Employment Verification Compliance (including I-9s, E-Verify, and Enforcement)

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (August 11, 2017), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

As the September Visa Bulletin sets forth the final action dates for the last month of Fiscal Year (FY) 2017, this month Charlie provides his predictions on final action date movement in October and during FY 2018.         

Check-in with DOS’s Charlie Oppenheim: June 13, 2017

EB-1 China and EB-1 India. The final action date of January 1, 2012, which was imposed in June 2017, will remain the same for EB-1 China and EB-1 India, as predicted. Based on current information, these categories will likely return to Current in October. However, Charlie will continue to monitor demand carefully between now and early September. A final action date will definitely be imposed again for EB-1 China and EB-1 India at some point during the summer of 2018.

EB-2 Worldwide. The final action date for EB-2 Worldwide advances nine months in September, from April 1, 2015, to January 1, 2016. This category will become current again on October 1, 2017, and it should remain current for the foreseeable future.

EB-2 India. Smaller than anticipated EB-3 to EB-2 upgrade demand allows EB-2 India to advance one month to August 22, 2008, for September. Members should expect additional, slow movement of a few weeks at a time starting in October. It is hoped that the final action date for EB-2 India will be advanced to a date in December 2008 at some point between January and April 2018, depending on the level of EB-3 upgrade demand. Charlie is also hopeful that the final action date for EB-2 India could advance to a date in 2009 at some point during the second half of FY 2018.

EB-2 and EB-3 China. In September, the final action date for EB-2 China will advance slightly to May 15, 2013, and the final action date for EB-3 China will hold steady at January 1, 2012. Members should expect to see a full recovery of EB-3 China in October, putting it once again ahead of the final action date for EB-2 China, creating conditions for EB-3 downgrades. EB-2 China should advance more swiftly than EB-2 India in the coming fiscal year, at a pace of three to six weeks per month.

EB-3 Worldwide. The EB-3 Worldwide final action date, which became current in August, is likely to remain current in October, absent significant demand materializing within the next few weeks. Demand for EB-3 Worldwide will have a significant impact on the ability of the EB-3 India final action date to advance significantly at the end of FY 2018, based on the availability of “otherwise unused” numbers.

EB-3 India. The final action date for EB-3 India advances three months in September to October 15, 2006, consistent with Charlie’s predictions. This category is expected to continue to advance at a pace of several weeks at a time as we enter the new fiscal year.

EB-3 Philippines. The final action date for EB-3 Philippines advances another five months to November 1, 2015, in September. Charlie speculates that demand in this category may materialize abruptly, but he does not expect that to occur until after the first of the year.

EB-5 China. The final action date for EB-5 China holds at June 15, 2014, in September. This category will sunset at the end of September if the program is not reauthorized by Congress. As in the past, the October Visa Bulletin will likely address the final action date that will apply to this category if it is reauthorized.

FB-1 and FB-4. As noted in the Visa Bulletin, high demand necessitated a temporary retrogression of the final action dates in the FB-1 and FB-4 Worldwide, China, El Salvador, Guatemala, India and Honduras categories for September. A full recovery of the final action dates for these categories will occur in October.

Special Immigrants. In September, the final action date for EB-4 India, Mexico, and El Salvador, Guatemala, and Honduras advances more than one month to October 22, 2015. EB-4 India will become current in October and will remain so until spring or summer 2018. Additionally, in October, it is possible that EB-4 Mexico will have a later final action date than the one imposed for EB-4 El Salvador, Guatemala and Honduras. If that should happen, it may only be temporary.

You may access the August 2017 Visa Bulletin here and the September 2017 Visa Bulletin here.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Businesswomen filling paperwork for agreement
Copyright: bignai / 123RF Stock Photo

USCIS released a revised version of Form I-9, Employment Eligibility Verification, on July 17. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17, 2017. On Sept. 18, 2017 and thereafter employers must use this revised form with a revision date of 07/17/17 N.  It is not necessary to complete new I-9 forms for current employees.  Use the new edition of the form for new hires and reverifications.

Revisions to the Form I-9 instructions:

  • USCIS changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
  • USCIS removed “the end of” from the phrase “the first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9:

  • USCIS added the Consular Report of Birth Abroad (Form FS-240) to List C.  Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Section 2 and Section 3.  E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • USCIS combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) into selection C#2 in List C.
  • USCIS renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C will change from List C #8 to List C #7.

These changes are also available in the revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is also now available.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Businesswoman filing paperwork
Copyright: bignai / 123RF Stock Photo

On July 12, 2017 USCIS announced that it will release a revised version of Form I-9, Employment Eligibility Verification, on July 17, 2017. This new edition of the form, which will bear a revision date of 07/17/17 N, will become mandatory on September 18, 2017 and will replace all prior editions of the form as of that date. Employers may either use the current edition (with a revision date of 11/14/16 N) or the new edition, once released, through September 17, 2017. As of September 18, 2017, however, only the new edition will be acceptable for new hires or reverifications.

The new edition of the Form I-9 is expected to include the following changes:

 Revisions to the Form I-9 instructions:

  • The name of the “Office of Special Counsel for Immigration-Related Unfair Employment Practices” will be changed to its new name, “Immigrant and Employee Rights Section.”
  • “The end of” will be removed from the phrase “the first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9:

  • The Consular Report of Birth Abroad (Form FS-240) will be added to List C.
    • Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Section 2 and Section 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • All of the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) will be combined into selection Item 2 under List C.
  • All List C documents, except the Social Security card, will be renumbered.
    • For example, the employment authorization document issued by the Department of Homeland Security on List C will change from Item 8 under List C to Item 7 under List C.

All changes will be incorporated into a revised edition of the M-274 Handbook for Employers: Guidance for Completing Form I-9, which is also being revised to make it easier for users to navigate.

All U.S. employers are required to complete a Form I-9 for every employee hired in order to verify that the individual is authorized for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA). Beginning September 18, 2017, employers must use the new version of the Form for all new hires and for re-verifying current employees with expiring employment authorization documentation. [Employers should not complete new Forms for existing employees who do not require re-verification.] A best practice would be for employers to begin using the new edition of the form immediately upon its release.

You may view the Office of Management and Budget Conclusion here and the final Federal register Notice effectuating these changes here.

Once released you may obtain the new edition of the Form I-9 (in English and Spanish), as well as the new M-274 Handbook for Employers: Guidance for Completing Form I-9 here.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

On April 17, 2017,  USCIS alerted stakeholders concerning a glitch on the Form I-9.  The glitch specifically relates to any Form I-9 downloaded between November 14, 2016 and November 17, 2016 and the employee’s Social Security number.  Employers who downloaded Form I-9 during this brief period should ensure the employee’s Social Security Number appears correctly in Section 1.  As explained by USCIS, numbers inserted in Section 1- Social Security number field were transposed when the Form I-9 was completed and printed.   Forms completed after November 17, 2016 are not of concern as USCIS repaired the technical error and reposted Form I-9 on November 17, 2016.

Employers who detect a mistake in their employee’s Social Security numbers as written in Section 1 should request the employee draw a strike through the transposed Social Security number, write the correct Social Security number, and write their initials/date in the margin next to the change in Section 1.  It is also recommended that employers attach a written explanation to affected Form I-9s as to the reason for the correction as a safeguard in the event of an audit.

USCIS published the updated M-274, Handbook for Employers: Guidance for Completing Form I-9. The Handbook for Employers provides employers with detailed guidance for completing Form I-9, Employment Eligibility Verification. This version, published on Jan. 22, 2017, replaces the previous version which was published on April 30, 2013. It reflects revisions to Form I-9, which was revised on Nov. 14, 2016. You can review highlights of the changes in the Table of Changes for Revised M-274.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

U.S. Citizenship and Immigration Services (USCIS) released a new revised version of Form I-9 on Monday, November 14, 2016.  The previous editions of the Form (with “03/08/13” in the lower left corner) will remain valid until January 21, 2017. After this date, only the new Form (with “11/14/16” in the lower left corner) is acceptable. Both the English and Spanish (available for use only in Puerto Rico) have been revised.

All U.S. employers are required to complete a Form I-9 for every employee hired in order to verify that the individual is authorized for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA).  IRCA prohibits employers from hiring people, including U.S. citizens, for employment in the United States without verifying their identity and employment authorization on Form I-9.

Per USCIS, the changes in the Form are designed to reduce errors and enhance form completion using a computer. The new Form I-9 has been enhanced for easier completion on a computer with drop-down lists, popup calendars for entering dates, on-screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

Among the changes in the new version, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.

Other changes include:

  • The addition of prompts to ensure information is entered correctly.
  • The ability to enter multiple preparers and translators.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • The preparer/translator information is now on a separate/supplemental page.

The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.

Note that the new form does not require that it be completed on a computer; it only makes it easier if Employers choose to do so. For those who will complete the form manually, there are little to no changes, other than some visual and formatting differences from the prior edition.

As a best practice, employers should begin using the new edition of the form immediately for all new hires and for reverifications of current employees, although the previous editions of the form will remain valid until January 21, 2017. Employers should not execute new Forms for existing employees or prepare new forms to replace existing forms. Employers should use the new version of the form to reverify existing employees.

The new Form I-9 and List of Acceptable Documents, in English and in Spanish, the separate Instructions for Form I-9, and Form I-9 Supplement, Section 1, Preparer and Translator are available on USCIS’ web site. The Spanish version of the Form may only be executed by employers in Puerto Rico. Employers in the 50 states, Washington, DC, and other U.S. territories may use the Spanish version of the Form only as a translation guide and must complete the English version of the Form.

IRCA compliance can be a complicated process, and although employers can select from a variety of service providers to meet their I-9 training needs, legal professionals with experience with immigration, employment and labor law are best equipped to handle IRCA compliance issues.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

The Office of Management and Budget (“OMB”) has approved the latest revisions to the current Form I-9, which expired on March 31, 2016 but remains valid until the new edition is released.  The new form will replace the 2013 version and will be valid until August 31, 2019.

The OMB notice indicates that USCIS “may accept the prior version of Form I-9, for 150 days,” however, USCIS has yet to issue any statements or any intended plans on when it will release the new Form I-9 yet.

Although several changes are expected in the new Form I-9, including the application of bar coding technology, there have been no official disclosures of those changes, nor any previews of the new version. Accordingly, all Employers can do at this time is to watch and wait.

Continue using the 2013 version of the Form until the new Form is released. It is anticipated that USCIS will provide some lead time before the new Form is mandatory, as in years past. We’ll keep you apprised as information becomes available, and advise on our schedule of training seminars, once the form is out. Stay tuned.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

The U.S. Department of Justice recently announced significant increases in fines for immigration-related paperwork violations, in an interim final rule slated to take effect this fall. Harsher financial penalties come as part of the federal government’s recently-expanded efforts to ensure that employers comply with strict verification, recordkeeping, and document retention requirements, with regard to the Form I-9 (Employment Eligibility Verification).

Fines for employers who commit procedural or substantive errors when completing I-9s will now be set at a maximum of $2,156 per violation, nearly doubling the current maximum penalty of $1,100 per I-9. Additionally, companies found to employ undocumented workers can now expect to pay fines of up to $4,313 for an initial offense and up to $21,563 for each individual violation thereafter. The increased financial penalties will be assessed after August 1, 2016, for employers whose associated I-9 violations occurred after November 2, 2015.

All employers are required by law to review any employee’s original proof of identity and employment eligibility and complete the Employment Eligibility Verification Form I-9 within three days from the first date of employment. Though a seemingly simple form to complete, the complex requirements of federal immigration laws, intense government scrutiny, and simple human error often lead to considerable financial liability.

Even law-abiding employers who strive to comply with Employment Eligibility Verification rules and do not deliberately hire undocumented workers are subject to government scrutiny and could face steep fines if inspected. Beyond paperwork errors, employers may be fined for failing to retain their I-9s within the mandatory retention period.

Employers are subject to investigation by any number of agencies and investigatory units within the Department of Homeland Security, the Department of Labor, as well as the Justice Department.

Employers can, however, prevent steep financial liability by having counsel conduct internal audits, and by correcting mistakes on forms, where possible. Employers are also wise to establish a standardized I-9 training program and implement best practices for verification, recordkeeping, and retention, thereby greatly reducing the risk—and the prospective expense—of any future liability.


Scott E. Bettridge, a partner in the firm’s Immigration Practice in Miami, co-authored this post.

Congress in 2015 tried to tackle new EB-5 reform legislation, but instead chose to extend the program without any changes until September 30, 2016. This was a result of an impasse on issues relating to increase in the capital threshold amount and the change in the metrics used to determine what is a (“TEA”) targeted employment area. The contentious debate on these issues provided both developers and regional centers one more year of status quo in the program.

What will happen this year is anyone’s guess. What we do know is that Congress is holding hearings on EB-5 reform. These hearings provide the opportunity for individuals in the EB-5 industry to voice their opinion as to the future of the program.

On Wednesday April 13th 2016, the Senate Judiciary Committee held its second hearing of 2016 on the EB-5 Program titled, The Distortion of EB-5 Targeted Employment Areas: Time to End the Abuse.  The Senate Judiciary Committee heard from several witnesses including the Executive Director of IIUSA, Peter Joseph.  IIUSA is the national non-profit trade association representing EB-5 developers, regional centers and other professionals that are in the EB-5 space. Peter Joseph in his testimony pointed to several critical issues that the Committee should consider in the long term reauthorization of the EB-5 legislation. Those issues include:

  • Increase visa capacity to enhance economic impact of EB-5 and address the backlog of

investors currently waiting for visas to be available.

  • Staff commercially viable processing system at USCIS that addresses existing backlogs

and prioritizes predictability and length of processing times for EB-5 related petitions and

applications.

  • Avoid retroactive application of new law and reform to protect the existing EB-5

investors and their families and the billions of dollars in financial commitments and

contractual obligations.

  • Ensure all EB-5 investors with petitions currently filed, or at a later stage in the EB-5

process, are guaranteed adjudication (not approval) and eligibility for immigration

benefits throughout the entire EB-5 process (I-526 petition, EB-5 visa issuance, and I-829 petition)

regardless of future reforms, lapses, or expiration of the program.

  • Continue to allow economic impact models including indirect/induced job creation to

count for EB-5 purposes (using the same econometric models that are generally accepted

as economic policymaking tools by government, academia, and business).

  • Improve program integrity, including through enhanced oversight and reporting

requirements of Regional Centers that are not unduly burdensome, such as site visits

funded by user fees.

  • Clarify geographic (including targeted employment areas (TEAs)), structural, and

industry project characteristics that enable consistent adjudication of EB-5 petitions and

applications.

The issues that Peter Joseph mentioned in his testimony on Capitol Hill clearly mirror the position that most in the EB-5 industry have taken on EB-5 reform. The program has been largely a success with a substantial amount of foreign capital being invested in job creating projects in the United States. Everyone in the EB-5 space would like to see an extension of the EB-5 legislation for at least a five (5) year period.

Since 2008, the Program’s annual contribution to foreign direct investment inbound into the U.S. grew over 1,200% to total almost $5 billion in fiscal year 2015 alone. This investment capital is creating tens of thousands of jobs for U.S. workers in diverse communities by funding projects in a wide variety of industry sectors across the country.

Will Congress take any action this year to reform the current EB-5 legislation? I believe not.

This is a Presidential election year. It is very likely that Congress will defer on making any substantive changes to the EB-5 program until 2017. Immigration reform legislation has never passed both houses of Congress in an election year.

The economic benefits of the EB-5 program are not in dispute. The major issue that Congress needs to address is improving the compliance portion of the legislation. This will provide transparency to the program. Something that is much needed.

 

Today the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) confirmed that employers should continue using the current edition of the Form I-9, Employment Eligibility Verification until further notice, despite the date of expiration noted on the form of March 31, 2016.  Per USCIS, 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.

This announcement follows USCIS’s March 28, 2016, Federal Register notice announcing a 30-day period for the public to comment on its proposed changes to the I-9 Form.  Comments will be accepted until April 27, 2016.

You may recall that last fall (on November 24, 2015), USCIS published a notice of its proposed changes to the I-9 form in the Federal Register, with a 60-day public comment period.  The recently announced 30-day comment period enables further input from the public after USCIS incorporated proposed changes to the form based on remarks received from the public during the 60-day comment period.

USCIS has stated that a goal is to improve the I-9 form in an effort to reduce the number of technical errors, and listed the following as key proposed changes:

  • Validations on certain fields to ensure information is entered correctly;
  • Additional spaces to enter multiple preparers and translators;
  • Drop-down lists and calendars;
  • Embedded instructions for completing each field;
  • Buttons that will allow users to access the instructions electronically, print the form and clear the form to start over;
  • A dedicated area to enter additional information that employers are currently required to notate in the margins of the form;
  • A quick-response matrix barcode, or QR code, that generates once the form is printed that can be used to streamline audit processes;
  • Requiring employees to provide only other last names used in Section 1, rather than all other names used;
  • Removing the requirement that aliens authorized to work provide both their Form I-94 number and foreign passport information in Section 1;
  • Separating instructions from the form, in keeping with USCIS practice;
  • Adding a Supplement in cases where more than one preparer or translator is used to complete Section 1.After the comment period ends, USCIS has indicated that additional changes may be made before the new Form I-9 ultimately is made available for use by the public.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800 or abahal@foxrothschild.com.

Catherine Wadhwani is a Partner in Fox Rothschild LLP’s Immigration Practice Group. Catherine is situated in Fox Rothschild’s Pittsburgh, Pennsylvania office though she practices throughout the United States and at Consulates worldwide.  You can reach Catherine at (412) 394-5540 or cwadhwani@foxrothschild.com.