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.

It is common knowledge that the U.S. government has been performing widespread investigations and audits of employers cracking down on the employment of undocumented workers.  Immigration and Customs Enforcement (“ICE”) recently reported record-breaking figures citing the highest deportation numbers and the most employer audits in our nation’s history.

Because of this, employer compliance is becoming more complex and enforcement activities are increasing at a record rate. The days of thinking that immigration enforcement is only targeting industries that employ a diverse workforce, such as health care, hospitality, restaurant, garment and the construction business, are long gone. Every employer must be aware of immigration laws as they relate to the processing and management of their I-9 forms and other compliance programs.  Many audits have resulted in fines for well known and respectable employers, large organizations and those that employ foreign workers, as well as small businesses that unintentionally filled out I-9 forms incorrectly.  Document mistakes – missing signatures, dates, over-documentation problems on I-9’s, have resulted in fines from $110 to $1,100 per mistake.

A recent examples of an I-9 document violation is a Colorado restaurant franchise that was fined $32K after an ICE inspection – not for hiring any illegal workers, but for I-9 document errors.

Chipotle Restaurant chain in Minnesota has recently been in the news for hiring illegal employees.  Pursuant to an ICE I-9 audit, Chipotle was forced to terminate some 50 workers.  There appears to be widespread I-9 restaurant investigations taking place in Minnesota.  Other restaurant chains in the area such as McDonald’s and Sizzler are concerned and have begun to proactively look into E-verify, the Internet-based system operated by USCIS in partnership with the Social Security Administration (SSA) that is free to employers and available in all 50 states.

The key to I-9 compliance for most organizations starts with a thorough self-examination of existing paper I-9’s, E-Verify submissions (if applicable), standard operating procedures, and past practices.   It is recommended that you consult with a licensed immigration or employment attorney who is knowledgeable in the practice of  employer compliance, specifically I-9 audits, training and policy development that can possibly save you thousands of dollars in fines and penalties.

Visit our new I-9 Employer Resource Center for helpful information and for our services and solutions.

Employers can no longer afford to think that because they don’t hire foreign nationals, they don’t have any I-9 issues or need to comply with I-9 immigration regulations. The I-9 form is required documentation for all US citizens and non-citizens …every single employee must fill out an I-9 Form.

In our employer compliance audit practice, we find that every employer has I-9 violations, from minor clerical errors and unintentional mistakes, to document discrimination issues due to lack of training on I-9 regulations and document requirements.

Immigration attorneys, HR professionals, auditing firms and other professionals, if skilled in the practice area of employer compliance audits, could qualify as a viable vendor in handling I-9 audits, training and policy development.

There are a lot of do and don’t lists, blog postings, podcasts, free seminars and more on this topic which is why you should most particularly pay close attention as to whether or not the provider has a broad understanding of employer immigration compliance law and policy.  Discuss with them their previous and current experience, can they answer your questions, what services do they provide, what solutions are they proposing to suit your specific needs, and what type of follow-up consultation do they provide post-I-9 project completion.

Immigration Solutions regularly represents clients from all industries in developing effective I-9 policies and compliance programs. We assist our clients proactively in establishing and maintaining effective corporate policies and procedures, before one of the five government agencies involved with enforcement knocks on your door.

The Department of Justice issued an excellent guide to employers (see below) today on the Do’s & Don’ts of name and social security “No Matches”:

DO:
1. Recognize that name/SSN no-matches can result because of simple administrative
errors.
2. Check the reported no-match information against your personnel records.
3. Inform the employee of the no-match notice.
4. Ask the employee to confirm his/her name/SSN reflected in your personnel records.
5. Advise the employee to contact the Social Security Administration (SSA) to correct
and/or update his or her SSA records.
6. Give the employee a reasonable period of time to address a reported no-match with
the local SSA office.
7. Follow the same procedures for all employees regardless of citizenship status or
national origin.
8. Periodically meet with or otherwise contact the employee to learn and document the
status of the employee’s efforts to address and resolve the no-match.
9. Submit any employer or employee corrections to the SSA.

DON’T:
1. Assume the no-match conveys information regarding the employee’s immigration
status or actual work authority.
2. Use the receipt of a no-match notice alone as a basis to terminate, suspend or take
other adverse action against the employee.
3. Attempt to immediately re-verify the employee’s employment eligibility by
requesting the completion of a new Form I-9 based solely on the no-match notice.
4. Follow different procedures for different classes of employees based on national
origin or citizenship status.
5. Require the employee to produce specific documents to address the no-match.
6. Ask the employee to provide a written report of SSA verification.

We link to SSA No Match FAQs

For more information on the anti-discrimination provision of the Immigration and Nationality
Act, feel free to call our office or contact the OSC through its employer telephone hotline or visit OSC’s Website:
Employers: 1-800-255-8155
Website: http://www.justice.gov/crt/osc/

Please visit our new employer I-9 resource center at:  www.I-9Audits.com

The Justice Department announced on November 10th that it has reached a settlement agreement with Hoover Inc., a leading manufacturer of vacuum and carpet cleaners with facilities in Ohio and Texas, to resolve allegations that Hoover engaged in a pattern or practice of employment discrimination by imposing unnecessary and discriminatory hurdles in the I-9 process upon lawful permanent residents.

According to the department’s findings, Hoover required all permanent residents who presented a permanent resident card (green card) for I-9 purposes to produce a new green card when theirs expired. In contrast, Hoover’s U.S. citizen workers were not required to present new documents. Like U.S. citizens, permanent residents are always work authorized, regardless of the expiration of their documentation. The Immigration and Nationality Act (INA) prohibits employers from treating permanent residents differently than U.S. citizens in the I-9 process.

Under the terms of the settlement, Hoover has agreed to pay $10,200 in civil penalties. Hoover will also train its human resources personnel about employers’ nondiscrimination responsibilities in the I-9 process, and it will provide periodic reports to the department for one year.  Here’s the Press Release

This is one of several recent settlements brought by the DOJ against employers that engage in document abuse.  This occurs when employers treat employees differently based on national origin or citizenship status during the I-9 process.

What does this ruling mean for employers?

Although some I-551 Permanent Resident Cards have an expiration date, employment authorization continues and there is no need to reverify this document upon expiration.  An expiration date on the Form I–551 reflects only that the card must be renewed, not that the bearer’s work authorization has expired,  8 C.F.R.§ 274a.12(a)(1). Further Question 39 on Pg. 36 of the M-274 Handbook states:  You may not re-verify an expired U.S. passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired.

Here are some examples of prohibited practices that fall under document abuse:

1) Setting different employment eligibility verification standards or requiring different documents based on national origin or citizenship status. One example would be requiring non-U.S. citizens to present DHS-issued documents like “green cards”

2)  Requesting to see employment eligibility verification documents before hire and completion of the Form I-9 because an employee appears foreign or the employee indicates that he or she is not a U.S. citizen.

3)  Refusing to accept a document or hire an individual because an acceptable document has a future expiration date.

4)  Limiting jobs to U.S. citizens unless a job is limited to citizens by law.

5)  Asking to see a document with an employee’s alien or admission number when completing section 1 of Form I-9.

6)  Asking a lawful permanent resident to re-verify employment eligibility because the person’s “green card” has expired.

Should you have any questions, or know that your I-9’s have problems, be smart and proactive and contact an experienced professional in this field who knows the law and can assist you.

We have a terrific I-9 Resource Center for Employers and are available to design a cost-effective audit and training program to suit your particular needs.

Our November Special Edition Newsletter on Employer Compliance is now available.  We reference what employers need to be aware of in light of the results of the mid-term elections, the increase in enforcement that is predicted to continue and how best to protect  yourself in this business climate.

Check out our new I-9 website and take the free Survey.