Department of Homeland Security

This week’s Compliance News Flash features information on the GDPR and the assessment of administrative fines, remote hires and the employment eligibility verification process, Homeland Security and worksite enforcement for small businesses, the end of Temporary Protected Status for Nicaraguans, and information about my presentation on developing a compliant background screening program at my firm’s upcoming Employment Law Seminar in Atlanta next week.

Click here to read the News Flash.

The Trump Administration announced (click here and here) this week that it is phasing out the Deferred Action for Childhood Arrivals (DACA) program.   DACA is a program that allows certain individuals who came to the United States as children, who have continuously resided in the United States and are in school, graduated from high school or obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the military, to apply for benefits.  One important benefit is work authorization.   

What does DACA rescission mean for employers and the employment eligibility verification form (the “Form I-9”)?

DACA is a program implemented in 2012 under the Obama Administration.  It has provided relief from deportation to approximately 700,000 – 800,000 individuals who would otherwise be in the country unlawfully. Under DACA, beneficiaries removal (aka deportation from the United States) is deferred during the duration of the program.  Once the program ends, beneficiaries revert back to their original status and may be  subject to removal from the United States for being unlawfully present in the country.  The DACA program provides recipients renewable two-year term benefits, including an employment authorization document (EAD).  According to the DHS, DACA beneficiaries will be allowed to retain both their DACA status and their EAD until they expire.  DACA-issued EADs are due to expire this year, in 2018 and 2019.  On a case by case basis, U.S. Citizenship and Immigration Services (USCIS) will adjudicate properly filed pending DACA initial requests and associated applications for EADs which were filed and accepted as of September 5, 2017. Certain pending DACA renewal requests and associated applications for EADs where beneficiaries benefits will expire between September 5, 2017 and March 5, 2018 will be adjudicated if the renewal request is filed prior to October 5, 2017.   For more on renewing DACA benefits click here.

In many cases employers will likely not be aware that a particular employee provided an EAD pursuant to DACA as proof of work authorization.  For purposes of completing the Form I-9, a DACA beneficiary would have provided an unexpired EAD for a two year period.  This is a valid List A document for purposes of completing section 2 of the Form I-9.   Given that these EADs will begin expiring it is an important reminder for employers to have a system in place to monitor expiring temporary work authorization documents associated with Form I-9 completion.  Organizations policies and procedures must include a notification system whereby both the organization and the employee are aware and proactively addressing the fact that an individual’s EAD is expiring.  On or before the expiration date listed on the EAD, employers must re-verify the individual’s work authorization.  This re-verification is generally done in section 3 of the Form I-9.   Given that the DACA program is being phased out, current beneficiaries may not have a valid EAD once their current work authorization expires and may therefore not be eligible for continuing employment.

It is important to note that up until an employee’s current EAD expires, DACA beneficiaries are lawfully able to be in the United States and work.  The program is being phased out and not ended effective immediately.  However, once an employee’s temporary EAD expires—regardless of whether they are a DACA beneficiary or not—their continuing work authorization must be verified.  In some cases an individual employee may not be able to demonstrate continuing work authorization either in the form of a List A document (e.g., renewed EAD) or List B and List C documents (e.g., Driver’s License and Social Security Card).  When an employee cannot demonstrate continuing work authorization for purposes of the Form I-9, they must be terminated.  There is no grace period once someone’s temporary work authorization expires allowing them to continue their employment in the United States.  In fact, employers who continue to employ someone knowing they are not authorized to be employed in the United States may face civil and criminal penalties. Civil penalties for knowingly employing unauthorized aliens range from $539 – $4,313 per violation.

To be clear, current DACA beneficiaries holding a valid, unexpired EAD are authorized to work for any employer in the United States for the duration of time listed on their EAD.

On September 12th at 2 pm EST I will be presenting on a SHRM sponsored webinar entitled “What You Need to Know Now About Form I-9 and Immigration Enforcement.”   My co-presenter will be Mark Wobbe from Equifax.  Click here to read more about this upcoming free webinar.

Topics we will discuss include:

  • The new Form I-9 that is effective September 17, 2017.
  • Tips for mitigating potential risk as site visits and audits by U.S. Immigrations and Custom Enforcement (ICE) agents from the Department of Homeland Security increase.
  • Best practices for improving Form I-9 compliance during new hire onboarding.

I hope you can join us.

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.

 

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.