Total Articles: 180
Warning: ICE Build-Up a Worry for Employers Navigating I-9 Compliance
The Obama Administration is launching another round of worksite investigations—this time, returning to employers that have already been the subject of I-9 inspections during the last three years. Approximately 500 employers are being re-visited by Special Agents to confirm that noncompliant activity identified during prior reviews has been remedied, according to U.S. Immigration and Customs Enforcement. Generally, businesses must make sure they are hiring only people who can work legally in the U.S. Businesses that previously have received warning letters or administrative fines may now be the subject of treble damages if ICE Special Agents find that, notwithstanding the prior review, the employer continues to make the same mistakes.
I-9 Compliance: Avoiding Traps of New Federal Security Features
Hiring managers know that in order to legally utilize immigrant workers, they must accurately complete an Employment Eligibility Verification Form I-9. But, there’s a redesigned federal document that is leading to confusion as businesses try to comply with the law.
Construction Alert: Protecting Your Company From The Federal Crackdown On Form I-9s
The numbers are staggering. As of Sept. 17, U.S. Immigration and Customs Enforcement (ICE) instituted 3,015 administrative and criminal investigations and issued 2,393 Notices of Inspection for Form I-9 compliance in 2011. That’s a 375 percent increase from 2008.
The Law of Unintended Consequences: Immigration and E-Verify
A recent article in Businesweek, A Verification System for New Hires Backfires makes clear just how complex the immigration issue is.
I-9 and E-Verify News
The United States Citizenship and Immigration Services (USCIS) has released a new edition of its E-Verify Connection newsletter, which provides its latest announcements in the rapidly changing world of I-9 and E-Verify compliance.
E-Verify Bill Survives Judiciary Committee, But Faces Opposition on Many Fronts
As reported by the Wall Street Journal, the Legal Workforce Act (H.R. 2885) (pdf), which would require that employers use E-Verify to authenticate individuals’ legal work status, has produced one of the more unusual opposition coalitions, given the current political climate: conservative, tea-party, libertarian and liberal groups all oppose the measure. The groups have voiced their opposition in letters to lawmakers, and one group took an ad out on Politico, a multimedia news outlet covering politics.
Survey Finds Increasing Numbers of Employers Use E-Verify
HireRight, an international employment screening provider, recently released its 2011 Employment Screening Benchmarking Report (available here). The report, in part, examines employer use of E-Verify, the federal electronic employee verification system. Of the 1,800 human resources, talent management, recruiting, security, safety and compliance professionals surveyed, 51% indicated that they use E-Verify, as compared to 28% in the 2010 report.
Rep. Smith to President Obama: Include E-Verify in Jobs Bill
Representative Lamar Smith (R–TX) has called on President Obama to include in the American Jobs Act a provision mandating that employers use E-Verify, the electronic employment authorization program.
MAKING SENSE OF “E-VERIFY”
California employers likely know their obligation to verify the employability of their newly hired workers through the federal I-9 process, to prevent the employment of undocumented workers. Under this process, employees present documentation establishing eligibility to work, and proof of identity. Federal regulations specify which documents are sufficient to establish each of these requirements. The employer reviews these documents to make sure they appear reasonably genuine. The employer and employee complete a Form I-9 documenting this process. The employer is responsible for ensuring that the I-9 verification paperwork is completed timely and correctly, and for maintaining these records and making them available for inspection upon request.
Obama Administration Increases Scrutiny of Employers’ I-9 Records
On Wednesday, June 15, 2011, the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) agency notified 1,000 employers that their personnel records will be audited by federal investigators to determine their compliance with employment eligibility verification laws.
Federal Judge Blocks Certain Provisions of Georgia Immigration Law
Today, U.S. District Court Judge Thomas Thrash granted a temporary injunction on key parts of the Georgia Immigration law due to go into effect on July 1, 2011. The Judge ruled that the criminal provisions of the law, specifically those empowering police to investigate the immigration status of certain suspects and those prohibiting the transport, harboring, and enticing of illegal aliens, ran afoul of federal law. The parts of the law that were not blocked will go into effect as scheduled, including those requiring state contractors and private employers to participate in E-Verify.
U.S. Citizenship Launches New Online Resource
U.S. Citizenship and Immigration Services recently launched a new online resource providing employer and employee guidance relating to the I-9 Employment Eligibility Verification Form. "I-9 Central" provides employers with information relating to I-9 completion, examples of acceptable documents, and I-9 retention and storage guidance. Employers also can pose questions through a toll-free number and via email.
Supreme Court Determines Arizona’s Legal Arizona Workers Act Not Preempted by Federal Law
The U.S. Supreme Court has rejected arguments that the controversial Legal Arizona Workers Act (“LAWA”) was preempted by federal law and would lead to discrimination by employers. Chamber of Commerce of the United States v. Whiting, No. 09-115 (May 26, 2011). The Legal Arizona Workers Act imposes sanctions on employers that knowingly or intentionally hire unauthorized workers, as well as requires employers to participate in the federal E-Verify program.
Employment law roundup: Do sexy immigrants who E-verify on Facebook cause obesity?
Happy Memorial Day weekend, everybody! Top stories this week:
They're Baaaaaack! "No-Match" Letters Resume After Three-Year Hiatus
The Social Security Administration recently announced that it would once again be sending "No Match" letters to employers. "No Match" letters are intended to advise employers that there is some discrepancy in the SSA records between the name of an employee and the Social Security number listed for that employee as of the time that the employer submitted payroll taxes.
SSA Resumes Issuance Of "No Match" Letters
The Social Security Administration (SSA) has resumed sending out No-Match letters to employers. This ends a long break that started when the Department of Homeland Security's 2007 no-match regulation (now rescinded) was blocked by a court. SSA's new letter says that the recipient is not required to respond, and that the letter alone should not be the basis for taking any adverse action against the employee listed. If you do respond to the letter, the SSA may share the information with the Internal Revenue Service or the Department of Justice.
Horrors: Return of the No-Match Letter
The Social Security Administration has resumed sending "no-match" letters to employers of workers whose 2010 W-2 contains information that does not match the name, date of birth, and social security number in the "Numident" database used by SSA to track retirement and disability contributions, benefits, and claims. Employers must not ignore these notices and should develop a careful policy for taking action on them.
New Round Of I-9 Audits
U.S. Immigration and Customs Enforcement (ICE) has started to serve another round of I-9 Notices of Inspection (NOIs) to businesses nationwide. ICE is expected to issue NOIs to over 1,000 businesses in the next few days. The NOIs require in-person inspection of I-9 employment verification forms and payroll documentation. Targeted employers are given three business days to prepare for a meeting with federal officials for review of the requested documentation. In the recent past, ICE has selected businesses for audit based on specific leads and information regarding allegations of hiring unauthorized workers, exploiting workers, and paying unfair wages. ICE also has targeted certain industries, including hospitality, manufacturing, and construction. Fines for uncorrected technical and substantive errors on the forms range from $110 to $1,100. Higher fines apply for knowing employment of unauthorized workers. Even if you do not receive an NOI in this round of audits, we recommend that you take this opportunity to conduct an audit of your I-9 compliance and policies.
More I-9 Audits and Other Immigration Accountability
Employers are facing increasing accountability concerning immigration. ICE is readying 1,000 new I-9 audits. Purchasers and states are requiring use of E-Verify. USCIS is doing all kinds of double checking of filings for immigration benefits. DOL is auditing attestations underlying immigration filings. Even companies who only use foreign workers through staffing companies could face challenges. People must maintain and prove lawful status to obtain drivers licenses, welfare benefits, port access cards, and increasingly many other credentials. All of this suggests that an “immigration tune-up” might make sense for many companies and even families.
Updated USCIS Handbook Answers Common I-9 Questions
U.S. Citizenship and Immigration Services (USCIS) has released an updated version of its I-9 Handbook for Employers. The new edition provides several critical revisions to the prior version of the Handbook (also known as Form M-274). Employers can view and download the updated version at the USCIS website.
New Employment and Compliance Inspection Center, No Relief from ICE Form I-9 Audits
In case there were any lingering doubts, U.S. Immigration and Customs Enforcement (ICE) has signaled unmistakably that it intends to keep conducting I-9 audits and imposing civil fines on employers at a record breaking pace.
USCIS Revises I-9 Handbook for Employers
USCIS has issued a January 5, 2011 version of the "Handbook for Employers" designed to guide employers in the mystifying details involved in completing the deceptively simple one-page Form I-9 for each new hire. The new version adds lots of helpful, well organized information about tricky situations and updates photos of a few document types. It resolves some confusion about such topics as grandfathered employees, the time within which to complete section 2, name changes and inconsistencies or misspellings, correcting mistakes on Forms I-9s, using agents to review employee documents, and state drivers license and IDs that state they are not for employment authorization. Unfortunately it continues some errors about documents and continues to provide little real guidance about what documents are and are not authentic, given the immense variation in valid documents and the limited number of valid documents depicted.
USCIS Revises I-9 Handbook for Employers
USCIS has issued a January 5, 2011 version of the Handbook for Employers designed to guide employers in the mystifying details involved in completing the deceptively simple one-page Form I-9 for each new hire. The new version adds lots of helpful, well organized information about tricky situations and updates photos of a few document types. It resolves some confusion about such topics as grandfathered employees, the time within which to complete section 2, name changes and inconsistencies or misspellings, correcting mistakes on Forms I-9s, using agents to review employee documents, and state drivers license and IDs that state they are not for employment authorization.
Q: Can I Throw Away the Paper I-9 Once It's Been Scanned and Saved?
Yesterday, I spoke to Delaware and Pennsylvania employers and HR professionals about documentation and record-retention issues. Two of the most popular topics were I-9 compliance and electronic or paperless recordkeeping. I mentioned to attendees a new publication that addresses both topics.
Florida Governor Orders Agencies To Use E-Verify.
Effective immediately, Florida state agencies under the direction of the Governor, and any contractors or subcontractors with those agencies, are required to use the U.S. Citizenship and Immigration Services' E-Verify system to check the legal work authorization of employees.
Requesting Too Many Documents Can Be Costly.
The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, a division of the Department of Justice (DOJ), enforces the anti-discrimination provisions of Section 274B of the Immigration and Nationality Act. This statute prohibits discrimination in hiring, firing or recruitment or referral for a fee that is based on an individual's national origin or citizenship status. The statute also prohibits unfair documentary practices during the employment eligibility verification (Form I-9) process, and retaliation or intimidation.
U.S. Supreme Court Hears Oral Argument Regarding Challenge to Arizona's Controversial E-Verify Law.
The Supreme Court heard oral argument on December 8, 2010 in Chamber of Commerce v. Whiting, Docket No. 09-115, to determine if the Legal Arizona Workers Act ("LAWA") is preempted by federal law. Passed in 2007, LAWA is a controversial law that requires mandatory use of E-Verify by all employers in Arizona and threatens to invoke the business "death sentence" by revoking their business license if they knowingly hire or employ unauthorized workers. The outcome of this case has significant ramifications for employers in all states because it will set the precedent for whether states have the right to create rules on the use of E-Verify or impose their own immigration legislation on employers.
Abercrombie & Fitch Immigration Fine: A Lesson for Employers
On September 28, 2010, U.S. Immigration and
Customs Enforcement (ICE) announced that it was
fi ning clothing retailer Abercrombie & Fitch $1.05
million for violations of its obligation to verify the
employment eligibility of its workers. The settlement
was the result of an audit of the I-9 records for
Abercrombie & Fitchs retail stores in Michigan.
The audit uncovered numerous defi ciencies in the
companys process for completing and retaining its
I-9 records.
This Halloween, Don't be Tricked by New I-9 Rules on Birth Certificates From Puerto Rico
On July 1, 2010, Puerto Rico began issuing new certified copies of birth certificates to U.S. citizens born in Puerto Rico.
The new, more secure document is expected to strengthen certified copies of birth certificates, combat fraud, and protect
the identities and credit of Puerto Rican-born U.S. citizens. After October 30, 2010, all certified copies of birth certificates
issued prior to July 1, 2010, will be invalid. (Originally, the certified copies of birth certificates were to become invalid on
September 30, 2010, but a thirty-day extension was granted on September 23, 2010.) The new law does not affect the
citizenship status of U.S. citizens born in Puerto Rico, but it does invalidate certified copies of birth certificates issued
before July 1, 2010.
New E-Verify User Manuals for Employers, Their Agents, and Federal Contractors.
U.S. Citizenship and Immigration Services (USCIS) has released new E-Verify User Manuals for Employers, Employer E-Verify Agents, and Federal Contractors. The new manuals reflect changes to the E-Verify website and offer additional guidance and clarification.
Abercrombie & Fitch Fined $1 Million After I-9 Audit
The U.S. Immigration and Customs Enforcement (ICE) announced Tuesday that it had settled with clothing retailer Abercrombie & Fitch on a fine in excess of $1,000,000 for violations of the Immigration and Nationality Act. The violations related to an employer's obligation to verify its workers for employment eligibility.
ICE Targets Over 500 Businesses for I-9 Audits
U.S. Immigration and Customs Enforcement (ICE) began serving Notices of Inspection (NOIs) to over 500 businesses nationwide on September 15, 2010. The NOIs require in-person inspection of I-9 employment verification forms and payroll documentation. Targeted employers are given three business days to prepare for a meeting with federal officials for review of the requested documentation.
3d Cir. Finds Anti-Illegal-Alien Ordinance Unconstitutional
In Lozano v. City of Hazelton, the Third Circuit Court of Appeals ruled that the Hazelton, Pennsylvania ordinances regarding illegal aliens were unconstitutional. The ordinances, which had been enjoined by a federal court before taking effect, were designed to keep illegal aliens out of the town by penalizing employers who employed them and landlords who rented to them. The court found that the ordinance conflicted with federal immigration laws and therefore violated the Supremacy Clause. The ordinances operated in part through the sanction of suspending the business license of any person or entity who hired a worker not authorized to work in the U.S.
Final Rule Allows Electronic Signature and Storage of Employment Eligibility Verification Form I-9
Employers may now allow employees who are required to complete and sign a Form I-9, Employment Eligibility Verification (Form I-9), to sign the form electronically, and signed forms may be retained in an electronic format. On July 22, 2010, the Department of Homeland Security (DHS) published a Final Rule, effective 30-days after publication in the Federal Register, that provides employers with the option to complete, sign, scan and store the Form I-9 electronically, as long as the standards promulgated by the rule are satisfied. In light of increasing government enforcement, employers, regardless of whether they maintain the forms electronically, should be aware of common Form I-9 mistakes, discussed herein.
The Road to Verification: U.S. Supreme Court to Weigh in on E-Verify, But Pennsylvania Moves Ahead.
Arizona's controversial immigration laws are being tested in the court of public opinion, the 9th U.S. Circuit Court of Appeals and the U.S. Supreme Court, but that's not stopping Pennsylvania from wading into the same potential quagmire.
E-VERIFY REDESIGNED (pdf).
On June 13, 2010, the Department of Homeland Security unveiled its latest
redesign of the E-Verify website with the goal of improving its usability, security, accuracy
and efficiency.
DHS Issues Final Rule on Electronic Signature and Storage of I-9s.
Employers must complete Form I-9 to verify the ability of their employees to legally work in the U.S. Traditionally, the Form I-9 was in a hardcopy paper format. In June 2006, however, the Department of Homeland Security (DHS) issued an interim rule permitting electronic completion, signatures, and storage of I-9s as a way of modernizing and improving the accuracy and cost-effectiveness of employers' employment verification programs.
States Continue to Adopt Provisions Requiring All Employers to Use E-Verify.
The growing patchwork of state E-Verify legislation continues to spread across the country. Several new state laws are poised to take effect this month. E-Verify is an Internet-based system run by the Department of Homeland Security ("DHS") and U.S. Citizenship and Immigration Services ("USCIS") that allows employers to verify the employment authorization of their employees. The system confirms the authorization of workers by checking the information provided by employees on their Form I-9s against the records contained in DHS and Social Security Administration databases.
Is Your Company Next? 10 Tips to Help Prepare for an ICE I-9 Audit.
In June, the Department of Homeland Security's Immigration and Customs Enforcement (ICE) issued a strategic plan for work site enforcement through fiscal year 2014. One of the key initiatives of the plan is enforcement of U.S. immigration-related employment laws, in particular pursuing employers who knowingly violate the laws.
I-9 audits and fines are on the rise (pdf).
Is your company prepared for an investigation?
Green Card Redesign - The New Card Will Be Green!
On May 11, U.S. Citizenship and Immigration Services (USCIS) announced it will begin issuing a redesigned Permanent Resident Card, commonly referred to as the "Green Card." For the first time in over 30 years, newly-issued Green Cards will actually be green in color. The new card replaces the beige/tan card that has been used for the past several years. The new card incorporates several new security components, including storing biometric data and adding several features designed to prevent fraudulent reproduction of the card. Existing cards, produced in the older format, remain valid for the period indicated on the card. As individuals renew their Green Cards, the old cards will be phased out.
The New ICE Age: Are You Ready for an I-9 Audit?
In April 2009, Janet Napolitano, secretary of the U.S. Department of Homeland Security (DHS), announced new guidelines for worksite enforcement directing the U.S. Immigration and Customs Enforcement (ICE) to shift its focus and resources to investigating and prosecuting employers who knowingly employ undocumented workers in violation of U.S. immigration laws. This shift in strategy is based on the belief that employment is the driving force behind illegal immigration and that the only way to stem the tide is to eliminate that temptation. ICE Assistant Secretary John Morton recently stated one of the department's goals is to "create a culture of compliance within the employer community" by encouraging employers to follow U.S. immigration laws and by conducting I-9 audits and investigations and assessing fines against employers who flaunt the law. ICE will continue to arrest undocumented workers uncovered during a worksite enforcement action.
ICE Issues Third Round of I-9 Notices of Inspection.
On March 3, 2010, U.S. Immigration and Customs Enforcement (ICE) announced the issuance of Form I-9 Notices of Inspection to 180 businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. The Notices of Inspection require employers to allow ICE to inspect their I-9 forms to determine compliance with employment eligibility verification laws.
New E-Verify Law Goes Into Effect.
The recently passed law amending the Illinois Right to Privacy in the Workplace Act places statutory obligations on employers that use E-Verify. Effective January 1, 2010, Illinois employers now are required to complete an attestation at the time of E-Verify enrollment. The form requires employers to attest to the following: (1) the employer and all its employees using E-Verify have received the Basic Pilot or E-Verify training materials and completed the online computer-based tutorial (CBT) training provided by the Department of Homeland Security (DHS); (2) the employer has posted the required notice from DHS indicating that the company is enrolled in E-Verify in a place that is clearly visible; (3) the employer maintains the original signed attestation form, as well as all CBT certificates of completion and makes them available for copying and inspection at the request of the Illinois Department of Labor; and (4) the employer has posted the required anti-discrimination notice issued by the Office of Special Counsel for Immigrant-Related Unfair Employment Practices (OSC) in a place that is clearly visible. Employers already enrolled in E-Verify must sign the attestation before January 30, 2010.
The Federal Government and Immigration Enforcement in 2010: I-9 Audits, Site Visits and a Big Push for E-Verify.
The Obama administration's Immigration and Customs Enforcement (ICE) under the leadership of Secretary of Homeland Security Janet Napolitano implemented a bold new worksite enforcement strategy and shifted the focus onto employers in 2009. The result was immediately noticeable, and a new era of stricter corporate compliance means the business community should now be on guard and expect an increase in I-9 audits, employer recordkeeping audits, unannounced site visits, and a big push for E-Verify for use by employers in 2010.
Federal Government Announces More I-9 Investigations.
Continuing the trend of increasing I-9 audits, U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced on November 19 the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country. This round of inspections is focused on employers associated with "critical infrastructure." The employers were selected based upon investigative leads and intelligence and because of the businesses' connection to public safety and national security. While the names of the businesses were not released, it is suspected that employers based at or near airports, borders, military installations, and critical infrastructure facilities (such as power plants, chemical facilities, etc.) are likely targets. In the same press release, ICE indicated that its newly-implemented enforcement strategy initiated on April 30 has already resulted in 1,069 Form I-9 Inspections and Notices of Intent to Fine (NIF) totaling nearly $16 million.
ICE Steps Up I-9 Audit Activity in FY 2010.
The Immigration and Customs Enforcement agency, the enforcement arm of the U.S. Department of Homeland Security, announced in November that it had issued I-9 audit notices to 1,000 businesses. ICE says it is targeting employers that are associated with critical infrastructure and public safety and national security, but these limitations appear to be very broadly drawn.
Immigration Update: Obama administration keeps up pressure on businesses with announcement of 1000 additional employer i-9 audits.
Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced last week the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country associated with critical infrastructure - alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws.
Second Wave of I-9 Audits: ICE Sends Notices of Inspection to 1,000 Employers.
On November 19, 2009, U.S. Immigration and Customs Enforcement (ICE) announced that it had issued Notices of Inspection (NOIs) to 1,000 employers across the country who are involved with critical infrastructure. The NOIs mean ICE will be auditing the employers' hiring records, specifically their Form I-9s, to determine compliance with the employment eligibility verification laws.
ICE Issues Another Round of Immigration I-9 Notices of Inspection.
On November 19, 2009, U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced the issuance of Form I-9 Notices of Inspection to 1,000 employers nationwide. The Notices of Inspection require employers to allow ICE to inspect their I-9 forms to determine compliance with employment eligibility verification laws. This is ICE's second round of immigration audits this year. The first round occurred on July 1, 2009, when ICE issued Notices of Inspection to 652 businesses.
E-Verify Updates Federal Contractors, Illinois Special Certification, Supreme Court Mulls Arizona Law.
President Barack Obama signed a $42.8 billion fiscal year 2010 homeland security appropriations bill that included a three-year extension of the federal governments employment verification system E-Verify. Approximately $137 million was budgeted to operate the system and further improve its accuracy and compliance rates. Although proposals to make E-Verify mandatory were not included in the final bill, there is clear support for the continuation and expansion of E-Verify as evidenced by the recent implementation of the Federal Acquisition Regulation (FAR) requiring certain federal contractors to use the system.
Where Are Your I-9s ? Cant Seem to Find Them? Tell It to the Judge.
U.S. Immigration and Customs Enforcement (ICE) launched a nationwide I-9 audit initiative on July 1, 2009, issuing Notices of Inspection (NOIs) to 652 employers (see the ICE press release). This action confirms the new method of enforcement promised by representatives of the Obama Administration. In April 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano indicated that ICE would focus its worksite enforcement program resources on the criminal prosecution of employers that knowingly hire illegal workers and that ICE would use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.
DHS Throws In The Towel, Rescinds No-Match Rules.
Plagued by controversy and legal battles, the Department of Homeland Security (DHS) is rescinding the 2007 No-Match Rule in a regulation to be published in the October 7 Federal Register.
DHS Rescinds No-Match Regulation.
The Department of Homeland Security (DHS) has formally withdrawn its Social Security "no-match" regulation, promulgated back in 2007. The no-match regulation set forth a "safe harbor" for employers who receive letters from the Social Security Administration (SSA) stating that an employee's Social Security Number (SSN) does not match the agency's records. The safe harbor rule required employers to take certain steps to resolve the discrepancy within a certain period of time or face liability. Shortly after being issued in 2007, the no-match regulation was challenged in court, subject to an injunction and ultimately never implemented. As of October 7, 2009, the rule was formally rescinded.
E-Verify: The Truth About Who Has to Use It (pdf).
Now, not only do all private employers with operations in certain states (Arizona, Mississippi, and South Carolina) have to use E-Verify, but also certain employers with certain federal contracts or subcontracts have to as well. Figuring out whether you are required to use E-Verify and what you need to do can prove challenging, so we've rounded up some helpful tips.
Enforcement Update I-9 Audits and Criminal Sanctions.
U.S. Immigration and Customs Enforcement (ICE) launched a nationwide I-9 audit initiative on July 1, issuing Notices of Inspection (NOIs) to 652 employers (see the ICE press release). This action confirms the new method of enforcement promised by representatives of the Obama Administration. In April 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano indicated that ICE would focus its resources in the worksite enforcement program on the criminal prosecution of employers that knowingly hire illegal workers and that ICE would use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.
Which I-9 Form to Use?
First, the simple answer: employers should use the most recent Form I-9 found at www.uscis.gov/i-9. The form indicates the most recent revision date on the lower right hand corner: Rev. 08/07/09. Also acceptable is the immediately prior version of the form dated 02/02/09 on the lower right hand corner.
E-Verify for Federal Contractors Underway.
On November 14, 2008, the Bush Administration promulgated a final rule to amend the Federal Acquisition Regulation (FAR) to require certain federal contractors to use E-Verify. After four delays and a lawsuit filed to prevent implementation, the federal contractor/E-Verify regulation became effective on September 8.
Fourth Circuit Refuses to Stay Implementation of Federal Contractor E-Verify Rule.
The U.S. Court of Appeals for the Fourth Circuit has denied a motion to stay implementation of the federal contractor E-Verify rule pending resolution of challenges filed by the U.S. Chamber of Commerce and several business groups. See Chamber of Commerce of the United States of Am. v. Napolitano, Case No. 09-2006 (9/9/09). Accordingly, the E-Verify rule which took effect on September 8, 2009 remains in effect for qualifying federal contracts and subcontracts entered into on or after that date.
Federal Contractor E-Verify Rule Goes Into Effect On September 8, 2009
On September 8, 2009 the government will begin requiring federal contractors to use E-Verify to verify the legal work status of newly-hired employees and current employees working directly on the covered federal contract. The U.S. Chamber of Commerce is seeking an emergency order from the U.S. Court of Appeals for the Fourth Circuit to delay implementation but it appears unlikely to be granted.
E-Verify Requirement Back on Schedule for Federal Contractors/Subcontractors, Effective September 8.
E-Verify Requirement Back on Schedule for Federal Contractors/Subcontractors, Effective September 8, 2009.
E-Verify for Federal Contractors Takes Effect.
The regulation requiring certain federal contractors to use E-Verify goes into effect on September 8, 2009. Implementation of the regulation has been delayed four times and many questions remain unanswered. A simple Q&A might be helpful to sort out exactly what this regulation means to employers.
USCIS Updates Form I-9 to Reflect New Expiration Date
U.S. Citizenship and Immigration Services (USCIS) has issued a new version of the form I-9, bearing a revision date of August 7, 2009. The new form will remain valid until August 31, 2012. The current version of the I-9 form can be downloaded from our website or from USCIS.gov.
Federal Contractor E-Verify Rule Goes Into Effect on September 8, 2009.
This is a reminder that the federal contractor E-Verify rule that amends the Federal Acquisition Regulations (FAR) to require certain federal contractors and subcontractors to enroll in and use the E-Verify system is scheduled to take effect on September 8, 2009.
E-Verify Requirement For Federal Contractors Now Delayed Until September 8.
Implementation of the regulation requiring certain federal government contractors and subcontractors to use the U.S. Citizenship and Immigration Services (USCIS) E-Verify system has once again been delayed. Most recently scheduled to become effective on June 30, the regulation's effective date has been pushed back to September 8, 2009. The regulation was published on November 14, 2008, and was originally scheduled to take effect on January 15, 2009.
IMMIGRATION UPDATE: DHS RESCINDS CONTROVERSIAL SOCIAL SECURITY NO MATCH RULE, SUPPORTS E-VERIFY PROGRAM AND INITIATES NATIONWIDE COMPLIANCE PROGRAM.
To be sure, the government has stepped up immigration enforcement in the past several months. According to government reports, Federal prosecution of immigration related crimes increased considerably during the first few months of the Obama Administration. These reports show over 9,000 new immigration prosecutions in April 2009, which represents a 33% increase from one year ago.
Keep Using the Expired I-9 Form.
The Office of Management and Budget (OMB) approval for the new I-9 Employment Eligibility Verification form lists an expiration date of 06/30/2009 in the upper right-hand corner. U.S. Citizenship and Immigration Services (USCIS) issued an update on June 26 requesting that OMB extend the document approval and stating that the form may continue to be used by employers until such approval is secured.
DHS: Social Security No-Match Regulation Will NOT Happen (But Does It Matter Anyway?)
At the same time the Department of Homeland Security (DHS) announced that the agency would follow-through on the federal contractor/E-Verify regulation, Secretary Janet Napolitano stated that DHS would be rescinding the Social Security No-Match regulation (see the DHS press release). Pro-business and pro-labor groups alike applauded the action. However, the end of the No-Match regulation resolves nothing for employers and seemingly returns us to a lack of clarity for employers on what steps to take when a No-Match letter is received.
DHS: E-Verify for Federal Contractors WILL Happen.
On July 8, the Department of Homeland Security (DHS) issued a press release announcing the agencys support for the delayed regulation that would require certain federal contractors to use E-Verify to check employee work authorization. After four delays in implementation, DHS Secretary Janet Napolitano confirmed the regulation will indeed become effective on September 8. Simultaneously, Secretary Napolitano announced DHS intention to rescind the Social Security No-Match rule, which has been on-hold for nearly two years due to litigation contesting the validity of the rule (see the article in this issue regarding the No-Match rule).
Anatomy of an I-9 Audit.
In light of the recent I-9 audit blitz conducted by U.S. Immigration and Customs Enforcement (ICE) on July 1, a review of what to expect during an I-9 audit might be instructive.
I-9 Audits Initiated by ICE Nationwide.
U.S. Immigration and Customs Enforcement (ICE) launched a nationwide I-9 audit initiative on July 1, issuing Notices of Inspection (NOIs) to 652 employers (see the ICE press release). This action confirms the new enforcement strategy promised by representatives of the Obama Administration. In April 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano indicated that ICE would focus its resources in the worksite enforcement program on the criminal prosecution of employers that knowingly hire illegal workers and that ICE would use all available civil and administrative tools (including civil fines and debarment) to penalize and deter illegal employment.
E-Verify Plus For Federal Contractors.
Department of Homeland Security (DHS) Secretary Janet Napolitano today strengthened employment eligibility verification by announcing the Administration's support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. The declaration came as Secretary Napolitano announced the Department's intention to rescind the Social Security No-Match Rule, which has never been implemented and has been blocked by court order, in favor of the more modern and effective E-Verify system.
DHS Will Implement Federal Contractor E-Verify Requirements and Rescind Stalled No-Match Regulation.
On July 8, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano announced that the Department intends to implement a Bush-era rule mandating the use of E-Verify by federal contractors and subcontractors. Additionally, Secretary Napolitano announced that DHS is rescinding its controversial "No-Match" regulation.
Current Version of I-9 Form Still Valid After June 30, 2009.
U.S. Citizenship and Immigration Services (USCIS) has verified that the current version of the I-9 form, dated February 2, 2009, will remain valid beyond its June 30, 2009 expiration date. USCIS is in the process of releasing a new version of the I-9 Form. Until the new form is released, employers must continue to use the current version of the I-9 Form to confirm employees authorization to work in the United States. The current version of the I-9 Form can be downloaded from our website at www.laborlawyers.com/I-9 or from www.uscis.gov.
E-Verify Reminders for Employers in South Carolina and Mississippi.
E-Verify, the Internet-based system operated by United States Citizenship & Immigration Services (USCIS) that allows employers to verify the employment eligibility of employees, is currently voluntary at the federal level. However, certain states have acted to require some or all employers to use the system. Arizona has the most sweeping law, requiring all employers to use E-Verify.
E-Verify Requirement for Federal Contractors Now Delayed Until September 8.
Implementation of the regulation requiring certain federal government contractors and subcontractors to use the U.S. Citizenship and Immigration Services (USCIS) E-Verify system has once again been delayed. Most recently scheduled to become effective on June 30, the regulations effective date has been pushed back to September 8, 2009. The regulation was published on November 14, 2008, and was originally scheduled to become effective on January 15, 2009. This is the fourth time implementation of the regulation has been delayed.
MANDATORY E-VERIFY FOR FEDERAL CONTRACTORS DELAYED AGAIN.
Implementation of the new mandatory E-Verify rule for federal contractors was set to go into effect on June 30, 2009. However, the implementation date has once again been delayed. The new date is now September 8, 2009. This is the fourth time that the effective date of this rule has been postponed. The delay was sought by the Obama administration to enable them to have more time to review the rule before it takes effect.
Applicability Date of Federal Contractor E-Verify Rule Delayed for the Fourth Time.
The applicability date of the rule requiring federal government contractors and subcontractors to begin using the USCIS E-Verify system has been delayed for the fourth time, until September 8, 2009. The federal agencies responsible for implementing the rule published an amendment in the June 5, 2009 Federal Register postponing the applicability date of the final rule. The rule requiring federal contractors and subcontractors to electronically verify the employment eligibility of their employees was first published on November 14, 2008, and was set to become effective on January 19, 2009, but has since been postponed four times.
Federal Contractor E-Verify Rule Delayed Until September 8, 2009.
The effective date of the Federal Contractor E-Verify Rule has been postponed once again. The new implementation date is now scheduled to be September 8, 2009, (extended from the most recent scheduled implementation date of June 30, 2009) and is the result of an agreement between the parties to the lawsuit filed by the U.S. Chamber of Commerce and other business groups challenging the rule.
I-9 Compliance Challenges In The Hospitality Industry.
In the past several years, businesses in the hospitality industry have particularly borne the brunt of increased federal enforcement of the nation's immigration laws. Through high-profile tactics including raids of businesses large and small, the previous administration put employers on notice that hiring unauthorized workers could result in million dollar fines, jail time for company owners, and months of damaging press coverage.
FAR Council's Modified E-Verify/Basic Pilot Mandate Suspended.
Constangy partner Penni Bradshaw is a member of the U.S. Chamber of Commerce's Immigration Sub Committee. We are forwarding to you communication from the Chamber's Executive Director of Immigration Policy so that you may be informed of the latest from Capitol Hill. As always, Constangy will keep you informed immediately as news hits. If you have questions or concerns, feel free to contact any Constangy attorney.
Compliance Watch: E-Verify, State Laws, Enforcement and I-9s.
Ogletree Deakins will continue to provide updates and reminders on significant changes in immigration compliance on a regular basis. With all of the changes, stops, starts, delays and new rules, it is difficult to recall what changes are effective, which ones have been discontinued and which ones are soon to become effective. Below is a status report on significant compliance developments:
State Employment-Related Immigration Laws: When The I-9 Form Isn't Enough.
When comprehensive immigration reform at the federal level stalled, many state governments decided to take matters into their own hands. Since 2006, many states have enacted laws which provide for employer sanctions related to hiring unauthorized workers independent of any monetary or criminal sanctions available for federal immigration violations.
Federal Contractor E-Verify Delayed Again;Updates on State Laws, Enforcement and I-9s.
The regulation requiring certain federal contractors to use E-Verify is once again being delayed from May 21 until June 30. A notice was published in the Federal Register on April 16 confirming the delay. This is the third delay in implementation of the rule which was originally expected to be effective on January 15, 2009. E-Verify is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. The rule would require participation in E-Verify by certain federal contractors and their subcontractors.
Update on Federal Contractor Regulations Requiring E-Verify.
Update on Federal Contractor Regulations Requiring E-Verify.
All U.S. Employers Must Use New I-9 Form Effective April 3, 2009
REMINDER: All U.S. Employers Must Use New I-9 Form Effective April 3, 2009.
New Form I-9 Employment Eligibility Verification.
New Form I-9 Employment Eligibility Verification.
Applicability Date of Federal Contractor E-Verify Rule Delayed.
The applicability date of the rule requiring federal government contractors and subcontractors to begin using the USCIS E-Verify system has been delayed for the third time, until June 30, 2009.
E-Verify Rule Postponed Again.
The federal E-Verify rule has been postponed again, until June 30, 2009.
On June 6, 2008, President Bush issued an executive order directing federal agencies to require federal contractors to agree to electronically verify their employees' eligibility to work legally in the United States, and a final rule implementing the order was issued on November 14, 2008, with an effective date of January 15, 2009. The U.S. Chamber of Commerce and other business groups sued to block the rule, and on January 9, 2009, the government announced that it would postpone implementation. The Obama Administration postponed the rule again until May 21, 2009, and now it has announced that it is extending the postponement yet again until June 30, 2009.
Effective Date for Federal Contractor E-Verify Rule Delayed Again.
The federal government has announced a third delay in the implementation of the Federal Contractor E-Verify Rule. The new date for implementation of the rule is now June 30, 2009.
April Showers Bring... New I-9 Form (pdf).
Just when you thought you finally understood the I-9 form that went into effect in 2007, the U.S. Citizenship and Immigration Services (USCIS) produced a new formone that went into effect on April 3, 2009.
Revised I-9 Form Takes Effect.
This is a reminder that effective today (April 3, 2009) employers must use the revised I-9 form. As discussed in prior Legal Alerts, U.S. Citizenship and Immigration Services (USCIS) has published an interim final rule that narrows the list of documents employers may accept to verify employment authorization on the Form I-9.
New Form I-9 Effective April 3, 2009.
Starting April 3, 2009, employers must use the new version of the Department of Homeland Security's Form I-9, Employment Eligibility Verification (Rev. 02/02/09). The Department of Homeland Security also has issued a revised Handbook for Employers to be used with the new Form I-9. The new form and handbook are available on the I-9 Compliance page of the Fisher & Phillips website. The new Form I-9, among other things, narrows the list of acceptable documents to show identity and work authorization and eliminates the use of expired documents. Please view our January 20, 2009 Legal Alert for a detailed description of the proposed changes. All employers are required to complete and retain a Form I-9 for each employee hired after November 6, 1986 to show that the employee is authorized to work in the United States. Additionally, the employer must re-verify documents for any employees whose work authorization documents are expiring.
New I-9 Form and Regulations Effective April 3.
Employers must begin using a new Employment Eligibility Verification Form (Form I-9) effective today, April 3, 2009. The new form was originally scheduled to be required on February 2, but U.S. Citizenship and Immigration Services (USCIS) delayed implementation until April 3. The new Form I-9, which can be found on the agencys website, is dated 02/02/2009 on the lower right hand corner. USCIS also released a new Handbook for Employers that has been modified to reflect changes made to the new Form I-9 and corresponding regulations.
Compliance Watch: Obama Administration, E-Verify, and State Laws.
The world of immigration compliance continues to be a moving target for employers. In recent months, stricter state and federal government compliance provisions have been initiated, though the implementation of several of these measures has been delayed. A new Employment Eligibility Verification Form (Form I-9) was finalized in December, and then implementation was delayed from February to April (see the January 2009 issue of the Immigration eAuthority). A regulation requiring certain federal contractors to use E-Verify was published in November and then delayed twice and now is scheduled to be effective on May 21 (see Ogletree Deakins November 14, 2008 E-Alert). Several states have acted to require employers to use E-Verify, the Internet-based system operated by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of newly-hired employees. Arizona requires all employers to use E-Verify, while the other states typically require certain employers with state government contracts to use the electronic verification system.
New I-9 Form Expected To Become Effective on April 3.
The implementation of the regulation requiring employers to use a new Employment Eligibility Verification Form (Form I-9) is scheduled to go into effect on April 3. The new form was originally scheduled to be required on February 2, but U.S. Citizenship and Immigration Services (USCIS) delayed implementation until April 3.
Delayed: New I-9 Form and E-Verify for Federal Contractors.
U.S. Citizenship and Immigration Services (USCIS) issued a press release on January 30 delaying the implementation of the regulation requiring employers to use a new Employment Eligibility Verification Form (Form I-9). The new form was originally scheduled to be required on February 2, 2009. USCIS instead reopened the comment period on the new regulation through March 4 and currently plans to implement the new form and corresponding documentary changes on April 3. For an overview of the changes to the I-9 process contained in the original regulation, see the January 2009 issue of the Immigration eAuthority.
DELAY OF NEW FORM I-9 UNTIL APRIL 3, 2009.
We previously reported to you (January 2009 Compliance Matters) that the U.S. Citizenship and Immigration Services (USCIS) issued a revised Form I-9 that must be used for all new hires, beginning February 2, 2009. However, on January 31st, the U.S.C.I.S. announced that it will delay implementation of the new Form I-9 until April 3, 2009.
Preparing For I-9 Compliance/Audits and Worksite Investigations.
As global mobility continues to become a central part of business activity today, it is increasingly important for businesses to develop policies that ensure compliance with immigration standards. In the United States, immigration enforcement actions have increased greatly, with news headlines regularly featuring worksite raids and investigations instigated by Immigration and Customs Enforcement (ICE). These reports are not only of administrative actions for immigration violations but also of criminal charges brought against owners, managers, supervisors, and human resource employees. Charged offenses include such things as harboring, knowingly hiring illegal aliens, smuggling, document fraud, money laundering, and worker exploitation. In fiscal year 2007 alone, ICE made 863 criminal arrests and brought 4,077 administrative charges as a result of worksite enforcement investigations.1 In the past fiscal year (FY2008), ICE made approximately 1,101 criminal arrests and more than 5,173 administrative arrests.
Implementation of New I-9 Form Delayed Employers Should Use Earlier Forms.
As stated in our prior Legal Alert, USCIS has delayed implementation of the revised I-9 Form, which narrows the list of documents employers may accept to verify employment authorization. Implementation of this form has been delayed until April 3, 2009. Employers should not use the new form until USCIS officially implements it, but instead should continue to use the current versions of the I-9 form, dated June 5, 2007 and June 16, 2008.
Legal Alert: I-9 Implementation Delayed.
USCIS has announced that it will delay implementation of the new I-9 form until April 3, 2009. USCIS issued an interim final rule in December 2008, which amended its regulations governing the types of acceptable identity and employment authorization documents and receipts that employees may present to their employers for completion of the I-9 form and included a new I-9 form.
Federal Government Announces Delay in Implementing New I-9 Forms.
The Department of Homeland Security announced a delay in the implementation of the newest version of Form I-9, which was due to become effective today. In a last minute announcement issued on January 30, 2009, the Department postponed implementation of the new form until April 3, 2009. The administration will be considering public comments on changes to the form and may further delay its effective date. Until further notice, employers should continue using the June 5, 2007 version of Form I-9. The current version of Form I-9 can be downloaded from the I-9 Compliance section of the Fisher & Phillips website.
New I-9 Form Delayed To April 3.
On January 30, U.S. Citizenship and Immigration Services (USCIS) issued a press release announcing that it was delaying implementation of the regulation requiring employers to use a new Employment Eligibility Verification Form (Form I-9). The new form was originally scheduled to be required as of February 2. USCIS has reopened the comment period on the new rule through March 4 and currently plans to implement the new form and corresponding documentation changes on April 3.
Update on Federal Contractor Regulations Requiring E-Verify (pdf).
New rules were scheduled to
go into effect on January 15,
2009 that would require most
federal government contractors
to use E-Verify, an electronic
employment eligibility
verifi cation system operated by
the U.S. Department of
Homeland Security.
New Form I-9 Employment Eligibility Verification (pdf).
New Form I-9 Employment
Eligibility Verifi cation.
All U.S. Employers Must Use New I-9 Form Starting February 2, 2009 (pdf).
United States law requires that
every employer complete Form
I-9, Employment Eligibility
Verifi cation (I-9 Form), for
each new employee within
three days of hire.
Are You Ready To Start Using The New I-9 Forms Next Monday?
Are you ready? As far as we know at this time, starting next Monday (February 2, 2009), the new I-9 form will be the only version that employers will be allowed to use. The new form is available now, and here is a summary of the most important changes:
Second Delay of Effective Date for Federal Contractor E-Verify Rule.
The federal government has agreed to delay the implementation of the Federal Contractor E-Verify Rule until at least May 21, 2009. This is the second delay. Previously, the federal government decided to postpone the implementation of the rule until February 20 following a lawsuit filed by the U.S. Chamber of Commerce and other groups.
USCIS Revises Employment Eligibility Verification Form.
Effective February 2, 2009, employers must use the newest version of Form I-9 which has been revised. Employers will be required to use the revised form for all new hires and to reverify any employee with expiring employment authorization. As of February 2, 2009, the current edition of the Form I-9, dated 06/05/2007, will no longer be valid. The revised Form I-9:
Implementation of Rule Requiring Federal Contractors to use the E-Verify System Postponed.
The final rule requiring federal contractors to begin using E-Verify by January 15, 2009, has been suspended until February 20, 2009.
Legal Alert: Revised I-9 Form Now Available.
As discussed in our prior Legal Alert, U.S. Citizenship and Immigration Services (USCIS) has published an interim final rule that narrows the list of documents employers may accept to verify employment authorization on the I-9 form.
USCIS Releases New I-9 Form and New Employment Eligibility Rules.
Beginning February 2, 2009, employers must use a new Form I-9 for all new hires and to reverify any employee with expiring employment authorization. Employers using the previous June 5, 2007 edition or earlier editions of the Form I-9 after February 2, 2009 may be subject to fines. Between now and February 2, you should continue to use the June 5, 2007 edition of the Form I-9.
E-Verify Rule Delayed Until February.
In response to a legal challenge by business groups, the federal government has announced that it will postpone the effective date of its new rule requiring federal contractors and subcontractors to use E-Verify.
Legal Alert: USCIS Revises I-9 Form.
U.S. Citizenship and Immigration Services (USCIS) has published an interim final rule that narrows the list of documents employers may accept to verify employment authorization on the I-9 form. The revised Form I-9 becomes effective on February 2, 2009. At that time, employers will be required to use only the new form to verify the employment eligibility of new hires and reverify existing employees where necessary.
Federal Contractor E-Verify Requirement Delayed.
The government has agreed to delay temporarily the implementation of the requirement that federal contractors and subcontractors with qualifying federal contracts use the U.S. Citizenship and Immigration Services (USCIS) E-Verify system to check the immigration status of their employees. The requirement was scheduled to take effect January 15, but the government has delayed its implementation until February 20, 2009.
Federal Contractor E-Verify Delayed Until February 20.
The Department of Homeland Security (DHS) announced the implementation of the regulation requiring certain federal contractors to use E-Verify will be postponed from January 15 to February 20. E-Verify is the Internet-based system operated by DHS in cooperation with the Social Security Administration that allows participating employers to electronically verify the employment authorization of newly-hired employees. The final regulation requires certain federal contractors to use E-Verify for new hires and to reverify existing employees working on covered contracts.
E-Verify Federal Contractor Rule Suspended.
On January 9, 2009, the federal government agreed to suspend the implementation of the E-Verify Federal Contractor Rule until February 20, 2009. The E-Verify Federal Contractor Rule was due to take effect on January 15, 2009, but the government agreed to delay implementation after the U.S. Chamber of Commerce, along with other business groups, filed a lawsuit on December 23, 2008 challenging the legality of this law. A notice announcing the suspension is scheduled to be published in the Federal Register this week.
Over 168,000 Federal Contractors Will Be Required to Use E-Verify on January 15, 2009 (pdf).
On January 15, 2009, new rules will require most federal government contractors to use E-Verify, an electronic employment eligibility verifi cation system operated by the U.S. Department of Homeland Security. E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verifi cation Program) allows employers to electronically confi rm the biographical data of employees pursuant to a Memorandum of Understanding (MOU) entered into between the employer, the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA).
NEW FORM I-9 TO BE USED AFTER FEBRUARY 2, 2009.
On December 18, 2008, the U.S. Citizenship and Immigration Services (USCIS) announced sweeping changes to the Form I-9 used in the employment verification process. As a result, employers must begin using the new Form I-9 for all new hires and re-verifications occurring on or after February 2, 2009.
Federal Contractors Must Begin Using E-Verify System.
Under a new rule passed by the Bush administration, larger federal contractors and sub-contractors will now be required to use the federal government's E-Verify system to determine whether the employees working on the contracts are authorized to work in the United States. The rule will also require the contractor to use the E-Verify system on all new hires, including employees who are not directly working on the covered contract.
USCIS Revises Form I-9, Employment Eligibility Verification.
U.S. Citizenship and Immigration Services (USCIS) submitted to the Federal Register an interim final rule to revise Form I-9, Employment Eligibility Verification. The rule narrows the list of acceptable identity and employment authorization documents, requires employers to accept only unexpired documents, and makes several technical changes. The rule and the revised Form I-9 will be published in the Federal Register soon and will take effect 45 days after publication.
E-Verify Mandatory for Federal Contractors.
Starting January 15, 2009, certain federal contractors and subcontractors will be required to begin using the E-Verify system administered by the U.S. Citizenship and Immigration Services (USCIS) to verify the eligibility of their employees to legally work in the United States. The final rule implementing the requirement was published on November 15 in the Federal Register.
DHS Tests Authority in Regulating Social Security No-Match Letters.
The Department of Homeland Security (DHS) published its final rule making employers accountable for resolving mismatched social security numbers of employees. The regulation, Safe Harbor Procedures for Employers who Receive a No-Match Letter, describes the legal obligations of an employer when the employer receives a no-match letter from the Social Security Administration (SSA) or notice from the Immigration and Customs Enforcement (ICE), the internal investigative arm of DHS. It establishes safe-harbor procedures that the employer can follow in response to such a letter or notice to avoid being imputed with constructive knowledge that an employee targeted in a no-match letter is a person not authorized to work in the United States.
OFCCP Issues New Form I-9 Inspection Procedures.
The Labor Department's Office of Federal Contract Compliance Programs (OFCCP) issued a directive on October 2, 2008, effective immediately, regarding inspection procedures for OFCCP compliance officers (COs). The directive applies to reviews of Forms I-9 during an on-site compliance review.
Final Rule Issued about E-Verify.
U.S. Citizenship and Immigration Services has issued a final rule on whether most federal contractors must prove that their employees are in the United States legally. The rule, which was released last week, mandates companies to use E-Verify. The system compares employee information to electronic government records.
Federal Contractors Now Required To Use E-Verify.
In June of this year, President Bush amended Executive Order 12989, directing federal contractors to use the E-Verify system to ensure that all new hires and employees working on government projects are eligible to work in the United States. Today, the federal government issued the Final Rules implementing the E-Verify requirement.
New E-Verify Rules For Federal Contractors.
A final rule just published in the Federal Register amends the Federal Acquisition Regulation (FAR) to require certain federal contractors and sub-contractors to use the E-Verify system. All federal solicitations issued and contracts awarded after January 15, 2009 will include a clause related to the new rule.
DHS Issues Supplemental Final Rule on SSA No-Match Letters Aimed at Lifting Court Injunction.
The Department of Homeland Security (DHS) has issued a Supplemental Final Rule (SFR) addressing procedures employers may follow when they receive either a no-match letter from the Social Security Administration (SSA) (which states that there is a discrepancy between the Social Security Number (SSN) reported for the employee and the SSA's records) or a notice of suspect document from DHS. The SFR makes no substantive changes to the provisions of the Final Rule published by DHS in August 2007. Instead the SFR addresses the issues raised by a federal court in California, which previously enjoined enforcement of the August 2007 Final Rule. The rule has not gone into effect yet and will not become effective until the court lifts the injunction. For now, employers who receive no-match letters must continue to correct their records and ask employees to correct the problem where applicable, within a reasonable time. Thus, the status quo continues without specific time periods or a safe harbor for employers to deal with no-match letters.
The Department of Homeland Security Releases An Updated No-Match Letter Rule.
On October 23, 2008, the Department of Homeland Security (DHS) released its supplemental final No-Match Letter Rule and announced that it will take effect immediately upon publication in the Federal Register on a not yet scheduled date. The supplemental final rule does not substantively change the safe harbor procedures described in the rule as originally written and issued in August 2007 or as supplemented in March 2008. The DHS will seek to lift the preliminary injunction imposed by Judge Charles Breyer of the Northern District of California in October 2007. Once the injunction is lifted, employers who receive No-Match letters issued by the Social Security Administration (SSA) but follow the safe harbor procedures described in the No-Match Letter Rule, will be sheltered from a charge of constructive knowledge that the individual named in the letter was not authorized to work in the United States. DHS takes the position that its supplemental final rule addresses the issues raised by Judge Breyer and if the injunction is lifted, will take immediate steps to implement the rule. Judge Breyer has rescheduled a status conference in the case from October 31 to November 21, 2008.
OFCCP Issues New Form I-9 Inspection Procedures.
The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) issued a directive on October 2, 2008, effective immediately, regarding inspection procedures for an OFCCP compliance officer (CO) when reviewing Forms I-9 during an on-site compliance review.
To E or Not to E? Should an Employer use E-Verify?
Employers are scratching their heads wondering whether to use E-Verify. While it typically is a case-by-case decision that can be affected by a multitude of factors, here is a partial list of key employer considerations regarding the use of E-Verify.
E-Verify Update in Rhode Island, South Carolina and Oklahoma.
Various states have passed legislation or issued Executive Orders mandating E-Verify participation for public employers, state government contractors, or even all employers in the state. The court decision upholding Arizonas law requiring all employers to use E-Verify strongly suggests these state efforts will be found valid. Here are updates on developments over the past month:
U.S. Passport Card Valid for I-9s and Certain North American Travel.
On August 8, 2008, U.S. Citizenship and Immigration Services (USCIS) announced that the new U.S. Passport Card may be used for employment eligibility verification purposes. The Passport Card is considered a valid List A document that may be presented by newly hired employees during the I-9 employment eligibility verification process. As the document contains a photo and verifies both the identity and work authorization of the card holder, it can singularly satisfy the employees I-9 documentation requirements and also can be accepted by employers participating in E-Verify. For more information, see the USCIS press release.
Will E-Verify Be Extended, Become Mandatory or Be Terminated?
E-Verify, the voluntary electronic employment verification system operated by U.S. Citizenship and Immigration Services (USCIS), has been at the center of efforts to improve the employment eligibility verification system and enhance worksite enforcement efforts. In 1996, Congress introduced the Basic Pilot Program, the predecessor to the current E-Verify, as part of the Illegal Immigration Reform and Immigrant Responsibility Act. Current authorization and funding for E-Verify is set to expire on November 1, 2008. On July 31, the House of Representatives passed a bill (H.R. 6633) that would extend E-Verify for five years. The bill has moved to the Senate for consideration where competing bills have also been introduced, including one that would make E-Verify permanent and another that would recapture immigrant visas (green cards) that were authorized but went unused between 1992 and 2007.
Missouri Requires Certain Employers To Use E-Verify; Colorado Issues An Update.
Missouri joined the growing list of states that have passed immigration measures impacting employers. Governor Matt Blunt signed House Bill 1549 which will require (as of January 1, 2009) the following entities to participate in a federal work authorization program (currently known as E-Verify): any public (government entity) employer and any business entity that applies for a contract or grant in excess of $5,000 with the state of Missouri or one of its political subdivisions or applies for a tax credit, tax abatement, or loan from the state of Missouri. Although private employers are not required to participate in E-Verify, the law encourages them to do so. For a complete summary of the law, see the July 8 Missouri eAuthority.
2008 Immigration Update Video.
Melissa Azallion, Esquire of Nexsen Pruet, recently lead a seminar to update professionals about changes in Federal and South Carolina immigration law. Watch this video to learn more about: the details of this new law, E-Verify - the pros and cons of enrollment and new requirements for federal contractors, a thorough analysis of the SC Illegal Immigration Reform Act and how it will impact your business, and the importance of I-9 compliance in preparing for a federal or state audit.
Proposed Rule for Use of E-Verify for Federal Contracts and Subcontracts.
The Federal Acquisition Regulation Counsel (FAR Counsel) issued a proposed rule to implement the President's admendments to Executive Order 12989. Comments to the proposed rule are due August 11, 2008.
USCIS Issues New Version of Form I-9.
The USCIS issued an updated version of Form I-9, Employment Eligibility Verification for immediate use. All employers are required to complete and retain a Form I-9 for each employee hired after November 6, 1989 to show that the employee is authorized to work in the United States.
E-Verify Mandatory for Federal Contractors.
An Executive Order signed by President George W. Bush on June 6 will require federal government contractors to use E-Verify, the electronic employment verification system operated by U.S. Citizenship and Immigration Services (USCIS).
States Continue the Battle to Require E-Verify.
While Congress remains unable to agree on immigration reform, the Executive Branch has acted (see article above) and individual states continue to move forward with immigration legislation of their own.
Introduction to E-Verify.
E-Verify is a web-based program that allows employers to electronically verify the information provided on the Form I-9 including social security numbers with databases of the Social Security Administration (SSA) and the Department of Homeland Security (DHS). The Department of Homeland Security in conjunction with the Social Security Administration in 1996 established what is now the E-Verify program to supplement the current I-9 employment eligibility verification process.
President Signs Executive Order Requiring All Federal Contractors to Use E-Verify.
President George W. Bush recently signed an Executive Order requiring all federal government contractors to use E-Verify to confirm the employment authorization of new hires and persons assigned to perform work on future federal contracts. E-Verify is the Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration to electronically verify employment eligibility of newly hired employees.
President Signs Executive Order Requiring Federal Contractors to Use Electronic Employment Eligibility Verification System.
President Bush recently signed an Executive Order amending Executive Order 12989, requiring all federal contractors to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of their employees. Department of Homeland Security (DHS) Secretary Michael Chertoff has designated the federal E-Verify program as the system to be used in accordance with the Executive Order.
Arizona and Mississippi Employers are Required to Use E-Verify (pdf).
Last month, we provided you with information about the E-Verify program.
The Department of Homeland Security (DHS) also offers another program: the ICE
Mutual Agreement between Government and Employers (IMAGE) program. The
stated goal is to help restore the integrity of the immigration system of the United
States by utilizing industry outreach and self-policing. Lets just say IMAGE takes
E-Verify and kicks it up a notch.
Work Authorization in the Electronic Age (pdf).
I-9 compliance and work authorization are hot topics in the human
resources world. Two government programs, E-Verify and IMAGE, are aimed at
addressing the problems employers face in maintaining a legal workforce. This
article addresses E-Verify. The IMAGE program, which encompasses E-Verify,
will be addressed in a subsequent E*Zine.
Seven States Now Mandate the Use of E-Verify.
Across the country, states continue to enact their own employment-related immigration legislation, including legislation requiring certain employers to use E-Verify to electronically verify the employment eligibility of their newly hired employees. Currently, seven states have implemented laws requiring certain employers, and state contractors to use E-Verify. The seven states mandating the use of E-Verify are Arizona, Arkansas, Colorado, Georgia, Mississippi, Oklahoma, and Rhode Island.
Update on No-Match Regulations.
On March 21, 2008, the Department of Homeland Security released a Supplemental Proposed Rulemaking for the no-match rule previously published in August 2007 (the 2007 Final Rule). Interested persons have 30 days to submit comments on the supplemental regulation. The 2007 Final Rule proposed amendments to the Immigration and Nationality Act by establishing safe harbor procedures for employers who receive Social Security Administration "no-match" letters.
DHS Issues Supplemental Proposed Rule Regarding Safe Harbor No Match Regulation.
As discussed in our August 14, 2007 Legal Alert, the Department of Homeland Security (DHS) issued its final rule setting forth a safe harbor from liability for employing unauthorized aliens for employers who follow certain procedures in responding to a Social Security Administration (SSA) No Match Letter or a DHS Notice of Suspect Documents (Safe Harbor rule). That rule subsequently was enjoined by a federal district court in California and currently is not in effect.
Reminder: Employers Must Begin Using The Revised I-9 Form By December 26th.
As previously reported, the Department of Homeland Security ("DHS") released the revised I-9 form on November 7, 2007. Employers are required to use the newly revised I-9 form no later than December 26, 2007. Employers who do not use the revised I-9 form on or after December 26, 2007 will be subject to all applicable fines and penalties under the Immigration and Nationality Act.
Status of "No-Match" Letter Regulation and Compliance with Continued Immigration Enforcement Efforts (pdf).
This edition gives a status report on the Department of Homeland Security's rule, announced in August 2007, addressing what employers should do upon receipt of a "no-match" letter from the Social Security Administration. Implementation of the rule was recently enjoined by a federal judge, and DHS is working on a revised rule. The article goes on to provide pointers on what employers can do in response to no-match letters pending publication of the revised rule.
DHS Appeals Injunction to Social Security No-Match Rule.
On December 5, 2007, Department of Homeland Security ("DHS") Secretary Michael Chertoff released a statement confirming that DHS filed an appeal to the Ninth Circuit Court of Appeals requesting that the court lift the injunction against implementing the DHS no-match rule. On October 10, 2007, a federal court in California issued a preliminary injunction preventing DHS and the Social Security Administration ("SSA") from implementing the rule entitled Safe-Harbor Procedures for Employers Who Receive a No-Match Letter. The court enjoined SSA from sending out the no-match letters because the letters were to include DHS language threatening possible criminal and civil liability for employers that failed to respond to the letters.
Immigration Update - Revised I-9 Form Published; Stay Sought in No-Match Proceedings.
The Department of Homeland Security (DHS) published the 2007 revised I-9 Form in the Federal Register on November 26, 2007. Accordingly, although DHS has indicated that it will not seek penalties against an employer for using a previous version of the form on or before December 26, 2007, after that date employers must use the revised form or face potential penalties for noncompliance.
I-9 Alert: Employers Must Be Using New Form By December 26, 2007 (pdf).
Employer who fail to use the form will be subject to applicable penalties.
Employers Required to Use New Form I-9.
On November 7, 2007, the U.S. Citizenship and Immigration Services (USCIS) issued a new Form I-9 document for use by employers. All employers are required to complete a Form I-9 for each employee hired in the United States. The Form I-9 establishes the employees identity and authorization to work in the United States, and must be completed within three days of hire. The new Form I-9 has been revised to comply with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
Immigration Alert - New I-9 Form Released.
The U.S. Citizenship and Immigration Services (USCIS) has just released a revised Form I-9, Employment Eligibility Verification, for immediate use and a new M-274, Handbook for Employers, Instructions for Completing the Form I-9.
USCIS Releases New I-9 Form (pdf).
The U. S. Citizenship and Immigration Services (USCIS),
formerly the Immigration and Naturalization Service (INS), recently
announced the release of a new I-9 form for employers to use in verifying an
employees authorization to work in the United States. The changes to the
I-9 are relatively minor.
Government Releases Revised I-9 Form.
The U.S. Citizenship and Immigration Service (USCIS) (formerly the INS) recently announced the release of a new I-9 form to be used to verify an employees authorization to work in the United States. On the revised form, the government has eliminated 5 documents from List A of the List of Acceptable Documents. These documents are: Certificate of U.S. Citizenship (Form N-560 or N-570); Certificate of Naturalization (Form N-550 or N-570); Alien Registration Receipt Card (Form I-151); the unexpired Reentry Permit (Form I-327); and the unexpired Refugee Travel Document (Form I-571). The government also added the most recent version of the Employment Authorization Document (Form I-766) to List A.
USCIS Releases Revised I-9 Form.
On November 7, 2007, U.S. Citizenship and Immigration Services (USCIS) released the revised I-9 form and the updated Handbook for Employers, Instructions for Completing the Form I-9. The revised I-9 form reduces the number of documents employers may accept for newly hired employees during the employment eligibility verification process in compliance with the reduction requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
Responding to the SSAs No Match Letters: A How-To Guide.
The Social Security Administration (SSA) currently issues no-match letters to employers who submit more than 10 W-2s in a wage report that do not match SSAs records and the no-matches exceed at least half of one percent of all the W-2s in the wage report. Prior to the current policy, the SSA was issuing no-match letters to all employers whose wage reports contained one or more no-match record. The change in policy has resulted in fewer no-match letters being sent to employers. In 2003, when the current policy was first implemented, SSA issued 125,000 no-match letters to employers, 770,000 less than in 2002.
Judge Suspends Social Security No-Match Regulations.
On October 10, 2007, a San Francisco district court judge granted an order preventing the implementation of the new Social Security No-Match regulations. U.S. District Judge Charles R. Breyer halted over 140,000 no-match letters from being issued by the Social Security Administration (SSA) to employers relating to approximately 8 million employees. This order was granted in connection with a lawsuit filed against the Department of Homeland Security (DHS) by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and other organizations on the grounds that the new regulations could lead to mass layoffs in low-wage industries. The order is in effect until a final decision can be reached in the case (which could be many months).
Back to the Status Quo: DHS "Safe Harbor" Regulation Temporarily on Hold.
Based upon a recent decision by a federal judge in California, the Department of Homeland Security (DHS) cannot take steps to enforce its new safe harbor regulation regarding Social Security Number (SSN) mismatches until legal challenges to the regulation can be resolved. See American Federation of Labor v. Chertoff (N.D. Cal. October 10, 2007). Thus, while the new regulations 90-day time period for resolving SSN mismatches currently is not in effect, employers are still required, as they have always been, to respond to no-match letters in a reasonable manner. Employers will not likely receive any further clarification from DHS regarding specific steps required to resolve no-match letters until a court resolves the legal challenges to the new regulation.
Judge Issues Preliminary Injunction in No-Match Litigation.
On October 10th, the U.S. District Court for the Northern District of California issued a preliminary injunction blocking implementation of the Department of Homeland Security ("DHS") rule that would use Social Security mis-match records as a tool for immigration enforcement.
New "No-Match" Regs Signal Increase in Immigration Enforcement & Require Employer Action (pdf).
On September 14, 2007, new regulations were scheduled
to go into effect that would directly impact many employers
throughout the United States. These regulations defi ne
when an employer has constructive knowledge that
an employee lacks authorization to work legally in the
United States. Immigration and Customs Enforcement
(ICE) has stated that employers who fail to comply
with the new rule may be found to have constructive
knowledge of hiring an unauthorized worker and may
face substantial penalties.
New Regulations Impose Obligations on Employers Who Receive "No-Match" Letters (pdf).
Regulations that become effective on September 14, 2007 will require employers to become active participants in
verifying the identity of employees whose social security numbers do not match government records. The regulations
issued by the Department of Homeland Security (DHS) are intended to ensure that only persons authorized to work in
the United States become and remain employed. Employers who do not comply with the new rules can be considered
as having knowingly hired an illegal worker and can face substantial fi nes.
Immigration Enforcement: Mismatch/No-Match Letters and the New Safe Harbor.
Although Congress came close to passing an immigration reform bill this term, there has been no substantive change to the immigration laws. Yet, the Department of Homeland Security (DHS) and its Immigration and Customs Enforcement division (ICE) have increased enforcement of the existing laws employment provisions. Thus, the former agency, the Immigration and Naturalization Service (INS), filed 25 complaints against employers for employing undocumented aliens in 2002, which was the INSs last full year of existence. ICE filed 716 complaints in 2006. Some employers faced jail time for these criminal violations, including managers of employment services and the owner of a chain of donut shop franchises.
Immigration Alert - No-Match Regulations Placed On Hold Until October 1.
On Friday, August 31, a federal district court judge granted a nationwide temporary restraining order placing a hold on the Department of Homeland Securitys (DHS) new Social Security No-Match regulations. The final regulations were scheduled to take effect on September 14 (see the Ogletree Deakins E-Alert dated August 10, 2007.) The ruling also puts a hold on the federal governments plan to start sending out No-Match Letters today.
DHS Issues Regulations Addressing "No Match" Letters from SSA.
The Department of Homeland Security (DHS) has issued new regulations providing guidance to employers who receive a no match letter from the Social Security Administration (SSA) indicating that the employer has submitted a W-2 form in which the combination of name and social security number does not match SSA records. The regulations also address the situation in which the employer receives a letter from DHS called a Notice of Suspect Documents, indicating that DHS has been unable to confirm that an immigration status document or employment authorization document used by an employee in completing an I-9 form was assigned to that person.
DHS Mismatch Letter Published Today (pdf).
The final mismatch or "no match" regulation appears in today's
Federal Register. Thus, the rule will be in effect September 14,
2007. Employers need to get ready now.
New Regulations Issued Regarding Social Security No-Match Letters.
Today, the Department of Homeland Security (DHS) implemented new rules regarding Social Security No-Match Letters. Under the regulations, new specific legal obligations are imposed on employers that receive the so-called "no-match" letter from the Social Security Administration (SSA). A no-match letter may be issued when an employee's social security number does not match the employee's name in the SSA database.
DHS Safe Harbor Rule for SSA Mismatch Letters (pdf).
Today,the Department of Homeland Security announced publication of a final rule establishing safe harbor procedures for employers who receive an SSA mismatch letter or notice from
DHS that an individual lacks authorization to work.
Responding to the SSAs "No Match" Letters: A How-To Guide.
The Social Security Administration (SSA) currently issues no-match letters to employers who submit more than 10 W-2s in a wage report that do not match SSAs records and the no-matches exceed at least half of one percent of all the W-2s in the wage report. Prior to the current policy, the SSA was issuing no-match letters to all employers whose wage reports contained one or more no-match record. The change in policy has resulted in fewer no-match letters being sent to employers. In 2003, when the current policy was first implemented, SSA issued 125,00 no-match letters to employers, 770,00 less than in 2002.
No Match Is No Problem If You Know What To Do (pdf).
Many employers who receive a no match or mismatch letter from the Social Security
Administration (SSA) question what it means and how to respond. A no match letter
simply means that an employees name or social security number on a W-2 does not match
the SSA records. An employees mere appearance on a no match letter does not mean
the employee is not authorized to work in the United States. Indeed, there could be many
reasons for the no match that have nothing to do with an employees work status, such as
a name change, marriage, etc.
Cross Your T's and Dot Your I-9 Compliance (pdf).
The I-9 is what people use to describe the Employment Eligibility Verification Forms I-9
and is one of the tools used by the government to try to ensure that employers are hiring
only those individuals eligible to work in the United States.
I-9 Requirements Relaxed for Hurricane Victims (pdf).
The Department of Homeland Security (DHS) announced today that it
will not sanction employers for hiring victims of Hurricane Katrina who, at this time, are unable
to provide documentation normally required under Section 274A of the Immigration and
Nationality Act. DHS will not bring sanction actions against employers for hiring individuals
evacuated or displaced as a result of Hurricane Katrina otherwise eligible for employment but
who currently lack personal documents.
I-9 Goes Paperless.
Employers may now electronically complete and store employee eligibility
(I-9) forms, according to a law that went into effect on April 28, 2005.
Congress Passes Electronic I-9 Legislation (pdf).
Before recessing for the upcoming election, Congress passed a new law
that will allow employers the option of completing and storing I-9
employment verification forms electronically.
What Should You Do If You Get a Social Security Administration No Match Letter? [PDF File, p.8].
In 2002 the Social Security Administration (SSA) began issuing Social Security number (SSN) no match letters to all employers whose wage reports contain even one SSN or employee name that does not match their records.
RESPONDING TO THE SSA's "NO MATCH " LETTERS.
The Social Security Administration (SSA) recently changed its policy regarding issuance of letters to employers for employees whose social security numbers (SSNs) did not match the SSA's records when reported on W-2s.
Supreme Court Rules Illegal Aliens Not Entitled to Backpay.
The Supreme Court has refused to enforce a National Labor Relations Board order holding instead that illegal aliens terminated in violation of the NLRA are not entitled to backpay.
ICE Launches Initiative to Increase Audits of I-9s and Employment Records.
On July 1, 2009, Immigration & Customs Enforcement (ICE) announced that it has issued or will soon be issuing Notices of Inspection to review the I-9 records of 652 employers across the nation. The Notices of Inspection may also be issued with subpoenas for records such as quarterly wage reports, EINs, business licenses, correspondence from SSA regarding no-match letters, and payroll data.
