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

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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.

The U.S. Citizenship and Immigration Services (USCIS) published a notice of proposed changes to the Form I-9 in the Federal Register on November 24, 2015. The notice’s 60 day public comment period ended on January 25, 2016.  To date, there has been no final notice published.

The purpose behind the proposed changes is USCIS’ attempt to create a “smart” version of the I-9 to reduce user error and make the form easier to complete. The proposed changes include new drop-down menus, field checks and real-time error messages to ensure data integrity by employers completing the I-9 form.

New functionality of the new “smart” I-9 includes the following:

  • Performs logic and data validation tests on various fields to ensure information is entered correctly. For example, the form will confirm that the appropriate number of digits for a social security number or an expiration date field are entered by the user.
  • Allows users to read instructions for specific field on the screen as they are typing. Various “Help” buttons will be available to assist the user with common questions.
  • Allows users to enter additional important information in certain fields rather than requiring them to enter notes manually by hand in the margins of the form.
  • Limits users to choose documents from drop-down menus that include lists of acceptable identification documents.
  • Expands the information section regarding multiple preparers and translators.
  • Clarifies that employees completing Section 1 provide only “other last names used” rather “other names used.”
  • Modifies section 1 to request that the employee enter their Form I-94 number or foreign passport information, rather than both.
  • Separates the instructions from the form. However, employers are still required to present the instructions to the employee completing the form.
  • Generates a quick-response matrix barcode, or QR code, upon printing the form. It is expected that the barcode will be used to facilitate review by government auditors.

Despite all of these technological conveniences, it’s important to note that this proposed version is not an “electronic I-9” as defined in the DHS regulations. The employer using this new “smart” I-9 must still print the I-9 in hard copy, obtain the appropriate handwritten signatures, retain the I-9 as required by law, and track expiration dates for reverification. If the employer is a member of E-Verify, the employer will also need to enter relevant information taken from the I-9 into E-Verify.

Moreover, the new form will not integrate with human resource applications or enable customized workflows which are essential to organizations with distributed workforces and decentralizing hiring. For that reason, the form is most likely designed for smallish employers who only hire a few individuals on a yearly basis.

After USCIS reviews the comments and makes changes it deems appropriate, it will publish a second notice in the Federal Register. After that, the public has 30 days to provide comment before the regulation becomes final.  As of today, no second notice has been published in the Federal Register.

The current edition of the Form I-9 expires on March 31, 2016. Since it is unlikely that the new “smart” form will be issued by April 1, 2016, USCIS will have to extend the validity of the current form.  Employers should continue using the current version of the Form I-9, even past March 31, 2016, even if USCIS’ does not publish a formal notice extending its validity by April 1, 2016, unless USCIS specifically instructs otherwise.

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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.

On January 15, 2016, the Department of Homeland Security (DHS) amended its regulations to improve the programs serving the H-1B1, E-3 and CW-1 nonimmigrant classifications and the EB-1 immigrant classification, and remove unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.

This final rule, effective on Feb. 16, revises regulations affecting highly skilled workers in the nonimmigrant classifications for specialty occupations from Chile, Singapore (H-1B1) and Australia (E-3); the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers; and nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification.

Specifically, this final rule amends DHS regulations as described below:

  • DHS is authorizing continued employment with the same employer for up to 240 days for H-1B1 and principal E-3 nonimmigrants whose status has expired while their employer’s timely filed extension of stay request remains pending.
  • DHS is providing this same continued employment authorization for CW-1 nonimmigrants whose status has expired while their employer’s timely filed Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, request for an extension of stay remains pending.
    • The prior “240 Day Rule” authorized by DHS permits an H-1B nonimmigrant worker to continue to work with same employer for up to 240 days beyond the date of expiration on the visa, so long as an extension of stay has been filed prior to the expiration date (i.e. timely filed).
  • DHS is including H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized for employment incident to status with a specific employer. This means that H-1B1 and principal E-3 nonimmigrants are allowed to work for the sponsoring employer without having to separately apply for employment authorization.
  • Existing regulations on the filing procedures for extensions of stay and change of status requests now include principal E-3 and H-1B1 nonimmigrant classifications.
  • Employers petitioning for EB-1 outstanding professors and researchers may now submit initial evidence comparable to the other forms of evidence already listed in 8 CFR 204.5(i)(3)(i), much like certain employment-based immigrant categories that already allow for submission of comparable evidence.

As a result of this regulatory change, employers will be able to reverify affected workers on Form I-9 without the need to wait for an approval of the extension petition.

What is the effective date of the new rule?

The amended regulation took effect on February 16, 2016.

What has changed, and who is affected?

The regulations were amended to add H-1B1 and principal E-3 nonimmigrants to the list of “aliens authorized for employment with a specific employer incident to status” and 8 CFR §274a.12(b)(20) was amended to add H-1B1, E-3, and CW-1 to the list of nonimmigrant visa classifications that are eligible for an automatic 240-day extension of employment authorization where the nonimmigrant’s period of authorized stay has expired but where a timely application for an extension of stay has been filed. Prior to this change, the regulation only applied to A-3, E-1, E-2, G-5, H-1B, H-2A, H-2B, H-3, I, J-1, L-1, O-1, O-2, P-1, P-2, P-3, R-1, and TN nonimmigrants.

Does this change apply to petitions pending on February 16, 2016, or only to new filings on or after that date?

Neither the preamble nor the text of the final rule provide guidance as to whether the 240-day extension applies to E-3, H-1B1, or CW-1 extension petitions filed prior to February 16, 2016 but remain pending on the effective date.

How should an employer annotate and reverify Form I-9 for an H-1B1, E-3, or CW-1 employee who wishes to rely on the 240-day extension rule?

On February 23, 2016, USCIS posted the following guidance on the I-9 Central homepage:

If an employer has timely filed an extension of stay for its H-1B1, E-3 or CW-1 nonimmigrant employee, the employer should write “240-Day Ext” and the date the employer submitted the Form I-129, Petition for a Nonimmigrant Worker, or Form I-129CW petition to USCIS in Section 2.  The employer must reverify the employee’s employment authorization in Section 3 once a decision is received on the request for an extension of stay or by the end of the 240-day period, whichever comes first.

This is consistent with general guidance on the 240-day rule contained in the April 30, 2013, version of the M-274 Handbook for Employers. The M-274 further advises employers to retain proof of timely filing of the extension with USCIS. This includes a copy of the I-129, proof of payment, proof of mailing, and/or the receipt notice from USCIS. Once the extension is approved, the employer should “Enter the document title, number and expiration date listed on the notice in Section 3 of Form I-9.”

This final rule does not impose any additional costs on employers, workers or any governmental entity. Further, changing the employment authorization regulations for H-1B1 and E-3 nonimmigrants makes them consistent with other similarly situated nonimmigrant worker classifications and minimizes the potential of employment disruptions for U.S. employers of H-1B1, E-3 and CW-1 nonimmigrant workers. Additionally, DHS expects that this change will help U.S. employers recruit EB-1 outstanding professors and researchers by expanding the range of evidence that U.S. employers may provide to support their petitions. DHS states “Attracting and retaining highly skilled workers is critical to sustaining our Nation’s global competitiveness.  By attracting the best and brightest from around the world, the United States can harness their talents, skills, and ideas to help the U.S. economy grow.”

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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 Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices issued a new technical assistance letter, posted to their website Jan. 13, which updates a letter issued last October regarding internal audits of I-9 employment eligibility verification forms.

The updated letter maintains the OSC’s advice that any internal audit should be conducted consistently, treating similarly situated employees similarly. Employees shouldn’t be treated differently based on citizenship or immigration status or national origin, the letter states, further articulating that “employers should apply the same level of scrutiny to Form I-9 documentation and not apply different levels of scrutiny based on citizenship, immigration status, or national origin.”

In the letter, the OSC directs employers to recent guidance jointly issued by the DOJ and Immigration and Customs Enforcement on how to conduct internal I-9 audits and avoid discrimination charges.  That guidance, the OSC said, “reminds employers that they “are required to accept original Form I-9 documentation that reasonably appears to be genuine and to relate to 1he individual presenting the documentation.” and advises that employers “should recognize that it may not be able to definitely determine the genuineness of Form I-9 documentation based on photocopies of the documentation” .  The guidance goes on to specifically state that employers “should not request documentation from an employee solely because photocopies of the documents are unclear”.

However, the guidance does indicate that where the employer determines, based on the photocopy, that a document does not appear genuine or to reasonably relate to the employee, it should address that concern with the employee and “provide the employee with the opportunity to choose a different document to present from the Lists of Acceptable Documents”.

In a change from prior advice, the letter goes on to state that, “the employee also has the option to give the employer the originally presented document to resolve the employer’s concerns, and the employer is not prohibited from reviewing the original document and determining that it appears to be genuine and to reasonably relate to the employee. If after reviewing the originally presented document, an employer determines that it appears genuine and reasonably relates to the employee, then the employer must accept that document and not request additional documents. If the originally presented document is unavailable or if, after reviewing the original document, the employer concludes that it does not appear to be genuine or to reasonably relate to the individual, the employer should provide the employee with an opportunity to choose a different document to present from the Lists of Acceptable Documents.”

USDOJ OSC IRUEP Letter of January 7, 2016 may be found here.

Joint USCIS and USDOJ OSC IRUEP Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits may be found here.

Alka Bahal has extensive experience in conducting internal I-9 audits for employers of all sizes. Our audit protocol is, and remains, in accordance with USCIS and DOJ’s updated guidance. Although employers are welcome to conduct their own internal audits, we strongly encourage the use of experienced counsel, given the delicate balance between assuring I-9 documentation compliance and avoiding national origin and discrimination prohibitions.   Additionally, when choosing Alka Bahal and her team for I-9 audit assistance, employers benefit from the vast experience and knowledge gained from conducting numerous prior audits, in addition to the protections afforded by attorney-client privilege (something not available if a non-lawyer vendor is used).

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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.