Department of Homeland Security

On Monday, June 5 from 2:00 to 3:00 pm EST I will conduct a free webinar on “Workplace Investigations by the Department of Homeland Security – Is Your Restaurant Ready?”  The webinar is sponsored by the Georgia Restaurant Association.  Much, if not all, of what I’ll be discussing regarding employers compliance with immigration laws during the hiring process relates to all employers and isn’t limited to restaurants.  During the webinar I will discuss the following topics:

  • Factors leading to a workplace investigation by DHS – ICE
  • How to prepare for a workplace investigation by ICE
  • How to respond to a Notice of Inspection
  • What happens during an ICE audit
  • The role of the Department of Justice in workplace investigations
  • Collateral consequences of workplace investigations

Click here to register.

The wait is over!  U.S. Citizenship and Immigration Services (USCIS) has issued an updated M-274, Handbook for Employers which provides guidance on completion of the Form I-9 and an overview of unlawful discrimination and penalties related to completion of the Form I-9.

New sections include guidance on (i) automatic extensions of employment authorization documents (EAD) in certain circumstances (page 13); (ii) failure of an employee to present acceptable documents (page 26); and (iii) correcting the Form I-9 (page 29).

Click here to view the updated M-274, Handbook for Employers.  Remember — all employers must be using the updated version of the Form I-9 as of January 22, 2017.  The form is available on USCIS’s website.

Please join me and my colleague, Teri Simmons, for a free webinar on January 24th at noon EST during which time we’ll discuss immigration compliance issues relevant to employers.  We’ll also cover what organizations can expect in 2017 under the new Administration.

Teri and I will cover topics related to the Employment Eligibility Verification form (the “Form I-9”), E-Verify, government investigations and penalties related to the Form I-9, and on-site audits when petitioning for H and L nonimmigrant status.  Click here to register and learn more about the topics we’ll address.

The webinar is pending CLE credit approval by the State Bar of Georgia.

 

If your organization has been using E-Verify for more than 10 years, this posting is for you.  If you are an E-Verify Employer Agent and your cases go back over 10 years, this posting is for you.

U.S. Citizenship and Immigration Services (“USCIS”) must dispose of transaction records that are over 10 years old annually.  The next time they will do so is April of next year. Which means that employers and E-Verify Employer Agents with transaction records in E-Verify dated on or before December 31, 2006 must download these records from now through March 31, 2017 in order to have a record of such.

Historic Records Report Fact Sheet.

Instructions to download the Historic Records Report.

Keeping tabs on the revised Form I-9 that U.S. Citizenship and Immigration Services (USCIS) is due to release, USCIS updated its website to provide important dates.  I previously wrote about the revised Form I-9 here and how it has been cleared for publication.

This week USCIS posted on its website that they must release the revised Form I-9 by November 22, 2016 and that employers may continue to use the current version of the Form I-9 until January 21, 2017.  The current version of the Form I-9 has a revision date of 03/08/2013 N.

Recap — we still don’t have the revised Form I-9 but for now and until January 21, 2017, employer should continue to use the current version of the Form I-9 available on USCIS’s website.

The current version of the Employment Eligibility Verification form (Form I-9) expires today.  I’ve previously posted on my blog here on this topic.  Below notice is from U.S. Citizenship and Immigration Services (USCIS) regarding what to do in light of this expiration date.  Presently, the revised version of the Form I-9 is the subject of a 30 day notice and comment period, following an earlier 60 day notice and comment period.  If you would like to see the “revised” Form I-9 click here .  Hopefully the revised Form I-9 will be available in May.  Note that it will still be a two page document but there are some formatting changes which USCIS hopes will make the form easier to complete.

USCIS Notice:

“Until further notice, employers should continue using Form I-9, Employment Eligibility Verification. This current version of the form continues to be effective even after the Office of Management and Budget control number expiration date of March 31, 2016, has passed. USCIS will provide updated information about the new version of Form I-9 as it becomes available. 

Employers must complete Form I-9 for all newly hired employees to verify their identity and authorization to work in the U.S. To learn more about Form I-9 visit I-9 Central.”

 

 

In California, individuals now have a private right of action to bring a claim against an employer who uses the E-Verify program for pre-screening purposes.  They also have a private right of action if an employer does not provide them with the required notices as part of the Further Action Notice (FAN) or Tentative Notice Confirmation (TNC) process.  These are now considered unlawful employment practices under California’s Labor Code.

E-Verify is the electronic employment eligibility verification program maintained by U.S. Citizenship and Immigration Services (USCIS).  It complements the Form I-9, as the employer needs to input information from the Form I-9 into the E-Verify system when creating a case to determine employment eligibility.

Currently, an employer using E-Verify cannot use the program to pre-screen employees to determine if they are employment authorized prior to hiring them. Check pages 8 and 82 of the E-Verify User Manual which states that “Pre-screening [is] the prohibited practice of creating a case in E-Verify before a job offer has been accepted.”   In addition, an employer using the E-Verify system must provide any notices generated as a result of a FAN or TNC to the individual.  To read more about employers obligation to provide E-Verify generated notices such as the TNC, read the E-Verify Memorandum of Understanding  or on USCIS’ website.

Back to California and AB-622 Employment: E-Verify system: unlawful business practices.  The law added Section 2814 to the California Labor Code.  AB-622 was signed by the Governor in October of last year.  In California, what now constitutes an unlawful employment practice has been expanded to include pre-screening of job candidates through use of the E-Verify system and not providing E-Verify generated notices specific to an individual’s E-Verify case.  This means that individuals now have a private right of action, which they can enforce in state court.  And it can result in a civil penalty up to $10,000 for each violation for the employer who is found to have engaged in an unlawful employment practice.

Bottom line — do not use the E-Verify system to pre-screen job candidates prior to hiring them and make sure you provide them with any of the notices generated by the E-Verify system, such as the TNC.

On Tuesday the 29th of September, at 2 pm EST, I will conduct a free webinar entitled “I-9 and E-Verify Best Practices for a Legal Workforce”.  The webinar is directed to HR professionals and others involved in the new hire onboarding process as well as the continuing employment of individuals.  The webinar will provide practical tips on completion of the Form I-9, including the handling of remote employees, and use of the electronic employment eligibility verification system, known as E-Verify.  It will explore common errors when completing the I-9 and consequences of non-compliance with immigration laws and regulations.

Accurate Background will host the webinar – thank you Accurate Background.  You can register by clicking here.

Oh, and did I mention it’s free!  I hope you will join us.

The E-Verify program is set to expire 9/30/15 unless it is reauthorized by Congress (cue scary movie soundtrack).  So what does that mean for employers who use E-Verify?  Will you be locked out of the system come October 1, 2015 if the program isn’t reauthorized by Congress?

Quick recap of the program, which allows employers to electronically verify new hires’ work authorization.  The program is administered by U.S. Citizenship and Immigration Services (USCIS).  It was created as the Basic Pilot program back in 1996.  Over time it has changed names from the Basic Pilot program to E-Verify. Over the years it has been reauthorized by Congress for a set amount of time, usually at the last minute.  Last time it was reauthorized (in 2012) it was reauthorized for a period of 3 years, until September 30, 2015.  Congress is currently in recess until September 8, although discussions are on-going about reauthorization for this program and three other programs set to expire at the same time (EB-5 visa program, Conrad 30 and religious worker visas).  To learn more about this and what will happen if it is not reauthorized, please join me for a FREE webinar later this week with Chad Whittenberg from Equifax Workforce Solutions.  Details are below:

E-Verify Down to the Wire: Will Congress Shut It Down? (And Other Updates)

Date:   Thursday, Aug. 13, 2015

Time: 2:30 PM EST

Duration: 30 minutes

The deadline for reauthorization of E-Verify is looming. Congress is likely to go right down to the wire, finalizing the needed legislation potentially only days before the Sep. 30 deadline.

In this half-hour session, we review the most likely scenarios for reauthorization based on past history, and provide updates on other recent developments that affect employers who use E-Verify.

 

  • Reauthorization – what it is, why it happens, how often it happens
  • Congress – likely paths to reauthorization, but what if…
  • RIDE authorizations, signature-waived permanent resident cards, other updates

TO REGISTER, click here or here.

A national staffing company has been fined $227,000 in civil fines for improperly completing the Forms I-9 for its remote hires.  This despite the fact that Immigration and Custom’s Enforcement (ICE) determined that all employees were legally authorized to work in the United States.   According to a press release by the company, the reason for the fine lies in the fact that the wrong person signed the I-9 forms.   Again, according to a company press release, this was how they completed Forms I-9 for remote hires.  Which, as I will explain later, was not properly done and hence why the company was fined:

Prior to the government’s notifying ESSG of any problem with its employment verification process and because of ESSG’s nationwide sprawl, the company confirmed new employees’ identity via an on-site agent who examined applicants’ documentation for authenticity. Once confirmed, the agent faxed color copies of the documents to company headquarters, where ESSG staff completed and signed the mandatory I-9 forms and again confirmed employees’ authorization with the advanced electronic verification system (E-Verify) used by more than 500,000 companies in the U.S.

The government objected to ESSG’s process, claiming the law requires the same person who views the applicant’s original documents must complete and sign the I-9, and disregarded ESSG’s voluntary use of E-Verify.  Despite the judge’s decision in favor of the government, ESSG is standing its ground and preparing an appeal.”

This practice is described in the OCAHO judge’s order as well.  Namely that an off-site agent of ESSG examined the original documents, copied them and sent them to ESSG in Minnesota where a payroll administrator completed section 2 of the Form I-9 by working off the photocopies.  Turns out the government is right in saying the I-9s were improperly completed.

The regulations at 8 C.F.R. §§ 274a.2(a)(3) and (b)(1)(ii)(A) – (B) clearly state that the individual who examines the original document(s) presented by the employee who completes section 1 must be the same person who completes section 2.  There must be a physical inspection of the document(s) presented for I-9 purposes  AND the person reviewing them must be the person who completes section 2.  No exceptions for remote hires.  Putting aside the reality that this does not allow employers to leverage technology (like Skype) and that it seems like an archaic requirement in the 21st century … truth is that is the law.  Section 2 also includes an affirmative attestation in which the person completing the section states, under penalty of perjury, that they have examined the document(s), they appear to be genuine and relate to the individual presenting them.  This requires a tactile review of the documents.

The judge’s conclusions of law were, among others, that:

  • Failure to review an individual’s original documents before signing section 2 of the Form I-9 constitutes a failure to properly complete section 2 of the I-9 in violation of 8 C.F.R. § 274a.2(b)(1)(v); and
  • Section 2 of the I-9 is properly completed only when the person who signs the section 2 attestation is the same person as the person who examines the employee’s original documents.

In total, the judge found that 243 employees listed in the Notice of Intent to Fine fell under the employer’s incorrect I-9 practices for remote hires.  The judge found no “compelling reason” to adjust the penalties set by the government (and Judge Thomas usually does).  ICE set the penalties “for the false attestations in section 2 of the I-9s” for the 242 employees at $935 each.

To read the Final Decision and Order in United States v. Employer Solutions Staffing Group II, LLC (OCAHO Case No. 14A00005) click here.

If you are a company with remote hires and would like to discuss your practice please contact me at Arnall Golden Gregory LLP.