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.

As USCIS continues its H-1B enforcement efforts, the Department of Labor announced last week its latest case – a computer consulting company in New Jersey – that was fined $638,449 in back wages and interest and $126,778 in civil penalties.  The company was also barred form using the H-1B program for one year.  DOL additionally reported in its announcement that their investigations since 2005 have resulted in $5.6 million in back wages and $300,000 in civil monetary penalties in New Jersey alone.

The most common violations include:

1. Failing to pay the required wage on the H-1B petition
2. Failing to post the Internal Job Posting Notice of the filing of a labor condition application at every worksite where H-1B workers are employed, and
3. Failing to pay nonimmigrant workers the required wage for all non-productive time caused by conditions related to employment.  This includes lack of assigned work between projects and non-employment because of a lack of a permit or license or studying for a license exam.

Immigration Solutions provides comprehensive assistance to our clients in developing and maintaining best practices necessary to assure compliance with USCIS and Department of Labor regulations.  We have extensive knowledge of the H-1B and LCA regulations and provide our clients with the tools necessary to run a successful H-1B program, including the preparation of Public Access Files and the set-up and maintenance of LCA tracking systems.

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.

Not only do several immigration fees increase as of 11/23/2010, but a revised I-129 (Petition for Nonimmigrant Worker) will make its debut on 11/23/2010 as well, and will become mandatory beginning December 22nd.  USCIS will accept previous editions of the form for 30 days or until December 21, 2010.

The new I-129 petition has been months in the making, and is the first major overhaul of the petition in years. When it is implemented, employers will see new questions and compliance issues, particularly for H-1B and L-1 filings.  The petition is used for temporary workers in a variety of nonimmigrant visa classifications.

The revised form will be available on 11/23/2010 on www.uscis.gov

Immigration officials, in an effort to deter fraud, will unveil today a new naturalization certificate for people who become U.S. citizens.

The new certificates, used to obtain passports and other legal documents, come after USCIS unveiled a new green card — the ID card for immigrants with permanent residency status — this year that had improved security features to prevent forgery and tampering.

The old Naturalization Certificates were filled in manually and the person’s photograph was just attached to it. The new computerized certificates will have all that information embedded in the document and also will have ink patterns that are harder to duplicate.

It’s important to note that  previously issued certificates remain valid.

If you haven’t seen the new USCIS Naturalization Resource Center, take a look.  It’s very informative, easy to navigate and an excellelnt addition to their website.

USCIS has updated and revised the E-Verify manuals for both Employers and Federal Contractors.

The new manuals reflect recent changes to the E-Verify website and offer additional guidance and clarification. Employers or their agents who use E-Verify, federal contractors who have the Federal Acquisition Regulation (FAR) E-Verify clause in their contracts, and employers considering using E-Verify should become familiar with the new manuals.

Note that there are some new FAQ’s with detailed instructions for FAR contractors that have the FAR E-Verify clause in their contracts.  Also, note that web service developers have until December 2010 to add the required functionality from the June 2010 E-Verify redesign.

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We find in our I-9 audit practice that  most employers have problems with their I-9 documentation and that if discovered by ICE during an audit, would cost them thousands of dollars in fines.  We also find that most employees charged with handling I-9’s have never received any formal training.  If you are aware that your I-9’s have problems, we urge you to not ignore it.  Please take a look at our services and solutions.  Our talented and knowledgeable compliance team can discuss the following with you:

• Full onsite or offsite I-9 audit with analysis and report of most common and prevalent issues and instructions as to how to correct your I-9 forms
• A partial onsite or offsite I-9 Audit with analysis and report of most common and prevalent issues and instructions as to how to correct your I-9 forms
• I-9 Compliance Training on the laws that govern I-9 processing and management with specific training on most common and prevalent issues
• A training program that will teach you how to perform your own I-9 Audit
• The drafting and implementation of an I-9 Policy and Procedure Manual

You can contact our office here.

USCIS has released a new 97-page E-Verify User Manual for Federal Contractors today.  What with ICE announcing all time record breaking highs on Employer Worksite Investigations for 2010, now is the time to act upon getting your I-9’s in order, particularly if you know that there are paperwork violations buried in them and particularly if you know that you’ve had turnover in personnel that are charged with handling your I-9’s.  Please see our previous Blog entry on this topic today.

Our compliance team can plan and structure a project to your needs that will ease the uncertainty of going through a partial or full audit of your I-9 employee population.  We ask all our clients and readership to strongly consider consulting with us, if you haven’t already, to discuss the management of your employee verification program, policy and procedures.

Senate Dems Robert Menendez (NJ) and Patrick Leahy (VT) introduced the CIR Act of 2010 that proposes major  overhaul to the immigration system, making changes in employment and family-based programs with enhancements to I-9 (employment eligibility verification) employer obligations.  Most feel that this will not be the avenue by which CIR is accomplished, but that many of its ideas, including those int the CIR ASAP Bill that was introduced by Luis Gutierrez (D/IL) and the REPAIR proposal introduced by Senators Schumer (D-NY) and Lindsey Graham (R-SC) earlier this year, will all be considered when Congress decides to get serious about tackling immigration reform and actually start debating the issues.

The Bill does propose the creation of an Immigration Commission that would have authority to recommend yearly NIV and IV numerical limits.

The Bill proposes changes to the H-1B program by requiring employers to post the job opening on a new DOL website.  Employer with 50 or more employees would be prohibited from petitioning for additional H-1B workers if their workforce was comprised of more than 50% H-1B and L-1 workers, excluding those who are the beneficiaries of a pending or approved labor certification or employer-based immigrant petition.  Additionally, employers would be prohibited from placing H-1B workers at a 3rd party site, unless the worker was primarily supervised and controlled by the petitioner/employer.

DOL would be charged with additional authority to review LCA’s for fraud or misrepresentation and would have up to 14 days to certify an LCA (makes one wonder if we’d ever get a case out the door!)  with additional authority to investigate complaints against H-1B employers and to conduct employer H-1B compliance audits.  This is yet another reminder to employers to make sure that their Public Access Files are in order and that they are working with immigration attorneys who provide them with PAF files and overall compliance guidance and training.

Proposed changes to the L-1 Program would include requiring employers to offer L-1 employees insurance and other benefits on the same basis as that offered to US workers.  Increasing restrictions would be imposed on “new office” L-1 petitions and would require DHS to submit a report to Congress on L-1Blanket use.  On the positive side, the bill wold provide some relief for small employers seeking L-1A status for foreign nationals.  It would forbid adjudicators from using the small size of an L-1 employer as a negative factor in executive or managerial eligibility for L-1A status, but would increase DHS authority to investigate complaints against L-1 employers and impose new penalties upon employers who violate L-1 regs.

*** (Relief for Registered Nurses) *** — The Bill proposes to create a new H-2C temporary, nonimmigrant visa for occupations for which there is a shortage of American labor.  The initial H-2C visa would be valid for three years and renewed for three more years. With some exceptions, an H-2C visa could be revoked if the visa holder has been unemployed for more than 60 days.  After 4 years, an H-2C non-immigrant may file an application for adjustment of status, provided that he/she has been continuously employed, establishes progress toward civics and English proficiency, meets all criminal and other background checks and pays additional fines and fees.

There is a proposal to include a new H-1C program for lesser-skilled workers with job offers from US employers, and the creation of a premium processing program for administrative appeals of employment-based immigrant petition denials.

Relief for Undocumented Immigrants: Creates a provisional legal status, Lawful Prospective Immigrant (LPI), for undocumented immigrants who are present in the U.S. as of September 30, 2010, register with the government, have never committed a serious crime, and are otherwise admissible to the United States.  LPI status will be initially valid for four years, with the possibility of extensions.  LPI status confers work and travel authorization.  After six years in LPI/LPID status, an applicant may apply to become a lawful permanent resident, provided he or she continues to meet all eligibility requirements, including renewed biometrics and background and security checks, and also establishes basic citizenship and English skills, payment of all taxes, and compliance with Selective Service registration.

Employment-based Immigrant Petitions: The bill would recapture unused employment and family-based visa numbers from 1992 to 2007, and implement for future years  that unusued immigrant visa numbers roll over each fiscal year including the base amount of 140,000 –  plus numbers from 1992-2007 – and any unusued numbers from the previous year.  Those with approved visa petitions who are subject to wait times would be eligible to apply for AOS upon payment of an additional $500 filing fee and would be entitled to 3-year EADs and travel documents.  Those with pending immigrant visa petitions would be eligible to apply for AOS at the discretion of DHS.

We link to a complete summary of the CIR Reform Act from Immigration Policy Center.

Immigration Solutions will continue to update and report on any and all CIR issues as they arise.

USCIS is seeking the OMB (Office of Management and Budget) to approve a proposed rule that would require employers to pre-register before filing an H-1B cap petition.  Public comment will be sought on this issue and details are not being revealed at this time until it is published which could take several months.

What is known is that USCIS asserts that this will streamline the H-1B cap filing process by asking employers to register online and obtain a cap number before submitting a cap subject petition.  USCIS is suggesting that a system such as this be put in place for other petitions that are subject to an annual cap.

The Ombudsman in his report this year suggested that USCIS begin developing the system and with the plan to have it up and running by fiscal year 2012.  A plan such as this has been suggested in the past to deal with the high volume submissions of H-1B cap cases (which certainly hasn’t been an issue in the last 2 years).  We will keep you posted on any further developments concerning this issue.