Employers take note that a new Form I-9 has been issued by the Department of Homeland Security. The Form I-9 was released July 17 and will be effective September 17, 2017.  Meaning, all employers must use the new version of the Form I-9 no later than September 18, 2017.  As of that date, prior versions of the form will not be acceptable.

In a nutshell the revised Form I-9 will (i) update List C to reflect the most current version of the certification or report of birth issued by the Department of State; (ii) make a change to the form’s instructions to remove “the end of” when describing the day on which Form I-9 completion is required; and (iii) make a revision to the name of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices to call it by its new name, the Immigrant and Employee Rights Section (IER). To read more about the changes please click here and see bullet point #4 and click here.

To view the Federal Register announcement click here.

Any questions please don’t hesitate to contact me – montserrat.miller@agg.com.

 

As my readers know, my legal practice covers advising organizations on both compliance with the Fair Credit Reporting Act as well as the Immigration and Nationality Act.  Background screening and immigration.  In the end, both federal laws address employee onboarding issues related to work authorization and background checks.

In addition to writing my (almost) weekly Compliance News Flashes, over the past few months I’ve written a series of bylines for different publications focusing on immigration-related worksite enforcement and how employers can protect themselves regarding their compliance with the employment eligibility verification requirements (i.e., the Form I-9). To facilitate compliance I thought it would be helpful to include these articles, as well as articles I’m quoted in along with a free webinar, in one blog posting with links.

Bylines:

  • The Record-Keeping Mistake You Could Be Making published in Construction Business Owner — “The Employment Eligibility Verification form—known as the Form I-9—is a deceptively difficult form for employers to complete, even though it is only two pages in length and its sole purpose is to document identity and work authorization. Proper completion of the Form I-9 is especially important in the industries with large workforces, given today’s environment. An employer’s good faith compliance with Form I-9 requirements can establish an affirmative defense to allegations of knowingly hiring unauthorized workers.”
  • Are Your Employment Practices Setting You Up for a Discrimination Claim? published in QSR Magazine — In an article published by QSR Magazine on April 18, 2017, Montserrat Miller helps leaders within the restaurant industry understand the employee onboarding process to avoid claims of unlawful discriminatory practices under the Immigration and Nationality Act (INA).
  • Are Your Employment Practices Setting You Up for a Discrimination Claim? published in FSR Magazine — In an article published by FSR Magazine on April 18, 2017, Montserrat Miller helps leaders within the restaurant industry understand the employee onboarding process to avoid claims of unlawful discriminatory practices under the Immigration and Nationality Act (INA).
  • Strategies to Maintaining a Legal Workforce as Concerns about Increased Worksite Enforcement Increase published in Georgia Contractor — see pages 30 and 31.

Quoted in:

Get Ready for More Immigration Audits,” Human Resource Executive Daily

In an article published by Human Resource Executive Daily on June 5, 2017, Montserrat Miller discusses immigration enforcement in the United States and how employers should prepare. “Make sure people on the front lines, such as receptionists, know what to do when an agent arrives. They also should know what documentation ICE agents are required to present when they arrive, and whom to summon for help, including HR leaders and legal counsel,” said Miller.

Immigration Enforcement Efforts Expected to Increase,” Society for Human Resource Management (SHRM)

In an article published by SHRM on May 18, 2017, Montserrat Miller is featured prominently in an article discussing how immigration enforcement related to the workplace–raids, audits and site visits–are likely to increase under the Trump administration and how audits will focus on visa fraud, not just Form I-9 violations.

Webinars:

In June I did a webinar for the Georgia Restaurant Association entitled Workplace Investigations by the Department of Homeland Security – Is Your Restaurant Ready?  — this free webinar is of general applicability and I encourage everyone to take advantage of free legal advice.

Compliance News Flashes:

If you’re interested in receiving the Compliance News Flashes (latest edition) please email me at montserrat.miller@agg.com. This newsletter provides quick blurbs on compliance issues related to background screening and immigration.

Please enjoy this week’s Compliance News Flash with blurbs about the largest FCRA-related jury award, litigation involving a public record vendor, the President’s travel ban, the Form I-9, and increased vetting of visa applicants.

Click here to read the Compliance News Flash.

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.

Are you an owner/operator, HR professional, compliance director or manager, or in-house counsel and interested in learning more about the Employment Eligibility Verification form (the “Form I-9”)?  Here are some educational opportunities:

  • If you are local to Atlanta, Georgia I will be joining my colleagues to talk about “Hot Topics in Immigration under the Trump Administration” at our offices on May 17, 2017 from 4 – 6 pm.  The event is sponsored by the German American Chambers of Commerce. Click here to learn more and register for this presentation.
  • In June I will be presenting a webinar for the Georgia Restaurant Association entitled, “Workplace Investigations by the Dept. of Homeland Security – Is Your Restaurant Ready?”  The webinar is from 2 – 3 pm on June 5, 2017.  Click here to register.

I recently wrote an article for Construction Business Owner entitled “The Record-Keeping Mistake You Could be Making” that addresses the Form I-9 and provides practical tips and best practices with respect to the form.  To read the article click here.

Finally, U.S. Citizenship and Immigration Services (USCIS) will be issuing a new Form I-9 this summer, which will take effect in September 2017.  One reason being that the International Entrepreneur Rule requires changes to the form to allow parole status to serve as a basis for employment authorization. Read more in Friday’s Compliance News Flash by clicking here.

Any questions please email me at montserrat.miller@agg.com.

Please enjoy this week’s Compliance News Flash with blurbs about Massachusetts’s CORI regulations, the Form I-9 and E-Verify, the redesigned Green Cards and Work Permits and what it means to employers, and the ongoing discrimination litigation by EEOC against Dollar General.

Click here to read the News Flash.

Read more about this in an article I wrote, published by FSR Magazine on April 18, 2017, which is intended to help leaders within the restaurant industry understand the employee onboarding process to avoid claims of unlawful discriminatory practices under the Immigration and Nationality Act.  The insights provided in the article are equally applicable to other industries and types of employers.

Click here to read the article.

 

Today’s fun fact – as an employer you cannot ask employees to provide a specific document or documents when completing section 2 of the Form I-9 (the Employment Eligibility Verification form).  Remember, all employers must complete a Form I-9 for new hires within three business days of hire.  Section 2 of the Form I-9 is where the employee must present the employer with documentary proof of identity and work authorization by selecting a document, or documents, from the Lists of Acceptable documents. Employers cannot tell employees what document(s) to present.  As an employer, your responsibility is to show the list to employees and have them select which document(s) they will present for section 2 completion.

Why is this a problem?  Because, when an employer requires certain documents from some individuals but not others this can lead to a claim of discrimination under the Immigration and Nationality Act (INA). Discrimination based on national origin or citizenship.  These types of claims are handled by the Department of Justice’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices.

To prove my point, the Department of Justice recently settled an immigration-related discrimination claim against a pizza restaurant franchisee with 31 locations in Florida for $140,000. Why? Well, the allegation was that the employer routinely requested that lawful permanent residents produce a specific document to prove their work authorization—their permanent resident card—while not asking the same of U.S. citizens. This is not acceptable.

And, as if paying a civil penalty of $140,000 isn’t enough, under the terms of the settlement, the pizzerias must “post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements.”  In addition to the civil penalties, factor in attorney’s fees for legal representation.

A quick refresher on completing section 2 of the Form I-9 for someone who checks in section 1 of the Form I-9 that they are a lawful permanent resident (aka “green card holder”). That employee may then, for purposes of completing section 2, present either a permanent resident card (a List A document) or a driver’s license and unrestricted Social Security Card (List B and List C documents). Just because they say they are a lawful permanent resident does not mean they must provide their permanent resident card.  An employer cannot tell that individual what specific document(s) to present. The Lists of Acceptable Documents are part of the Form I-9 which can be found on U.S. Citizenship and Immigration Services website.