A group of 8 bipartisan senators have reached a deal on the outline of a comprehensive immigration overhaul, a development that is long overdue and will assist in framing the forthcoming immigration debate in Congress.  Senator Schumer has stated that it is their plan that this can be turned into legislation by March and put into law by mid-late summer 2013.

According to a five-page document released today, the proposal provides a broad-based approach,  agreed to in principle by eight senators, that seeks to overhaul the immigration system and create a pathway to citizenship for the nation’s roughly 11 million illegal immigrants.

Although all that we have focused on for years now is nothing else but border and enforcement issues and employment verification, the proposal takes enforcement to the next level by perfecting an entry/exit tracking system, and greater usage of E-Verify or a new and improved E-Verify system that is referred to as “fast and reliable.”

Legislators will create a commission comprised of border governors, attorneys general and community leaders living along the southwest border to monitor the progress of securing the border and to make a recommendation regarding when the bill’s security measures outlined in the legislation are completed.

While security measures are put in place, those who came and remained in the USA without permission, will be required to register with the government.  This will include background checks, paying a fine and back taxes to earn probationary legal status to continue to live and work legally in the USA.

Once enforcement measures have been completed, those in probationary legal status will be required to go to the back of the line to wait their turn, pass an additional background check, pay taxes, learn English and civics and demonstrate a history of work in the US and current employment, among other requirements, to earn the opportunity to apply for lawful permanent residency (green-card) status.  Those who successfully  complete these requirements can eventually earn a green-card (legal permanent residence).

Special provisions will be accorded to the Dreamers (minor children who did not knowingly choose to violate any immigration laws) who will have different requirements that will include a pathway to citizenship..  Individuals who have been working illegally in the agricultural industry performing difficult work for low wages to ensure the safety of the food supply of the US will also be provided special requirements and will have a pathway to citizenship.

Those who graduate from an American University with a Ph.D or Master’s Degree in science, technology, engineering or math (STEM), will be awarded permanent residency (green-card status) to keep the best and brightest talent in the USA.

There are also provisions for a guest worker program referred to as “lower-skilled workers” in the proposal that will meet the needs of employers, the agricultural industry, including dairy, to find agricultural workers and lower skilled immigrants when the economy is creating jobs and fewer when the economy is not creating jobs.  If this is the H-2B program, we sincerely hope that it gets an overhaul – it’s entirely too complicated, takes too long and completely discourages employers by overburdening them with excessive details.

Resources

Please see the senator’s attached Transcript.  It’s certainly a an introduction to a long-awaited immigration conversation that is achievable – but difficult.  A link to a transcript from the President’s speech in NV; and the President’s Immigration Fact Sheet.

What are the differences between the Senate and Obama Plan?

There have been reports for some months now that the USCIS California Service Center has enforced new interpretation concerning the way it views H-1B requirements for job location changes, when duties and all other employment terms remain the same.

Previously, according to a 2003 legacy INS memo, a simple change in job location did not require that a new petition be filed with USCIS.  The employer was required to analyze prevailing wage for the new location, file and obtain a new certified Labor Condition Application (LCA) with the Department of Labor prior to the employee moving to the new location, post the LCA at the new work site according to DOL regulations, make sure wage and hour obligations were met, but did not have to file an amended petition with USCIS.

Under the CSC’s new and controversial interpretation, changes in job location alone do require amended petitions. In fact, employers are reporting site audits and revocation of H-1B petitions when USCIS inspectors could not find the H-1B worker at the work site listed in the petition. At this point, no other USCIS service center has followed this radical reinterpretation of the law – just the CSC.

Long-standing guidance still indicates that no amended petition should be required when only job location changes. However, to avoid adverse consequences – at least, until the CSC revisits its controversial new interpretation – employers should proceed with caution and work with a competent immigration professional whenever an H-1B worker’s job location changes, in order to determine whether any amended filings are required. Employers need to be careful to reveal all possible jobsite locations for each H-1B worker at the front end of case processing.

USCIS headquarters has the H-1B amendment issue under consideration and has indicated that they may issue additional guidance regarding this matter. In the meantime, please be advised that for cases under the jurisdiction of the CA Service Center for H-1B workers whose jobsite locations have changed, an amended petition prior to any geographic relocation is now required.

Should you wish to become a client of our office, please contact one of our immigration professionals at info@immigrationcompliancegroup.com, or call 562 612.3996.

USCIS today began the online transition, that replaces the existing Adjudicator Field Manual (AFM) and the current USCIS Memoranda website, by releasing the first volume of the new USCIS Policy Manual on Citizenship and Naturalization. Today’s release follows an unprecedented, agency-wide review of USCIS policies that incorporates feedback from thousands of agency employees, customers and stakeholders.  The complete USCIS Policy Manual will comprise several volumes, each pertaining to the different areas of immigration benefits.  This initial release begins the process of providing a single online reference for USCIS policies.

The manual provides a search mechanism, links to federal regulations, updates, memoranda and immigration forms.  The Citizenship and Naturalization volume will become effective as of January 22, 2013.  USCIS will notify as each volume of the manual is released.  This is a very impressive effort and a centralized location that is incredibly user friendly.

Take a look around:

1)  Press Release

2)  Video Announcement and Preview

3)  The Policy Manual

We expect the newly revised, 2-page I-9 form will be released in the first quarter of 2013.

Some Background …On March 27, 2012 USCIS released an initial draft of the I-9 form for public comment.  The new version is very different than the current I-9 form in use, with several new fields, a new layout and a form that is double the size.

USCIS received an amazing 6,200 comments and suggestions on the initial draft and then published an updated version of the form with instructions that includes several changes to the first draft published in May (see below). You can find more information about the newly proposed revisions to the Form I-9 here.   Please note that this proposed form is not in use; we are still using the form with the revision date of August 7, 2009 until further notice.

To help ensure compliance with the new changes, employers need to be ready to supply the necessary information, prepared to update training materials, and to partner with third-party I-9 experts.  With the right preparation and education, employers can be confident that they are meeting requirements and avoiding the hefty fines that come with mistakes as they develop the workforce that will help them meet company hiring requirements and goals, while maintaining a compliant workforce.

If you haven’t taken the time to do some comparing between the proposed I-9 form and the current one, here are some highlights that may assist you in ramping up for the upcoming changes.  Overall, we note:

• Improvement in heading lines for the document fields clarify where List B and C information should be placed on the form.
• Perjury language has been repositioned and enumerated for clarification and readability to avoid any confusion.
• New language helps employers understand what documents are acceptable for non-immigrant aliens, and the instances in which a Social Security Card does not grant an individual permission for work.
• The new form asks for “the employee’s first day of work for pay.” Although this has always been  the implied definition of “start date”, it is now described as such in the proposed new version.

Section 1

1. Last and First Name Fields: The form now shows “Last Name (Family Name)” and “First Name (Given Name)”, rather than the reverse.

2. Maiden Name is now called “Other Names Used (if any)”. Instructions state:  “Provide all other names used, if any (including your maiden name).  Write N/A if you’ve not had other legal names.”

3. Address – Must be a US address, except for border commuters from Canada and Mexico.

4. The Social Security Number boxes are now formatted to fit the requisite 9 digits.  Instructions now indicate that SS number are required for employers enrolled in E-Verify.

5. Email Address and Telephone Number – New fields.  Optional, per the instructions, but not marked as such on the form.  Note:  Though these fields are optional, many feel that the DHS should not have this information, as it could be used to contact individuals directly to probe for potential employer violations.

6. A-Number vs. USCIS Number: The instructions note that the “USCIS number is the same as the A-number without the “A” prefix. Another clarification: Foreigners authorized to work can provide either the A-Number/USCIS Number OR the Form I-94 number.

7. Form I-94 Admission Number: find the admission number on Form I-94 or “as directed by U.S. Customs and Border Protection in connection with your arrival in the United States.”  – leaving room for future CBP changes.   Note: The CBP has started the process of creating a new identification number for non-citizens to be used throughout the immigration process.

8. Barcode: – A space for a 3-D Barcode has been added to page 1 and 2, along with a “Do not write in this space” notation.   We are unsure at this time concerning the purpose of the barcode.

9. Stop Sign Icons:  The form now has two “Stop Sign” icons at the bottom of page 1, instead of “Go to Next page.”  This is to clearly prevent employees from accidentally completing section 2.

Section 2

10. Includes words concerning an “Authorized Representative,” that a designated agent or notary can act in an agent capacity in completing Section 2.

11. Moved the employee name fields (Last, First, and Middle initial) underneath the Section 2 heading and added the words “from Section 1” indicating that it is acceptable for the employer to enter this data.

12 Added new fields for the document title and issuing authority of second and third list A documents which more frequently pertain to foreign employees with certain document types.

Section 3 and List of Acceptable Documents

Minor changes, mostly related to formatting and clarification of the “Social Security Account Number card” restrictions.

Should you wish to consult with us on compliance matters, please refer to our compliance services and solutions here  or contact our office at info@immigraticompliancegroup .com or call 562 612.3996.

As 2012 winds down, with year-end planning sessions and budget meetings for 2013, how would you rate your company’s employment eligibility compliance program, as it stands right now?  We are not in the bubble bursting business, but we’ve yet to see a compliance program that doesn’t need some upgrading and refinement – no one’s is perfect.

According to new data from ICE, since 2007, employer I-9 audits have increased from 250 to more than 3,000 in 2012.  From fiscal years 2009 to 2012, the total amount of fines grew to nearly $13 million from $1 million.  Statistics released by ICE in July 2012 stated that overall, $87.9 Million in fines have been imposed on employers for violations. The number of company managers arrested has increased to 238.  Widespread employer audits will continue to increase this year.  Plain and simple, failing to comply with IRCA’s I-9 rules will continue at a rapid rate, resulting in significant fines, loss of access to government contracts, an onslaught of negative publicity, business closure, criminal penalties and imprisonment.

With all the advice, blogs and articles written about the most complicated 1-page form on the planet, there are some basics – a simple formula that, if implemented, followed and maintained, will greatly enhance your level of I-9 compliance and reflect your company’s genuine desire to get its compliance house in order.  This is what we recommend:

• Invest in a comprehensive I-9 audit by a knowledgeable attorney or professional who actually practices in this area of the law.  Don’t engage in a self-audit without participating in a thorough training program first.  This will cause more harm than good; it’s like the blind leading the blind.
• Following the audit and the review of your report of findings, get trained before the correction process begins.  Who should be trained?  All those who have hands-on exposure to the I-9 process at all of your organization’s locations…and all those who supervise the process and staff.  Make training and reading the M-274 Employer Manual absolute requirements for those assigned to I-9 processing and management.
• Establish a written Compliance Policy.  This does not need to be a huge undertaking, but should reflect your company policy concerning the steps you’ve taken to assure a compliant workforce and a culture of compliance at your organization.  It will be your road map and reflects that you take compliance seriously.  ICE will request this document, amongst many others, should they ever come knocking on your door.
• Appoint a Compliance Guru – one who has a senior level of knowledge, who will monitor your internal compliance program, review your I-9 forms every few months for accuracy and completeness, provide updates and arrange for refresher training on a yearly basis.
• Consult with a trusted professional in the field when questions or challenges arise – don’t guess.

Remember, the key to defending any employment related investigation is to evidence that there is and has been a consistent pattern of responsible, good faith effort on the part of the employer in establishing a compliant workforce.  Stay informed, subscribe to our Blog, newsletter, and join in the conversation on our LinkedIn Group I-9/E-Verify: Smart Solutions for Employers.  Check out our compliance services and solutions here, and make a concerted effort this year to increase your level of compliance by following the above formula.

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.

The National Immigration Law Center released this week FAQ’s concerning worksite rights for DACA employees.  The information is very helpful for those who are applying for DACA and for those who have been granted deferred action under the DACA Program.  There is also some excellent guidance for employers concerning the I-9 form for DACA new and existing employees, social security cards, employment verification letters, and more.  We also link to a previous blog post with updated FAQ information on the USCIS website.

Please be aware that this is ‘general’ information only.  We always recommend that you seek guidance from a skilled immigration attorney or professional who is familiar with DACA and employer compliance issues.  As always, we are available to work with you on your casework and to assist employers with employment eligibility verification issues.  Please contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996 and visit our I-9 Employer Resource Center.