On Nov. 14, 2016 USCIS released a revised version of Form I-9, Employment Eligibility Verification.  Employers may continue using Form I-9 with a revision date of 03/08/2013N  through Jan. 21, 2017.  By Jan. 22, 2017, employers must use the revised form.

Employers should continue to follow existing storage and retention rules for all of their previously completed Forms I-9. Refer here for more information.

Remember to login to our webinar on Wednesday Nov. 16^th, 3pm EST/12pm PST for training on the new I-9 form:  http://www.immigrationcompliancegroup.com/webinars2016/ and save the date for the E-Verify webinar as well on December 15, 2016.

The Department of Justice’s Office of Special Counsel (OSC) and the U.S. Immigration and Customs Enforcement (ICE) have issued a six-page joint Guidance for Employers Conducting Internal Form I-9 Audits that can be viewed here:  http://www.justice.gov/crt/file/798276/download

This guidance is a result of a six-month intra-agency initiative to foster greater cooperation across government agencies in the I-9 audit space. The group overseeing this initiative, entitled the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws, is tasked with improving the effectiveness of investigations by ICE and the OSC.

For more

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.

On December 8, 2013 E-Verify will release new and revised Memorandums of Understanding (MOUs) that are tailored to each access method.

The changes were made in response to customer feedback and to update the MOUs with policy and process changes. Users will find that the new versions have more plain language and are easier to understand, with new titles that clearly identify the access method to which the MOU applies, and bullets that have been changed to letters and numbers to make searching and citation easier. Also, the lengthy sections have been broken up.

Please take the time to review and become familiar with the new MOU’s that apply to your access method; refer to the Fact Sheet and the preview of the new MOUs here. You can also access this information under “View Essential Resources” by logging into E-Verify to review the new and revised MOUs.

What you need to know

• Current E-Verify users will not be required to execute a new MOU, but are bound by any and all enhancements to the E-Verify program including the new or revised MOUs that apply to their access method. Current users should become familiar with the new or revised MOU that applies to them.  The effective date of the MOU for existing users is January 8, 2014.
• The E-Verify enrollment process has not changed.  New Users will review and execute the new or revised version of the MOU that applies to their access method during enrollment.  The effective date of the MOU for new users is December 8, 2013.
• The new and revised MOUs include several updated provisions such as enhanced privacy protections and instructions for reporting privacy and security breaches.

 Revised Memorandums of Understanding

• E-Verify Employer Memorandum of Understanding (June 2013)
• E-Verify Employer Agents Memorandum of Understanding (June 2013)
• Employers using an E-Verify Employer Agent Memorandum of Understanding (June 2013)

TeleConferences

 Two teleconferences will be hosted by USCIS to introduce and discuss the revisions schedule as follows: 

 1)     For General Audience:  December 11(Wed.) 2:30 – 3:30 EST.  Will discuss the revisions made to the existing MOU’s and will open up for Questions.  Register here 

2)     For E-Verify Users:  December 12 (Thurs.), 2:30 – 3:30 EST.  USCIS officials will provide an overview of the three new MOUs for Web service participants, and be available to answer questions. Register here

If you have any questions regarding the registration process, or if you have not received confirmation email within two business days, please email us at Public.Engagement@uscis.dhs.gov.

If CBP issued an electronic Form I-94 to one of your employees upon their admission to the United States at an airport or seaport, they should be able to access it from the CBP website at http://cbp.gov/xp/cgov/travel/id_visa/i-94_instructions/.

If they are unable to access their I-94 information from the CBP website, they should call or go to a CBP deferred inspection location to correct the problem. For more information about Deferred Inspection Sites refer to the link. In the alternative, they may file Form I-102 with USCIS and request their Form I-94; however, there is a filing fee and this process may take weeks.

Also remember, that the name as it exactly appears on the passport should be entered into the system. We find that many problems retrieving the I-94 are due to incorrect name entries.

After considering some 200 amendments to the Gang of 8’s immigration bill entitled the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (a/k/a CIR, or Comprehensive Immigration Reform), it survived the Senate Judiciary Committee overhaul and has been introduced onto the floor of the Senate for further debate taking place this month.  It is the goal of the Senate to complete their work on the Bill by the July 4^th recess. On the weekend talk show circuit, Lindsay Graham (S-SC) told conservatives who are trying to block the measure that they will doom the party.  Sen. Robert Menendez, D-N.J., went a step further and predicted “there will never be a road to the White House for the Republican Party if immigration overhaul fails to pass.”

The big question is – will the House of Representatives cooperate and pass a bill?  The theory on this is that the purpose of the legislative process right now is for the House to get a bill passed. It could be a good or bad bill; it just has to be an intact bill because once something makes it through the House, it will go to conference with the Senate and the Committee will compare the two bills and draft a compromise bill that both chambers can accept

The Temperature on Immigration Reform in the House of Representatives:

While many House conservatives agree immigration reform is a critical priority for Congress, they part with President Obama, Senate Democrats, and some in their own party who believe allowing eventual citizenship to those in the country illegally is part of the solution. They vow that they won’t support any bill that adds to the deficit and they want to see a tougher approach to border security and to the benefits issue.

Not only has the federal government consistently increased spending on border enforcement, it has also met the border-security benchmarks laid down in the three immigration-reform bills introduced in the Senate since 2006. Read more on border security here

The GOP insists that newly legalized workers now working in the shadows have no access to government-sponsored health care during their 15-year pathway to citizenship.  Democrats say that since these newly legalized immigrants would be paying taxes (millions already do pay taxes), they should be eligible for benefits.

In the end, both chambers of Congress must eventually pass the identical legislation for the bill to make its way to the President’s desk to become law.  The question is…Will House Republican leadership pass a bill or fail?

White House Official stated to the Daily Caller, “If a Gang of Eight-style bill is signed into law by the President, it will probably be one of the top five legislative accomplishments in the last twenty years.”

For a Summary of S 744 refer here.  Refer here for more on the progress of S. 744 in the Senate, the text of bill, the summary and the proposed amendments.

The House Judiciary Committee markup of the bill starts this week, and will start with SAFE Act (H.R. 2278), a bill to improve the interior enforcement of our immigration laws and strengthen national security and will then take up the AG Act (H.R. 1773), a bill to provide American farmers with a workable temporary agricultural guest worker program that will help provide access to a reliable workforce.  Read more here

  USCIS Will not Accept Previous Versions of Form I-9 as of May 7, 2013

USCIS reminds employers that beginning today, May 7, 2013,  they must use the revised Form I-9, Employment Eligibility Verification (Revision 03/08/13)N for all new hires and reverifications. All employers are required to complete and retain a Form I-9 for each employee hired to work in the United States.

The revision date of the new Form I-9 is printed on the lower left corner of the form. Employers should not complete a new Form I-9 for existing employees, however, if a properly completed Form I-9 is already on file.

A Spanish version of Form I-9 (revision 03/08/13)N is available on the USCIS website for use in Puerto Rico only. Spanish-speaking employers and employees in the 50 states, Washington, D.C., and other U.S. territories may use the Spanish version for reference, but must complete and retain the English version of the form.

The revised forms are available online at www.uscis.gov/I-9. USCIS has also offering free webinars to help employers learn about the new form.  To order forms, call USCIS toll-free at 1-800-870-3676. For free downloadable forms and information on USCIS programs, immigration laws, regulations, and procedures, please visit www.uscis.gov and go to the ‘forms’ menu or I-9 Central

April 29, 2013 Update:  We link to a recently released Demonstration Video that walks you through the required information to access your I-94 record and provides information how to maneuver through the fields of the online template.

Yesterday our firm participated in a CBP Stakeholder teleconference on this topic and we were surprised how much progress they have made since the last call which left us very nervous about how the automation process of the I-94 would play overall and particularly for I-9 purposes.

I have to say, after yesterday’s call, we really didn’t have any complaints. We share some of the pertinent points with you below:

1)       The website to access I-94 arrival-departure cards is www.CBP.gov/I94 .  It will be “live” the end of April as they phase in automation at air and sea ports commencing April 30, 2013.   The website will provide access to I-94 records going back two years.

2)      Electronic I-94’s will be available on the website for printing immediately upon entry (that was very good news).  So, there should be no lag time with a new employee’s ability to produce an I-94 record  when required for I-9 purposes or for social security cards, DMV, etc.

3)      When an employee changes their status inside the USA, changes employers or extends their stay, (such as an H-1B visa holder), USCIS will continue to print the I-94 records at the bottom right of the USCIS I-797 approval notices.

4)      CBP will post on their website a sample electronic I-94 for viewing.

5)      Whereas one will no longer be able to immediately check to see that the  information stamped on the I-94 matches up with their visas and I-797 approval notice, it was clear that applicants will need to be more proactive in verbally clarifying this with the CBP officers, particularly in situations when an H-1B visa holder is traveling on a still valid visa annotated with the name and validity date of a previous employer petition, but now  has a new employer USCIS I-797 approval notice with a different validity period.

6)      More on #5, it was stated that one could immediately check their I-94 on a mobile device and if there was an error, could get it corrected by getting back in line at the airport.

7)      CBP plans to provide nonimmigrants with a brochure or a list of instructions in 12 different languages upon entry concerning how to obtain their I-94’s online.

8)      The paper version of the I-94’s can still be turned in at the airport upon departure; however, they will collect departure information electronically through the departure manifest when leaving the USA.

9)      DMV was represented on the call and indicated that they were having problems with incorrect name entries and FNU’s being entered.  It was stated that the name on the electronic record will either match the name as it appears on the visa or the passport.  When accessing the record online, the name, passport number, date of birth and date of admission will be required information to access the electronic I-94 record.

If you have any questions, please feel free to call our office at 562 612.3996 or email info@immigrationcompliancegroup.com.

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.

A new edition of the I-9 employment eligibility verification form has been introduced today and has been published in the Federal Register as of this writing.  USCIS has been working on the revised I-9 form for more than a year. In March 2012, it published  a proposed revision for public comment.

The new edition, 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 7, 2013.  After 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. The instructions to the form also more clearly describe the information employees and employers must provide in each section.  To order copies of the new I-9 form from USCIS, you can call  1-800-870-3676.

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.  This is also a good time to think about additional training for your staff.  Refer here for our services and solutions.  We will be reviewing the form very carefully in the next few days and will post our comments and guidance.