The following are excerpts from a meeting between the American Immigration Lawyer’s Association (AILA) and ICE/HSI (Homeland Security Investigations) from November 19, 2013 that represents some material changes in regulations concerning several important issues such as pre-population, how many violations per I-9 is permitted, E-Verify and new hires, and more, as follows:

Electronic I-9s

 AILA Question: In the January 2013 liaison meeting with AILA, and again in April 2013, ICE HSI indicated that pre-population of Section 1 of an electronic Form I-9 did not comply with regulations. In the April 2013 liaison meeting with AILA, USCIS confirmed that pre-population of Section 1 in an electronic Form I-9 was not acceptable, regardless of whether the company’s representative signed the translation section.  AILA has received information indicating that HSI has recently announced that it has no position on pre-population of Section 1 of an electronic I-9.  Can HSI please clarify for AILA what its current position on pre-population is? Does HSI consider pre-population acceptable under certain circumstances? What are those circumstances?

ICE Response: What may constitute “pre-population” varies substantially. In reviewing any specific pre-population practice, ICE will examine the company’s practices overall to determine
whether a violation occurred and a sanction should be imposed.

How many Notices of Inspection did HSI serve in 2013?

ICE Response: ICE served 3,100 NOIs.

Multiple penalties for single I-9

AILA Question: AILA members have reported that employers have been assessed separate fines for every error on one Form I-9. In other words, a Form I-9 with five errors will generate a fine that is five times more than a Form I-9 with one substantive error. OCAHO cases and ICE’s “Form I-9 Inspection Overview” Fact Sheet indicate that “the standard fine amount” is calculated against each Form I-9 with substantive violations, regardless of the number of substantive violations on the Form I-9. Please confirm that a form with one substantive error would generate the same fine as a form with five substantive errors in the same Form I-9 audit.

ICE Response: There can only be two violations per Form I-9: (1) a knowing hire, continuing to employ violation; and/or (2) a paperwork violation. Only one paperwork violation should be assessed per Form I-9. If more than one paperwork violation per I-9 is cited, attorneys should raise the issue with the ASAC or SAC.

Pervasive single error on I-9s: AILA Question:  We frequently work with employers who due to a training error make the same error on the Form I-9 (such as repeatedly omitting the List C issuing authority). As it is one pervasive error, it does not indicate the more pervasive problems or potential disregard for the verification process, as would employers whose forms I-9 have many different errors. Would HIS consider adjusting its penalty matrix or making some other accommodation to take into account the fact that one common mistake on multiple Forms I-9 should not lead to the same penalty as different or multiple mistakes on the same number of multiple Forms I-9?

ICE Response: ICE is considering this issue. ICE acknowledged that one pervasive error on multiple I-9s seems like a different level of violation than wide-ranging multiple errors. ICE agreed to consider ways to address this.

I-9s for owners of closely held corporations. AILA Question: The OCAHO decision in Santiago Repacking, 10 OCAHO No. 1153 (Aug. 24, 2012) held that an owner in a closely-held corporation, who also works there and draws a paycheck, does not need to have an I-9 form. Please confirm that HSI follows this decision.

ICE Response: ICE stated that it follows all OCAHO decisions.

NOI Notices

AILA Question: The current NOI notices include language that suggests that HSI will require employers to provide access to their electronic I-9 systems. Is this a current practice? If so, what have been the results of these audits? Has HSI considered any employer’s I-9s to be uniformly invalid due to non-compliance of the electronic system used, or does HSI determine whether the electronic I-9s have substantive/technical deficiencies on a case-by-case basis for each I-9?

ICE Response: In some cases ICE has asked the employer to provide a live demonstration, not just a canned demonstration. This applies to both commercially available software and in-house applications.

E-Verify Q&A

Roll-over of employer data. AILA Question: At recent meetings, USCIS has informed AILA that future releases of E-Verify would enable an employer who terminates its MOU (at least for reasons of merger or change in designated agent) to have continued access to its prior E-Verify records and allow transfer of historical data to the updated account. What is the status of this development? If an employer with a terminated MOU needs access to historical E-Verify information, what is the process for obtaining it?

USCIS Response: There is currently no mechanism for an employer to continue to have access to E-Verify data after termination of an MOU.  Once an account is closed, all access to the account and its associated records are terminated. USCIS is developing a method and/or feature for the retention of historical E-Verify data, but there is no tentative date set for this enhancement. At this time, the best workaround to preserve E-Verify records is for the employer and E-Verify Employer Agent to create and retain a complete user audit report for themselves and their clients. From within the Administrator’s functions, an employer can create an Excel spreadsheet with all of the information.  Note that this report would not relieve the employer’s responsibility under the MOU for either copying the E-Verify receipt number on the Form I-9 or attaching the E-Verify record to the form.

AILA Question: What if an electronic I-9 vendor or Employer Agent goes out of business: can an employer have direct access to the information?

USCIS Response: Under data privacy rules, E-Verify is required to “archive” old data, which essentially means that the data is no longer available. The protocol anticipates archiving at the ten year anniversary of data collection, but so far, only pre-1996 data is subject to immediate archive.  Eventually all E-Verify data will be subject to archiving rules. Verification recommends as a best practice that employers print-out and retain the E-Verify records.

E-Verify and Re-hires

AILA Question: It appears that Verification recognizes that an E-Verify query is not always necessarily a rehire situation where the employer is allowed under I-9 regulations at 8 CFR §274a.2(c)(1)(i) to continue to rely on the re-hired employee’s original I-9.  The following guidance is posted in E-Verify FAQs:

Do I need to create a case in E-Verify if my company rehires an employee?

If you rehire a former employee within three years of his or her previous hire date, you may rely on the information on his or her previous Form I-9.  If you rehire an employee for whom you never created an E-Verify case and the employee’s and the employee’s previous Form I-9 lists an expired identity document (List B), then you may either:

–  Complete Section 3 of the employee’s previous Form I-9 and not create a new case for the employee in E-Verify or

–  Complete a new Form I-9 for the employee and create a new case for the employee in E-Verify

See the Handbook for Employers: Instructions for Completing Form I-9 (M-274) for more   information on rehires.  The above guidance, however, does not address the proper way for an employer to treat employees in the most common rehire circumstances – (1) where the rehired employee was not subject to E-Verify at the time of the original hire; and (2) where a rehired employee was previously run through E-Verify and does NOT have an expired identity document. The current guidance suggests, but does not state explicitly, that an E-Verify query based on the rehire date is required in situation (1) and that an employer should not re-query the rehired employee in (2). It was suggested that USCIS provide further clarification to the E-Verify rules for rehired employees and suggested the following amendment to the FAQ as follows:

An employer may rely on previous E-Verify queries for rehired employees in certain circumstances.  If you rehire a former employee within three years of his or her previous hire date, you may rely on the original Form I-9 as long as the work authorization (List C) documentation originally presented by the employee is still valid. If the rehire date is more than three years from completion of the original I-9, or if the employee’s work authorization has since expired, you must complete a new I-9 and run a new E-Verify query using the rehire date as the date of hire.  For purposes of E-Verify, where the employer can rely on the original I-9 and the rehired employee was subject to an earlier E-Verify query, you may continue to rely on the earlier query. If the rehired employee was not previously subject to an E-Verify query and the employee’s identity document is still valid, you may run the E-Verify query based on the data in the original I-9, but using the rehire date as the E-Verify hire date. If, however, the rehired employee’s identity document (List B) has expired, you cannot run an E-Verify query as the system will not accept expired documents. In that case, then you may either:

– Complete Section 3 of the employee’s previous Form I-9 and not create a new case for the employee in E-Verify or

– Complete a new Form I-9 for the employee and create a new case for the employee in E-Verify,  using the rehire date as the E-Verify hire date.

USCIS Response: USCIS updated the rehire section in the newest version of the E-Verify user manual and now provides the following guidance:

If you never created a case in E-Verify for the employee, you must have the employee complete a new Form I-9 and create a case in E-Verify. If you previously created an E-Verify case, but did not receive an employment authorized result, you must have the employee complete a new Form I-9 and create a case in E-Verify.  If you previously created a case in E-Verify for the rehired employee and received an employment authorized result, complete Section 3 of the employee’s previous Form I-9 and do not create a new case for the employee in E-Verify. Alternatively, you may choose to complete a new Form I-9 and create a case for the employee in E-Verify.  Employers are reminded that if you rehire your employee within three years of the date that the initial Form I-9 was completed, you may complete a new Form I-9 for your employee or complete Section 3 of the previously completed Form I-9. If more than three years has elapsed since the initial Form I-9 was completed, employers must complete a new Form I-9 for a rehired employee and create a case in E-Verify for the rehired employee.

That’s all for now.  We will continue to update as announcements are made concerning new interpretations concerning I-9/E-Verify compliance matters.

We link to this document

Notes address Premium Processing, changes to the H-1B program, changes in how to contact USCIS by telephone, amongst other matters.

DHS has issued a final rule that will expand the population of immigrants who will be subject to US-VISIT requirements to nearly all immigrants, including lawful permanent residents.

Charles H. Kuck, Presient of AILA, said “the sole reason permanent residents will be singled out for data collection is the fact that they are not yet United States citizens.” Without any reason to suspect wrongdoing, the U.S. Government will now collect biometric data from lawful permanent residents each time they enter the United States; privacy is now extinct. The expansion of this unproven program is premature. The proposed implementation strategy requires a far more detailed assessment of the costs of implementation and ongoing administration. The impact on the free flow of international travel and trade especially in this current time of economic upheaval has not even been assessed. This new rule will only harm the U.S. economy even more, and lead to lost productivity, competition, and jobs.

The US-VISIT program was established in 2003 to verify the identities and travel documents of visitors. US-VISIT automates this verification by comparing biometric identifiers, and by comparing biometric identifiers with information drawn from intelligence and law enforcement watch lists and databases. Visitors subject to US-VISIT may be required to provide fingerscans, photographs, or other biometric identifiers upon arrival at, or departure from, the United States. Currently, people entering the United States pursuant to a nonimmigrant visa, or those traveling without a visa as part of the Visa.

For more information:
Read this press release from AILA.org & you can find more information on the ruling at DHS

By Brandon Meyer
Immigration Associate

Bad economic news seems to be everywhere. Stories of banking crises, bailouts, rising unemployment, plummeting securities and housing prices, rising inflation, rising gas and food prices, recession, depression, and the end of prosperity have all become ubiquitous over the past couple of months. The bottom and the subsequent rebound are nowhere to be seen. Now take a deep breath, exhale, and relax. At the time this column was written, I was on a flight from San Diego to Austin packed with business travelers. Oil and other commodity prices have fallen back in recent months after reaching record highs. There are signs that credit markets are beginning to function again. Insofar as pundits cannot oversell the good times (remember Dow 36,000?), pundits cannot resist the temptation to oversell doom and gloom (remember predictions last summer that oil would reach $500 a barrel?). An October 26, 2008 article in the New York Times entitled “Forecasters Race to Call the Bottom to the Market”, explains this phenomenon in greater detail.

The outcome to recent manifestations of economic instability will hopefully be much more mundane. We will all muddle through somehow, although this may seem hard to reconcile for people under the age of 30 who have never really lived through a period of economic instability. Economic growth may be slow to non-existent for the foreseeable future, but full-scale economic collapse is unlikely.

What impact does this economic uncertainty have on immigration for employers and employees alike? Many employers may contemplate downsizing in order to cut costs or reduce employee work hours (“benching”) or pay. While these strategies may be necessary from a business perspective, employers need to keep in mind the potential impact on their foreign national employees. Employers with E-3 Australian and H-1B employees must ensure that any downward revision of wages received by these employees do not fall below the figure listed on the Labor Condition Application (“LCA”) that was obtained on their behalf. Failure to comply with wage obligations of an LCA could be considered noncompliance by the U.S. Department of Labor and could lead to negative consequences for the company. Employers are also required to offer H-1B employees who have been involuntarily terminated the cost of return transportation to their last place of foreign residence. This requirement does not extend to E-3 or TN workers or to dependents of H-1B employees. It is important to consult your labor or immigration attorney prior to terminating, benching, reducing working hours, or reducing wages for foreign national employees.

Furthermore, health care providers must ensure that offers of permanent employment to immigrant nurses also remain at a level equal to the prevailing wage of the Immigrant Visa petition (“IV”) that was filed on their behalf.

The upside for employers is that if unemployment continues to rise, the opportunities for recruiting highly skilled, highly qualified workers increases. Recruiting top-notch workers now places employers in a good position to capitalize on better times in the future.

Some industries, such as banking and finance, will face tough times for the foreseeable future. Some companies, such as Lehman Brothers, have already, or will disappear in the future. Others, such as Wachovia, will be purchased and subsumed into their new owner’s business. Other industries, such as health care, are more insulated from economic slowdowns, and in fact may be poised for greater growth as Baby Boomers enter their golden years.

Foreign national employees generally feel a greater sense of insecurity during periods of economic uncertainty, as they may believe that their immigrant status makes them more vulnerable to selection for any company downsizing. How companies manage this (mis)perception is critical for maintaining employee morale and retention.

In addition to the LCA and return transportation protections for H-1B employees, there are a number of other protections for foreign national employees. Chief among them are provisions allowing H-1B employees to change employers upon the filing of a new H-1B petition, provided the employee is maintaining H-1B status. Upon termination, H-1B employees generally have ten days to depart the United States. H-1B change of employers provisions are helpful in allowing an H-1B employee to change employers in the wake of corporate downsizing, provided that the H-1B employee is still on the books of the initial company at the time of filing of the H-1B petition by the new employer. The H-1B employee can commence employment with the new company upon proper filing of the new H-1B petition. Please consult your immigration attorney prior to terminating an H-1B employee or hiring a new H-1B employee pursuant to the H-1B change of employer provisions.

An even more important protection for foreign national employees rests in the Adjustment of Status (“AOS”) portability provisions of the American Competitiveness in the 21st Century Act (“AC-21”). A foreign national with an AOS application pending for 180 days or more based on an approved or pending (with the proviso that the petition was ‘approvable when filed’) IV petition on Form I-140, that has not been withdrawn by the petitioning company or otherwise revoked by USCIS, may seek employment with a different employer in a ‘same or similar’ occupation that the I-140 petition was filed. The foreign national should notify USCIS of the change of employer, along with a description of how the new job opportunity is the ‘same or similar’ to the job opportunity described in the I-140 petition. In the absence of governing regulations, there is a lot of grey area and wide divergence of practice for how employers and employees handle AOS portability situations. However, USCIS expects to publish regulations governing AC-21 that purport to address these issues in the near future. Please consult your immigration attorney when encountering employees with possible AC-21 issues.

The next economic boom is always just around the corner. Strong companies will emerge from this period of economic uncertainty stronger and ready to seize upon new opportunities. Employees can also emerge stronger and wiser from the experience.

I will be attending the 21st Annual AILA California Chapters Conference from November 13th through 15th in San Francisco, California. I will report on any developments and other pertinent information that may emerge from this Conference in the December 2008 Immigration Solutions newsletter.

Stay tuned!

According to AILA, the USCIS has confirmed the following with the new three-year TN regulation:

• All the TN petitions received before October 16, 2008, will be granted for the requested period or one-year, whichever is less.
• All TN petitions on or after October 16, 2008, will be granted for the period requested, or three years, whichever is less.
• The Canadian Border Patrol has also confirmed that the filing fee for TN border applications, even those requesting a three year period of TN visa status, will remain at $56.

*Please be advised: USCIS cannot grant up to three years if the anticipated length of stay, as stated in the application, is less then that period. Please be sure to review all your filings to ensure that all documents are requesting the three year period.

From AILA InfoNet Doc. No. 08102261 (posted Oct. 22, 2008)