The Time to Comply is Now: The New “I-9 Sheriff” is in Town!

As we have previously informed our readers, the Department of Homeland Security (DHS) has issued yet another update to U.S. Citizenship & Immigration Services’ (USCIS) Employment Eligibility Verification Form (commonly referred to as Form I-9).

As of September 18, the revised Form I-9 is in effect, bringing a new paperwork duty for all U.S. employers. All employers who have not already done so must immediately disregard the old version of and begin using the new version of Form I-9. The new form is accessible on the (USCIS) website, and older versions of Form I-9 are no longer available to the public. The new version of Form I-9 is not required for existing employees, since it pertains only to new hires joining a company on or after September 18, 2017.

Following are some reminders for employers to keep in mind during the onboarding process:

  1. While the core requirements of Form I-9 remain unchanged, employers will find minor revisions concerning the instructions and the list of acceptable documents that confirm an intended employee’s identity and employment eligibility. Specifically, USCIS changed the name of the U.S. Department of Justice’s enforcement arm on employment eligibility compliance, namely from the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name of Immigrant and Employee Rights Section. What is more, USCIS modified the form’s instructions by removing “the end of” from the phrase “the first day of employment.” As a result, employers should amend their Form I-9 procedures to ensure that all intended employees complete the form’s Section 1 at the outset of the first day of employment.
  2. USCIS has also revised the list of acceptable documents concerning employment eligibility. Notably, USCIS added the Consular Report of Birth Abroad Form (Form FS-240) as an acceptable List C [employment eligibility] document. Form FS-240 is generated by the U.S. Department of State (DOS) at U.S. embassies worldwide to record the birth of a U.S. citizen outside U.S. territorial limits. Now, 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 pertaining to 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. Lastly, USCIS combined all the certifications of report of birth issued by the DOS into selection C # 2 in List C and renumbered all List C documents, except the Social Security card.

USCIS has included all these changes in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is more user friendly than older editions of this document. Unlike previous versions of M-274, users can no longer download the handbook as a PDF document. Instead, USCIS has now organized and posted the M-274 handbook’s content as a web-based resource. It is yet unclear how USCIS will be updating this document.  By consequence, employers should regularly review the most updated, on-line content of the M-274 handbook, as it will likely be a more dynamic document.

3.  Another valuable resource for employers handling Form I-9 issues is the I-9 Central webpage available on the USCIS website. This webpage provides additional information about Form I-9, including learning resources and frequently asked questions.

Although the changes to Form I-9 are minor, failure to use the new version of the form can result in significant fines. Employers should therefore revisit their compliance policies to ensure a seamless transition to the new Form I-9.

This post was written by Roy J. Barquet of Foley & Lardner LLP © 2017
For more Immigration Legal Analysis go to The National Law Review

Department of Homeland Security Seeks Comments for New ‘Smart’ Form I-9

For its proposed 13th iteration, the I-9 form is getting “smart” new features. The suggested changes to the form from the Department of Homeland Security include:

  •  Validation of certain fields to ensure the entered information is correct;

  • Helpful on-screen text for various fields;

  • Space to enter more than one preparer or translator;

  • Drop-down menu for the list of acceptable documents to cut down on entry errors;

  • A dedicated notes area for information employers now have to note in the margins;

  • A QR code to facilitate ICE audit reviews;

  • Replacement of the “other names used” field with “other last names” used; and

  • Provision of either I-94 or foreign passport, instead of both.

While the “smart” form will facilitate on-screen data entry and completion of the Form I-9, it is not an electronic form. After completion, employers not using an electronic I-9 system will have to print out the Form I-9 for signature by the foreign national and the employer.

Public comments on the revisions will be accepted through January 25, 2016, here. 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.

The current I-9 form expires on March 31, 2016. After that date, USCIS will have to extend the validity of the current form or introduce its new form.

Jackson Lewis P.C. © 2015

Federal Register Announces TPS Extended for Somalia – I-9 Update Temporary Protected Status

As published in the Federal Register on June 1, 2015, Temporary Protected Status (TPS) designation was extended for Somalian nationals currently living in the United States.  Somalia’s TPS extension and re-designation is for an additional 18 months, from September 15, 2015 through March 17, 2017.  This action was taken after the Secretary of Homeland Security determined the ongoing armed conflict in Somalia posed a substantial threat to living conditions in the country.  Employers should alert all company representatives responsible for the completion of I-9 forms about this development.

TPS Extension and Re-Designation

A country can be designated for TPS due to temporary conditions in the country that prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.  Individuals granted TPS benefits are not removable from the United States, can obtain an employment authorization document (EAD) to work in the United States, and may be granted travel authorization to travel outside the United States.  The granting of TPS does not, however, result in or lead to permanent resident status.

Somalia was initially designated under the TPS provisions in 1991, with re-designation in 2001 and 2012.  The announced extension of TPS designation for Somalia for an additional 18 months, from September 15, 2015 through March 17, 2017, allows current TPS beneficiaries from Somalia to retain TPS through March 17, 2017, so long as they otherwise continue to meet the eligibility requirements for TPS.

For individuals who have already been granted TPS under one of the previous designations, the 60-day re-registration period runs from June 1, 2015 through July 31, 2015.  USCIS will issue new EADs with a March 17, 2017 expiration date to eligible Somalia TPS beneficiaries who timely re-register and apply for EADs under this extension.  DHS is NOT granting interim work permission through an automatic extension of work authorization, so applicants should file their EAD renewal applications as soon as possible before their current EADs expire in September 2015.

Certain individuals of Somalia who have never applied for TPS may be able to apply under the late initial registration provisions, as long as they (a) can satisfy one of the late initial filing criteria; and (b) meet all TPS eligibility criteria.

©2015 Greenberg Traurig, LLP. All rights reserved.

U.S. Citizenship and Immigration Services (“USCIS”) Form I-9 Finally Makes Its Appearance

The National Law Review recently published an article, U.S. Citizenship and Immigration Services (“USCIS”) Form I-9 Finally Makes Its Appearance, written by W. Chapman Hopkins of McBrayer, McGinnis, Leslie and Kirkland, PLLC:

McBrayer NEW logo 1-10-13

U.S. Citizenship and Immigration Services (“USCIS”) just announced the long-awaited new Form I-9, Employment Eligibility Verification.  Although the previous form expired on August 31, 2012, employers have continued using the previous form pending the issuance of the revised form.

As before, all U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, including citizens and non-citizens. The form requires input from both the employee and employer (or an authorized representative of the employer). Although the new form is largely substantively the same, several stylistic changes were made in order to make it easier to read and more user-friendly.

For example, the instructions are clearer and there are new distinct data fields for employee information. The entire document consists of nine pages, with only two of these (pages 7 and 8) requiring completion. When providing the form to employees to fill out, however, it is important to provide the entire form so that they may read all instructions.

If your business maintains an electronic I-9 system, you should receive an update from your vendor about implementation. If you use paper versions, you can access the form here. It is a fillable PDF file, but may also be completed by hand. Despite only two pages requiring information, the form in its entirety should be kept on file.

Employers can start using the new form immediately, but must use it after May 7, 2013, as the old form will no longer be accepted after that date. Failure to use the new form could result in fines and penalties. Remember that required government forms are free, so you should never have to pay to be in compliance.

The USCIS provides in-depth detail about Form I-9, however government instruction is not legal advice.

© 2013 by McBrayer, McGinnis, Leslie & Kirkland, PLLC

USCIS Correction: Most Employers Must Complete English Version I-9

Varnum LLP
On March 12, 2013 the USCIS announced the new Form I-9 is available and may be completed in English or Spanish. Today, March 13, 2013, USCIS clarified that Spanish I-9 is available for completion only by Puerto Rico employers.
USCIS incorrectly announced full use during a teleconference but has now clarified onwww.USCIS.gov that the Spanish new form I-9 may not be used by employers (except Puerto Rico employers). Employers may continue to use the Spanish form for reference, but the English version must be completed.

The new Form I-9 is available in English and Spanish. In addition, USCIS has published aHandbook for Employers to provide guidance for completing the new Form I-9.

Employers are required to use the new Form I-9 beginning on May 7, 2013, but it may be used immediately. USCIS will accept prior versions of Form I-9, “(Rev. 08/07/09) Y” and “(Rev. 02/02/09) N”, until May 7, 2013.

Immigration Law Alert – USCIS Extends Form I-9 Validity Period Past Aug. 31, 2012 Expiration Date

On Aug. 13, 2012, U.S. Citizenship and Immigration Services (USCIS)announced that employers should continue using the current version of the Form I-9 after the form’s expiration date of Aug. 31, 2012. The Form I-9 is the employment verification form designed to help employers verify individuals who are authorized to work in the United States. The current version of the Form I-9 has the expiration date of Aug. 31, 2012 printed in the upper right corner and the revision date of Aug. 7, 2009 printed in the lower right corner.

Previously, on March 27, 2012, USCIS published a proposed revision of the Form I-9 and accepted comments on the proposed form until May 29, 2012. USCIS’s announcement instructing employers to continue to use the current form until further notice indicates that the agency will not publish a final revised Form I-9 before the expiration date of the current Form I-9.

Additional information regarding the new I-9 form will follow as it becomes available.

© 2012 BARNES & THORNBURG LLP

From the Office of Special Counsel: Anatomy of an OSC Investigation

An article regarding The Anatomy of an OSC Investigation written by Dawn M. Lurie of Greenberg Traurig, LLP recently appeared in The National Law Review:

GT Law

The phone rings.

“Hello, this is Attorney Smith with the Office of Special Counsel for Immigration-Related Unfair Employment Practices, may I speak to the Human Resource manager in charge of your Form I-9 process?”

You say to yourself, “This is not good. I have no idea what this government agency is — Office of the Special Counsel for…what?” Your gut confirms: this does not sound good at all.

“This is she. I’m sorry, you are with whom?”

“The Office of Special Counsel for Immigration-Related Unfair Employment Practices…the OSC. I’m calling about a complaint our office received regarding your company re-verifying Permanent Residents, requiring applicants to complete Forms I-9 before you offer them employment and, last but not least, asking certain employees to bring in Social Security cards.”

You ask yourself, “Is this as serious as it sounds? What do I do now?”

What is the The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC for short)?

The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act (INA), which protects work-authorized individuals from discrimination during the process of hiring, firing, employment eligibility verification, and recruitment or referral for a fee on the basis of citizenship status and national origin. The statute also protects all work-authorized individuals from retaliation in connection with exposing such practices or asserting their rights under the law’s anti-discrimination provision.What is the The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC for short)?

OSC provides a hot-line where employees can report concerns and discuss complaints that they often will make queries to ascertain. As a result of receiving a call, OSC attorneys will review the facts and determine if a basis exists for moving
forward. Often times there are miscommunications that can be cleared up at the initial stage. This can be done through educating the employer and/or clarifying the situation with the employee.

What happens when an actual charge is received?

OSC investigates every complete charge received, although many charges are dismissed as incomplete for lack of jurisdiction or failure to state a claim that indicates a violation of the INA’s anti-discrimination provisions. OSC also conducts self-initiated or independent investigations when it discovers information that suggests a possible violation of the INA’s anti-discrimination statute by an employer. This information is often the result of an unrelated investigation.

Timeline

Within 10 days of receiving a complete charge, the Equal Opportunity Specialist (EOS) or attorney assigned to a case sends letters to the person or group bringing the charge, the Office of the Chief Administrative Hearing Officer (OCAHO), and the entity allegedly violating the INA anti-discrimination provision.The letter explains the filing of a complete charge and the time frame of an initial investigation (120 days). Respondents are directed to submit additional information and documents relevant to the investigation. If your company receives a letter from OSC, it should be taken very seriously and the response should be reviewed by counsel.

By the 120th day, OSC determines whether there is reasonable cause to believe that a violation of the INA’s antidiscrimination statute has occurred, whether to continue investigating the charge for an additional 90 days, or whether to dismiss the charge. Irrespective of OSC’s decision, the person or group bringing the claim receives a letter stating that he or she has 90 days from the date of receiving OSC’s 120-day letter to submit a complaint with OCAHO even if OSC ultimately declines to pursue its own complaint. At this point, the OSC also notifies the respondent of the status of its investigation.

At this point, we often recommend a review of companies’ policies as they relate to immigration compliance, including the hiring process, E-Verify procedures, and Form I-9 completion, even if these policies are outside the scope of the specific information being investigated by OSC. OSC attorneys are bright, resourceful, and relentless when necessary, and we have found them to be knowledgeable adversaries. Fortunately, we have been able to work with OSC at the initial investigation stage in a number of matters, including instituting compliance safeguards and closing out investigations with settlement agreements when appropriate. When an investigation continues past the initial 120-day period, OSC must decide by the 210th day whether to dismiss the case, begin settlement negotiations, or file a lawsuit. In cases where the OSC attorney is unable to render a decision within 210 days, both parties generally agree to additional time.

What does this mean to my company?

Investigations by the OSC should be taken very seriously and internal reviews of employment verification practices must be central to companies’ overall compliance strategies. Companies must ensure that they abide by the INA’s anti-discrimination provisions and treat all employees consistently by not arbitrarily requiring employees to provide new or updated Form I-9 information or document copies. It is important to note, however, that companies do not need to run very far afoul of the law to trigger the OSC’s attention. Indeed, the Obama administration has resurrected the use of civil fines for Form I-9 violations and intensified the government’s enforcement efforts to actively pursue employers who engage in discriminatory hiring practices. Companies contacted by the OSC should immediately retain experienced immigration counsel and assess potential liability at additional locations, if applicable.

Examples of recent investigations by the Office of Special Counsel (OSC)

On January 4, 2012, the Justice Department reached a settlement with the University of California San Diego Medical Center over allegations that it subjected newly hired non-U.S. citizens to excessive demands for documents verifying their employment eligibility but did not impose the same requirement on newly hired U.S. citizens. The Immigration and Nationality Act (INA) prohibits employers from discriminating against employees on the basis of citizenship status or national origin by imposing disproportionate documentary burdens during the hiring and employment eligibility verification processes. Under the terms of the agreement, the Medical Center will implement new employment eligibility verification policies to ensure equal treatment of all employees, pay a $115,000 civil penalty, conduct supplemental training of its human resources personnel, and coordinate with the Department of Justice to maintain compliance with proper employment eligibility verification processes across all University of California campuses, medical centers and facilities. To date, the Medical Center has taken appropriate measures to comply with the INA’s anti-discrimination provision and has received a Department of Homeland Security and U.S. Immigration and Customs Enforcement (ICE) training on how to properly use work authorization documents.

On December 30, 2011, the Justice Department announced a settlement with Garland Sales, Inc. of Georgia over allegations that the rug manufacturer engaged in discrimination by subjecting employees of Hispanic descent to unnecessary documentary requirements when establishing their eligibility to work in the United States and retaliating against a worker who protested. According to the terms of the settlement, Garland will pay $10,000 in back pay and civil penalties and will undergo training on proper employment eligibility verification practices. The Department’s complaint alleges that Garland required newly hired non-U.S. citizens and foreign-born U.S. citizens to present work authorization documents beyond those required by federal law, including a “green card” in addition to an unexpired driver’s license and an unrestricted Social Security card. The Immigration and Nationality Act (INA) mandates equal treatment of authorized workers during the hiring process, regardless of their national origin or citizenship status.

On December 13, 2011, the Justice Department announced a settlement with S.W.J.J. Inc., or Sernak Farms, of Weatherly, Pennsylvania over allegations that Sernak engaged in discrimination on the basis of citizenship status by preferring to hire temporary visa holders over U.S. citizen applicants and adversely treating its U.S. citizen employees. The Department of Justice investigation revealed that Sernak hired three foreign national workers under the H-2A visa program but did not consider hiring three of the eight U.S. citizens who brought the underlying charge on the belief that H-2A visa holders are more diligent than U.S. workers. Of the five U.S. citizens who were hired, the government’s investigation suggested that Sernak treated them differently than its foreign national employees in the terms and conditions of their employment and then dismissed them because of their citizenship status, a violation of the Immigration and Nationality Act (INA). Under the terms of the settlement, Sernak agreed to pay $30,000 in back pay to the eight injured parties, who are U.S. citizens residing in Puerto Rico. The company has also agreed to provide its employees with training on the anti-discrimination requirements of the INA, adopt nondiscrimination policies with respect to recruitment and hiring, and maintain and submit records to the Department of Justice for the three-year term of the agreement.

On September 21, 2011, the Office of Special Counsel (OSC) issued a letter of resolution to Glenn Walters Nursery of Cornelius, Oregon, in response to a charge of document abuse and citizenship status discrimination brought by a Legal Permanent Resident. The employee who brought suit alleged that he was fired when he could not comply with an improper request to present a new permanent resident card and thereby demonstrate employment eligibility. The letter of resolution provides that Glenn Walters Nursery will train its human resources staff on the Form I-9 process and the anti-discrimination provision of the INA, implement corrective measures to correct the computer software error that caused the improper document request, refrain from reverifying the employment eligibility of permanent residents whose Permanent Resident Cards expire, and reinstate the employee with seniority, benefits and $12,000 in back pay.

On August 31, 2011, OSC issued a letter of resolution to Dollar Bank of Cleveland, Ohio in response to allegations that the Bank engaged in discriminatory hiring practices based on citizenship status. The employee who brought an action against Dollar Bank alleged that the company declined to hire her because she was a Legal Permanent Resident and not a U.S. citizen at the time of her application. The letter of resolution awards the employee $6,500 in back pay and requires Dollar Bank to consult with OSC about creating a comprehensive training program for its human resources personnel.

On August 30, 2011, OSC issued a letter of resolution to Texas Women’s University (TWU) of Denton, Texas to resolve allegations that the university engaged in citizenship discrimination by denying an internship to the aggrieved employee because he is a Legal Permanent Resident and is not required to register for the Selective Service due to age. In response to his claim that the university preferred to hire U.S. citizens who registered for the Selective Service, the letter of resolution awards the employee $1,023.47 in back pay and requires TWU to consult with OSC to create a comprehensive training program for its human resources personnel.

Crossing the citizenship discrimination spectrum, OSC issued a letter of resolution to Best Packing Services, Inc. of Philadelphia, PA to resolve allegations of discriminatory hiring practices against a U.S. citizen. The letter, issued on August 22, 2011, resolves an employee’s claim that Best Packing Services preferred to hire non-U.S. citizens and denied him employment because he is a U.S. citizen. The letter of resolution provides that the employee receive $1,500 in back pay and requires Best Packing Services to work with OSC to create a comprehensive training program for its human resources personnel.

Resources from the Office of Special Counsel (OSC)

The Immigration Reform and Control Act (IRCA) that created OSC mandates a rigorous outreach effort to educate employers and workers about their rights and obligations under the INA’s anti-discrimination and employer sanctions provisions. To this end, OSC’s outreach materials target employers and workers alike. Resources intended for employer audiences include written materials on avoiding discrimination, navigating the E-Verify process, and posting employment opportunities online, as well as Social Security no-match guidance and information about the Form I-9 documents that refugees, asylees, and individuals with Temporary Protected Status (TPS) may present. In addition to printed materials, OSC also offers a variety of multimedia resources including videos and PowerPoint presentations.

To access these materials, please visithttp://www.justice.gov/crt/about/osc/htm/employer.php. We urge employers to access these resources as part of a robust compliance strategy which includes developing or improving existing compliance plans and providing regular and ongoing training, including anti-discrimination and fraud document seminars, to human resources staff responsible for Form I-9 completion. For up-to-the-minute immigration compliance news, please visit http://immigration.gtlaw.com.

©2012 Greenberg Traurig, LLP.