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Archive for the ‘ICE’ Category

USCIS annually disposes of E -Verify records that are 10 years old or older

Thursday, December 14th, 2017

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USCIS must dispose of E-Verify records that are over ten years old – those dated on or before December 31, 2007.  E-Verify encourages you to record the E-Verify case verification number on the relating Form I-9, Employment Eligibility Verification, and to retain the Historic Records Report with Form I-9. For more information and guidance on downloading the Historic Records Report, see the Fact Sheet and Instructions to Download the Report. For more information on Form I-9 compliance, please refer to our Employer Resource Center.

 

 

 

 

DACA Update and Advisory for Employees and Employers

Sunday, September 10th, 2017

Immigration Rally in Washington(From ILW.com) On September 5, 2017, President Trump announced via a statement from Attorney General Jeff Sessions that he is winding down the Deferred Action for Childhood Arrivals (DACA) program. The DACA program, including associated travel and work benefits, will not terminate immediately. The attached advisory will help you determine how your being in the DACA program is affected by this news.

What if Congress Doesn’t Act?

If Congress does not pass a measure protecting DACA recipients in the next 6 months, nearly 300,000 people could begin to lose their status and be at risk for deportation in 2018. And more than 320,000 would lose their status from January to August 2019. President Trump indicated that he would revisit the issue if Congress does not pass DACA legislation. Here is a review of three Bills under consideration that address DACA Legislation.

The ILW Advisory states:  Employers need to be cautious about taking adverse actions against DACA recipients. In general, employers are not permitted to “look behind” a valid work card and while an employee has a valid employment authorization document, an employer cannot terminate them or otherwise discriminate against them based on assumptions regarding the ability to continue working for the employer for the long term. Employers who have been told by their employees already that they are in the DACA program should be able to talk to them about subjects like helping the employee with green card sponsorship, transfers abroad, helping with getting access to an immigration lawyer, etc.

Here is a statement from USCIS  DACA Has Changed!

  • We are no longer accepting initial requests for DACA, but we will adjudicate initial requests for DACA accepted by Sept. 5, 2017.
  • We will no longer approve advance parole requests associated with DACA.
  • We are only adjudicating DACA renewal requests received by Oct. 5, 2017, from current beneficiaries whose benefits will expire between Sept. 5, 2017 and March 5, 2018.

USCIS 09/05/2017 Announcement

How  to inquire about a pending DACA Case

 

New I-9 Employment Eligibility Verification Form, Effective Sept. 18, 2017

Monday, July 17th, 2017

I-9+Website+High+res+Logo_x625[1]USCIS released a revised version of Form I-9, Employment Eligibility Verification, on July 17. Instructions for how to download Form I-9 are available on the Form I-9 page. On Sept. 18th, employers must use the revised form with a revision date of 07/17/17N. Employers must continue following existing storage and retention rules for any previously completed Form I-9s.

Revisions to the Form I-9 instructions:

  • USCIS changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
  • They removed “the end of” from the phrase “the first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9:

  • Added the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • Combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
  • Renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.

USCIS included these changes in the revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is also easier for users to navigate.

Should you have any questions or would like to discuss how your company can establish a culture of compliance, please contact us at info@immigrationcompliancegroup.com

I-9/E-Verify: Q&A – AILA Verification Committee Mtg w/USCIS Verification & ICE Homeland Security Investigation

Monday, January 23rd, 2017

http://www.dreamstime.com/stock-photo-questions-answers-image5665970

Clarification between Hiring site and worksite (page 5 at link)
E-Verify defines a “hiring site” as “the location where employees are hired and where they complete Form I-9.”

E-Verify further states that a “participating hiring site means that an employer will create an E-Verify case for every newly hired employee who is hired and
completes a Form I-9 at that site.”

Lastly, when an employee is hired remotely and visits a third party employer agent to complete Form I-9, for E-Verify purposes, the “hiring site” is the location of the third party employer agent where the Form I-9 was completed, not the home of the employee.

For all Q&A, refer here

 

Penalties for I-9 Violations: What you need to know

Monday, January 23rd, 2017

One group of customers standing on a red target bullseye, with magnifying glass hovering above it

The DOJ announced in August 2016 that it was making significant increases to the schedule of fines imposed for various violations including those associated with compliance with the Immigration Reform and Control Act of 1986 (“IRCA”) imposed sanctions on employers; namely:

Form I-9 Paperwork Violations:
Previous fine per Form I-9 violation: $110 to $1,100
Fine effective August 1, 2016 per Form I-9 Violation: $216 to $2,126

Unlawful Employment of Unauthorized Workers:
First Offense
Previous fine, per worker: $375 to $3,200
Fine effective August 1,2016 per worker: $539 to $4,313
Second Offense
Previous fine per worker: $3,200 to $6,500
Fine effective August 1, 2016, per worker: $4,313 to $10,781
Subsequent Offenses
Previous fine, per worker: $4,300 to $16,000
Fine effective August 1, 2016, per worker: $6,469 to $21,563

Unfair Immigration-Related Practices
First Order
Previous fine, per worker: $375 to $3,200
Fine effective August 1, 2016, per worker: $445 to $3,563 (however repeat offenders could face new maximum penalty of $21,563 per worker.)

These fines also increase per subsequent order and frequent offenders may face a maximum fine of $17,816 per worker.

As reported in one of our previous blog posts concerning employment verification under a Trump Administration:

Considering employment draws immigrants to the United States, it is likely that we will see stricter enforcement of the Form I-9 verification process under Trump’s presidency.  Starting next year, there will likely be more ICE officers and immigration judges hired to expedite cases.  This increase in staff may lead to an increase in the number of worksite inspections for I-9 compliance.  It is also possible that there will be an increase in penalties and fines for any violations uncovered.  Therefore, it is important for employer’s to ensure that their paperwork, policies, and practices are in order in case of an audit.  Given that Trump may overturn President Obama’s Deferred Action for Childhood Arrival (DACA), employers also need to be aware of which of their current foreign-born employees may become immediately undocumented and take proper action.

Trump has consistently applauded the E-Verify process for its systematic ability to filter out unauthorized employment.  In his position paper on immigration, he would mandate that the E-Verify process be used across the U.S.  Although, Trump will likely meet the same resistance as Congress has in the past, when it tried and failed several times to implement mandatory E-Verify.  That being true, Trump may still be able to strengthen or increase the program through unilateral executive orders.

Advocates Concerned About Trump’s Nomination of Gen. Kelly to Head DHS

Thursday, December 22nd, 2016

http://www.dreamstime.com/-image10852118       By:  Allison McDonnell, Content Coordinator

On December 12, 2016, President-elect Donald Trump officially nominated General John Kelly to serve as Secretary of the U.S. Department of Homeland Security (DHS).  General Kelly, after 45 years of service, had retired in January 2016 and is the third retired general picked to lead the Trump administration.  Kelly is also the third  general in charge of U.S. immigration. Trump listed Gen. Kelly’s decades of military service and strong commitment to ending terrorism inside U.S. borders as reasons for his ideal fit for the position.  However, advocates for immigrants’ rights are deeply concerned about the nomination selectee.

Implementing Trump’s Immigration Plans

Trump intends for Gen. Kelly to play a large role in assisting with his presidential campaign promises of ending illegal immigration and strict southern border control.  While Kelly is certainly very experienced in border and law enforcement, advocates are concerned that he will be far too strict and militarized for a democratic society.  As the head of DHS, Gen. Kelly will be in the forefront of implementing policies put in place by the administration, having the ability to marshal the department’s immense resources.  There is worry that, instead of being a mitigating force, he will pair with Trump in Trump’s overzealous and drastic immigration policies.

Advocates’ Concerns Regarding Gen. Kelly

Concern arises from Gen. Kelly’s past experiences and statements, particularly during the time he was overseeing Guantanamo Bay, where he defended force-feeding practices of detainees.  Kelly is known for his blunt and graphic words about believed terrorist and immigrant threats to the U.S.  These instances have indicated that he will only encourage Trump’s harsh promises over immigration.  It is predicted that Gen. Kelly will be at the forefront of deporting millions of immigrants and using military-style enforcement at the expense of Constitutional rights along the U.S.-Mexico border.  There is also concern over his potential implementation of anti-terrorism measures targeted at Muslims.

Potentially Less Drastic Changes

Taking a more optimistic view, there are hints that Gen. Kelly may lean toward moderation on some aspects of immigration.  For example, he has empathized with the thousands of young undocumented immigrant children who find themselves in tough legal positions through no fault of their own.  He has also agreed with statistics that illegal immigration via Mexico is tapering off and that drug-related crimes are a far greater threat to the U.S. than terrorism.  Also, it might be seen that Gen. Kelly will appoint a knowledgeable head of USCIS, one more knowledgeable and experienced in immigration, civilian institutions, and civilian law than he.

Future of Immigration Still Unknown

If Gen. Kelly wishes to end illegal immigration in the U.S., he would be wise to take a lesson from Commissioner Swing, the first general to head immigration.  Swing was highly successful in reducing unlawful immigration by liberalizing and incentivizing the legal migration process, thus utilizing the labor market.  This tactic has proved far more successful than brute military force.  As of now, it is yet to be seen what history and advice will be heeded and what positive or negative changes will come to the department once Kelly and Trump take office early next year.

Extensions for F-1 STEM Students to Remain in the United States

Tuesday, December 13th, 2016

By:  Allison McDonnell, Content Coordinator

Guide to USA_shutterstock_47911780 Converted (2)The F-1 non-immigrant student visa allows talented foreign nationals to pursue academic studies or language training in the United States.  Recently, there have been tougher rules and more scrutiny of these international students’ academic and financial documentation.  Despite this, a new policy has developed to allow and encourage STEM graduates, those that specialize in science, technology, engineering and math, to study and remain in the U.S. to cultivate their knowledge and expertise in these important fields.  In recent news, it was announced that STEM graduates are now allowed an additional seven months to receive training and employment in STEM areas.

STEM OPT extension in detail

The initial length of post-graduate stay for a STEM student on an F-1 visa is 12 months.  On March 11, 2016, the Department of Homeland Security (DHS) published a final rule that allows F-1 STEM students who meet certain requirements an extension of their post-completion OPT (Optional Practical Training).  As of May 2016, STEM graduates are able to extend their stay from an additional 17 months to an additional 24 months to provide an opportunity to gain added exposure and experience in their field directly after graduation.

Foreign students in the United States are, therefore, now eligible to remain for three years directly after graduating if they seek training or employment that is related to their STEM academic studies from an accredited institution.  The employer must also meet specific requirements, including being enrolled in E-Verify.

Role of the DSO in the extension process

DHS intended for the STEM OPT extension to have only a minimum impact on DSOs (Designated School Officials) at the certified schools.  However, DSOs will still play an important role in determining if F-1 visa students are eligible to apply for an STEM OPT extension.

The DSO has the role of recommending OPT extensions and completing the I-20 form, keeping in mind that the extension is only available to those who earned their STEM degree within the ten previous years of the DSO recommendation date.  The new rule requires that the student and the employer jointly prepare a formal training plan that must be submitted to and approved by the DSO (ICE Form I-983 with instructions).

Employers must also prepare and submit to the DSO evaluations of the employee’s performance.  The employee must report to the DSO every six months during the STEM OPT period with a report submittal confirming the validity of the information in the SEVIS record.

The employee must also inform and report to the DSO under special instances, such as if the job position is left for any reason before the STEM OPT period has ended, any material changes are made to the training plan, or there is a change of employer.

The DSO is not required to conduct additional research into an employer before making a STEM OPT recommendation.  In addition, the DSO does not need to possess technical knowledge of the STEM fields of study.  The DSO’s primary duties are to recommend the student, maintain the student’s records, assist with SEVIS tracking, and provide the government with timely access to the information on record.

Action steps for employers

Given this new extension, employers would be wise to review their OPT employee records to determine which employees will be eligible for additional STEM extensions.  An added benefit of the OPT work authorization increase is that the F-1 visa STEM OPT holders will have more chances of being selected for an H-1B visa number in the H-1B annual lottery.  Employers could also use this time to verify if employees should change to an H-1B visa to avoid work authorization interruption beyond the OPT expiration.

Future of the STEM OPT extension

As the new president-elect, Donald Trump, prepares to take office in January 2017, many prospective international students may be wary of submitting college applications for Fall 2017 admission.  It is yet to be seen if the STEM OPT extension will receive any changes in the near future or how Trump will handle STEM students or those who are currently studying with DACA (Deferred Action for Childhood Arrivals) protection.  However, Trump has voiced an opinion on the importance of cultivating superb foreign talent.  Therefore, it is more likely than not that he will advocate for STEM students to remain in the U.S. past their initial F-1 OPT.

Please contact our office for with any questions that you might have on this or any other business-related immigration topic.

 

 

 

 

 

 

BREAKING NEWS —————-NEW I-9 FORM RELEASED 11/14/2016

Monday, November 14th, 2016

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On Nov. 14, 2016 USCIS released a revised version of Form I-9, Employment Eligibility Verification.  Employers may continue using Form I-9 with a revision date of 03/08/2013N  through Jan. 21, 2017.  By Jan. 22, 2017, employers must use the revised form.

Employers should continue to follow existing storage and retention rules for all of their previously completed Forms I-9. Refer here for more information.

Remember to login to our webinar on Wednesday Nov. 16th, 3pm EST/12pm PST for training on the new I-9 form:  http://www.immigrationcompliancegroup.com/webinars2016/ and save the date for the E-Verify webinar as well on December 15, 2016.

 

 

DOJ issues interim final rule increasing fines 35-96% for employing unauthorized workers

Friday, July 8th, 2016

Searching for a Niche Group - Magnifying Glass

This rule implements as an inflation adjustment fines for employing unauthorized workers for Form I-9 paperwork violations, and for immigration-related discrimination. These new fines increase the penalties from 35% to 96% depending on the nature and severity of the violation.

We encourage you to review your policies, procedures and your Form I-9 inventory.  Remember, the key to defending any employment related investigation is to evidence that there is and has been a consistent pattern of responsible, good faith effort on the part of the employer in establishing a compliant workforce.

Refer here for the details.

 

Employee Notifies that I-9 Documents Previously Submitted were not Genuine: What’s an Employer to do?

Thursday, April 14th, 2016

Searching for a Niche Group - Magnifying Glass

The OSC publishes responses to  TAL Letters (Technical Assistance Letters) that they receive from attorneys, employers and other stakeholders.  USCIS identifies this circumstance in the I-9 Employer Handbook as an employee who comes forward and indicates that their identity is now different than previously represented (Hmm…)  and now wants to “regularize” their employment record.  Or, what do you do if you become aware, for instance, that a social security number associated with a particular employee was not legally assigned?

Discussion starts on page 2.

OSC’s TAL implies that if an employer has not consistently-followed a policy of terminating individuals for providing false information during the hiring process, it couldn’t use that policy to justify a termination in this particular scenario.  Even if the employer did consistently terminate individuals who were dishonest during the hiring process, OSC implied that this was not necessarily a slam dunk argument either. It is important to note that OSC did not commit itself by concluding that such a termination under the circumstances would not constitute discrimination or be deemed to be a valid legitimate non-discriminatory reason for termination. It simply stated it would depend on the facts and circumstances.  Before you go down this road, remember –the USCIS Handbook for Employers provides that “Where an employee has worked for you using a false identity but is currently work authorized, the I-9 rules do not require termination of employment.”

There’s also guidance regarding this for DACA employees that you might wish to review.  For more on I-9 compliance please refer to our Employer Resource Center