As stated in our March 18, 2013 Labor & Employment Law Perspectives, the Department of Homeland Security (DHS) has issued a new version of the Form I-9, Employment Eligibility Verification. In announcing the new I-9 Form, DHS stated that “after May 7, 2013,” employers must use the new I-9 Form in verifying employment eligibility as to new hires and for reverifications. DHS now has issued a correction notice stating that the new I-9 Form is mandatory as of May 7, 2013. This is a day earlier than initially announced.Continue reading this entry
The Administrative Appeals Office of U.S. Citizenship & Immigration Services, otherwise known as the AAO, recently reversed a finding by U.S. Citizenship & Immigration Services (USCIS) that had denied approval of an L-1B intra-company specialized knowledge employment visa for a five-year, India-based employee of the company. L-1B intra-company employment visas are approved by USCIS where the petitioning multinational U.S. company evidences that one of the company’s foreign-based employees possesses specialized knowledge. Section 214 (c)(2)(B) of the U.S. Immigration & Nationality Act defines “specialized knowledge” to be “special knowledge of the company product and its application in international markets,” or “an advanced level of knowledge of processes and procedures of the company.” The petitioning U.S. employer may establish eligibility by submitting evidence that the intended visa beneficiary and the employment position satisfy either prong of the definition. In an untitled, yet enumerated decision [case number: WAC 10-140-51163] rendered March 15, 2013, the AAO reversed USCIS’ California Service Center in denying such an L-1B visa for the petitioning company’s intended senior principal engineer. A copy of the March 15, 2013 AAO decision is available here.Continue reading this entry
On March 8, 2013, the Department of Homeland Security (DHS) issued a new version of the Form I-9, Employment Eligibility Verification. DHS is providing a 60-day transition period, and the new form is mandatory as of May 7, 2013. The new document is nine pages, with detailed instructions taking up six of those nine pages. The I-9 Form itself (what must be completed by the employee and the employer) is now two pages. The last page is the I-9 List of Acceptable Documents. DHS also has issued an updated I-9 Handbook for Employers, which provides additional information about completing the I-9 Form and I-9 compliance.Continue reading this entry
Spring is around the corner and so is a new H-1B filing period. On Monday, April 1, 2013, United States Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security, will begin accepting new H-1B cases to count against the 2014 H-1B cap. H-1B is a temporary, work-authorized classification under which American companies and other organizations may seek authorization to employ a foreign national in a specialty occupation. Positions that come within a specialty occupation are ones for which at least a bachelor’s degree in a specific field is required in order to perform the duties of the position.Continue reading this entry
Disputes between employers and U.S. Immigration and Customs Enforcement (ICE) are heard by the U.S. Department of Justice’s Office of the Chief Administrative Hearing Officer (OCAHO), which rules on issues arising under the Immigration and Nationality Act (INA) such as the known hire and ongoing employment of foreign nationals who are not authorized to work in the United States (including violations of the Form I-9 requirements), immigration-related unfair employment practices, and immigration-related document fraud. Continue reading this entry
The “E-2 Treaty Investor” employment visa classification was established by Congress to promote capital inflow by foreign investors and to create additional employment opportunities for U.S. citizens. Currently, the United States has reciprocal investment treaties with 81 countries that permit foreign nationals to acquire employment-related work visas if demonstrable investments are made in the United States.Continue reading this entry
As discussed on our Labor & Employment Law Perspectives Blog on March 12, 2012, it is a best practice to ask job applicants about their ability to work legally in the United States. While asking “are you authorized to work lawfully in the United States” is necessary, that question may not generate sufficient information. Some employers may not wish to commence (“sponsor”) an employment-based immigration case in order to fill the open position. Such employers may be frustrated when they learn only after hiring a candidate that he requires an H-1B case or other employment-based immigration case in order to work lawfully.Continue reading this entry
U.S. Citizenship and Immigration Services (USCIS) recently announced that employers should continue using the current version of Employment Eligibility Verification Form I-9 even after the August 31, 2012 expiration date printed on the form.Continue reading this entry
June is always a busy month at the Supreme Court. The court issues its most controversial rulings at the end of its term in June. For two consecutive years now, the court has issued major rulings on Arizona immigration laws.Continue reading this entry
The division of the U.S. Department of Justice dedicated to enforcing the anti-discrimination provisions of the Immigration & Nationality Act (INA), namely the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), recently announced settlement agreements with two large-based corporate employers arising from their alleged discrimination against employment-eligible foreign nationals. Collectively, the announced settlements serve as a reminder to U.S. employers to avoid discrimination in the recruitment and employment verification process of foreign nationals. You can achieve this in part by changing internal policies and manuals to reflect the INA’s protections as well as by training human resources personnel.Continue reading this entry
The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) (http://www.ice.gov/worksite/) continues to use worksite enforcement (such as I-9 inspections) as a tool to curb illegal immigration. Recognizing the importance of maintaining a legal workforce, most employers focus on the issue early by asking job applicants about work authorization. Asking this question on the employment application, rather during an interview, ensures that the question is asked of each applicant in the same way. It also is important to ask the question using the proper language and focus. Otherwise, the question may lead to discrimination charges and investigations by the Department of Justice’s Office of Special Counsel (OSC) or EEOC.
The U.S. Department of State (DOS) recently issued a new regulation affecting employees who work in the United States on L-1 visas, also known as Multinational Intra-Company Transferee Visas. This visa category is available to foreign national employees of U.S. companies who have worked abroad for at least one year for a branch, parent, subsidiary, or affiliate of the U.S. company. L-1 employees must have worked abroad in either a management capacity or in a position requiring specialized knowledge of the company’s products and practices, and they must work in a similar capacity in the U.S. company.Continue reading this entry
As the government continues to focus on strengthening the tools it offers to help prevent the knowing hire of unauthorized workers, employers who are serious about workplace compliance may consider joining the U.S. Immigration and Customs Enforcement’s (ICE) IMAGE Program. The program will not be right for all employers, but it has some benefits discussed below.
Making a Donald Trump “you’re fired” announcement may be sufficient to end the employment relationship with most employees, but not with those relying on H-1B employment authorization. As shown by Limanseto v. Ganze & Company, OALJ Case No. 2011-LCA-00005 (June 30, 2011), failing to take the additional steps required to complete a “bona fide H-1B termination” can be costly. An administrative law judge (ALJ) recently found Ganze, a California accounting firm, liable for back pay and other costs of more than $150,000 even though Mr. Kevin Limanseto, the foreign worker, provided no services during the period authorized for H-1B employment.
In Chamber of Commerce v. Whiting, the United States Supreme Court upheld a controversial Arizona law that imposes penalties against employers who knowingly hire illegal immigrants. The Court held that the federal Immigration Reform and Control Act (IRCA) did not preempt Arizona’s Legal Arizona Worker’s Act of 2007, which allows Arizona courts to suspend or revoke the business licenses of employers who knowingly or intentionally employ unauthorized aliens. The Arizona law sets forth a graduated series of sanctions for violations of the Arizona Act. For example, employers who violate the law a second time by knowingly hiring an unauthorized alien can lose their business licenses. The Arizona law also requires Arizona employers to participate in the federal E-Verify program to check an employee’s eligibility to work.
In late January 2011, U.S. Citizenship and Immigration Services (USCIS) announced the implementation of a long anticipated information validation tool that USCIS will rely upon in its adjudication of employment-based visa petitions submitted by U.S. companies to the benefit of foreign national workers.
As a recent decision by the Department of Labor’s Wage and Hour Division illustrates, employers of H-1B nonimmigrant workers continue to face intense scrutiny from government agencies.
Under the H-1B program, employers may temporarily hire foreign workers in professional occupations if certain conditions are met, including paying H-1B workers the same wages as U.S. workers for the same job, or the prevailing wage for the position in the area of intended employment, whichever is higher. The Department of Labor’s Wage and Hour Division is responsible for enforcing the H-1B worker protections, as well as other labor laws including minimum wage, overtime pay, recordkeeping, child labor, family and medical leave, and migrant workers.
In 2004, Congress passed a law allowing employers to obtain electronic signatures on and electronically store I-9 forms. The rules are codified and explained at http://www.justice.gov/eoir/vll/fedreg/2010_2011/fr22jul10.pdf. Employers now have the choice to store I-9 forms in hardcopy, electronically, or both. The law is designed to alleviate the burden of storing hardcopy I-9 forms and contains very specific requirements for employers’ transition to electronic storage. In order to ensure compliance with the statute in the event of an audit by U.S. Immigration and Customs Enforcement, employers should be mindful of the following provisions and requirements:
- Employers may convert existing hardcopy I-9 forms into electronic files by scanning and storing legible copies of the forms. The system for storing electronic I-9 forms must be able to produce legible paper copies of the forms and must include reasonable controls to ensure the integrity, accuracy, and reliability of the stored documents. The storage system also must contain inspection procedures, as well as reasonable controls to prevent (and detect) the unauthorized or accidental creation, alteration, or deletion of electronically stored I-9 forms. Finally, the storage system must have an indexing system. Employers utilizing an electronic storage system for I-9 forms must maintain a description (or descriptions) of their storage, form-generation, and indexing systems (and procedures for using such systems).
- With respect to security protocol, access to an employer’s electronic storage system must be limited to authorized, trained personnel. The system must include backup and recovery features to prevent data loss. Finally, the electronic storage system should contain an “audit trail,” which logs a “secure and permanent record” of everyone who creates, completes, updates, modifies, alters, or corrects the stored I-9 forms. Failure to maintain adequate security features may result in a violation in the event that data is lost or altered.
- The regulation also permits employees to sign I-9 forms electronically. Electronic signatures must be accompanied by a form of attestation (so long as the attestation makes clear the employee has read it before signing) and must record the time, date, and signatory. Employers may use a PIN number system or “click to accept” feature for employees to access and sign their I-9 forms, and must document (and produce to auditors, upon request) which of these features is used.
- Employers must document, and auditors may compel production of, their business processes that create electronically stored I-9 forms, modify and maintain the forms, and establish the authenticity and integrity of the forms. Insufficient documentation of these three processes is a violation of the statute.
As Immigration Customs and Enforcement (ICE) and the Office of Special Counsel (OSC) continue to bear down on employers through I-9 investigations and fines, it is critical that employers review their I-9 procedures to ensure compliance. In prior Employment Law Updates, we have provided you with tips on achieving good I-9 compliance. We are back with more tips to help employers in this complex area of
Form I-9 Employment Eligibility Verification.
- Do review the List of Acceptable Documents and confirm that the document presented by the employee is on the list, appears reasonably genuine on its face, and relates to the employee named in Section 1 of the Form I-9. Do confirm that the document is in the correct category (e.g., no multiple identity documents presented or documents that are not on list). Remember for initial completion, the new hire must show a List A document OR a List B document and a List C document. For reverification, the employee must show a List A document or List C document.
- Do review the employee’s section 1 promptly after completion. Contact the employee to address corrections. Although this is the employee’s section, ICE holds the employer responsible if it is not completed. Do ensure that the employer completes Section 2 (or Section 3 if reverification) fully and in the correct sections. Photocopying documents is not a substitute for completing the I-9 Form.
CAVEAT: Unless you are an E-Verify employer, the Social Security Number question in Section 1 is optional for the employee to answer.
- Do fix mistakes. Identify incomplete and inaccurate I-9 Forms. Correct deficiencies on existing I-9 Forms if possible.
• Employee must write the correction (e.g., line through incorrect entry and enter correct
data), date the correction, and initial the changes
• Employer must write the correction (e.g., line through incorrect entry and enter
correct data), date the correction, and initial the changes
• Employer must write the correction and note correction as stated above
• Do not use liquid paper on the I-9 Form and do not backdate
- Do treat all employees the same for I-9 completion. Follow the same procedures for all as to the timing of I-9 completion, the copying of documents, the choice of documents that may be presented, and the I-9s covered by internal audits.
- 5. Do create a tickler system to remind the employer of reverifications, but do not record that tickler system on the I-9 Form. In general, do not make notes on the I-9 Form (other than the E-Verify confirmation number, if applicable).
Please contact a member of Foley’s Labor & Employment team with questions or for further information about I-9 compliance and the government’s current enforcement initiatives.
Immigration and Customs Enforcement (ICE) recently announced its four-year strategic plan (2010 to 2014). One of ICE’s key objectives is to “create a culture of employer compliance.” ICE intends to do so through even more “aggressive enforcement against employers” with I-9 audits, fines, and criminal charges in egregious cases.
To support “a meaningful civil [I-9] audit program,” ICE is hiring more investigators. At the same time, the Office of Special Counsel (OSC) of the Department of Justice is actively enforcing the antidiscrimination provisions of the Immigration Reform and Control Act (IRCA) – the I-9 law.
Here are some tips for staying out of trouble with ICE and the OSC with regard to Form I-9 Employment Eligibility Verification:
1. Know the rules before you act (initial I-9 completion, reverification, and internal audits). Read the I-9 Handbook for Employers . This is the government’s summary of the I-9 rules.
2. Have the same two or three trained HR staff members handle the I-9 process.
3. Use the most current version of the I-9 Form (August 7, 2009) for new hires going forward and for reverifications (completing § 3).
4. Complete the I-9 Form neatly, carefully (read the I-9 Form and fill in the information requested line by line), and within the required time periods: § 1 by the first day of work; § 2 by the third business day after hire; and § 3 by the date on which the evidence of temporary work authorization expires. As reconfirmed in United States v. New China Buffet, 10 OCAHO No. 1132, at 4-5 (March 10, 2010), late completion is a substantive violation leading to fines. CAVEAT: A late I-9 is better than no I-9. The fines should be lower. Therefore, identify missing I-9 Forms for current employees hired on or after November 7, 1986 and promptly address.
5. Show the I-9 instructions and the I-9 List of Acceptable Documents to the employee and allow the employee to choose a List A document OR a List B document and a List C document for § 2. Do not ask for specific documents and do not ask more documents if qualifying documents are presented.
Please watch future Employment Law Updates for more tips for achieving I-9 compliance in your workplace.
U.S. Citizenship and Immigration Services (USCIS), through its Office of Fraud Detection and National Security (FDNS), has implemented an on-site audit program that subjects H-1B employers to random site visits to verify information provided in H-1B petitions. The FDNS Web site is located via the USCIS Web site. FDNS’s mission is to detect and deter immigration fraud as well as to make sure that benefits are not provided to anyone posing a threat to national security or public safety. According to USCIS, more than 14,000 H-1B site visits have been conducted so far during the fiscal year that began October 1, 2009.
FDNS site visits are unannounced. They take place at the employer’s principal place of business and/or at the workplace location indicated on the H-1B visa petition filed with USCIS. FDNS uses these visits to verify information about the company and to confirm that the H-1B employee is actually working in compliance with the information provided in the visa petition, including hours, job duties, rate of pay, and education requirements.
During a typical site visit, the FDNS inspector will ask to speak to both a company representative, usually the individual who signed the visa petition for the company, and to the H-1B employee. The inspector also may interview other employees to further verify the information provided. Inspectors usually tour the workplace, take photos of the facilities, and review company documents such as payroll records and tax returns, to ensure that the business is bona fide. Although inspectors will not reschedule site visits to accommodate the presence of legal counsel, participation by telephone is permitted.
In addition to verifying compliance with the H-1B regulations, information gathered during the site visit is fed into the USCIS fraud detection database. USCIS uses this information to develop employer profiles and to review patterns and practices that could indicate fraud. FDNS refers suspected fraud cases to the U.S. Department of Labor or U.S. Immigration and Customs Enforcement, which may result in further investigation and the imposition of penalties or even criminal prosecution.
H-1B employers should have action plans in place that employees can follow in the event of an unannounced FDNS audit. Any employees who may potentially be involved in the site visit should be made aware that this type of audit is possible. They should be advised of what the site visit involves and what actions they should take such as contacting counsel; requesting the name, title, and contact information of the site inspector; and accompanying the inspector at all times during the site visit. A confidential file containing a complete copy of all H-1B visa petitions filed by the company should be maintained for ready reference in the event of an audit. Some employers also may find it worthwhile to stage a mock FDNS site visit under the supervision of counsel to prepare employees for what to expect and how to respond.