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.

As 2012 winds down, with year-end planning sessions and budget meetings for 2013, how would you rate your company’s employment eligibility compliance program, as it stands right now?  We are not in the bubble bursting business, but we’ve yet to see a compliance program that doesn’t need some upgrading and refinement – no one’s is perfect.

According to new data from ICE, since 2007, employer I-9 audits have increased from 250 to more than 3,000 in 2012.  From fiscal years 2009 to 2012, the total amount of fines grew to nearly $13 million from $1 million.  Statistics released by ICE in July 2012 stated that overall, $87.9 Million in fines have been imposed on employers for violations. The number of company managers arrested has increased to 238.  Widespread employer audits will continue to increase this year.  Plain and simple, failing to comply with IRCA’s I-9 rules will continue at a rapid rate, resulting in significant fines, loss of access to government contracts, an onslaught of negative publicity, business closure, criminal penalties and imprisonment.

With all the advice, blogs and articles written about the most complicated 1-page form on the planet, there are some basics – a simple formula that, if implemented, followed and maintained, will greatly enhance your level of I-9 compliance and reflect your company’s genuine desire to get its compliance house in order.  This is what we recommend:

• Invest in a comprehensive I-9 audit by a knowledgeable attorney or professional who actually practices in this area of the law.  Don’t engage in a self-audit without participating in a thorough training program first.  This will cause more harm than good; it’s like the blind leading the blind.
• Following the audit and the review of your report of findings, get trained before the correction process begins.  Who should be trained?  All those who have hands-on exposure to the I-9 process at all of your organization’s locations…and all those who supervise the process and staff.  Make training and reading the M-274 Employer Manual absolute requirements for those assigned to I-9 processing and management.
• Establish a written Compliance Policy.  This does not need to be a huge undertaking, but should reflect your company policy concerning the steps you’ve taken to assure a compliant workforce and a culture of compliance at your organization.  It will be your road map and reflects that you take compliance seriously.  ICE will request this document, amongst many others, should they ever come knocking on your door.
• Appoint a Compliance Guru – one who has a senior level of knowledge, who will monitor your internal compliance program, review your I-9 forms every few months for accuracy and completeness, provide updates and arrange for refresher training on a yearly basis.
• Consult with a trusted professional in the field when questions or challenges arise – don’t guess.

Remember, the key to defending any employment related investigation is to evidence that there is and has been a consistent pattern of responsible, good faith effort on the part of the employer in establishing a compliant workforce.  Stay informed, subscribe to our Blog, newsletter, and join in the conversation on our LinkedIn Group I-9/E-Verify: Smart Solutions for Employers.  Check out our compliance services and solutions here, and make a concerted effort this year to increase your level of compliance by following the above formula.

As follows:

•Georgia: Companies employing more than 10 persons must register for E-Verify by July 1, 2012.
•North Carolina: Companies employing more than 100 persons must be registered for and using the E-Verify system on January 1, 2013.
•Pennsylvania: State contractors and sub-contractors must register for E-Verify beginning January 1, 2013 – but only if the project is greater than $25,000.
•Tennessee: Companies employing more than 5 persons must register and begin using E-Verify by January 1st.

Businesses within the above 4 states will need to collect an employee’s Social Security number and E-Verify all candidates before employing.

For more on E-Verify by state, we link here, compliments of LawLogix (www.lawlogix.com).

USCIS released I-9 instructions to employers today regarding how to fill out the I-9 form for new and existing DACA employees.  There have been many questions and speculations  concerning how to handle the Form I-9 with existing employees; thus, this guidance is certainly welcomed.  We would advise you to print out the instructions and keep them for reference and attach them to either your I-9 reverifications or your new I-9 forms (whichever is appropriate based upon the instructions) for existing DACA employees.

Please note also that the DACA website has been updated with new FAQ’s, instructions offered in various languages and Filing Tips.

To review, the DACA initiative offers a two year grant of reprieve from deportation as well as work authorization for unauthorized immigrants who were under the age of 31 as of June 15, 2012 and who can demonstrate that they meet the following criteria:

• Entered the United States before the age of 16
• Have continuously resided in the United States since June 15, 2007 and up to
the present time, and were physically present on June 15, 2012 and at the time
of application
• Are currently in school, have graduated from high school or earned a GED, or
are honorably discharged veterans of the US armed forces (including the Coast
Guard)
• Have not been convicted of a felony, significant misdemeanor, or three or more
misdemeanors; or otherwise pose a threat to public safety or national security
• Entered the country illegally or overstayed their visa prior to June 15, 2012.

You might wish to refer to our previous blog post on DACA and sign up to receive our free newsletters, blog posts and I-9 information and updates.

On Sept. 16, 2012, E-Verify provided several enhancements to improve your experience with the program. We particularly like these new features:

• For Corporate Administrators: A new Web-based tutorial replaces the live webinar training required of new Corporate Administrators. The tutorial also serves as a resource for existing Corporate Administrators. To access the E-Verify Tutorial for Corporate Administrators, select the ‘Take Tutorial’ link under My Resources in the left-hand navigation menu.

•  A new E-Verify User Manual for Corporate Administrators is now available from the ‘View User Manual’ link under My Resources in the left-hand navigation menu.

•  They have also come up with a process for HR’s who must record the foreign passport and I-94 arrival-departure card (that can now take up to 45 days to access) in E-Verify

Should you wish to sign up for USCIS’ free E-Verify training, they have several monthly sessions.  You can access their training schedule here.

By the way, the program is now compatible with Firefox, Chrome and Safari.

The Department of Homeland Security issued an update today that the Department of Homeland Security (DHS) is working to resolve this issue and will have a fix on September 14, 2012.

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Without any advance notice, the CBP has made changes that affect the I-9 form by no longer issuing paper I-94 cards and no longer stamping I-20 forms for F and M student visas, or form DS-2019 Certificate of Eligibility for Exchange Visitors and Foreign Students, affecting both J and F visa holders.

Customs and Border Protection is in the process of automating traveler arrival records (I-94 cards) to streamline passenger processing. The current processing time for entering foreign visitors’ travel information into the I-94 database is 30 days or more. This does not affect the majority of foreign travelers visiting for business or leisure and will not affect any visitor’s record of departure.  But it will greatly influence how you document Section 2 of the I-9 form for the nonimmigrant employee that produces a List A foreign passport with an I-94 entry card.

PLEASE NOTE: With the newly proposed 2-page I-9 form, no guidance has as yet been provided regarding the I-94 card as an acceptable List A document in concert with a foreign passport. We will keep you posted concerning these changes as soon as we receive new guidance. In the meantime, we recommend that you print out this information and attach it to any new employee’s I-9 form who would normally produce an I-94 record (but doesn’t have one and is waiting to access an electronic version) along with a foreign passport as a List A document.

CBP has suggested the following:  Nomiggrants may need to prove their legal-visitor status within the first 30-45 days of their U.S. stay to:

Employers;
Motor vehicle registration or drivers’ licensing agencies;
The Social Security Administration;
U.S. Citizenship and Immigration Services; or
Universities and schools.

If during this timeframe, visitors need to provide evidence of legal status they should include the following:

Unexpired foreign passport; and
Country of Citizenship
CBP Arrival/Departure Record, Form I-94 (if issued)

Contact CBP for more information or with questions.

Tel: (877) CBP-5511
TTD: (866) 880-6582

If a state benefit granting agency rejects an unstamped Form I-20/DS-2019, applicants may make an appointment with USCIS online through InfoPass and take their Form I-20/DS-2019 to their local USCIS office to be stamped. ( InfoPass ) This transitional step will end on Nov. 21, 2012.

International students and scholars who encounter issues with their state or federal benefit applications should continue to contact the Immigration and Customs Enforcement Student and Exchange Visitor Program (SEVP) at (703) 603-3400 or SEVP@dhs.gov.

Please feel free to contact our office should you have questions concerning these changes, 562 612.3996 or email info@immigrationcompliancegroup.com

By:  Timothy Sutton, Communications Editor

Today, recruiters, human resource managers, and small business owners utilize the Internet to recruit new employees. Online recruiting is cheap, efficient, and reaches a much broader audience than traditional forms of media. While there are numerous advantages to employing a professional staffing agency to locate prospective employees through the Internet, many employers choose to self-publish want ads through popular websites like monster.com or craiglist.org. Self-publishing online job posting gives the employer complete control over when, where, and how long a post will be visible to the public. Ultimately, do-it-yourself recruiting can be personally tailored to suit a particular employer’s needs.

But recruiters beware. The Internet is much more sophisticated than a virtual corkboard. Keywords and phrases in your job listings can be tracked and monitored by government software, then stored in databases. Recently, the Civil Rights Division of the Office of Special Counsel (OSC) released a Best Practices notice for online job posting. Whether this notice foreshadows future litigation over civil rights violations in hiring practices is yet to be determined; regardless, the message is clear, employers need to exercise caution when recruiting online because the OSC is monitoring online want ads.

Immigration laws prohibit the use of discriminatory language regarding U.S. Citizenship, lawful permanent residence, citizenship status, or national origin unless required by law, regulation or executive order. Curiously, the OSC notice was released shortly after a handful of states attempted to curtail the rights of Deferred Action Childhood Arrival qualifiers to obtain state identification (see our previous post here). There is no data revealing any increase in discriminatory language found in online job postings, but a simple keyword search on either monster.com or craigslist.org reveals numerous non-compliant ads. For instance, if the word “citizen” is entered into Craigslist, ads for dishwashers, personal assistants, security guards, and caregivers pop up. Each ad contains some version of the following discriminatory language that the OSC notice clearly forbids pursuant to the Immigration and Nationality Act at § 1324b that prohibits discrimination based on the citizenship status or national origin in the hiring, firing unfair document practices (“document abuse”) during employment eligibility verification process, and retaliation:

•  “Only U.S. Citizens”
• “Citizenship requirement”*
• “Only U.S. Citizens or Green Card Holders”
• “H-1Bs Only”
• “Must have a U.S. Passport”
• “Must have a green card”

One explanation presented by the OSC for the common use of such language is the misinterpretation of federal employment laws. Employers are not limited to the recruitment of U.S. citizens. In fact, we recently published an article on the proper method of verifying the legal employment status of refugee/asylees. Due to the complexity of adhering to the legal requirements of recruiting, hiring, and employing individuals in today’s diverse workplace, employers should seek the professional guidance of an attorney. The cost savings and convenience of self-publishing job postings are heavily outweighed by the potential financial penalties and negative publicity of losing an anti-discrimination lawsuit.

Our office has the experience and successful track record necessary to protect the interests of your enterprise.  For more information, contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

By:  Timothy Sutton, Communications Editor

In an effort to assist participating employers comply with the user requirements of E-Verify and to help improve participants’ overall use of the program, USCIS issued two self-assessment guides in June. Both guides are substantively similar, but are procedurally designed to assist two sets of users, either web-access or direct access users. Voluntary E-Verify participants will benefit from this recent assistance publication by following the eight-part checklist provided therein.

The self-assessment checklist covers, post-enrollment activities, creation of cases, photo matching, tentative nonconfirmation, DHS referral, SSA referral, final case resolution, and final case closure statements. USCIS touts E-Verify as an easy-to-use online tool, but warns, “Employers may be subject to legal action for some types of E-Verify misuse.” The self-assessment guide highlights below may surprise current E-Verify users who may unwittingly be noncompliant:

Monitored Activities Common Mistakes:

• Duplicate cases for same employee
• Verifying employees hired before 11/7/86
• Immediately terminating employee who receive a tentative nonconfirmation (TNC)
• Failing to create a case by the third day after employee started work for pay
• Creating cases for employees hired before E-Verify participant enrollment

Post-Enrollment Activities: Do web services comply with interface control agreements?

Creation of Cases: Is all personally identifiable information safeguarded at all times, with only minimal information retained?

Photo Matching: Are document photos matched to the photo on E-Verify rather than to the employee?

Tentative Nonconfirmation: Do case closure statements notify DHS if an employee who receives a TNC chooses not to contest is not terminated?

DHS & SSA Referral: Do E-Verify participants and employees both sign the English-language version of the referral letter?

Final Case Resolution: Upon receipt of a “DHS No Show” message, does the employee contact DHS within the required time?

Final Case Closure: Does the user file completed Form I-9 and all attachments in a secured location?

Although the self-assessment is a valuable tool to assist employers with E-Verify compliance, the checklists do not render a company audit proof. For assistance implementing best practices for E-Verify and other immigration related topics contact one of our immigration professionals.

Want to stay informed:?  Check out our I-9 Employer Resource Center and join our LinkedIn Group

By: Timothy Sutton, Communications Editor

One of my favorite television shows is Undercover Boss. If you’re unfamiliar with the show, the premise is: a CEO/President takes on a disguise to go undercover within their own business to find ways to (1) become more successful and (2) reward hardworking employees. Obviously, there is an essential element of Hollywood magic that prevents most of us from going “undercover” within our own business; but the lessons learned from this show are no less valuable.

Every episode begins with a slightly troubled, but optimistic executive. They instruct their trusted board of directors that they will be resigning from the company to go undercover as an employee over a week’s time in various lower levels of the company, entry-level to management. The goal is to see their business from a fresh perspective. A series of uncomfortable and often illegal encounters ensue where CEOs face discrimination, harassment and even get fired by their own employees. At the end of the hour-long television program, CEOs reward key employees and have “new and improved tools” to develop successful business practices.

There is a better way for your business to experience the same fresh perspective without shaving your head and slapping on a boar’s hair mustache; it’s called an audit. Yes the feared “audit” is most commonly associated with frightful agencies like the IRS and ICE. Yet, Undercover Boss is simply Hollywood’s version of a voluntary audit. In order to become more successful, discovering discrimination, harassment, and wrongful termination within your own business is necessary. The alphabet agencies (ICE, IRS, DOJ, DOL) insist that companies perform annual audits to comply with a multitude of legal formalities. Not only will audits improve business efficiencies and reveal valuable employees, but it will also save your company thousands of dollars for failing a government ICE initiated audit.

The Immigration Compliance Group has years of auditing and consulting experience and a touch of Hollywood magic! Before you invest in your own set of wigs and costumes, contact one of our immigration professionals to discuss I-9 compliance and workforce related issues. Discover how audit prevention and a fresh set of eyes can improve your business.  Contact us for support in planning and implementing legally sound solutions to protect your company’s future:  562 612.3996 | info@immigrationcompliancegroup.com.

Link up with us in our group, I-9/E-Verify:  Smart Solutions for Employers and stay informed:   http://www.linkedin.com/groups?about=&gid=4137860