Missouri Lawyers Weekly: Immigration decision may have impact on Missouri laws

My coworker, Diane Metzger, and I were recently interviewed for an immigration article in Missouri Lawyers Weekly. The article focuses on the Supreme Court’s ruling of Arizona immigration law, and how the ruling may affect Missouri immigration law.

Reprinted with permission from Missouri Lawyers Media.

See you in my next blog.

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

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part VI: Step Two in ICE Audit Process

This blog details how employers can avoid I-9 audit by ICE. After ICE issues the employer a Notice of Inspection (NOI), ICE visits the employer‘s worksite, or the employer visits ICE‘s offices, with the electronic or paper Forms I-9 and supporting documentation.

Second Step: Violations

If, during the audit, ICE finds technical or procedural violations, then the employer is given 10 business days to make corrections.

Employers should avoid hiring:
• workers who do not have current authorization to work in the U.S.
• workers who have criminal immigration violations
• workers who fail to produce documents from Lists A or Lists B and C.

Worksite enforcement is conducted by ICE, Immigration and Criminal Enforcement, and a department of the U.S. Department of Homeland Security.

Worksite Enforcement Strategy:
• ICE will arrest and remove any illegal workers who are found in the course of these worksite enforcement actions.
• ICE will use civil fines and debarment to penalize and deter illegal employment.

ICE officers look for evidence of mistreatment of workers, employer discrimination against workers and evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct. ICE offices will get indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney’s Office (USAO) to prosecute the employer before arresting employees for violations at a worksite.

To avoid audit, employers must not:
• Discriminate against individuals on the basis of national origin, citizenship, or immigration status.
• Hire, recruit for a fee, or refer for a fee aliens he or she knows to be unauthorized to work in the United States.

In the next section of Part VI, Section C, we will be discussing the final step in the ICE auditing process.

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part VI: Step One in ICE Audit Process

This blog is for employers to avoid I-9 audit by ICE. ICE audits start with a letter from ICE called Notice of Inspection (NOI). Since the process of auditing is complex, the auditing process has been broken down into several steps so that it is easier to understand and follow.

First Step:

ICE‘s auditing process starts with an NOI that is sent, or mailed, to the employer. The NOI asks for a record of Forms I-9 maintained by the employer. The NOI is typically presented 3 business days before the employer must produce Forms I-9. ICE will ask the employer for documentation that support Forms I-9, either in the form of the payroll, list of current employees, Articles of Incorporation, or business licenses. ICE will then inspect the Forms I-9 for compliance with rules and regulations.

ICE officers usually choose where a Form I-9 inspection occurs. ICE may ask the employer to bring Forms I-9 to an ICE field office. Sometimes arrangements may made at the employer‘s worksite. When officials arrive to inspect the employer’s Forms I-9, the employer must present:
• Electronically stored Forms I-9 and any other requested documents
• Necessary hardware and software to validate electronic documents
• Any existing electronic summary of the information on Forms I-9

Employers who refuse or delay an inspection will be in violation of the law.

In the next section of Part VI, Section B, we will be discussing the second step in the ICE auditing process.

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part V: When to Complete Section 3 of Form I-9

This is Part V of a blog series for employers to maintain and complete Form I-9 and to avoid audit by ICE. In our previous blogs we discussed I-9 basics; which employers should collect I-9; how to fill out section 1 of Form I-9; and how to fill out section 2 of Form I-9.

In Section 3, the employer re-verifies the the employee‘s information on Form I-9. When an employee’s employment authorization or documentation expires, the employer must re-verify that the employee is still authorized to work.

Employers should complete Section 3 when:
• An employee’s employment authorization or employment authorization documentation has expired
• An employee is rehired within three years of the date the previous Form I-9 was completed
• An employee changes his or her name

Employers should not re-verify U.S. Citizens; lawful permanent residents who presented a Permanent Resident Card for Section 2; List B documents; however, employers must re-verify all other employment authorization documentation.

Check the previous post to learn how to fill out Section 2 of Form I-9.

Next week : Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part IV: How to Fill Out Section 2 of Form I-9

This is Part IV of a blog series for employers to maintain and complete Form I-9 and to avoid audit by ICE. In our previous blogs we discussed I-9 basics; which employers should collect I-9; and how to fill out section 1 of Form I-9.

Section 2 of Form I-9 is to be filled out by the employer. The employer must fill out and sign Section 2 within three days of the employee’s first paid work day. If the job lasts less than three days, the employer must complete Section 2 before the first paid work day.

It is the employee‘s decision on what documentation to produce to prove their identity or employment authorization. He or she must make one selection from List A, or one selection from List B in combination with List C. The employer must not specify which documents are required; instead, the best practice would be for the employer to present the employee with a printed list of Lists A, B, and C, and for the employee to choose which of those documents to present.

Employees who present documents from List A do not have to present any other document. List A includes:
U.S. Passport or U.S. Passport Card
Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant
visa
Employment Authorization Document (EAD) that contains a photograph (Form I-766)
Foreign passport with Form I-94 or Form I-94A, and Arrival/Departure Report

The employer must be careful that the employee is authorized to work for the employer, especially if they are on a visa that allows the employee to work. The employer must ascertain that the employment authorization to work is not tied to a particular employer who is not the employer hiring the foreign worker. This is particularly important when employing foreign students, and employees on H visa, L visa, and other work visas.

Employees who present documents from List B also have to present a document from List C.

List B includes:
Driver’s license or Identification Card issued by a United States authorities that contains a photograph or name, date of birth, gender, height, eye color and address
Identification Card issued by federal, state or local government agencies or entities that contains a photograph or name, date of birth, gender, height, eye color and address
• School Identification Card with photograph
• Voter’s registration card
• U.S. military card or draft record
• Military dependent’s ID card
• U.S. Coast Guard Merchant Mariners Document Card
• Native American tribal document
Driver’s license issued by a Canadian government authority

List C includes:
• U.S. Social Security account number that is unrestricted. Unrestricted Social Security account numbers are only issued to:
-U.S. citizens
-Non-citizen Nationals of the U.S.
-Lawful permanent residents
-Refugees
-Asylees
-Citizens of the Republic of Marshall Islands, the Federated States of Micronesia, or the Republic of Palau
-Canadian-born American Indians
-Mexican-born Kickapoo Indians
Certification of Birth Abroad issued by the U.S. Department of State
Certification of Report of Birth issued by the U.S. Department of State
Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the U.S. bearing an official seal
• Native American tribal document
U.S. Citizen ID Card
ID Card for Use of Resident Citizen in the U.S.
Employment Authorization Document issued by Department of Homeland Security:
-Form I-94 issued to an asylee
-Work-authorized non-immigrant
-The Unexpired Re-entry Permit
-The Certificate of U.S. Citizenship

The employer must examine each employee‘s documents. If the employer rejects the document, then the employee is allowed to present other documents from Lists A, B and C.

To complete Section 2, the employer should:
• Record the document title, issuing authority, number(s) and expiration date from the employee’s original document(s)
• Enter the date the employee began or will begin paid work
• Provide the name, signature and title of the person completing Section 2, as well as the date he or she completed Section 2
• Record the employer’s business name and address
• Return the documentation presented back to the employee
• Return the documentation presented back to the employee
• Entering the date the employee began employment
• Entering the date the employer examined the employee’s documentation

The employer may copy the documents presented by the employee and attach it to I-9 for record keeping purposes. However, this practice must be uniform for all employees; once started, the best practice for the employer is to employ a uniform policy of retaining a copy of the employee‘s identification and other documents presented that qualifies them to work for the employer.

Check the previous post to learn how to fill out Section 1 of Form I-9.

Next week : Part V: When do you complete Section 3 of Form I-9

Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part III: How to Fill Out Section 1 of Form I-9

This is Part III of a blog series for employers to maintain and complete Form I-9 and to avoid audit by ICE. Employees should fill out the first section of Form I-9 before the first paid workday. A translator can help the employee complete Section 1. The best practice for an employer is to have the potential employee complete Section 1 and present documents from either List A, or List B and List C.

Both the employee and employer need to work together to fill out Section 1 of Form I-9.

Employees should provide:
• Their full legal name—women should give their maiden name, including hyphenated names, as it appears on their identity documents
• Current address
• Date of birth
Social security number
• Citizenship or immigration status
• Alien or Admission number, if applicable
• Date employment authorization expires
• Signature and date
• If a translator helps the employee, then the translator has to provide his or her name, address, signature, and date the form
• The employee and translator’s signatures must be dated on the same day

Employers must confirm:
• All employee’s information in Section 1
• The employee and translator have both signed and dated Section 1
• The employee specified when their employment authorization ends
• The employee’s employment authorization is valid and current on the date of the employee signing and dating Form I-9
• And communicate to the employee, at least 90 days before employment authorization expires, that they need to present a List A or List C document to show continued employment authorization. Employees must present these documents on the date their current employment authorization expires.

Which employers need to collect Form I-9? Check the previous post for a full description.

Next week : Part IV: How to fill Section 2 of Form I-9

Part V: When do you complete Section 3 of Form I-9

Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part II: Which Employers Collect Form I-9

This is Part II of a blog series for employers to maintain and and complete Form I-9, and to avoid audit by US Immigration and Customs Enforcement (ICE).

ICE uses Form I-9 to protect national security and to protect employees from employers; I-9 is used to prevent employers from hiring unauthorized workers and to prevent discriminatory practices against employees. It is vital that employers keep a record of I-9 for every employee hired in the US, both for citizens and non-citizens. Put simply, Form I-9 is a documentation of an employee’s eligibility to work in the US, and a worker’s proof of identity. I-9 is retained in order to show the validity and authenticity of those documents.

Which employers need to collect Form I-9? All employers must maintain I-9 for all US employees that work for pay and benefits; all employers must fill out I-9 for employees hired after Nov. 6, 1986.

Employers should file Form I-9 for employees who are on specific visas; for employees that are asylees or refugees; for students; for those on some other kind of non-immigrant visa with authorization to work; or for those who are US citizens and legal permanent residents (i.e. green card holders).

Employees who do not need Form I-9 are those that work only intermittently for their employers; or employees over whom the employer has no control in directing their work.

Who is an employer? Check the previous post for a full description.

Next week : Part III: How to fill Section 1 of Form I-9

Part IV: How to fill Section 2 of Form I-9

Part V: When do you complete Section 3 of Form I-9

Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2011. All rights reserved.

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Part I: I-9 Basics

This is a multi-part blog on filling, filing, maintaining and auditing Form I-9, and how companies can avoiding penalties for non-compliance.

Who is an employer? An employer is any entity or a person, an agent of a person or entity, who is acting directly or indirectly. That means a company or an individual is an employer if they employ another person. The employer can be a contractor or sub-contractor; the word employer includes an agent: someone who is acting on behalf of an employer. An employer is one who hires another to work for them. The employee must be physically present in the United States. Overseas employees are not subject to I-9 rules and regulations. An employee must be paid wages or other remuneration in the United States.

Employers are also entities or individuals who recruit agricultural workers and who accept a fee for recruiting workers. Independent contractors are employers, if they contract with an individual for labor or other services. But the person or entity using the contract labor is not an employer.

All employers must verify the identity and employment eligibility of every worker hired in the United States after November 6th, 1986.

Employers are charged with not ‘knowingly’ hiring ineligible workers. ‘Knowingly’ could include constructive knowledge, knowledge attributable by inference to the employer by facts and circumstances that exist around the hiring of the employee. It is facts and circumstances an employer should have known.

All US employers must fill out I-9 forms and retain it at their offices, either in electronic or paper form. Form I-9 is not filed with the US Immigration and Citizenship Service (USCIS) or with US Immigration and Enforcement (ICE). There is no filing fee.

An employer uses E-verify to compare the information on Form I-9 provided by the employee against government records to verify the employee is eligible to work in the United States.

Forms I-9 are records of every employee hired after November 6, 1986. Employers are required to maintain these records in order to prevent illegal workers from working for a US employer in the United States; and to promote national security, critical infrastructure, prevent abuse and exploitation of workers. ICE targets employers who violate employment laws; hire illegal workers; and do not maintain employee I-9 records, which conform to US immigration laws and regulations.

Both ICE and USCIS are part of the Department of Homeland Security (DHS). ICE is tasked with enforcing proper maintenance and usage of the I-9 by employers and prosecutes erring employers.

Next week : Read Part II:  Which employers collect Form I-9

Part III: How to fill Section 1 of Form I-9

Part IV: How to fill Section 2 of Form I-9

Part V: When do you complete Section 3 of Form I-9

Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2011. All rights reserved.

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Entrepreneurs Can Use Immigrant Visas to Create US Jobs

Last year, USCIS suddenly decided that an H-1b could not be self-employed anymore, reversing years of policy. The White House has now reversed itself and is re-instating H-1bs for the self-employed, especially if they create jobs.

USCIS Director Alejandro Mayorkas today outlined a series of policy, operational, and outreach efforts to fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability or who otherwise can create jobs, form startup companies, and invest capital in areas of high unemployment.

“The United States must continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs,” said Secretary Napolitano. “Today’s announcements will help our nation fully realize the potential of existing immigration laws.”

“Current immigration laws support foreign talent who will invest their capital, create new jobs for American workers, and dedicate their exceptional talent to the growth of our nation’s economy,” said Director Mayorkas. “USCIS is dedicated to ensuring that the potential of our immigration laws is fully realized, and the initiatives we announce today are an important step forward.”

These actions mark the six-month anniversary of Startup America, a White House-led initiative to reduce barriers and accelerate growth for America’s job-creating entrepreneurs. They have also been one key focus of the President’s Council on Jobs and Competitiveness, which has recommended taking action to help ensure that America can out-innovate and out-compete the world in a global economy.

USCIS has published a Frequently Asked Questions (FAQs) document on its website clarifying that entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States. USCIS will complement these FAQs with internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from the upcoming stakeholder engagements detailed below.

The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States.

In response to stakeholder feedback, USCIS has also updated existing FAQs to clarify that an H-1b beneficiary who is the sole owner of the petitioning company may establish a valid employeremployee relationship for the purposes of qualifying for an H-1b nonimmigrant visa – which is used by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as science, engineering, and computer programming.

The EB-5 immigrant investor program is also being further enhanced by transforming the intake and review process. In May, USCIS proposed fundamental enhancements to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions; implementing direct lines of communication between the applicants and USCIS; and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on the proposal, USCIS is developing a phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days.

Created by Congress in 1990, the program stimulates the U.S. economy through capital investment and resulting job creation by immigrant investors. As of June 30, 2011, it is estimated that the program has resulted in more than $1.5 billion in capital investments and created at least 34,000 jobs.

USCIS has also announced the expansion of its Premium Processing Service to immigrant petitions for multinational executives and managers (often referred to as “E13”). The Premium Processing Service allows employers to expedite processing of their petitions, absent evidentiary deficiencies, fraud or national security concerns.

Finally, USCIS is launching a new series of engagement opportunities for entrepreneurs and startup companies. These opportunities will focus on soliciting input from stakeholders on how USCIS can address the unique circumstances of entrepreneurs, new businesses and startup companies through its policies and regulations in the employment-based arena. For detailed information on USCIS‘s public meetings, please visit www.uscis.gov/outreach.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2011. All rights reserved.

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Marketing Your Business

I started a book review for Bar Association of Metropolitan St. Louis, a lawyers’ association in St. Louis, MO. Their URL is http://www.bamsl.org. It is a great way to improve visibility and read books at the same time! This time I read ‘Eat Pray Love’ by Elizabeth Gilbert. Next time I will review ‘China, a History’, by John Keay. He has also written a book about the history of India, which I am also planning on reading and reviewing.

Now I am involved in promoting immigration education topics for lawyers, for the American Immigration Lawyers Association. I am speaking at a seminar about immigration for lawyers who don’t practice in the area. All these ideas are to promote your visibility and expertise in a way that showcases what you know. Above all, I have learned to deliver content relevant to the audience. You need to engage the audience through meaningful content relevant to their needs. Another way to promote visibility is to join as many social media outlets as you can and link the outlets to your website. YouTube, Facebook, MySpace, Twitter, PRWeb, etc. You can add content simultaneously to all these outlets using Tweetdeck or Ping.

See you in my next post.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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