USCIS has gone ‘live’ day with a new TNC communication process. The highlight of the latest enhancement is the combining of the TNC Notice and Referral Letter into one document – the Further Action Notice.

The Further Action Notice simplifies the TNC communication process by combining the employee’s biographical information, the reason for the TNC, the employee’s decision to contest, and employee instructions for contesting a TNC into a single document.  There will also be fewer screens to click through.

Here is a chart that provides the action that needs to be taken in various different TNC scenarios — very helpful, as well as a Further Action Notice sample, and a new email notification that will be sent to employees when their cases are referred to SSA or DHS.

Updated entry re below post: 10/11/2013

In an update to the statements made by ICE to AILA (the American Immigration Lawyer’s Association) in their April 11, 2013 liaison meeting, ICE HSI Worksite Enforcement representatives recently announced to stakeholders that it now has no position on pre-population of Section 1 of the I-9 by electronic I-9 programs, reversing its position from being “not permissible.”  This appears to represent an important change from the position the agency announced to AILA and several other organizations in early April that pre-population of Section 1 by electronic I-9 programs is always prohibited.

The AILA Verification and Documentation Liaison Committee will seek clarification of ICE’s recent statements and the impact on employers and electronic I-9 programs at the fall liaison meeting.

::::::::::::::::::::::::::::::

ICE HSI (Homeland Security Investigations) directorate strongly spoke out against I-9 pre-population  at a recent AILA (American Immigration Lawyers Association) meeting indicating that it was inappropriate and that pre-populating Form I-9 is considered unacceptable practice and a violation.  More recently, OSC in a response to a TAL (Technical Assistance Letter), also spoke out against pre-population stating their concern regarding Section 1 containing outdated or incorrect information.

In light of this change in policy, software providers and employers who use electronic I-9 software should consider this most recent announcement.  We caution employers to review their hiring procedures as it relates to this compliance issue with their software providers.

For more information on I-9/E-Verify employer compliance, please refer to our employer resource center.

A new edition of the I-9 employment eligibility verification form was introduced last week.  USCIS has been working on the revised I-9 form for more than a year.  The revised M-274 Handbook for Employers can be accessed at the same link.  Many areas on the I-9 Central website have also been updated.  Note the webinar schedule for the new form.

The new edition of the I-9 Form, dated March 8, 2013, will take effect immediately on publication and will become the only acceptable version of the form.  Employers who need to make necessary updates to their business processes to allow for use of the new Form I-9 may continue to use other previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09)Y until May 6, 2013.  Effective May 7, 2013, all employers must use the revised Form I-9 for each new employee hired in the United States.  Employers who are not using the I-9 form following the 60-day grace period will be subject to fines and penalties under 274(a) of The Act (The Immigration and Nationality Act),  IRCA, as well as ICE.

The revised Form I-9 has several new features, including new fields and a new format to reduce errors, and more clearly describes the information employees and employers must provide in each section. The instructions to the form are now 7 pages in length, and we recommend that you provide the instructions and the list of documents to your new employees to refer to during the process.  The form looks much more official and now displays the DHS seal at the top left of the form with space built in to eventually implement future barcode technology.  Helpful new images have been added to the M-274 Handbook to illustrate how employees and employers can complete Sections 1-3 of the new form. Please also see page 23 for updated guidance on recording changes of name and other identity guidance.

In the USCIS Stakeholder conference held on March 11, 2013, many of the questions centered around the following topics that we thought might be helpful to share with you, as follows:

1. Do I need to fill out a new I-9 forms for all employees?  You do not need to do new I-9 forms for those employees who already have one.
2. When to accept receipts:  Receipts for initial employment or renewal (during reverification) of employment are not acceptable.  There are 3 different documents that qualify as receipts are:  (a) Receipts may be presented for sections 2 and 3 if the document was lost, stolen or damaged; the receipt is valid for 90 days.  (b) Temporary I-551 (a printable notation on a machine-readable immigrant visa inside a foreign passport).  This is a 1-year permanent residency stamp for a foreign national that has received permanent status abroad.  The Form I-551 (permanent residency card) must be presented prior to or no later than the expiration stamp inside the passport.  (c) An I-94 entry card with an unexpired refugee stamp.  This is considered a receipt for an Employment Authorization Document (EAD card), or a combination of an unrestricted Social Security Card and a List B document and is valid for 90 days.
3. Rehires and Reverifications:  If you are rehiring an employee who completed an I-9 form within 3 years, you can continue to use the existing I-9 form, and record any name changes, the rehire date and other required information in Section 3 and change the date of hire in Section 2 (initial/date).  If their work authorization as changed you can make the correction on the existing form if still valid or generate a new form I-9 and fill in Section 3 and attach to the old form.  As a reminder, do not reverify US citizens, permanent residents, conditional residents, asylees with unrestricted work authorization and List B identity documents such as driver’s licenses and state ID cards.
4. The use of notaries:  Notaries are “designated agents” of the employer.  They should not imprint their notary stamp on any I-9 documentation or attach same to the I-9 form.  The employer is responsible for their actions and any violations relating to Form I-9.  Photocopies of I-9 forms are also not acceptable from Notaries.  A notary or any other designated agent appointed by the employer must examine the original documents presented to them and thoroughly complete and sign section 2 of the form and return the original to the employer, along with photocopies of the presented documents should this be a company policy.
5. Recording social security numbers:  On the List of Acceptable Documents for List C, Social Security card restrictions are explained to better assist in examination of the document.  Note that individuals with temporary work authorization are issued restricted social security cards that indicate:  “Not valid without USCIS/DHS work authorization
6. Recording the date of hire in Section 2:  When an offer of employment is extended and accepted but the employee has not yet started, the I-9 may be completed using that date instead of the ‘actual’ start date of employment.  You may then go back into the form and adjust the date to the actual start date (the 1^st day of work for pay).  Recruiters or recruiters for a fee are not required to enter the employee’s first day of employment.  However, you may enter the first day the employee was placed in a job pool after an offer of employment and acceptance.
7. Must employee present documents that correspond to box checked in Section 1?  No, employers may not insist on viewing any particular documents. However, if information is recorded in section 1 that puts the employer “on notice” that work authorization may be expiring, you are required to track that date and follow-up with the employee concerning their continued work authorization.

USCIS has indicated that a good place to begin implementing the use of the new I-9 form is to take time to first thoroughly read and digest the revised M-274 Handbook for Employers.  Download it from the USCIS website and provide a complete copy to each and every employee charged with processing and managing the I-9 function at your place of employment to ensure that they are aware of the changes and are equipped to properly implement them.  Update your company policies to reflect the changes in the form.

For those of you who manage your I-9 forms via an electronic software vendor, this is absolutely the right time to have a conversation with them concerning their compliance with the new form and make sure that it complies with all pertinent rules and regulations for I-9 electronic software .  This is also an excellent time to think about additional training for your staff.  Refer here for our services and solutions.

To order copies of the new I-9 form from USCIS, you can call 1-800-870-3676.

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.

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

Wait Wait… Don’t Tell Me! is a comedic quiz program on NPR, testing listener’s knowledge of current events against some of the best and brightest in the news world. While figuring out what’s real news versus what’s made up, the show’s host presents a scenario to the contestant to determine if the scenario is fact or fiction. If you weren’t tuned into C-SPAN, you may have legitimately mistaken the House oversight committee’s interview, of the Secretary of the Department of Homeland Security (DHS) Janet Napolitano, as the latest episode of Wait Wait.

In this episode, members of the Congressional oversight committee rapidly fired questions at Napolitano, cutting short her responses, attempting to validate their “real news,” as something more than “made up.” The result, a trial like inquisition reminiscent of the famous scene between Tom Cruise and Jack Nicholson from A Few Good Men, with Napolitano ceremoniously remarking “you can’t handle the truth!” In reality, with grace and imperturbable resolve, Napolitano slowly roasted over the House Committee’s rotisserie.

Attacks upon the DHS Secretary by Chairman Lamar Smith (R-TX), Sensenbrenner (R-WI), Conyers (D-MI), and many more; indicated summary judgment has been rendered against the DHS for their approach to immigration enforcement, particularly in the areas of: visa overstays, boarder security, and deferred action. The business community should take note; Napolitano’s significant immigration reforms have yet to satisfy Congressional discontent. Looking forward, expect tighter regulation of business immigration under the guise of immigration overhaul.

Here are some DHS immigration reform highlights Napolitano submitted to Congress:

• Current DHS immigration reform focuses resources on repeat immigration law violators
• Numerous improvements were made to welcome business people…staying true to our history as a nation of immigrants
• Deterring Employment of Aliens not authorized to work by:

1. Eliminating high-profile raids and focusing on compliance through criminal prosecution of egregious employer violators, Form I-9 inspections, civil fines, and debarment
2. Since 2009, ICE audited more the 8,079 employers, debarred 726 companies, and imposed $87.9 million in financial sanctions

• Educated the business population through instituting:

1. E-Verify with more than 385,000 participants
2. E-Verify self-check

• Improving Legal Immigration:

1. Streamlining path for EB-5 entrepreneurs and clarifying the EB-2 classification
2. Instituted Entrepreneurs in Residence program and proposed regulatory changes in the Federal Register in April 2012 to minimize delays of family based immigration petitions
3. Reduced processing of benefit requests through Electronic Immigration System of Registration (ELIS)
4. Implemented “Study in the States” initiative to attract international students through a streamlined visa process

• Comprehensive Immigration Reform:

1. Supporting the Supreme Court’s decision on Section 2(B) of S.B. 1070

Napolitano capped off her remarks on immigration stating, “only a nationwide solution will resolve the challenges posed by the current immigration system.”

Despite the Congress clearly conveying their message to DHS, “Wait wait, don’t tell me, you think you’re doing a good job…” Napolitano’s focus on streamlining existing immigration policies is positive news for US businesses. Until the promise of streamlining comes to fruition, removing your business from the auditing radar, enrolling in E-Verify, and becoming Form I-9 compliant remain immigration best practices.

If you can handle the truth about current immigration policies, subscribe to our blog and stay informed by checking out our I-9 Employer Resource Center and join our LinkedIn Group.

By:  Timothy Sutton, Communications Editor

“Homeland Security Investigations is committed to holding businesses and their managers accountable when they knowingly hire an illegal workforce,” –John Kelleghan, Special Agent in charge of HSI Philadelphia.

Homeland Security, the FBI, and ICE did much more than hold GPX/GPX, USA, a seismic surveying company and their field supervisor, Donald Wiggill, “accountable,” by charging the company with a total maximum fine of $10 million, a probation term of five years on each count, and a special assessment totaling $8,000; Wiggill faces an unconscionable indictment of 100 years in prison on all 20 counts, a fine of $5 million, a supervised release term of 60 years, and a special assessment of $2,000. The Texas based company failed to verify the immigration status of nineteen employees and did not prepare the required Form I-9 and supporting documentation concerning the immigrants’ authorization to work in the United States.

John Kelleghan of Homeland Security further justified the Philadelphia HSI decision to levy such harsh punishment for I-9 non-compliance saying, “HSI and our law enforcement partners will continue to ensure that employers follow our nation’s hiring laws, which ultimately protect job opportunities for the nation’s legal workers, and levels the playing field for those businesses that play by the rules.”

The proportionality of the punishment sought for the crime is extremely shocking. Our blog has recently covered the penalties imposed upon, HerbCo, Chipotle, and most recently ABC Tree Professionals, which pale in comparison to the punishment GPX is now facing.

GPX is being treated like a national security threat for mishandling nineteen employees Form I-9s. The difference between thousands of dollars versus millions of dollars in fines, in addition to 100 years of jail time, is the involvement of the FBI and the Homeland Security. GPX is charged with harboring and transporting illegal aliens and conspiracy to commit those offenses as outlined in an indictment by the U.S. Attorney for the Middle District of Pennsylvania, Peter J. Smith. Whether GPX was honestly aware of their employees’ immigration status is still unknown, however proper planning and implementation of I-9 compliance would have saved the company millions in civil penalties and avoided a hundred years of jail time. With the stakes elevated so tremendously high by this multi-departmental crackdown on workforce compliance –  who can afford not to get their legal documents in order?

To protect your business and your employees please contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

One of the most important questions in the mind of both employer and employee is:  What if information about the employee is wrong – can they fix inaccurate information about themselves in E-Verify?

If E-Verify is unable to automatically verify an individual’s status in order to authorize employment, a Status Verifier will manually review the information and conduct searches of other Federal government databases and, where necessary, will update any underlying information contained within the various DHS databases queried.  After a result is returned on an employment authorization query, E-Verify provides two methods of information correction and redress for employees.  If an employee receives a Tentative Non Confirmation, or TNC, they may correct their information through the Social Security Administration (SSA) or DHS.

After the verification process is complete, individuals have the opportunity to access and correct their information through the Freedom of Information Act (FOIA) or Privacy Act (PA) process.

We link to more E-Verify Privacy FAQs and our I-9 Employer Resource Center

Immigration Compliance Group specializes in business immigration and employer compliance matters related to audits, training and policy development.

On March 12, 2012 USCIS revised the FAQs that reference the Jan 8, 2010 Donald Neufeld Memo that relates to the employer-employee relationship in adjudicating H-1B Petitions for 3rd Party Jobsite Placements. This topic is still very complex and greatly impacts the IT, healthcare and staffing agency industries in their ability to file for H-1B visa petitions on behalf of foreign professionals.  We link above to this updated guidance, and  remind you that our office is available to assist you with your H-1B case filings as it relates to these and other industries. If you have any questions pertaining to this topic or any other matter, please contact us.