For Employees: Your employer may inform you that your E-Verify case received a U.S. Department of Homeland Security (DHS) and/or Social Security Administration (SSA) Tentative Nonconfirmation (TNC) case result. A DHS and/or SSA TNC means that the information your employer entered in E-Verify from your Form I-9, Employment Eligibility Verification, did not match records available to DHS and/or SSA. A DHS and/or SSA TNC case result does not necessarily mean that you are not authorized to work in the United States.

The process description here explains the types of TNC’s and guides you through the resolution process.

For Employers: Employers whose employees receive a TNC must provide them with the further Action Notice from E-Verify and discuss it privately with them. Please review here for the steps in the process.

A quick review: In the I-9 verification process, the employee presents – and the employer must verify – evidence of both identity and work authorization. List A documents establish both identity and work authorization. Other documents establish only identity, List B documents. And other documents establish only employment authorization–List C documents.

The employee may present either a List A document OR a List B plus a List C document for I-9 employment eligibility verification.

You will not find the newly approved acceptable I-9 documents mentioned in this post in the current edition of the M-274 Employer Handbook, but you will find them on I-9 Central in their FAQs with document examples in the referenced LawLogix Blog post here. Document examples are taken from the ICE Guide to Selected US Travel and Identity Documents. This is an older version. We provide information at the end of this post where you can obtain a current copy of the February 2018 version.

Let’s highlight the new acceptable documents:

1. Certificate of Naturalization: This is now an acceptable List C document as evidence of employment authorization, but you must also request that the employee produce a List B identity document as well.
2. Resident Alien Card first introduced as a permanent residency card in 1977 that does not have an expiration date; the card is valid indefinitely. It displays a profile photograph, fingerprint and other details. These are still accepted as valid List A documents if they reasonably appear to be genuine and relate to the person presenting them. Bear in mind that the photos on these cards will be very old.
3. Trusted Traveler Documents: Global Entry, Nexus (travel between the US and Canada) and Sentri (travel from Mexico) can now be accepted as valid List B identification cards issued by a federal government agency, since they contain a photograph and various other required identifying information. The employee would also be required to present an acceptable List C employment authorization document.

To order a copy of the most recent edition of the M-396 Guide referenced above, requests can be submitted here.

We are always available to assist you with navigating the often confusing process of establishing a legal workforce and culture of compliance. The new year is an ideal time to review your I-9 inventory, update you staff training program, and arrange for a partial or a full audit.

Government enforcement activities at businesses significantly increased in 2018 and are anticipated to continue in 2019.  The Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security (DHS) conducted close to 6,000 audits last year compared to 1,360 audits in 2017. This is consistent with the Trump administration’s focus on immigration enforcement, and it will continue this year.

The whole purpose of the I-9 form is to ensure that you are hiring a legal workforce.  In this article we will unpack Section 3 of the I-9 form, and offer some guidelines that will help you navigate when you must use this part of the form.

Employers must complete Section 3 of the I-9 Form when:

• Your employee’s employment authorization or documentation of employment authorization has expired.
• Your employee is rehired within 3 years of the date that Form I-9 was originally completed.
• Your employee has a legal name change.

When completing Section 3, you must also complete the last name, first name and middle initial fields in the Employee Info from Section 1 area at the top of Section 2.

When your employee’s employment authorization or, in most cases, employment authorization documentation (see below for more information) expires, you must reverify to ensure your employee is still authorized to work. To find out if your employee’s employment authorization expires, look in Section 1 for the date that employment authorization expires and in Section 2 for the date that the employment authorization document expires.

The employment authorization expiration date provided by your employee in Section 1 may not match the document expiration date recorded under List A or List C in Section 2. The earlier date must be used to determine when reverification is necessary.

We suggest that you remind employees, at least 90 days before the date reverification is required, that they will be required to present a List A or List C document (or acceptable receipt) showing continued employment authorization on the date that their employment authorization or documentation whichever is sooner, expires. If your employee has a Form I-765, Application for Employment Authorization, pending with USCIS, and the application has been pending for 75 days, your employee may call the USCIS Contact Center or schedule an InfoPass appointment at a local office to request expedited processing.

Employers should not reverify:

• U.S. citizens and non-citizen nationals
• Lawful permanent residents who presented a Form I-551, Permanent Resident or Alien Registration Receipt card for Section 2. This includes conditional residents.
• List B documents

Unless reverification does not apply (for the situations stated above), then when your employee’s employment authorization or employment authorization documentation expires your employee must present unexpired documents from either List A or List C showing authorization to work. Receipts for a lost, stolen or damaged document are acceptable for reverification.TEmployers should not reverify:

To complete Section 3, you must:

• Examine the unexpired documents to determine if they appear to be genuine and to relate to your employee. If you feel the document does not reasonably appear to be genuine and relate to your employee, allow your employee to present other documentation from the List of Acceptable Documents.
• Record the document title, document number and expiration date, if any.
• Sign and date Section 3.

If you previously completed Section 3, or if the version of the form you used for a previous verification is no longer valid, you must complete Section 3 of a new Form I-9 using the most current version and attach it to the previously completed Form I-9.

Rehires

If you rehire your employee within 3 years of the date that a previous Form I-9 was completed, you may either complete a new Form I-9 for your employee or complete Section 3 of the previously completed Form I-9.

To complete Section 3 for rehires, you must:

• Confirm that the original Form I-9 relates to your employee.
• Review the original Form I-9 to determine if your employee is still authorized to work, including whether employment authorization documentation presented in Section 2 (List A or List C) has since expired (or have been auto-extended). Use the guidelines to determine if reverification applies.
• If your employee is still authorized to work and his or her employment authorization documentation is still valid, enter the date of the rehire in the space provided in Section 3.
• If your employee is no longer authorized to work or the employment authorization documentation has since expired and requires reverification, request that the employee present an unexpired List A or List C document. Do not reverify an employee’s List B (identity) document. Enter the document information and the date of rehire in the spaces provided in Section 3. If the current version of Form I-9 is different from the previously completed Form I-9, you must complete Section 3 on the current version.
• Sign and date Section 3.

Entering Dates in Section 3

     Section 3 includes three spaces to enter dates:

• If you rehire a former employee: enter the rehire date that your employee begins employment for wages or other remuneration, which can be a future date, if necessary, in Block B.
• If you reverify your employee: enter the date the employee’s new work authorization document expires in Block C.
• When completing Section 3 for any reason: enter the date you complete and sign the attestation.

Recording Changes of Name and Other Identity Information for Current Employees

You are not required to update Form I-9 when your em­ployee has a legal change of name. However, it is recom­mended that you maintain correct information on Forms I-9 and note any name changes in Section 3. Although Form I-9 regulations do not require employees to present documentation to show that they have changed their name, you should take steps to be reasonably assured of your employee’s identity if there has been a legal name change. Such a change may call into question your continued ability to rely on the documents your employee previously presented, as they reasonably relate to the employee. These steps may include asking the employee to provide documentation of a legal change of name to keep with his or her Form I-9, so that your actions are well-documented if the government asks to inspect this employee’s Forms I-9.

You may encounter situations other than a legal change of name where an employee informs you that his or her identity is different from the time Form I-9 was previously completed. If your employee informs you that the name, date of birth, or Social Security number is substantially different from what he or she previously provided on Form I-9, and is unable to provide evidence linking the new information to the identity previously used you should:

• Complete a new Form I-9
• Write the original hire date in “The employee’s first day of employment (MM/DD/YYYY)” space in Section 2; and
• Attach the new Form I-9 to the previously completed Form I-9
• If the Section 1 information has not substantially changed but the employee has offered different evidence of work authorization, then you should examine the documentation to determine if it appears to be genuine and to relate to your employee presenting it. If so, complete Section 3 of the previous Form I-9. If the current version of Form I-9 is different from the previously completed Form I-9, you must complete Section 3 on the current version

For more information:  Handbook for Employers

Online Learning Resources

Contact our office; we are experts in I-9 Consulting and Audits or call 562 612.3996.

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.

This rule implements as an inflation adjustment fines for employing unauthorized workers for Form I-9 paperwork violations, and for immigration-related discrimination. These new fines increase the penalties from 35% to 96% depending on the nature and severity of the violation.

We encourage you to review your policies, procedures and your Form I-9 inventory.  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.

Refer here for the details.

The OSC publishes responses to  TAL Letters (Technical Assistance Letters) that they receive from attorneys, employers and other stakeholders.  USCIS identifies this circumstance in the I-9 Employer Handbook as an employee who comes forward and indicates that their identity is now different than previously represented (Hmm…)  and now wants to “regularize” their employment record.  Or, what do you do if you become aware, for instance, that a social security number associated with a particular employee was not legally assigned?

Discussion starts on page 2.

OSC’s TAL implies that if an employer has not consistently-followed a policy of terminating individuals for providing false information during the hiring process, it couldn’t use that policy to justify a termination in this particular scenario.  Even if the employer did consistently terminate individuals who were dishonest during the hiring process, OSC implied that this was not necessarily a slam dunk argument either. It is important to note that OSC did not commit itself by concluding that such a termination under the circumstances would not constitute discrimination or be deemed to be a valid legitimate non-discriminatory reason for termination. It simply stated it would depend on the facts and circumstances.  Before you go down this road, remember –the USCIS Handbook for Employers provides that “Where an employee has worked for you using a false identity but is currently work authorized, the I-9 rules do not require termination of employment.”

There’s also guidance regarding this for DACA employees that you might wish to review.  For more on I-9 compliance please refer to our Employer Resource Center

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

Plain and simple, failing to comply with IRCA’s I-9 rules have, and are continuing at a rapid rate, to result in significant fines, loss of access to government contracts, an onslaught of negative publicity, business closure, criminal penalties and even imprisonment.  Here are a few examples of recently settled cases in August 2015:

1) Creating discriminatory barriers for immigrants who have permission to work in the United States, $165 civil penalty with $50K in back pay:
http://www.justice.gov/opa/pr/justice-department-settles-discrimination-claim-against-louisiana-crane-construction

2) Requiring non-U.S. citizens, but not similarly-situated U.S. citizens, to present specific documentary proof of their immigration status to verify their employment eligibility, $200K civil penalty: http://www.justice.gov/opa/pr/justice-department-settles-immigration-related-discrimination-claim-against-nebraska-based

3) City of Eugene, OR improperly restricted law enforcement positions to U.S. citizens at the time of hire, even though no law, regulation, executive order or government contract authorized such a restriction. must pay a civil penalty, train its employees about the anti-discrimination provision of the INA and be subject to monitoring by the Justice Department for a period of three years!
http://www.justice.gov/opa/pr/justice-department-settles-citizenship-discrimination-claim-against-city-eugene-oregon

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

Immigration Compliance Group provides US inbound immigration services to individuals and employers throughout the USA and abroad. We specialize in business immigration and have a depth of experience in the IT, healthcare, arts, entertainment and sports industries, amongst others. Our services include complex business visas for investors, multinational managers, skilled professionals, outstanding individuals of high achievement (O-1, P visas, EB-1 and EB-2 Exceptional Ability cases) and PERM Labor Certification.  We additionally provide employer compliance consulting services on proper I-9 (Employment Eligibility Verification) management, auditing, training, and work with our clients to develop a culture of immigration compliance. Our door is open for new clients — we extend a 20% discount on the first case with our firm.  Contact us at info@immigationcompliancegroup.com or call 562 612.3996.

We’re starting to intake alot of questions concerning these cards as they now filter through the system to employers charged with handling Form I-9 employment verification.

Twelve states and the District of Columbia enacted laws to allow unauthorized immigrants to obtain a driver’s licenses. These states—California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, New Mexico, Nevada, Utah, Vermont and Washington—issue a license if an applicant provides certain documentation, such as a foreign birth certificate, a foreign passport, or a consular card and evidence of current residency in the state. Eight of these states extended driving privileges in 2013. In 2015, Delaware and Hawaii enacted legislation to give unauthorized immigrants driving privileges.

Here are examples of some of the cards with various different annotations.

An employer is required to accept as a list B document an unexpired driver’s license or ID that meets the standard for I-9 purposes.  What’s the standard?  A photo and other identifying information such as, their name, date of birth, gender, height, eye color and address. The underlying issue here is state law vs. immigration (federal law) and USCIS regulations concerning Form I-9.

Both USCIS and OSC concur, despite the various different types of annotations that appear on driver authorization cards, that they meet the regulations for an acceptable List B document if they adhere to the standards mentioned above.

An employer is required to examine the documents presented by its employee and determine whether they meet Form I-9 requirements. If the employer accepts any document, including a state-issued license or driver authorization card, or other type of ID with a limiting notation as a List B document, the employer must also examine a List C document that evidences employment authorization in order to make a proper determination if the individual is eligible for employment.

Employers may reject a document if it does not reasonably appear to be genuine or to relate to the employee. Rejecting a document that satisfies Form I-9 requirements may constitute illegal discrimination under the Immigration and Nationality Act’s anti-discrimination provision or Title VII of the Civil Rights Act of 1964.