I-9 compliance

April 17, 2009

REMINDER to all U.S. Employers – Use Updated Form I-9

As of April 3, 2009, the United States Citizenship and Immigration Services (USCIS) indicated that U.S. employers should no longer be using outdated versions of Form I-9. The updated Form I-9 has been available in English and Spanish via the USCIS website since it was revised in February.

Instructions for completing Form I-9 have also been made available by the USCIS. Additionally, the USCIS has provided a 1-800 number that employers may use to order updated Form I-9 if they do not have online access.

If you need assistance in completing Form I-9, or are interested in conducting an in-house Form I-9 Audit, please contact our office for assistance.

April 1, 2009

Illinois Act deemed invalid by U.S. District Court

by Kellie N. Lego

E-Verify is a federal program in which employers may voluntarily sign up electronically to be able to identify the employment eligibility of new hires against federal databases in a matter of minutes. How it works: An employer requests that a new hire complete Form I-9, and with the information provided on the form, and the documentation needed to prove eligibility, the employer manually enters the information into the E-Verify database. Two things may occur once this takes place: (1) the employer receives confirmation that the new hire is authorized to work in the United States; or (2) a tentative non-confirmation (TNC) is issued, indicating that the federal program cannot identify that the new hire is authorized to work in the United States. If a TNC is issued, the employer must provide the applicant with information and guidance on how to resolve the issue, and a secondary verification process must occur within ten days before a final determination is made on the applicant’s employment eligibility.

The State of Illinois created legislation in regards to the passage of the Employment Eligibility Verification Program, otherwise known as “E-Verify.” In summary, the Illinois Act provides that employers are prohibited from enrolling in any Employment Eligibility Verification System, including the Basic Pilot program, until the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases are able to make a determination on 99% of the tentative nonconfirmation notices issued to employes within three days, unless otherwise required by federal law.

At issue is whether the Illinois Act is invalid under the Supremacy Clause of the United States.

March 25, 2009

USCIS released UPDATED Form I-9 EMPLOYER HANDBOOK

by Kellie N. Lego

The United States Citizenship and Immigration Service (USCIS) recently released the updated version of the Form I-9 Employer Handbook.

The handbook provides the basic steps involved with a new hire, including the forms that must be completed, what documents are acceptable and step-by-step directions on how to correctly complete Form I-9.

The handbook also explains the reason we have Form I-9 for employment eligibility, mentions unlawful discrimination and penalties for prohibited practices, and discusses the E-Verify online program component for interested employers.

December 15, 2008

USCIS Revises Employment Eligibility Form (I-9)

by Kellie N. Lego

U.S. Citizenship and Immigration Services (USCIS) submitted to the Federal Register an interim final rule that will streamline the Employment Eligibility Verification process.

The interim final rule narrows the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. Specifically, the interim final rule eliminates Forms I-688, I-688A, and I-688B from List A because the USCIS no longer issues these cards and all that were in circulation have expired. Additionally, the rule adds to List A foreign passports containing specially- marked machine-readable visas, and the new U.S. passport. The rule also makes other technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, etc.

After publication in the Federal Register, the public will have 45 days to comment on the final rule.

September 24, 2008

Unlawful employment practices result in potential debarment

by Kellie N. Lego

Immigration Customs Enforcement (ICE) officers have increasingly been conducting workplace raids that can have a significant impact on an employer and its workers. In a news release issued by ICE, seven companies have been notified that they will be considered for debarment from federal contracting because each of the companies has been found to be unlawfully employing persons without employment authorization.

Julie Myers, Homeland Security Assistant Security for ICE, indicated that by using debarment in appropriate circumstances, the federal government can avoid working with businesses that employ an illegal workforce. She commented in the news release that “debarment” is yet another tool that they believe will further ensure compliance with U.S. immigration employment laws.

The Federal Acquisition Regulations (FAR) provide that contractors may be considered for debarment if they have been found to have either knowingly hired an unauthorized worker or continue to employ an alien who is or becomes unauthorized.

June 25, 2008

Extension of Optional Practical Training Program under the E-Verify Program & E-Verify Requirement for Federal Contractors

by Kellie N. Lego

According to U.S. Citizenship & Immigration Services (USCIS), an additional seventeen (17) month Optional Practical Training (“OPT”) extension is available for current OPT F-1 students who have completed a science, technology, engineering, or mathematics degree and accepted employment with an employer enrolled in the E-verify program. Additionally, this extension will benefit students with pending H-1B petitions and change of status requests, as it will enable them to maintain their employment eligibility for the duration of the H-1B processing period. Without this benefit, foreign students on F-1 nonimmigrant status would only be eligible for the normal twelve (12) months of OPT to work for a U.S. employer in a field directly related to their major area of study. This employment eligibility program essentially provides a benefit for students on F-1 status who seek employment with an employer enrolled in E-Verify.

E-Verify Requirement for Federal Contractors

On June 9, 2008, Executive Order 12989 was issued, which declared E-Verify, the electronic employment eligibility verification system that all federal contractors must use. The Executive Order directs all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use E-Verify to verify the employment eligibility of all persons hired during the contract term, and all persons performing work within the United States on the federal contract. This rule is not final, and is open for public comment at this time. Please refer to the following link for contact information, if you would like to submit a written comment. Written comments must be submitted on or before August 12, 2008.

June 10, 2008

Maintaining a I-9 AUDIT Files

by Kellie N. Lego

EVERY employer needs to complete I-9 forms for every employee hired after November 4, 1986. Under the Immigration Reform and Control Act of 1986 (“IRCA”), all employers must verify that every person that is hired is either: a U.S. citizen, a lawful permanent resident, or a foreign national with authorization to work in the U.S. Within three business days of beginning the job, the employee must furnish identity and employment eligibility documents. It is the responsibility of the employer to examine the documents to determine whether they are genuine and relate to the specific employee. Once the I-9 form is completed, they are to be kept in office for the longer of three years after employment begins or one year after employment is terminated. Most importantly, if an employee has temporary employment authorization, a reverification of employment eligibility must be conducted prior to expiration of the employment authorization. Moreover, officers of the Department of Homeland Security (“DHS”) and Immigration Customs Enforcement (“ICE”) have the right to audit employers’ I-9 forms. DHS/ICE officers conduct an estimated 60,000 I-9 audits a year on employers around the country and have issued fines in excess of $1,000,000. Additionally, each mistake on an I-9 Form counts as a separate violation. All employers are further subject to civil and criminal penalties for knowingly hiring or continuing to employ aliens who are not authorized to work in the U.S. Accurate completion of I-9 forms is a good faith defense to a charge of hiring unauthorized workers.

ICE has increasingly been conducting workplace raids that can have a significant impact on an employer and its workers regardless of status. Results of those raids have been: public relations nightmares, fleeing or arrested workers resulting in loss of work force, loss of productivity, split up families and related humanitarian issues, as well as expensive and protracted litigation. Therefore, the best way for an employer to avoid IRCA problems is to establish a meaningful I-9 audit system.

Such a system should include at least the following elements: