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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Following through on a campaign promise, Florida Governor Rick Scott signed four executive orders minutes after being sworn in, including one that requires all state agencies to use E-Verify, making it the first state to mandate E-Verify participation in 2011.  Florida joins a list of 13 other states that have mandatory E-Verify laws or executive orders in place.

According to a press release  from the governor’s office:

Executive Order No. 11-02 requires state agencies to use the E-Verify system to verify employment eligibility of state employees and contractors.

• All state agencies under the direction of the Governor must use the E-Verify system to check employment eligibility of their current and prospective employees.
• Requires state agencies under the direction of the Governor to include in all state contracts a requirement that contractors utilize the E-Verify system to verify the employment eligibility of:
  • all persons employed during the contract term by the contractor to perform employment duties within Florida; and
  • all persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract with the state agency…

The Florida State Legislature, which convenes next week, is also expected to consider an Arizona-style immigration enforcement bill that would also require all employers in the state to use E-Verify. The bills are being drafted by Rep. Bill Snyder and Sen. Mike Bennett.  This is fast approaching the Arizona question again… Can the state trump the federal government on immigration requirements?

It is worth noting that, Rhode Island’s Governor, Lincoln Chafee, rescinded Rhode Island Executive Order 08-01 that required the state as well as contractors and vendors doing business with Rhode Island to register and use E-Verify for all new hires. Chafee called the use of E-Verify a “divisive issue.”

So, what does this mean going forward for Florida’s State Agencies and employers, in general? 

Prior to enrolling in E-Verify, you must undergo comprehensive I-9 training by skilled immigration counsel that maintains an active employer compliance practice so that your designated E-verify employees have a solid grounding in the law as it relates to the I-9 form and today’s complex issues concerning employment eligibility verification.  The most well intentioned employees make mistakes and, if you’re like most employers, 30-50% of your I-9 forms may have issues that put you at risk. Half of the companies audited by Immigration and Customs Enforcement (ICE) get fined $110,000 or more.

Employers must recognize that this can mean civil and criminal liability to both themselves and their employers for charging untrained and inexperienced employees with the employment verification process.

You’re probably thinking …this could never happen to me and my company…we’ve reviewed our I-9 forms, done a self-audit and put policies in place for the management of our employment verification program.  This thinking is understandable; however, untrained HR managers and assistants that try to correct or minimize their mistakes to save their jobs can lead to charges of document falsification, perjury and tampering. 

Plainly put, this complicated one-page, poorly designed I-9 form has a 70-page government instruction manual!  Performing a self-audit, with an untrained staff, can likely increase the possibility for penalties and fines.

Please have a look at our I-9 Employer Resource Center:  www.I-9Audits.com , contact our office to discuss your concerns and sign up to receive our news and information.

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

What does FDNS Do?

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

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

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

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

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

Additional FDNS Functions

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

What is the ASVVP and what does it do?

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

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

Visit our new I-9 Employer Resource center here

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

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

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

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

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

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

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

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

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

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

In the meantime…What you need to know:

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

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

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

At the American Immigration Lawyers Association (AILA) 09/2010 Stakeholder Conference, the Vermont Service Center (VSC) advised that if compliance issues arose during the previous H-1B approval period, VSC could request evidence of all work performed during the previous H-1B approval period on requests for extension cases. VSC also confirmed that they are issuing one-year approvals where third-party work assignment is documented for less than one-year.

In light of the increase in RFEs focused on the employer-employee relationship, right to control, and availability of “qualifying employment” at third-party worksites, it is suggested that the following practice pointers be utilized in order to maximize the likelihood of securing a three-year H-1B extension for petitions involving placement at third-party worksites:

1. Submit a certified labor condition application (LCA) that lists multiple work locations, including the Petitioner’s home office address, as well as the third-party worksite location(s);
2. Document “qualifying employment” for the Beneficiary at the third-party worksite through End-Client letters confirming a project duration of longer than a year, preferably for the entire three years if the requested validity is three years;
3. End-Client letters should specify the job duties for the Beneficiary at the worksite, duration of the project, supervisor’s name, and supervisor’s telephone number. It is critical to establish that the Beneficiary is an employee of the Petitioner and that the Petitioner retains the ultimate “right to control” the Beneficiary;
4. Provide evidence of “qualifying employment,” such as: contracts, statement of work, work order between Petitioner and End-Client (if there are intermediate vendors involved, offer the entire chain of contracts between the Petitioner and End-Client); and
5. Submit Employee Handbooks as evidence of “Employer-Employee relationship” and “right to control.” Petitioner’s Employee Handbook should include issues such as salary, benefits, payroll procedures, performance evaluations, project progress review procedures, supervision of beneficiary’s work, right to hire/fire, etc. All of the previous stated items for the Petitioner’s Employee Handbook are requirements identified in the January 8, 2010, Neufeld Memo (AILA Doc. No. 10011363).

Immigration Solutions is available to assist you with with your H-1B case filings. Please contact us here

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

E-Verify Has Expanded Photo Matching!

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

U.S. Passports and Passport Cards

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

Visit here for more information about Photo Matching.

Did You Hear About the I E-Verify Seal?

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

Designated Agents Get a New Name

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

Puerto Rico Birth Certificate Guidance

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

New on the E-Verify Website

Updated Manuals are now available

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

How Well is E-Verify Performing?

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

History and Milestones

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

E-Verify Outreach

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

E-Verify Overview

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

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

E-Verify in the Community

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

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

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