIN program to help ensure only people with legitimate tax purposes are using the numbers. In addition, the IRS will explore options, through engagement with interested groups, for deactivating or refreshing the information relating to previously issued ITINs.

As part of its review process, the IRS heard from stakeholders that it is difficult in some instances for individuals to be without documents such as passports for extended periods. As a result, the IRS determined that trusted outlets other than its centralized ITIN processing site need to be available to review original documentation. As part of this recognition, while original documents or copies certified by the issuing agency are still required for most applicants, there will be more options and flexibility for people applying for an ITIN.  These options provide alternatives to mailing in passports and other original documents.

Certifying Acceptance Agents (CAAs) – an important intermediary in the ITIN application process – will be able to engage in the ITIN process by reviewing original documents or copies certified by the issuing agency, but will be subject to new safeguards. CAAs will be required to certify to the IRS that they have verified the authenticity of the documents supporting the ITIN application. For certain ITIN applicants, this provides an option where they will not need to mail original documents such as passports.

The new rules do not apply to spouses and dependents of U.S. military personnel who need ITINs or to nonresident aliens applying for ITINs for claiming tax treaty benefits.

With respect to dependent children, in order to adequately substantiate identity and foreign status and protect important child tax credits, ITIN applications submitted to IRS by a CAA will continue to be required to include original documentation. For children under six, one of the documents can include original medical records. For school-age children, the documentation can include original, current year school records such as a report card.

Note to DACA Recipients:  DREAMers with deferred action are eligible to apply for a SSN and should transfer their existing credit history to that number. Additionally, DREAMers must also contact the IRS to rescind their existing ITIN as an individual cannot have an ITIN and Social Security number at the same time.  Most undocumented Americans are not eligible for a SSN but are eligible for an Individual Tax Identification Number. With an ITIN, individuals can take advantage of certain financial opportunities, such as applying for credit cards and obtaining loans. Thus, many DREAMers with ITINs have extensive credit histories that they’ve built over the past few years.  DREAMers with deferred action are eligible to apply for a SSN and should transfer their existing credit history to that number. Additionally, DREAMers must also contact the IRS to rescind their existing ITIN as an individual cannot an ITIN and Social Security number at the same time.  For more, refer here

Social Security Information on ITIN and SS cards can be accessed here

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).

Much of the immigration challenges around case approval for entrepreneur start ups with USCIS has to do with the cases being reviewed by untrained officers, a lack of overall guidance for attorneys and  practitioners concerning this casework, and a fundamental lack of “real world”, hands-on  business knowledge on the part of USCIS.  The agency has definitely released a nice looking mini-website marketing piece on the subject.  We remain hopeful that the implementation of the below-listed changes will be the start of a new mindset for USCIS adjudication of entrepreneur start-up casework.  In reviewing the information,  we note that the Entrepreneur in Residence (EIR) team states that they have:

– Developed and deployed a training workshop for USCIS employment-based immigration officers that focuses on start up businesses and the environment for early-stage innovations;
– Trained a team of specialized immigration officers to handle entrepreneur and start up cases;
– Modified Request for Evidence templates for certain nonimmigrant visa categories to incorporate new types of relevant evidence into the adjudicative process; and
– Developed a plan for quarterly engagements with the entrepreneurial community to ensure that USCIS stays current with industry practices.

To sustain the momentum and build on the team’s accomplishments, USCIS indicated that they have extended the EIR project through April 2013.  The project should be extended indefinitely if we are seriously courting foreign entrepreneurs to help jump-start the US economy.  Among other things, the team states that it will expand its focus to immigrant visa pathways that may enable foreign entrepreneurs to start a business in the United States within current immigration law.

We are hopeful, in light of the economic challenges ahead of us in the USA at this time, that Congress will have a light bulb moment and pass legislation for a Start-up Visa and find  a balanced and fair approach to increasing the visa alotment for STEM occupations without the punitive tradeoff approach of penalizing other visa classifications in return.  For more information on the EIR program, we link here.

For electronic I-9 users, questions have swirled around what exactly are you required  to  produce within 72-hours in the event of a government audit, and what standards will ICE use to evaluate I-9 software?

Do you print out all your I-9 forms?  Will ICE agents conduct the audit on your I-9 electronic system without printouts?  Will your system pass the ICE test?  For the answers to these questions, employers have been entirely at the mercy of the particular ICE agent conducting the audit investigation.

On July 22, 2010, the Department of Homeland Security (DHS) published a final rule relating to signatures and storage of electronic Form I-9’s that went into effect August 23, 2010 (see our previous post).  However,  we have all been waiting on regulations concerning this very topic, particularly in light of the huge uptick in ICE I-9 audits in the last few years creating a very uncertain climate for employers, as well as recent changes to E-Verify, and concerns over very severe consequences for non-compliance.

The new Memorandum provides guidance to Homeland Security Investigative (HSI) Agents and field offices, effective August 23, 2012, concerning how to evaluate electronically generated and stored I-9 records during an audit and the minimum standards for electronic audit trail requirements for use in establishing civil fines.

Let’s summarize what ICE agents will expect from employers who are using an electronic I-9 system at the onset of an investigative audit:

1)      Audit Trails:  Whenever an electronic I-9 form is created, completed, updated,  modified, altered or corrected – a  secure and permanent record must be created (audit trail) that establishes the date accessed, who accessed it and what action was taken.

2)      Software Provider Information:  Upon service of an NOI (Notice of Inspection), special agents or auditors will request the name of the software  product being utilized and any internal business practices and protocols related to the generation of, use of, storage of, security of and inspection and quality assurance programs for the electronically generated I-9 Form.

3)      Indexing System:  The employer will also be asked to provide the indexing system identifying how the electronic information contained in the I-9 form is linked to each employee and documentation of the system used to capture the electronic signature, including the identity and attestation of the individual electronically signing  the form.

4)      Auditors will Request at least one printed, completed I-9 form to ensure compliance with the regulation.  Your system should permit you to download a PDF version of the I-9 form that syncs up with the required information on the actual fields of the I-9 form.

5)      Lastly, auditors will request access to the system for a demonstration of the generation of an electronic I-9 form.

Once it’s determined by the agents that the audit trails are in compliance, the auditors will be referring to the flow chart attached to the Memorandum (see link at the end of the post) and audit trail that illustrates the minimum acceptable standards (know that the auditors can request to see additional system data and documentation) of electronically generated I-9 forms.

We recommend that you discuss this Memorandum very specifically with your HR department, your I-9 electronic vendor to ensure that they comply with the regulations, and that you update  your standard  operating procedures to reflect  compliance with these new regulations.  We link to the Memorandum here

Please refer to our list of compliance services and solutions as well as our Employer Resource Center at www.I-9Audits.com  If you are a member of LinkedIn, you might wish to check out our I-9/E-Verify: Smart Solutions for Employers group.

Should you wish to consult with us, email info@immigrationcompliancegroup.com or call to speak with one of our immigration professionals 562 612.3996.

The OSC announced today that they had reached an agreement with a janitorial and facilities management company in Florida that was fined for mishandling the TNC process with the employee.  The employer was fined $8800 (back pay and civil penalties) and had to agree to training by the Justice Department on the anti-discrimination provision and training by the Department of Homeland Security on proper E-Verify procedures.

It is imperative that you follow appropriate TNC procedures and supply your employees with the required documentation so that they can resolve TNC issues.  Sit down with them, show them the information that you input into E-Verify and make sure that it’s accurate.  Provide them with the appropriate  TNC notice and  SSA or DHS referral letter.  Here is an excellent training video that we recommend you use as a tool in your organization.

Check out our employer resource center here:  www.I-9Audits.com and our services and solutions here:  www-employer-compliance.com.   Stay informed and sign up to receive our information.

By:  Timothy Sutton, Communications Editor

Naturalized citizens are often eager to participate in the American electoral process. Casting a vote as an American is a symbolic break from their former government and represents a step further towards assimilation into American society.

Many Americans choose not to exercise their voting rights; in fact just over half of this country turns out to vote during presidential election years and a pathetic one-third of the country during mid-term elections.

As the 2012 elections draw near, incumbent politicians have stooped to new lows to retain their power.  In un-American fashion, both Pennsylvania and Texas, symbolically patriotic states, have attempted to pass laws curtailing voting rights to citizens without valid photo identification. The result, polarizing decisions from a state court in Pennsylvania, which upheld the restriction under their state constitution, whereas the federal court struck down a similar law from Texas in violation of the federal Voter Rights Act.

Q. What justification does the state that is home to the Liberty Bell have for excluding voters?

A. Fraud?  Pennsylvania State Senator Corman voted against the bill saying “I wasn’t going to vote to put a roadblock before voters without any credible evidence of a problem…If someone can show me some evidence, I’m happy to consider it.” Pennsylvania Senator McIlhinney, called the potential photo requirement a “security check.” Opponents of the law suspect foul play, insisting the bill will only hurt the youth, elderly, and minority vote, all demographics that historically vote for the Democratic Party.

Are these new laws akin to security checkpoints? Do they target immigrants, low-income families, and minorities? Middle class Anglo-Americans will not face many barriers obtaining the identification necessary to participate in the political electoral process. But those who do not speak English, have recently become citizens, and have no driver’s license will likely be prevented from exercising their right to vote.

Historically, the right to vote was held by well to do, Caucasian Americans. When the Fifteenth Amendment was passed our voting rights were made clear: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” Yet in 1869, literacy tests, poll taxes, hiding the locations of the polls, economic pressures, and threats of physical violence were employed to prevent African-Americans and poor Caucasians from voting. The Nineteenth Amendment gave women the right to vote and the Twenty Fourth Amendment prevented the use of poll taxes to discriminate against poor and minority voters. Finally, the Twenty Sixth Amendment lowered the voting age to eighteen. After three Constitutional Amendments and over 143 years since the bullying techniques of 1869, America is sinking backward into the quicksand of tyranny. The arbitrary abuse of state power used to prevent citizens of a certain race, age or class from exercising their most coveted freedom is unconscionable. Voter ID laws are no more than Show Me Your Papers 2.0, another fractionalizing policy born out of fear and ignorance.

VOTING IS A FUNDAMENTAL RIGHT, NOT A PRIVILEGE.  Nothing is more fundamental to our democracy than the right to vote.

Look up your polling locations:  http://www.vote411.org/enter-your-address?dest=voting-dossier#.UFiWz1Gf98E

On Sept. 16, 2012, E-Verify provided several enhancements to improve your experience with the program. We particularly like these new features:

• For Corporate Administrators: A new Web-based tutorial replaces the live webinar training required of new Corporate Administrators. The tutorial also serves as a resource for existing Corporate Administrators. To access the E-Verify Tutorial for Corporate Administrators, select the ‘Take Tutorial’ link under My Resources in the left-hand navigation menu.

•  A new E-Verify User Manual for Corporate Administrators is now available from the ‘View User Manual’ link under My Resources in the left-hand navigation menu.

•  They have also come up with a process for HR’s who must record the foreign passport and I-94 arrival-departure card (that can now take up to 45 days to access) in E-Verify

Should you wish to sign up for USCIS’ free E-Verify training, they have several monthly sessions.  You can access their training schedule here.

By the way, the program is now compatible with Firefox, Chrome and Safari.

By:  Timothy Sutton, Communications Editor

After two years of being deadlocked in the court system, the injunction preventing Arizona’s police force from enforcing the racially controversial “papers please,” program was lifted Wednesday by U.S. District Court Judge Susan Bolton. The decision is the latest legal move in Valle del Sol v. Whiting, a class action legal challenge to SB 1070 that was filed in May 2010. Plaintiffs include an Arizona-born citizen of Spanish and Chinese descent who was racially profiled.  “While today’s ruling puts civil rights at risk, it does nothing to undermine our resolve to continue fighting until SB 1070 is struck down in its entirety,” said Chris Newman, legal director of the National Day Laborer Organizing Network. The Supreme Court upheld SB 1070 2(b), also known as the “papers please,” provision, earlier this summer. However, Justice Kennedy suggested there would be clear constitutional problems if the law were used to target racial or ethnic minorities, or to detain people for an unreasonable period of time while checking their immigration status. Opponents assert this unwanted outcome of targeting minorities is certain to transpire.

However, Governor Jan Brewer insists that the “papers please,” law does not allow Arizona law enforcement to conduct pretext stops because it requires reasonable suspicion. In a public statement she claimed Wednesday’s District Court ruling is “one big step closer to implementing the core provision of SB 1070.” That provision? Ridding Arizona of illegal immigrants.

Arizona’s highly controversial Maricopa County Sheriff Joe Arpaio was also been quoted on the Glenn Beck Show, clarifying his interpretation of reasonable suspicion, “If they have their speech, what they look like, if they look like they come from another country, we can take care of that situation.” As Brewer and Arpaio ramp up for the certain increase in detainment leading to deportation both Cecilia Wong of the ACLU and Victor Viramontes of MALDEF have committed to continue the fight against SB 1070.

It won’t be long before SB 1070 2(b) is back in the courthouse being challenged for racial profiling and discrimination based upon national origin. We will keep you updated on those and other immigration related breaking news as it develops. For more information, contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

This employer really crossed the line in continuing to employ unauthorized workers AFTER an ICE audit of their I-9 records commenced, and failed to produce I-9 records for them on 3 previous occasions while transferring them to other jobsite locations.

Here’s the story….  The charges against the owner and Production Manager, Yoel A. Wazana, Wazana Brothers International, Inc., based in Van Nuys, CA, doing business under the name Micro Solutions Enterprises (MSE), are the result of an investigation into MSE’s hiring practices that was initiated by HSI in 2007. According to court documents, shortly after MSE received notification in April 2007 that HSI planned to audit the company’s payroll and hiring records, Wazana directed that about 80 of MSE’s most experienced employees – at least 53 of whom did not have work authorization – be relocated to another manufacturing facility. When investigators requested hiring records from MSE on three separate occasions, the company failed to provide paperwork for those unauthorized workers. The plea agreements filed in this case also describe how, after learning of the ICE audit, Wazana conducted meetings with MSE’s assembly line workers, instructing them to obtain valid work authorization documents and return with those documents, suggesting that he did not care if the documents were actually theirs.

In February 2008, HSI special agents executed a search warrant at MSE’s Van Nuys plant. During the enforcement operation, special agents arrested eight current and former company workers on criminal charges and another 130 employees on administrative immigration violations.  The felony charge of false representation of a Social Security number carries a maximum penalty of five years in prison and a $250,000 fine.

MSE has agreed to plead guilty to one misdemeanor count of continuing employment of unauthorized aliens. In a plea agreement filed last month, the firm admits hiring approximately 55 unauthorized workers, and then continuing to employ them after the ICE audit had begun. The company admits that it knew, or deliberately avoided knowledge of the fact, that the individuals were not authorized to work in the United States.

The company’s plea agreement represents a global settlement of criminal and civil charges against the firm. Under the terms of the plea agreement negotiated by ICE and the United States Attorney’s Office, MSE agreed to pay approximately $267,000 in civil and criminal fines.

Beyond the monetary sanctions, the plea agreement calls for the company to be on probation for three years, during which time it will implement a series of stringent measures to ensure it is complying with the nation’s hiring laws. Those steps include retaining an independent compliance monitor (this is the first time we’ve heard of an ‘independent compliance monitor’ being mentioned) to oversee the completion and maintenance of the firm’s hiring records, and providing training to employees regarding federal hiring laws. The plea agreement takes into account the company’s willingness to take responsibility for its prior criminal conduct and to implement a rigorous program to ensure full compliance with federal hiring laws in the future.

In 2009, HSI implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. Under this strategy, HSI is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. In the last year, HSI has levied a record number of civil and criminal penalties against employers who violate immigration laws.

An employer’s blatant disregard for employment-related immigration law has been proven time and time again in our blog reporting of these cases to be an expensive, painful, reputation damaging and unnecessary path.  Call our office to establish a compliant workforce, 562 612.3996.

The Department of Homeland Security issued an update today that the Department of Homeland Security (DHS) is working to resolve this issue and will have a fix on September 14, 2012.

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Without any advance notice, the CBP has made changes that affect the I-9 form by no longer issuing paper I-94 cards and no longer stamping I-20 forms for F and M student visas, or form DS-2019 Certificate of Eligibility for Exchange Visitors and Foreign Students, affecting both J and F visa holders.

Customs and Border Protection is in the process of automating traveler arrival records (I-94 cards) to streamline passenger processing. The current processing time for entering foreign visitors’ travel information into the I-94 database is 30 days or more. This does not affect the majority of foreign travelers visiting for business or leisure and will not affect any visitor’s record of departure.  But it will greatly influence how you document Section 2 of the I-9 form for the nonimmigrant employee that produces a List A foreign passport with an I-94 entry card.

PLEASE NOTE: With the newly proposed 2-page I-9 form, no guidance has as yet been provided regarding the I-94 card as an acceptable List A document in concert with a foreign passport. We will keep you posted concerning these changes as soon as we receive new guidance. In the meantime, we recommend that you print out this information and attach it to any new employee’s I-9 form who would normally produce an I-94 record (but doesn’t have one and is waiting to access an electronic version) along with a foreign passport as a List A document.

CBP has suggested the following:  Nomiggrants may need to prove their legal-visitor status within the first 30-45 days of their U.S. stay to:

Employers;
Motor vehicle registration or drivers’ licensing agencies;
The Social Security Administration;
U.S. Citizenship and Immigration Services; or
Universities and schools.

If during this timeframe, visitors need to provide evidence of legal status they should include the following:

Unexpired foreign passport; and
Country of Citizenship
CBP Arrival/Departure Record, Form I-94 (if issued)

Contact CBP for more information or with questions.

Tel: (877) CBP-5511
TTD: (866) 880-6582

If a state benefit granting agency rejects an unstamped Form I-20/DS-2019, applicants may make an appointment with USCIS online through InfoPass and take their Form I-20/DS-2019 to their local USCIS office to be stamped. ( InfoPass ) This transitional step will end on Nov. 21, 2012.

International students and scholars who encounter issues with their state or federal benefit applications should continue to contact the Immigration and Customs Enforcement Student and Exchange Visitor Program (SEVP) at (703) 603-3400 or SEVP@dhs.gov.

Please feel free to contact our office should you have questions concerning these changes, 562 612.3996 or email info@immigrationcompliancegroup.com