Oregon joins California in requiring employers notify employees of any government investigation into a company’s Form I-9 practices.  What triggers such a government investigation? An investigation is triggered by receipt of a Notice of Inspection (NOI), issued by Immigration and Customs Enforcement (ICE or HSI), which is part of the Department of Homeland Security.

ICE is the federal agency that enforces our country’s immigration laws.  The Immigration Reform and Control Act (IRCA) of 1986 requires employers to verify the identity and work eligibility of all individuals they hire, and to document that information using the Employment Eligibility Verification form (the “Form I-9″_  Employers must complete the the Form I-9 within three business days of hire and maintain such form for the duration of an individual’s employment. ICE also combats against “knowing hires” and “continuing to employ” violations, where an employer knowingly hires an individual knowing they are not authorized to work or continues to employ an individual after learning they are not authorized to work or where the totality of the circumstances is such that they should know the individual is not authorized to work.

According to ICE, “in fiscal year 2018, HSI opened 6,848 worksite investigations compared to 1,691 in FY17; initiated 5,981 I-9 audits compared to 1,360; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively; all of these categories surged by 300 to 750 percent over the previous fiscal year.”  Audits of employers’ Forms I-9 increased 340%!  Click here to read more.

Back to Oregon.  The governor signed Senate Bill (SB) 370 on June 6, 2019 and the law is effective as of that date.  In a nutshell the bill requires Oregon employers notify employees of any ICE investigation within three business days of receipt of an NOI and also attempt individual employee notification of receipt of the NOI. This notice must be provided regarding the upcoming inspection by ICE of the Forms I-9.  Click here and here to read the text of the bill.  Therefore, HR professionals need to add this to the checklist of items an Oregon employer must complete upon receipt of an  NOI.  Two noteworthy items about the Oregon law.  First, there are no penalties for non-compliance.  Second, on or before January 1, 2020 the Oregon Bureau of Labor and Industries is required to provide employers with a template notification which will satisfy the requirement of SB 370. Such template must be made available in English and in each of the five most widely used non-English languages in the state.

Oregon’s law is similar to California’s law, which also requires employee notice whenever ICE seeks to review a company’s Forms I-9 pursuant to an NOI.  Read more about California’s law by clicking here.

Finally, ICE recently went through another nationwide wave of issuing NOIs to employers, including here in Atlanta.  Employers should be prepared to address any visit by ICE agents seeking to serve an NOI, vector them to the correct individual within your organization, and call immigration counsel (click here).

Join me this week for a free, one-hour Lunchbox Learning webinar hosted by AmericanChecked where I’ll discuss trends impacting human resources professionals related to employment screening.

Time: July 18, 2019 at 12:00 pm Central Time.

Topics covered:

  • Disclosure & Authorization Forms – are your background screening forms compliant based on recent court decisions?
  • Adverse Action process – does your process comply with federal requirements under the Fair Credit Reporting Act?
  • Ban-the-Box – what should you focus on?
  • Use of credit information in a background check for employment purposes – is it legal?
  • How to avoid common pitfalls and reduce your exposure to litigation.

To register click here.

This week’s edition of the Compliance News Flash (click here) includes blurbs about:

  • Portugal’s GDPR-implementing legislation.
  • Increased and new fees for international students and colleges/universities related to international students.
  • Salary history ban in Kansas City applicable to private employers.
  • The Federal Trade Commission rescinds certain model forms and disclosures.
  • Data breaches.

Have a great week and thanks for reading!

Department of Homeland Security Acting Secretary Kevin McAleenan announced that Kenneth T. (Ken) Cuccinelli will serve as the new acting director of U.S. Citizenship and Immigration Services (USCIS), effective June 10, 2019.  Former USCIS Director Francis Cissna stepped down earlier this month.

It is unclear if Mr. Cuccinelli will be confirmed by the U.S. Senate given his hardline views on immigration as well as opposition from top Republicans (click here and here).  It is also unclear how he was named “acting” director of USCIS under the Federal Vacancies Reform Act. It appears that possibly the role Mr. Cuccinelli will take is that of “principal deputy director” instead of “acting director,” and that the “principal” role will in fact be the top role at USCIS. This in an effort to bypass sending Mr. Cuccinelli’s name to the U.S. Senate for confirmation.

Clearly this is a developing story, although the announcement does signal a hardline on immigration at the highest levels within USCIS.

 

Employers are again receiving “no-match letters” from the Social Security Administration (SSA) . No-match letters—called Employer Correction Requests—will be sent when SSA discovers a mismatch between information provided by employers for wage reporting purposes and SSA’s records. A “no-match” relates to employee names and social security numbers (SSNs).

In March 2019 SSA began mailing notifications to employers identified as having at least one employee name and SSN combination submitted on their W-2s that do not match SSA’s records. The purpose of the letter is to advise employers that corrections are needed in order for SSA to properly post employees’ earnings to the correct record.  The no-match letter will tell the employer how many employee names they provided in a particular tax year which do not match their records.

According to SSA, there are a number of reasons why reported names and SSNs may not agree with their records.  This includes typographical errors, unreported name changes, and inaccurate or incomplete employer records. On the flip side, the discrepancy may be the result of fraud by the employee.

In order for employers to view and correct name and SSNs errors they must register through Business Services Online (BSO) and use the Employer Report Status service.  Instructions to find and resolve errors are found on SSA’s website (click here). This is different than in the past, when employees’ names and SSNs were identified on the no-match letter.

Importance of this announcement by SSA and takeaways for employers:

  • If an employer receives a “no match letter,” it does need to be promptly addressed. However, employers should not automatically assume that it relates to the individual’s immigration status or the employment eligibility verification form (the “Form I-9”). In fact, the Employer Correction Request (ECR) specifically states, “this letter does not address your employee’s work authorization or immigration status.” Furthermore, the ECR specifically cautions an employer from taking any “adverse action against an employee…just because his or her number does not match our records.”
  • Prior to submitting the W-2, employers can use the Social Security Number Verification Service (SSNVS) to verify employees’ names and SSNs. However, this tool is only to be used for wage reporting purposes and not for pre-screening of job applicants or for immigration purposes.
  • Employers should check their records to confirm they have accurately entered the information provided to SSA. Then, address the discrepancy with the employee by asking them to verify their SSN and, as necessary, provide them with a period of time to address the issue with SSA.  The letter itself states that employers must provide necessary corrections to SSA within 60 days of receipt of the letter.  Some would argue that up to 90 or 120 days is a reasonable period of time. A sample letter employers can provide employees is found on SSA’s website by clicking here.
  • Note, employees are not required to physically show employers their SSN card for wage reporting purposes. Alert employees that discrepancies can occur due to name changes because of marriage, divorce, or other valid reasons an individual may legally change their name.

To learn more, see SSA’s sample Educational Correspondence (EDCOR) Announcement which employers may receive (click here).

Separately, and now from an immigration perspective, one question is how Immigration and Customs Enforcement (ICE) will treat employers receipt of no-match letters. No-match letters have a long and tortured history, dating back to the early 1990s, and litigation ultimately led to no-match letters not being issued by SSA for a period of time.  The litigation stemmed from issuance of a regulation by the Bush Administration that was intended to provide employers with guidance on how to address no-match letters. One controversial part of the proposed regulation (which was ultimately rescinded by the Obama Administration) involved Homeland Security potentially considering receipt of such letters as evidence of an employer’s “constructive knowledge” that they were employing individuals not authorized to work.  And therefore, full circle to above question as to how ICE will treat receipt of no-match letters during an investigation or audit of an employer’s Forms I-9 as ICE can and does ask for such forms with the Notice of Inspection.

U.S. Citizenship and Immigration Services (USCIS) reached the FY2020 H-1B visa cap.

For FY2020, Congress mandated a regular cap of 65,000 H-1B visas, plus an additional 20,000 H-1B visas for those with advanced degrees from U.S. institutions of higher education (i.e., the master’s cap). Last Friday, USCIS announced that they reached the H-1B general visa cap, and then reached the master’s cap later on Wednesday. Read the announcements from USCIS by clicking here and clicking here.

What’s next? USCIS will process those petitions which were selected using a computer-generated random selection process and reject and return all unselected petitions along with their filing fees. According to USCIS, they received 201,011 H-1B petitions during the filing period which started April 1st and ended April 10th, which is about 15% less than last year.

Notwithstanding the H-1B cap, USCIS will continue to accept and process H-1B petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2020 H-1B cap. USCIS will continue to accept and process petitions filed to (i) extend the amount of time a current H-1B worker may remain in the United States; (ii) change the terms of employment for current H-1B workers; (iii) allow current H-1B workers to change employers; and (iv) allow current H-1B workers to work concurrently in a second H-1B position.

It is the equivalent of the NCAA March Madness for H-1B petitioners and beneficiaries. The fiscal year (FY) 2020 H-1B cap season is officially in full swing.

Today, April 1st, is the first day U.S. Citizenship and Immigration Services (USCIS) is accepting H-1B petitions subject to the FY 2020 cap on April 1, 2019. Once an H-1B petition subject to the cap is filed, it must be selected by USCIS under a random lottery. This is because there is greater demand than there are visa numbers, so initial selection is done on the basis of a random lottery. If one’s H-1B petition is selected, it will then be adjudicated on the merits.  The earliest date employment can begin is October 1, 2020.

There are changes to H-1B program, including (i) the order in which visas will be issued (i.e., graduates with advanced degrees from U.S. institutions of higher education will be selected first, over those with bachelor’s degrees); (ii) premium processing will be offered in a two-phased approach; and (iii) there is a new H-1B Employer Data Hub (click here) where one can see who is requesting H-1B visas for professional workers. Click here for more information about the H-1B FY 2020 Cap Season.

For next year’s program, there will be a registration system in place. Click here to read more about the electronic registration program for fiscal year 2021.

I recognize this is a lengthier blog than I normally post, but it’s necessary so I can help employers help themselves.

The Ninth Circuit Court of Appeals issued an important opinion that is relevant not only to employers that are responsible for a providing job seekers with a compliant disclosure and authorization under the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.), but also for their background screening vendors that may supply such templates to their employer clients.

In Gilberg v. California Check Cashing Stores (No. 17-16263) (“Opinion”) the Court addressed the issue of the required disclosure and authorization (D&A) and whether it is “clear and conspicuous” and “in a document that consists solely of the disclosure.” (FCRA, § 1681b(b)(2)(A))  At issue was whether the various state-mandated disclosures violated the FCRA’s “standalone document” requirement and are therefore extraneous.  And, the Court also addressed the issue of what is “clear and conspicuous” under the FCRA.  Specifically, the Court considered these questions:

  1. Whether a prospective employer may satisfy the FCRA’s standalone document requirement by providing job applicants with a disclosure containing extraneous information in the form of various state disclosure requirements; and
  2. Whether the specific disclosure provide by the employer in this particular case satisfied the clear and conspicuous requirement. (See, Appendix A of the Opinion for CheckSmart Financial’ s D&A)

Before diving into the Court’s Opinion, let’s briefly describe a key employer obligation under the FCRA when conducting a background check for employment purposes.  Obligation—employers need to provide the job applicant with a D&A that is a standalone, clear and conspicuous disclosure of its intention to conduct a background check.  Employers must advise job applicants of the background check when using the services of a third-party background screening company and must capture the job applicant’s consent for said check. As recent settlements demonstrate, this requirement is not always resonating with employers.  Consider settlements and/or on-going litigation against airline carriers ($2.3 million dollars), retail stores (granted class certification), and healthcare providers ($1.3 million) to list a few examples.

Since neither the Federal Trade Commission nor the Consumer Financial Protection Bureau have provided users of consumer reports (aka “background check reports”) with a standard D&A we look to the FCRA itself for guidance as well as case law.  And in this area, the case law is evolving.  We know, for instance, that inclusion of any type of a release of liability/liability waiver in a D&A is considered extraneous information because it violates the standalone disclosure requirement. (See, Syed v. M-I, LLC, 853 F3d 492 (9th Cir. 2017)  Now, layer in state-mandated disclosures.  Previously, D&A’s included state-mandated disclosures related primarily to receiving a copy of the report (e.g., California, Minnesota, Oklahoma).  And over time, additional state disclosures were added.  That is now definitively a thing of the past.  The same 9th Circuit as in the Syed case is saying that “a prospective employer violates FCRA’s standalone document requirement by including extraneous information relating to various state disclosure requirements in that disclosure.” (Opinion at p. 4).

Court Ruling

  • The Court held that the D&A used by CheckSmart Financial violated the FCRA’s “standalone document requirement” because of the inclusion of state-mandated disclosure information.  Stating, “[b]ecause CheckSmart’s disclosure form does not consist solely of the FCRA disclosure, it does not satisfy FCRA’s standalone document requirement.” (Opinion at p. 14)
  • The Court held that the D&A at issue was not “clear and conspicuous” (although technically the Court found that the D&A was “conspicuous” but not “clear”):
    • Taking issue with use of the term “all-encompassing” related to the scope of the D&A. (Opinion at p.17)
    • Stating that combining federal and state disclosures is confusing. (Opinion at p. 17)
    • On the plus side for employers, the Court did rule that the D&A was “conspicuous” because CheckSmart Financial “capitalized, bolded and underlined the headings for each section of the disclosure and labeled the form so an applicant could see what she was signing.” (Opinion at p. 18)  Although it did “ding” them for the small font—Arial Narrow size 8 font.

Takeaways for Employers

  • Maintain the job application (if one is used) separate and apart from the D&A.  Do not embed the D&A into the job application, regardless of how “clear and conspicuous” you believe it to be.
  • Understanding that employers need flexibility to conduct future checks, clearly use complete sentences when addressing the scope of the D&A.
  • Do not include the state-mandated disclosures with the D&A (specifically on the same page). Include them separately and when doing so, be clear about which disclosure applies to what state residents.
  • Capitalize, bold and underline the D&A and use a font larger than Arial Narrow size 8.

Interesting Sidebar

The lead plaintiff in this case had no criminal history, worked for CheckSmart Financial for a period of time, and then voluntarily terminated her employment.  After that, she pursued this putative class action alleging violations of the FCRA and state law.  (Opinion at p. 9) And, since this is at the appellate level, note that the district court entered summary judgement against the plaintiff and sided with CheckSmart Financial that the D&A was compliant.

If you have any questions about this decision, the FCRA, or how to get to a compliant disclosure and authorization, please don’t hesitate to reach out to me at montserrat.miller@agg.com or anyone on AGG’s Background Screening team.

Happy Friday before the Super Bowl that should have seen the Saints playing the Patriots.  Check out this week’s Compliance News Flash with blurbs about:

  • E-Verify and what employers need to do now that it is again operational.
  • The Form I-9 and tools to assist with determining if documents presented are acceptable.
  • The CFPB and charges for file disclosures.
  • The U.S. may soon have a permanent ombudsman for the Privacy Shield program (thereby making the Europeans happy).
  • H-1B petitions for high-skilled workers and a return to premium processing.

Click here to read this week’s Compliance News Flash.

For prior 2019 editions of the Compliance News Flash click here.

The longest government shutdown is over and employers need to take note that E-Verify is again operational.  Setting aside that Congress and the President have only until February 15 to move beyond short term funding for the Department of Homeland Security (DHS), here is what employers need to know about E-Verify, the electronic employment eligibility verification program run by U.S. Citizenship and Immigration Services (USCIS).  But first, this caveat (click here) direct from USCIS–“E-Verify has resumed operations. Given that E-Verify was unavailable for over a month, we ask for your patience as we reinstate the service.”

  • All of the cases that you, as an employer, are holding because you hired someone during the time period that a E-Verify was offline due to the partial government shutdown now need to be entered into the system.  Employers have until February 11, 2019 to do so, according to USCIS.  Therefore, a case needs to be created for all employees you hired for whom a Form I-9 was completed but you could not create a case in E-Verify because the system was offline due to the shutdown.
    • USCIS Instructions: employers who participate in E-Verify must create an E-Verify case by February 11, 2019 for each employee hired while E-Verify was not available. You must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If the case creation date is more than three days following the date the employee began working for pay, select “Other” from the drop-down list and enter “E-Verify Not Available” as the specific reason.
  • Any pending Tentative Nonconfirmation (TNC) that you and/or your newly hired employee were not able to resolve due to the shutdown needs to be resolved at this time.
    • USCIS Instructions: if your employee received a TNC and notified you of his or her intention to contest it by February 11, 2019, you must revise the date by which your employee must contact the Social Security Administration (SSA) or DHS to begin resolving the TNC. To do this, add 10 federal business day[s] to the date on your employee’s “Referral Date Confirmation” notice. Federal business days are Monday through Friday and do not include federal holidays.  Give the revised notice to your employee.
    • You may reprint a copy of your employee’s “Referral Date Confirmation” by logging in to E-Verify, selecting your employee’s case and selecting the “Print Confirmation” button. Be sure to cross out the old date and insert the new date. Employees have until this new date to contact the SSA or DHS to resolve their cases, as applicable.
    • For TNC cases that were referred after E-Verify resumed operations, do not add days to the time your employee has to contact either SSA or DHS. If your employee decided to contest the TNC when E-Verify was unavailable, you should now refer the employee’s case and follow the TNC process.
  • If you are a federal contractor, contact your contracting officer about enrollment and use and the impact of the government shutdown on you.
    • USCIS Instructions: during the DHS lapse in appropriations E-Verify was not available for federal contractor enrollment or use.  As a result, DHS guidance is that any calendar day during which E-Verify was unavailable due to the lapse in appropriations should not count towards the federal contractor deadlines found in the Employment Eligibility Verification Federal Acquisition Regulation. Please contact your contracting officer for more information on federal contractor responsibilities.

To read the full instructions from USCIS on employer and employee responsibilities now that E-Verify is back online, click here.

Expect delays due to the sheer volume of “past” E-Verify cases that need to be created in addition to the fact that employers continue to hire every day and that adds to the queue of cases being created in E-Verify at any one point in time.  Finally, employers, you only have a little over two weeks to bring yourself into compliance with the E-Verify requirements given the February 11, 2019 deadline.