Please enjoy this week’s Compliance News Flash with blurbs about the President’s travel ban, use of social media information by the government, employment-related criminal background checks and litigation, potential new salary history restrictions, and insurance coverage.
In February I started writing a weekly compliance news flash which is published on Friday. In April it dawns on me that I should provide this information to all my wonderful readers (thank you by the way). Clearly I was on the slow train on this one. Regardless, here you go–this week’s compliance news flash which succinctly covers important issues related to employment background checks and immigration compliance (i.e., Form I-9, E-Verify and Homeland Security workplace investigations). Prior versions of the Compliance News Flash can be found by clicking here and here and here. If you would like the news flash to appear in your inbox please send me an email and I will add you to my list — firstname.lastname@example.org.
Additional Executive Orders (“EO”) are apparently circulating among administration officials, including more related to immigration and one specifically related to business immigration. It is unclear when or exactly what President Trump will sign but one such draft order is entitled “Executive Order—Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs.” The scope of this EO, as presently drafted, will affect foreign worker visa programs (e.g., workers in E, H-1B, H-2A and L status). It also affects the J-1 exchange visitor program and student visa reform, and orders L-1 site visits. These are just some highlights of what such this EO could cover.
The focus of this particular EO is to prioritize “the protection of American workers…and the jobs they hold.” The EO requires the Security of Homeland Security to, within 90 days, review all regulations that allow foreign nationals to work in the United States to determine if they are in the national interest or should be rescinded.
Of greatest interest for purposes of this blog is what it says about E-Verify – “within 90 days of the date of this order, submit to the President a list of options for incentivizing and expanding participation by employers in E-Verify, including by conditioning, to the maximum extent allowed by law, certain immigration-related benefits on participation in E-Verify.” Could this mean something akin to the situation where in order for an employee to apply for an extension of their work authorization under STEM OPT their employer must participate in E-Verify?
This E-Verify mandate is in line with then presidential candidate Trump’s “10 Point Plan to Put America First.” Point #9 was, “Turn off the jobs and benefits magnet. Many immigrants come to the U.S. illegally in search of jobs, even though federal law prohibits the employment of illegal immigrants.” For this point to be fulfilled, President Trump is pushing for an expansion of the E-Verify program. Which, by the way, an expansion of E-Verify to make it mandatory is not necessarily a controversial item on Capitol Hill. I expect that legislation will be taken up this year on Capitol Hill making E-Verify mandatory for all employers in the United States.
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.
Happy New Year!
The (some would say unexpected) results of the presidential campaign have led us down a path where president-elect Trump will be sworn in January 20, 2017. While the dust is still settling, and will continue to settle over the coming weeks and months, employers should prepare for the potential impact this Administration could have on immigration compliance. What do I mean by immigration compliance? I’m talking the new Employment Eligibility Verification form (the “Form I-9”), mandatory E-Verify, and increased government investigations. While today’s hype may be about border security, vetting of refugees, and deporting criminal aliens, I believe immigration compliance is an area that will take on greater importance under this Administration. I’m doing two (because it’s that important) free webinars with colleagues on this topic and I hope you will join us.
The first one–Understanding the New Form I-9 and the Election’s Potential Impact on Immigration Reform–is sponsored by Equifax Workforce Solutions on January 19, 2017 at noon EST.
Click here to register.
I’ll post information on the second webinar, which will be hosted by my firm on January 24, 2017, at a later date.
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.
“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.
“Navigating the U.S. Business Immigration Maze: Practical Guidance for Employers “ will be offered Tuesday, November 17, 2015.
Global competition continues to rise, increasing pressure on U.S. employers to attract and retain the world’s best and brightest talent. By 2018, the shortage of qualified STEM (science, technology, engineering, and mathematics) workers for open positions is expected to exceed 200,000. At the same time, U.S. employers fight each year for the chance to enter the lottery for scarce specialty worker visas, which are filled within days of the government’s opening bell. In addition, talented international students graduate each year with few options to use their training for U.S. employers. As the U.S. evolves into a more knowledge-driven economy, employers face diminishing options for using talented foreign workers. Immigration lawyers from across the nation will address the following business immigration hot topics and help demystify the U.S. immigration process to keep you competitive in the hunt for global talent:
- L-1 Visas: Pitfalls and strategies for intra-company talent transfers
- H1b cap strategies: To STEM and beyond!
- Keeping them legal: Managing the compliance patchwork and the I-9
- Who’s knocking? Handling the H1b Audit
- Understanding the changes to the Visa Bulletin
- Best practice take-aways
Please click here for more information on the program and to register.