Posts Tagged ‘I-9’

New E-Verify Requirements & Redesign

June 9, 2010

For those companies that use E-Verify in conjunction with the I-9 for employment verification, please note that the E-Verify site is being redesigned. To continue to use E-Verify after the redesign, you will need to complete a new tutorial (about 20 minutes).

For more detailed information click to see the UCIS website.

A “sneak preview” is available June 10 at 2PM EDT. To register, click to go to the UCIS website registration page.

Davis Brown Immigration Department

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CIS Issues New Green Card (It’s Green!) and Other News

May 12, 2010

Well, I’m not sure if it is environmentally friendly, but it will now be green in color (see picture attached). The card will be issued for new permanent residents and replacement cards starting yesterday (May 11), and is chock full of additional security features.

Go to www.uscis.gov – it is the top news story – for more information.

And other news . . .

H-1B cap count

As of May 11, 18,000 “regular” and 7,600 “advanced degree” petitions have been filed against the numerical limits of 65,000 and 20,000 (respectively).  Remember that labor condition applications (LCAs) are taking at least a week, so don’t wait to the last minute to let us know if you need an H-1B.

Will IA’s “temporary” DL be OK for I-9?

If you understand the previous sentence, you are a human resources professional.

Iowa has changed its driver’s license issuing procedures so that, like many states, upon application you will receive a 30-day “paper” license and within that time will receive the “plastic” license good for the period of time to which you are entitled by law.  An example of the new driver’s licenses is attached.

We have confirmed with DOT that the “paper” license is a license, and will be valid for that purpose (at least they hope you will be able to board a plane outside of Iowa).  Since it has a photo, it will satisfy List B as an identity document on the I-9 form.  Although it will expire, typically we do not have to re-verify identity documents for I-9 purposes (thank goodness!).

So, as an employer trying to comply with the I-9 law, you can accept the temporary “paper” DL, so long as it appears to be genuine and relate to the person presenting it and is still valid at the time of the I-9 completion.  You will record the expiration date, but do not have to “tickle” that date (unless having a valid DL is a job requirement).

The harder question is what if you WANT to check for the “plastic” DL?  After all, the point of the new system is to catch terrorists, etc.  The information from the initial application is sent to a central location to be checked against all kinds of security databases.

Our employment lawyers tell us that so long as you implement this as a policy that applies to everyone or to a specific category that makes sense (and is not unlawfully discriminatory) that should be OK.

But really, when you think about it, if the person fails the security database check, we hope that someone with a badge is following up to remove that person to a more secure location . . .

If you have particular questions, we have employment lawyers here to help you.

Other laws of note

Early Retiree Reinsurance Program:

HHS recently released interim final rules outlining the Early Retiree Reinsurance Program established by the health care reform legislation adopted in March.  This is important for any employer that provides health benefits to early retirees (retirees between the age of 55 and 64).  The new rules require plan sponsors to apply for and be approved for the Program prior to submitting any claims for reimbursement from the federal government.  Plan sponsors of plans covering early retirees may begin applying June 1, 2010, regardless of whether they currently have a claim that would be eligible for reinsurance.  Given the limited availability of funds, HHS may stop accepting applications at any time.  Therefore, it is important that interested plan sponsors apply early.  Contact Susan Freed (SusanFreed@davisbrownlaw.com), one of our health lawyers, for details.

For small tax-exempt entities:

Until recently, tax-exempt organizations that had annual gross receipts of $25,000 or less had no Annual Information Return (Form 990 series – an exempt’s equivalent of an annual tax return) filing obligation.  Under the Pension Protection Act, however, even these smaller exempt organizations now must file an electronic “e-postcard” return with the IRS, or risk having their exempt status automatically revoked by statute.  Failure to file an e-postcard for 3 consecutive years will result in this automatic termination.   The e-postcard filing is very simple, and is done over the Internet.  For calendar year organizations whose 3rd skipped filing year ended December 31, 2009, their exempt status will be revoked May 15th.  Exempts that operate on a fiscal-year basis will have a later deadline depending on their required filing date, which is generally the 15th day of the fifth month after their fiscal year ends.  Contact Bill Boatwright (WilliamBoatwright@davisbrownlaw.com), one of our tax lawyers, for details.

And finally, the Arizona law  – legal analysis

I am not a Constitutional lawyer (although we have them in our firm), but I thought you might appreciate hearing the Constitutional argument against the Arizona “papers please” law from Crystal Williams, the Executive Director of the American Immigration Lawyers Association (only read this if you want to know what lawyers talk about among themselves):

One of the problems with debates on serious issues being played out in the media is that all sides, by necessity, make their arguments with shorthand and sound bites. The same is true, in spades, of the public discussion on Arizonas SB1070 immigration law.

Much of the debate centers around the laws requirement that law enforcement personnel demand immigration documents when they have reasonable suspicion that someone they have stopped might be undocumented. Proponents of the law often give the example of an Arizona driver who has been stopped for speeding and is unable to produce a valid driver’s license as an example of reasonable suspicion.

While that example makes for a nice sound bite, the reality is a little more complicated. If Arizona had meant to limit the circumstances to that, they readily could have written a law that said that if a person required to produce an Arizona driver’s license cannot do so, check for his proof of legal status. That would have been ethnically neutral, and would have avoided getting into the vague territory of “reasonable suspicion.” But they didn’t do that. Instead, they went much further.

The Arizona law requires law enforcement officers (including non-police civil servants enforcing municipal civil codes) to demand documents where “reasonable suspicion” exists that a person might be undocumented. Thus, if a county official goes to a home to cite the resident for the grass being too tall, or having too many people living in the house, or having a car on blocks in the yard, this obligation kicks in. Since there is no reason in these kinds of instances to look at a drivers license, what would create “reasonable suspicion” in this form of stop?

The legal definition of “reasonable suspicion” arises from a 1968 Supreme Court case called Terry v. Ohio. The court there said that, under the Fourth Amendment prohibition against unreasonable searches and seizures, an officer may “stop and frisk” a person if the officer observes “articulable facts” that make it “reasonable to assume” that the person is violating the law. Well, here, the “frisk” would be the demand for the documents. But what articulable facts could arise that would make it reasonable to assume that someone is in violation of immigration laws? THAT is the sticking point. In the vast majority of circumstances covered by this law, the ONLY articulable facts would be ethnically based–color of skin, accent, language. And THAT then triggers an issue under the Equal Protection Clause of the Fourteenth Amendment to the Constitution, which states “no state shall … deny to any person within its jurisdiction the equal protection of the laws”.

Modern law interpreting the Equal Protection Clause derives from the famous school desegregation case, Brown v. Board of Education. That case, and those that have followed it, have established that this Clause operates as a general restraint on the government’s power to discriminate against people based on their membership in certain classes, including those based on race and ethnicity. Because in the vast majority of the circumstances in which the Arizona law requires officers and officials to demand documents, the only possible articulable fact that would lead to the demand is ethnically based, the law conflicts with the Fourteenth Amendment.

It also is just plain against American values to engage in this kind of ethnic profiling.

There are those who argue that police develop “instincts” and “can identify patterns” that lead them to a reasonable suspicion based on their experience. Even assuming that that is true, and is not in fact based on subliminal prejudices, it would not be true here. The enforcement of this law is being assigned to state and local police and to civil servants, rather than to immigration officers. None of them have the experience to know what those patterns would be. Again, that leaves them with only ethnicity to serve as a guide. And, since the majority of ethnic minorities, including Latinos, in Arizona are in fact U.S. citizens or legal residents, ethnicity would not be a reliable basis even if such profiling were not morally repugnant.

(From AILA InfoNet Doc. No. 10051130 (posted May. 11, 2010)

No doubt this is headed for the courts.

Lori Chesser
Davis Brown Immigration Department Chair

H-1B Cap Almost Reached and Other News

December 19, 2009

Happy Holidays from the Davis Brown Immigration Department!  Surviving 2009 is an accomplishment in itself.  We wish all of you a safe, happy and prosperous New Year!

Following is an update on the latest in immigration-related law and policy.

H-1B Cap Almost Reached

The soft economy this year resulted in H-1B (professional work visas) being available for much longer than they have been in the recent past. Usually these visas run out on April 1, the first day of the application period.  But last week the Immigration Service reported that only 1,000 remain and will likely be used up in the next few days.

This means that the only H-1B filings we can make until April 1 are for transfers (where the person has been counted toward the cap already) and cap-exempt positions (jobs at colleges or universities, doctors receiving a Conrad 30 waiver, and jobs at entities affiliated with higher education institutions, for the most part).  Those cases filed April 1 for new H-1Bs must be for jobs starting October 1, 2010.

Immigration Reform Bill Introduced in the House

The Comprehensive Immigration Reform for America’s Security and Prosperity (CIR ASAP) Act of 2009 was introduced by Rep. Gutierrez (D-IL) on December 15.  It is a huge bill and is the first in an expected series as Congress considers changing the immigration system.  More to come as we analyze this bill and its chances of success (why do they always introduce immigration legislation during the holidays?)

I-9 Enforcement – This Time They Mean It

After many fits and starts over its 20+ year history, the I-9 form is finally getting the attention that has been threatened for so long.  Immigration & Customs Enforcement (ICE) has not only announced, but is actually doing, wide-spread I-9 audits, resulting in fines. The stated goal of these audits is as a criminal prosecution tool as well as an administrative enforcement tool.

The audits are focused on particular industries on a rolling basis, adding new industries as others are completed. While the numbers are not huge (85,000 I-9s reviewed, 16% resulting in Notice of Intent to Fine and more than $2 million in fines from 654 audits), they are continuing and consistent for the first time in memory.

Now is a good time to self-audit I-9s and consider an outside “spot-audit” to assess potential liability and any other workforce concerns.  If your company receives an audit request, consider it with no less seriousness than an IRS audit or wage/hour or OSHA visit, and let us know if we can help.

ESTA Travel Registration – When “Delay” Means “Denial”

Travelers using the visa waiver program (people from certain countries are not required to obtain a visitor’s visa, but may instead enter for up to 90 days on a passport) must now register on-line under the ESTA (Electronic System for Travel Authorization) (go to http://www.cbp.gov/xp/cgov/travel/id_visa/esta/).

Recently, the government announced that persons who had applied for visas and been refused for lack of information under INA §222(g) should disclose this “delay” as a denial on ESTA.  Failure to do so could result in refusal at entry as a person making a misrepresentation.

The problem is that visa applicants do not always realize that the request for more information is actually a “denial”.  Therefore, this pronouncement is controversial and we hope it will be changed.  In the meantime, please be careful in filling out ESTA registration and let us know if you have questions.

ESTA Travel Registration – Watch Out for Scams!

In finding the website for the above item we found that many non-governmental sites are operating purporting to register people for ESTA.  Please make sure to enter through the Customs and Border Protection portal (www.cbp.gov) rather than these other sites, which may be scams to obtain your ID information or sell you something that is offered FREE by the federal government.

Inquiries for the Citizenship & Immigration Service

As many of you know, the Immigration Service as established a National Customer Service Center with an 800 # (800-375-5283) for various inquiries.  This number provided a lot of unreliable information – and long waits to talk to a person – when first established but has improved.  While we still caution that the 800# is not legal advice, it is an initial portal to making most case inquiries, even for attorneys.

An email inquiry box is also now available at the four service centers, but only if you have called the 800# first and waited 30 days in most instances.

Because Canadians cannot access the National Customer Service Center through the 800# number to ask about general immigration questions, Canadian customers may now inquire about general immigration information at USCIS.Canada@dhs.gov in addition to obtaining immigration information at http://www.uscis.gov.

The website, www.uscis.gov, was recently re-designed.  It is better in some ways and worse in others, but it is a good place to find general information.  We refer our clients to the site in limited instances, such as to find the nearest Civil Surgeon for an immigration medical exam.

Improved customer service is a fantastic goal – but it is not legal advice.

In Other News

Some other items that are not as recent, but still important:

Congress has extended the religious worker (non-minister) immigrant category, the EB5 “regional center” immigrant program to allow for indirect job creation for immigrant investors.  These programs expire every few years, causing consternation for all.  But at least we have another breather.  The e-Verify employment verification program was also extended.

The HPV vaccination is no longer required for women green card applicants.  This vaccine was controversial and expensive.

HIV has been removed from the list of communicable diseases resulting in a bar to immigration absent a waiver.

Lou Dobbs (a vocal opponent of immigration reform) resigned from CNN and is now running for Congress.  His platform includes supporting legalization for unauthorized immigrants.  You just never know . . .

For Employers – COBRA Extension

Our Health Law Department reports the following:

The House has passed a bill extending the federal COBRA subsidy.  The bill’s provisions extend the time frame to qualify for the subsidy by two months, through February 28, 2010.  The bill also extends the length of the subsidy from 9 months to 15 months.  The bill also contains notification requirements for employers.

We expect the bill will quickly be passed by the Senate prior to its recess for the holidays.  Once the bill has passed the Senate, we will provide you with a detailed summary of the bill’s provisions and its impact on employers.

Please contact Susan Freed at SusanFreed@davisbrownlaw.com if you would like to be on her list or need additional information.

ICE Launches I-9 Audits

July 2, 2009

Please see the Immigration & Customs Enforcement press release below regarding this new enforcement initiative launched yesterday.

If you have received an audit, please let us know.

If you have not received an audit, this is a good time to make sure your I-9s are in good shape 🙂  These appear to be “paper” audits, which means you would receive a request for documents, rather than “operations”, which means you would receive a visit from an ICE agent.  An audit can spiral into an operation, of course.

Let us know if you have questions.

# # #

ICE launches initiative to step-up audits of businesses’ employment records
652 businesses nationwide being served with audit notices today
WASHINGTON – U.S. Immigration and Customs Enforcement (ICE) is launching a bold, new audit initiative today by issuing Notices of Inspection (NOIs) to 652 businesses nationwide – which is more than ICE issued throughout all of last fiscal year. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This new initiative illustrates ICE’s increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.
“ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE’s long-term strategy to address and deter illegal employment,” said Department of Homeland Security Assistant Secretary for ICE John Morton.
Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual’s identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.
The 652 businesses being presented with a NOI today for a Form I-9 audit have been selected for inspection as a result of leads and information obtained through other investigative means. Due to the ongoing, law enforcement sensitive nature of these audits, the names and locations of the businesses will not be released at this time.
In FY 2008, ICE issued 503 similar notices throughout the year. In April, ICE implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. The nationwide initiative being launched today is a direct result of this new strategy.

# # #

I-9 Form Still Valid past June 30, 2009

June 29, 2009

The Immigration Service announced Friday that the Employment Eligibility Verification form I-9 (Revision date 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009, its stated expiration date.

Per its press release, “USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire.

USCIS will update Form I-9 when the extension is approved.   Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.”

The I-9 form is used to verify a person’s authority to work in the United States.  It is required for all new hires after November 6, 1986.  A new Employer Handbook with revised guidance for employers was released with the new I-9 form earlier this year.

Please let us know if you have questions about the I-9 form or employment verification or would like to schedule a training session on this tricky little one-page form.

New I-9 Form Implementation Delayed & H-1B Misinformation

February 3, 2009

The Immigration Service delayed the effective date of the new I-9 form that was to go into effect Feb. 2 for 60 days (until April 3, 2009).  They are taking comments on the new form until March 4, 2009.

Just as background, the I-9 form is to be completed for all new hires within 3 days of hire to document that the person is authorized to work in the United States.

Additionally, if a person’s work authorization expires, the I-9 must be updated or a new one completed to show that work authorization was extended.

The changes to the I-9 form were meant to conform to recent law changes and to make the list of acceptable documents smaller to prevent confusion for employers and to limit fraud.

Employers may continue to use the current version of the form, which is available (free of charge) at www.uscis.gov.
Stand Up for H-1Bs!

Those of you in Des Moines may have seen the front page AP story today decrying H-1B use by some of the banks given TARP money (and it may have run in other parts of the country as well).

While there can be misuse of any system, most people do not understand the H-1B program.  Sen. Grassley is calling for more regulation of H-1Bs (including prior recruitment, which we know will be expensive and time-consuming).

Those of you who have used the H-1B program and know that it is regulated enough and that it helps our economy by keeping jobs in the U.S. and keeping U.S. businesses competitive need to stand up and be counted.

Consider writing a letter to the Editor – or even better to Senator Grassley – about your experience with the program.  We need MORE H-1Bs, not more regulation.

Go to http://capwiz.com/aila2/home/ for an easy way to contact Congress.

New Form I-9 Required as of Feb. 2

January 29, 2009

The form is available (free!) at  http://www.uscis.gov/files/form/I-9_IFR_02-02-09.pdf

The changes on the form are made to implement the interim rule with request for comments published by DHS December 17.

The big changes are as follows:

– Expired documents are no longer acceptable for the Form I-9.  The form is no longer says “unexpired” on any of the items because the rule makes all expired documents unacceptable.  DHS is accepting comments as to whether to change this to allow documents that expired within a certain time period, such as 90 days, so stay tuned.

– Passports for Micronesians and Marshall Islanders are recognized as acceptable documents based on 2003 amendments to the Compacts of Free Association with those countries.  No EAD is required (although they may obtain one if they so desire).  Note that Palau is not included as that Compact is different and does require some proof of work authorization.

– List A now also includes a reference to the machine-readable immigrant visas (MRIVs) that contain a pre-printed temporary I-551 notation in the foreign passports when the person is admitted to the United States as a permanent resident.

– Section 1 now separates the former category “A citizen or national of the United States” into two separate categories.  The purpose is to make it easier to prosecute those who make false claims to U.S. citizenship. “Noncitizen nationals of the United States” (according to DHS) are persons born in American Samoa as provided in section 308 of the INA, 8 U.S.C. 1408; certain former citizens of the former Trust Territory of the Pacific Islands who relinquished their U.S. citizenship acquired under section 301 of Public Law 94-241 (establishing the Commonwealth of the Northern Mariana Islands) by executing a declaration before an appropriate court that they intended to be noncitizen nationals rather than U.S. citizens; and certain children of noncitizen nationals born abroad, as provided by section 308 of the INA, 8 U.S.C. 1408.  You do not need to memorize this 🙂
Work Site Enforcement is Still on the Agenda

The new Administration has not yet said too much about its immigration policy, but it has made clear that e-Verify will continue to be a focus as a way to fight ID theft, and that work site enforcement will continue, but (as noted by new DHS  Secretary Janet Napolitano) with a shift in focus to enforcement against employers that knowingly hire illegal aliens.

This statement is hard to decipher given that the former Administration certainly focused on employers in its enforcement efforts, including obtaining the largest settlement in history in December:  $20.7 million from IFCO, a pallet manufacturer.  This case, which took several years to wend its way through the system, was triggered when someone noticed certain IFCO employees tearing up their W-2s.
Members of House Subcommittee on Immigration Announced

The House Committee on the Judiciary announced the membership roster of the Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law on January 22, and for those of you in Iowa, Rep. Steve King (R-IA) will continue as ranking member.  Zoe Lofgren (D-CA and former immigration attorney) will continue to chair the committee.

National groups seem more and more convinced that some comprehensive reform package will gain momentum this year, perhaps by Thanksgiving.  We will keep you up to date on any developments or ways you can help make good reform a reality – including frequent contacts with Rep. King’s office if you are an Iowa constituent.


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