New Look to Green Cards & EAD Cards  

USCIS will start issuing redesigned cards with enhanced graphics to applicants.  The new cards will start being issued on May 1, 2017.

These redesigns use enhanced graphics and fraud-resistant security features to create cards that are highly secure and more tamper-resistant to prevent document tampering, counterfeiting and fraud; than the ones currently in use.

The Redesigned Cards

The new Green Cards and EADs will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
  • Green Cards will have an image of the Statue of Liberty and a predominately green palette;
  • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Have embedded holographic images; and
  • No longer display the individual’s signature.

Also, Green Cards will no longer have an optical stripe on the back.

How To Tell If Your Card Is Valid

Some Green Cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.

Certain EADs held by individuals with Temporary Protected Status (TPS) and other designated categories have been automatically extended beyond the validity date on the card.

Employers, please note that both the older version and the new cards are acceptable for Form I-9, Employment Eligibility Verification, E-Verify, and Systematic Alien Verification for Entitlements (SAVE).

Some older Green Cards do not have an expiration date.  These older Green Cards without an expiration date remain valid.

Individuals who have Green Cards without an expiration date may want to consider applying for a replacement card bearing an expiration date. Obtaining the replacement card will reduce the likelihood of fraud or tampering if the card is ever lost or stolen.

Nalini S Mahadevan, JD, MBA ▪ nsm@mlolaw.us ▪ Office: 314.932.7111 & 314.402.2024

Disclaimer:  Not meant as legal advice! For information purposes only.

 

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E-Verify returns!

E-Verify has resumed operations following the federal government shutdown. All E-Verify features and services are now available.

Information for Employers

Form I-9
The Form I-9 requirements were not affected during the federal government shutdown. All employers were required to complete and retain a Form I-9 for every person hired to work for pay in the US during the shutdown.

E-Verify
Employees who received a Tentative Nonconfirmation (TNC):
If an employee had a TNC referred between September 17, 2013 and September 30, 2013, and was not able to resolve the TNC due to the federal government shutdown, employers must add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation’. Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If employers have an employee who decided to contest his or her TNC while E-Verify was unavailable, an employer should now initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.

Steps to take if an employee has received a SSA Final Nonconfirmation (FNC) or DHS No Show result:
If an employee received a Final Nonconfirmation (FNC) or No Show because of the federal government shutdown, please close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the Tentative Nonconfirmation (TNC) that led to the FNC result.

Creating Cases: Three-Day Rule
You must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013. If you are prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.

Federal Contractor Deadlines
During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. If your organization missed a deadline because E-Verify was unavailable, or if it has an upcoming deadline for complying with the federal contractor rule, please follow the instructions above and notify your contracting officer of these instructions.

Information For Employees

If the federal government shutdown prevented you from contesting a Tentative Nonconfirmation (TNC), you will be allowed additional time to contact the Social Security Administration (SSA) or Department of Homeland Security (DHS). If your TNC was referred between September 17, 2013 and September 30, 2013, and you were not able to resolve the mismatch due to the federal government shutdown, you should:

  • Add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation’ that your employer gave you after you contested the TNC. Federal business days are Monday through Friday, and do not include federal holidays.
  • Contact SSA or DHS by the new date to resolve your TNC.
  • If you received a Final Non-Confirmation (FNC) because you could not contact DHS or SSA during the federal government shutdown, or because you could not contact DHS or SSA in the first ten days after the government reopened, please contact your employer and request that the employer re-enter your query. For more information about contesting your TNC or FNC, please refer to Employee section of the E-Verify website.

Customer Support

E-Verify Customer Support expects an increase in requests for assistance. Due to this increase, customers may experience longer than normal delays and response times. We apologize for any inconvenience and appreciate your patience.

For any questions or additional information about how the federal shutdown affects E-Verify, please email E-Verify@dhs.gov. For questions about Form I-9, please visit I-9 Central or email I-9Central@dhs.gov. Employers and employees may also contact E-Verify at 888-464-4218. Customer Support representatives are available Monday through Friday 8:00 am to 5:00 pm local time.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Employment Practices that Could Lead to Immigration Discrimination, Pt. 2

The Office of Special Counsel (OSC)‘s job is to enforce the Immigration and Nationality Act (INA), which disallows employment-related anti-discrimination based on immigration and citizenship status, and nationality. I previously wrote about OSC’s responses to some employers’ questions on unfair employment practices, such as an employee presenting either invalid or fraudulent documents. OSC also answers immigration-related questions posed by law firms’, pertaining to law firm clients.

If, for example, a general contractor, is hiring out to a subcontractor, and then requires the subcontractor’s employees to again produce original documents — such as a passport or driver’s license — that were already presented during the hiring process and upon completion of a Form I-9 by the subcontractor, then a host of problems can present themselves:

  1. The original documents have expired and the employee has obtained a new version of those documents;
  2. The employee’s immigration status has changed, and thus has different documents to prove work authorization; and
  3. The original documents have been stolen or lost.

This could all amount to a claim by the employees that the general contractor was discriminating against them due to their citizenship or immigration status. Employees could also maintain that they are discriminated against in this case: An employer, who is an E-Verify user, hires a private vendor to disseminate paychecks, also giving the vendor access to Forms I-9. The vendor is authorized to examine the Forms I-9 in order to confirm the identities of employees, who the employer wants to pay.

What could easily happen is that, because the vendor didn’t see the employees’ original documents, he/she inquires about the adequacy of the documents that were initially presented to the employer for I-9 purposes. If the employer feels persuaded to ask his/her employees for further documentation, such a request might be perceived as document abuse, which violates the anti-discrimination provision of the INA. OSC found that the INA was not applicable in either circumstance.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Government Shutdown Affects Employers with Foreign Workers

We sent an alert to our clients a couple of days ago when we felt that the Federal Government shutdown was imminent. We didn’t really expect it to happen but it did! The shutdown is unfortunately affecting US immigration services, so writing about action to be taken or postponed for pending immigration applications became imperative.

The websites of the US Department of Labor (US DOL) are no longer functional because it is considered a non-essential service. For employers, this means that if there is a current or potential employee who has to start, extend or transfer to a new employer, the employer will not be able to file a labor condition application for an H1B visa. The implication is that no application for the H1B visa can be filed with USCIS because that application has to be supported by a certified labor condition application (LCA). In the past, when there was a prolonged outage of the US DOL website, USCIS allowed employers to file with uncertified LCAs. We hope this happens with this shutdown, if it is prolonged.

For employees whose cases are pending audit on a PERM case; or if a prevailing wage determination or Form 9089 (PERM application) is either to be filed, or has been filed or is pending with the US DOL, no action will be issued by the agency until the shutdown has been terminated.

USCIS is functional because it is a fee-for-service agency. Biometrics collection is used for many immigrant applications, as well as for re-entry permits required for multinational employees who have a green card through employment but are currently stationed overseas. Biometric services for employees are also still being collected.

US Department of State consulates are currently functional, processing visa stamps and interviews. These services are supported by a mix of fees and federal budget allocation: if the shutdown is prolonged, or if there is a budgetary crisis, then there may be a suspension of services at the consulates for both US citizens and non-citizen consular services. The budgetary crisis could impact both employment-based and other categories of visa issuance, including visitor and business visas. If business travelers want to attend or plan to attend meetings and conferences in the US, please plan to obtain a visa while consular services are still available.

The Social Security Administration is open with limited service; issue of Social Security cards has been suspended. Hence, new visa-based employees will be unable to obtain new social security numbers, which could impact I-9 forms. Although collection of social security numbers is optional, if the employer is an E-verify employer, the employer is required to collect a social security number for work authorization verification. Certain federal and state contractors are also mandated to collect this information. To alleviate this problem, the 3-day rule for E-verify is suspended for those cases affected by the shutdown. Employers may not take adverse action against employees because of the employee’s E-verify interim status.

Wage payments to some new non-immigrants may be a problem because of the non-availability of the social security number. New J non-immigrant visa holders who cannot obtain social security numbers should approach their sponsoring agency for direction.

E-verify is unavailable during the shutdown. Consequently, USCIS, which administers the program, will not be issuing non-confirmation letters (TNC), and employers will be unable to verify work authorization of new employees. Current time to process TNCs has been extended; but the obligation to collect, maintain and process Form I-9 continues as an employer mandate.

Border security is an essential service – there will be no shutdown of services at the border, but travelers are expected to face slowdowns in screening and higher security.

US Passport services, which are a fee-for-service program, are not affected by the slowdown. Of course the severity of the impact will depend on the length of the shutdown. We will post updates as they become available.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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E-Verify & Comprehensive Immigration Reform

Another new component to immigration reform Senate Bill 744, “The Border Security, Economic Opportunity, and Immigration Modernization Act”, is coming out of the woodwork. The new legislation calls for an extended, nationwide computer network of driver’s license photographs and biographic information of US citizens, run by DHS’s USCIS.

Seven percent of US employers use a similar network, the DHS-run system E-Verify, which helps USCIS to validate identity and legal status of new hires. The broadened network comes from the need to further prevent fraud during the hiring process, by allowing employers to re-verify any photographic or biographic identification presented by new workers. The system would ultimately make it more difficult for illegal immigrants to secure jobs in the US.

E-Verify isn’t mandatory in all states: those US employers who utilize the system, do so voluntarily. If the new immigration bill passes, then E-Verify will have to undergo significant expansions, obligating all employers to send new employee — both foreigners and citizens — information to the system, in order to prove work eligibility.

Many fear that a nationwide computer network will be akin to a national ID system, allowing the government to keep tabs on its citizens. Another fear is that an expanded system would be available to other federal agencies, such as TSA or FBI, which would mainly use it to find suspects.

The federal government assures us that E-Verify doesn’t maintain its own information — it instead taps into other systems to establish information; the information vanishes once the task is accomplished. However, privacy guidelines released by DHS affirm that E-Verify can, depending on the situation, “give law enforcement agencies extracts of information on potential fraud, discrimination or other illegal activities, which points to information gathering at some level and analysis of identity data.”

If passed, the Senate bill will present grants to the states that give DHS access to their driver’s license photo records, clarifying that such access wouldn’t breach federal privacy law. Mississippi is the only state that has given DHS admission to its motor vehicle database, but only for biographic information and not photographs.

The Senate bill does not directly forbid DHS, or any other government agency, from using the information for anything other than work authorization, unlike the law that administers the census.

The Takeaway

E-verify is very likely to become mandatory for all employers, as it is supported by The Chamber of Commerce and employers. The issue of misuse of sensitive and private  information has been enhanced by the leaks of NSA surveillance methods; clearly these dangers need to be balanced with the needs for a workplace security.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Mandatory E-Verify Bill

Senator Chuck Grassley (R-Iowa) has proposed a new bill to the Senate, The Accountability Through Electronic Verification Act of 2013, that would obligate US employers to utilize E-Verify within 12 months of the bill’s passing. Sen. Grassley is the Ranking Member of the Senate Judiciary Committee, which supervises the Senate’s immigration policy, and is also a member of the Subcommittee on Immigration, Refugees and Border Security. Grassley’s bill was cosponsored by 10 other Republican Senators.

Details of the Proposed Bill

In addition to requiring E-Verify for all American employers, Sen. Grassley’s legislation would:

  • Increases penalties for employers who don’t use the system or illegally hire undocumented workers;
  • Reduces the liability that employers face if they participate in E-Verify when it involves the wrongful termination of an individual;
  • Allows employers to use E-Verify before a person is hired, if the applicant consents;
  • Requires employers to check the status of existing employees within 3 years;
  • Requires employers to re-verify a person’s status if their employment authorization is due to expire;
  • Requires employers to terminate the employment of those found unauthorized to work due to a check through E-Verify; and
  • Helps ensure that the Social Security Administration catches multiple use of Social Security numbers by requiring them to develop algorithms to detect anomalies.

For Employers

In addition to the various labor and employment laws mandated by the States and the Federal Government, mandatory E-verify would impose a larger burden on companies. Perhaps we should address what causes employers to use workers who are not authorized to work, and why these undocumented individuals exist in the workforce despite efforts to root them out!

The Takeaway

Let us emulate Canada, which imports low skilled workers every year — who return to their home countries every winter season. The US needs to increase the number of work visas for both the low skilled, agricultural, hospitality and construction workers. Most of them would like to work legally (less stress) and return. This will reduce ‘coyote’ activity at the border: why would a person risk crossing illegally when they can enter through the border, and return to their homes without the fear of being caught and living in the shadows.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Why Comprehensive Immigration Reform Has a Chance to Pass This Year

Since President Obama was inaugurated for his second term, he has made Comprehensive Immigration Reform (CIR) a key policy initiative for his administration. Interest groups from the left and right, and even some Republicans, such as Florida Sen. Marco Rubio, are also in support of a comprehensive overhaul of US immigration laws.

Condoleezza Rice (former Secretary of State in the Bush Administration), Henry Cisneros (former Housing and Urban Development Secretary) and Haley Barbour (former Mississippi Governor) are three of 4 leaders spearheading a high profile group by the Bipartisan Policy Center in Washington D.C. The group’s aim is to act as a sounding board, and to assist and shepherd the initiative into law by the summer of 2013.

Bipartisan support continues, as Senators from both parties have also offered Obama a framework of principles that they hope will be included in CIR. This bipartisan group consists of eight senators, four Democrats and four Republicans: Sens. Charles Schumer (D-N.Y.), John McCain (R-Ariz.), Richard Durbin (D-Ill.), Lindsey Graham (R-S.C.), Robert Menendez (D-N.J.), Marco Rubio (R-Fla.), Michael Bennet (D-Colo.), and Jeff Flake (R-Ariz.).

A Round Up of Ideas Offered by Proponents

The draft of the Senators’ proposed bill, entitled the “Immigration Innovation Act”, increases available H1B visas from 65,000 to 115,000 visas every year. It will create a market-based H1B escalator, which will allow for additional visas if the cap is hit early during the filing season, with a ceiling of 300,000 visas. The visas will be adjusted based on market demands.

The 20,000 H1B visa cap for US Masters and PhD students will also be abolished, allowing the US employer to employ foreign students of US universities with advanced degrees without limit.

This bill will provide the ‘plug and play’ workers needed by all sectors of industry, whether it be healthcare or hospitality; workers who are ready to hit the ground running, and keep services for the American consumer consistently available.

In addition, there is a proposal to allow dependents of H1B visas to work on their H4 visas.  Of course, there will be an increase in the filing fee, dedicated to worker re-training at the state level in technical fields.

The senators’ framework stipulates that, before illegal US immigrants can attain “probationary legal status”, they must pass a background check, as well as pay fines and back taxes. Illegal immigrants with serious criminal backgrounds will not be eligible for legal status. Additionally, the framework states that illegal immigrants will not be granted work authorization until the government increases enforcement, such as expanded border surveillance, to protect and secure the nation’s borders.

The President’s Plan Is Not So Differrent

Obama’s proposal for immigration reform comes in four parts:

  1. Strengthen our borders;
  2. crack down on companies that hire undocumented workers;
  3. hold undocumented immigrants accountable before they can earn their citizenship; and
  4. streamline the legal immigration system for families, workers and employers.

Earned Citizenship

Almost 11 million undocumented immigrants live in the US. Obama proposes to give undocumented immigrants the legal means necessary to earn citizenship, which will also persuade them to come out from hiding and pay their taxes and adhere to the rules. Illegal immigrants will be held accountable: before they can obtain citizenship, they must pass national security and criminal background checks, pay back taxes and penalties, learn English, and go to the back of the line. Young people will also have the chance to gain citizenship faster if they seek higher education or serve in the military.

Mandatory E-verify

Sen. Chuck Grassley of Iowa has introduced a mandatory E-Verify bill, which will require all employers to verify the authorized work status of their US workers. Today, the E-Verify system is voluntary; however, Sen. Grassley’s bill requires all employers to comply within 1 year of enactment. The bill will reduce employer’s liability for wrongful termination, and use E-verify to screen an applicant with his/her consent. The bill also imposes a mandate on the Social Security Administration to develop algorithms to detect multiple users of single Social Security numbers.

How will CIR help our economy?

Our economy demands legal immigration that is simple and adept, so that it encourages the best and the brightest to remain in the USA. A shorter wait for permanent resident status for the highly educated immigrants will boost the economy — if it is easier for STEM graduates to stay in the US, they will bolster and create industries, therefore creating jobs.

University education in the US will get a boost from the revenues generated by foreign students and their families; estimates put the revenue generated by foreign students at about $20 to $40 billion dollars every year. Often, American universities spend several hundreds of thousands of dollars educating these students, only to lose them to Canada, Australia, UK and Europe, or the students’ home countries. A chance for these students to remain in the US and pursue their academic and entrepreneurial dreams will add to the economy.

The taxes collected from the highly educated will help ensure that our Social Security and Medicare budgets are met. This revenue stream will be enhanced by offering a chance for a legalized workforce to pay employment-based taxes. These taxes will reduce the strain on American social systems, such as hospitals and schools. A legal workforce will be paid the mandated prevailing wage. Without a Social Security Number, a worker cannot open a bank account, buy car insurance, obtain a driver’s license, or attend school or college. Hence, a legalized workforce will provide a boost to the insurance, banking and finance industries, and increase wages for all, as employers will now pay the legal minimum wage.

The proposals all call for supplemental visas so that foreign entrepreneurs wanting to begin startups, and foreign graduate students with STEM degrees, will either come to the US to work or remain in the US post-graduation. We want, and need, the best and brightest minds for the US to flourish.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Planning For the New Year: Form I-9 and E-Verify

With the new year approaching, employers can make some changes and improvements to processing and maintaining Form I-9s. There are Form I-9 best practices that employers should follow to avoid being fined by ICE in an audit. The following are methods to ensure that you, as an employer, are complying with Form I-9 guidelines that have been implemented by USCIS and enforced by ICE. Please also see my Form I-9 series.
  1. Train your team in-house on how to complete I-9 forms and use E-verify successfully.
  2. Don’t be creative while completing forms. If, for instance, the HR specialist forgot to date the form, or the employee did not fill in Section 1 fully — don’t attempt to back-date the form and ask to the employee to complete Section 1. There is always someone who knows the situation and is watching. You could be threatened with punishment, or other employees could rat you out.
  3. The days of the wild, wild west are gone. Today requires a culture of compliance with the rules and laws. It is too expensive for employers and companies to do otherwise.
  4. Hire outside counsel to conduct a year-end audit of all the new forms created since the beginning of the year. At a recent immigration conference, I heard that more than 85% of I-9 forms are filled incorrectly, which means that self-audit is probably not a good idea. Having another employee conduct an audit can be a tricky situation because he/she may not want to point out a superior’s mistakes. The best way is to engage outside counsel to perform the audit; this audit can be part of a wage and hour audit.
  5. Brainstorm about your on-boarding policies and your “exit” interviews. Review policies for document examination; and recording and re-verification of documents for various visa-based and non-visa-based employees. Aim for consistent employee procedures — this means creating a handbook for procedures. Ensure your employees review the handbook before they attempt to examine and record documents on the I-9.
  6. Beware of audits by other federal agencies — they share information and are looking to collect fines. A wage and hour audit can turn into an I-9 and E-verify audit nightmare.
  7. Audits take time and are an unproductive task: they cost company money and employee time, and lead to lost profits. Take the time to understand the I-9 process.
  8. Audits ruin company reputations — names of companies that are audited are made public on federal websites. ICE, OSC and DOL publish announcements of audits.   Sushi Zushi, a San Antonio restaurant, lost workers and shut down after an announcement of an ICE audit. Employees left in droves; without employees, the restaurant had to shut down 8 locations.
  9. The new I-9 will create new challenges. Allocate a budget for training and compliance.
  10. Reduce liability by purging old I-9s.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

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ICE’s Official Guidelines for Electronic I-9 System Audits

In response to an electronic Forms I-9 provider, US Immigration and Customs (ICE) issued guidelines for maintaining an electronic I-9 system for employers.

In early October, ICE issued their official guidelines for assessing electronic Form I-9 systems in an audit. These guidelines tell Homeland Security Investigator (HSI) agents and auditors what Form I-9 information to gather from employers’ electronic systems – guidelines that also help HSI agents to determine I-9 related fines, based on electronic I-9 requirements.

Though ICE has been continually augmenting regulations for its two-year-old electronic I-9 system, storing Forms I-9 electronically is still an employer’s safest bet. Storing Forms I-9 electronically helps to minimize paperwork and paperwork errors; it also allows for easier management and incorporation of E-Verify, which saves time and prevents variances.

A New Framework

In an effort to streamline their I-9 audit procedures, ICE has created a new framework for assessing I-9 systems. If you’re sent a Notice of Inspection (NOI), these are the things you need to know:

1. Audit Trail

Full electronic I-9 compliance means employers must have an audit trail. ICE guidelines require an employer’s electronic system to make a secure and permanent record – and for this record to reflect the date of use, why it was used and what it was used for – when an electronic Form I-9 is created or changed. Since this is the number one investigative method for ICE, it should be an employer’s number one priority.

In order to show the audit trail, specific actions should be taken by an employer when creating and managing Form I-9. A thorough electronic I-9 system will record:

    • the creation of a form for an employee
    • personal information, employee testimony, electronic signatures and dates, any further documentation
    • any updated or altered information

Such a trail is needed so that ICE agents can determine whether an employer’s practices are in compliance with ICE regulations, and whether ICE must issue civil fines.

2. Software Provider & Operating Procedure

When an employer receives an NOI, ICE will ask for the name of the employer’s electronic I-9 system software provider. ICE needs this information so that the agents can gain a better understanding of how the system functions.

In an audit, the employer will have to provide a thorough explanation of their operating system. The employer should make ICE’s job as easy as possible; the employer’s chosen system should be simple and easy to use.

3. Indexing System

Indexing systems catalog employees by name and other attributes, which is helpful in the case of an ICE audit. Employers must make sure that their indexing systems have safeguards that can avoid duplication of employees or Forms I-9. Employers should steer away from systems that merge payroll, tax and employment verification with Forms I-9 – these different areas of information should be stored separately.

4. Electronic Signature

ICE’s regulations on electronic signatures are somewhat unclear. What is clear is that employers must develop a standard procedure for acquiring an employee’s electronic signature, and must guarantee that the signature on the Form I-9 is actually the employee’s. ICE will inspect electronic signatures to ensure that the “significance”– that the employee understands what he/she is signing – has been maintained.

5. Hardcopies

ICE regulations require that an employer’s operating system be able to produce hardcopies of electronic Forms I-9; the best systems will allow the employer to download a PDF version of electronic records.

6. System Demonstration

A system demonstration doesn’t seem like a necessity, but sometimes software vendors have a knack for misleading their customers. For a better user experience, some vendors have added fields, which are not on the original Form I-9; or they have moved fields around – i.e. fields from section 2 are in section 1. Such renderings can sometimes lead to accidental in compliance, and alter the meaning of the form.

Conclusion

While many employers are in favor of electronic I-9 systems – it reduces paperwork and is easily accessible – let us remember two cases. The first is the case of Abercrombie & Fitch, where the electronic I-9 system erased several employees’ records and the company was unable to produce them in reply to an NOI from ICE. The second is the case of UCSD Medical Center, where the electronic I-9 system prompted HR to ask for documents that were not required from naturalized citizens and permanent residents, leading to charges of document abuse and monetary fines.

Different electronic vendors have different programs – before entering into or storing Form I-9 electronically, the employer needs to do some due diligence to ensure the program follows compliance procedures mandated by ICE. It’s best to consult an immigration attorney when previewing an electronic system.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

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Civil rights under immigration–is there such a thing?

The Immigration Reform and Control Act of 1986 (IRCA) introduced employer sanctions for ‘knowingly’ hiring undocumented workers. IRCA also initiated the Form I-9 employment eligibility verification process, and established the Office of Special Counsel (OSC) to administer anti-discrimination provisions. Since the advent of OSC, immigrants and “authorized” workers have had to regularly prove their work status.

Given this legal backdrop, the question for employers is whether it is still possible to discriminate against job seekers. In other words, is preferential hiring based on citizenship status legal? It is only legal if the individual is not work-authorized; if it is required by law, regulation, executive order or government contract; or if the individual requires sponsorship.

On a rainy day, a farmer’s lettuce harvest was less abundant than usual. The farmer, Harry, needed fewer farm workers than last season. He had to make a decision between keeping Hector or Jose. He decided to keep Hector because he was a legal permanent resident, and decided against Jose because he was an asylee with a temporary work permit. Did Harry commit citizenship status discrimination?

Yes, Harry committed citizenship status discrimination because the asylee is a “protected person” under the Immigration and Nationality Act (INA). A protected individual is a US citizen, US national, permanent resident, temporary resident, refugee or asylee. Harry could not fire Jose based on the fact that he was an asylee with a temporary work permit.

OSC defines national origin discrimination as treating employees differently based on country of origin and/or ancestry, accent, or appearing to be from a certain country. So if Harry (employer) had at least 6 employees under Missouri law, or 4-14 employees under federal law, he could not discriminate against an applicant based on the fact that he looked foreign.

What are some examples of national origin discrimination? Preferring people from a certain country; only hiring “native English speakers”; and not hiring someone with an accent.

CEO Jane had heard of the penalties for hiring unauthorized workers. Wanting to keep her company intact, she issued an order telling HR not to hire anyone who looked like they had crossed the border illegally. Did she commit national origin discrimination? Yes, she did. All hirees are required to be verified the same way regardless of whether they are immigrants or members of a foreign community.

Section 1 of Form I-9 needs to be completed after the employee takes the job, and by the first paid work day. Aliens who are authorized to work are refugees and asylees, who work with no expiry date. These employees can write N/A if he/she has no expiry date. Employees are not obligated to present documents confirming status.

Section 2 of Form I-9 needs to be completed within 3 business days of the first paid day. Employees must submit documents from List A or List B + C.

Some common problems often arise when filling out Section 2. Employers frequently ask non-US citizen workers to provide List A documents but do not ask the same of US citizen workers, while allowing US citizen workers to submit any document they choose. Employers also request non-US citizen workers to present documents from Lists A, B and C, which is against I-9 regulations. The Handbook for Employers and USCIS‘s I-9 website commonly go unreviewed by employers. Because of this, employers often don’t accept certain documents, such as receipts, from non-US citizen workers.

Employers do not need to update or reverify US citizens, permanent resident cards holders (I-551), and List B documents.

Work-authorized individuals are protected from discrimination, while undocumented individuals are not. A few possible outcomes exist if an employer faces discrimination charges by OSC. Charges can be dismissed if OSC cannot find substantial cause; proof that the employer engaged in discrimination; or if OSC has no jurisdiction. If OSC decides that the employer is at fault, then OSC attempts to arrange a settlement; otherwise it will prosecute. If the settlement is rejected, then OSC reserves the right to file a complaint against the employer. The employee may also file his or her own complaint against the employer.

Part of the settlement that OSC may enter into with the employer could include requiring the employer to rehire the individual(s); reimbursement of back pay; providing injunctive relief to the complainant; requiring the employee to provide training to HR personnel; requiring monitoring of these activities; and reporting back to OSC about compliance with the steps required by settlement. The settlement could also mandate civil penalties.

Civil Penalties for citizenship status discrimination, national origin discrimination and retaliation can be high. Penalties for first-time offenders range from $375-$3,200; second-time offenders: $3,200-$6,500, and third-time offenders: $4,300-$16,000. Penalties for document abuse range from $110-$1,100.

A TNC, or a tentative non-confirmation is when there is a tentative non-match between the applicant’s name and Social Security Number (SSN). If a TNC is issued, the employee should be allowed to contact the federal agency and remedy the situation. An employer has eight federal days to contact Social Security, and Social Security can continue the matter for 120 days. In the meantime, the employer cannot terminate; suspend; delay the employee’s job; persuade the employee to quit; decrease the employee’s hours; deny pay; asking for further documentation; or delay employing the applicant. But if the TNC becomes a “final non-confirmation”, then the employer is within rights to fire the employee.

E-Verify cannot be used as an applicant self-check or prescreening by the employer.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Immigration Attorney

Tara Mahadevan

Copyright 2012.  All rights reserved.

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