A quick review: In the I-9 verification process, the employee presents – and the employer must verify – evidence of both identity and work authorization. List A documents establish both identity and work authorization. Other documents establish only identity, List B documents. And other documents establish only employment authorization–List C documents.

The employee may present either a List A document OR a List B plus a List C document for I-9 employment eligibility verification.

You will not find the newly approved acceptable I-9 documents mentioned in this post in the current edition of the M-274 Employer Handbook, but you will find them on I-9 Central in their FAQs with document examples in the referenced LawLogix Blog post here. Document examples are taken from the ICE Guide to Selected US Travel and Identity Documents. This is an older version. We provide information at the end of this post where you can obtain a current copy of the February 2018 version.

Let’s highlight the new acceptable documents:

1. Certificate of Naturalization: This is now an acceptable List C document as evidence of employment authorization, but you must also request that the employee produce a List B identity document as well.
2. Resident Alien Card first introduced as a permanent residency card in 1977 that does not have an expiration date; the card is valid indefinitely. It displays a profile photograph, fingerprint and other details. These are still accepted as valid List A documents if they reasonably appear to be genuine and relate to the person presenting them. Bear in mind that the photos on these cards will be very old.
3. Trusted Traveler Documents: Global Entry, Nexus (travel between the US and Canada) and Sentri (travel from Mexico) can now be accepted as valid List B identification cards issued by a federal government agency, since they contain a photograph and various other required identifying information. The employee would also be required to present an acceptable List C employment authorization document.

To order a copy of the most recent edition of the M-396 Guide referenced above, requests can be submitted here.

We are always available to assist you with navigating the often confusing process of establishing a legal workforce and culture of compliance. The new year is an ideal time to review your I-9 inventory, update you staff training program, and arrange for a partial or a full audit.

Now is the time for employers to prepare for a successful 2020 H-1B filing season. You’re probably wondering how best to go about this, given the complexities that arose relative to specialty occupations, degrees and wage issues last year. Please note that USCIS has complete discretion whether to deny a case outright or issue a Request for Evidence (RFE). We cannot stress strongly enough the importance of planning and developing strong documentation in support of your case. In so doing, we recommend that you carefully consider and document the below points, as follows:

• If employee has a US master’s degree from a public or non-profit nationally accredited university, apply under the Master’s cap. You can do so whether or not the offered position requires a master’s or bachelor’s degree. The degree, transcript and evidence that the University is public, non-profit and accredited must now be submitted to the Department of Labor with the Labor Condition Application
• It is critical to show the nexus between the offered position’s job duties and the degree requirement
• Select the O*NET code and OFLC Wage level carefully so that the actual wage is reflective of a specialty occupation requiring a degreed professional. Be cautious about Level 1 entry-level wages. We advise paying a higher wage, or be prepared to explain why the position is both entry level and qualifies as a specialty occupation. You may wish to obtain an expert opinion for the latter
• Consider whether the prospective employee will consular process outside the US or do they qualify for a change of status? It’s best to consular processing to preserve OPT if valid beyond October 1st, and to file a change of status case if OPT expires prior to October 1st to protect work authorization under the “cap gap” policy (travel should be avoided in this scenario during case processing)
• To establish that a job qualifies as a specialty occupation under USCIS regulations, one or more of the following criteria must be met with supporting documentation: (1) A bachelor’s or higher degree or its equivalent that is normally the minimum entry requirement for the position; the required degree must be related to the position to be filled.; or (2) The degree requirement is common to the industry, or in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree; or (3) The employer normally requires a degree or its equivalent for the position; or (4) The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

We are uncertain at this time if USCIS will implement a designated H-1B Cap Pre-Registration lottery process for employers in time for this filing season. USCIS stated that this would reverse the order by which the agency selects H-1B petitions under the cap and the advanced degree exemption with the end goal being to increase the number of beneficiaries with master’s or higher degrees from US universities. We will continue to provide updates on this as more information is released.

We would suggest that another strategy for securing the talent that you need in your organization is to consider processing a PERM Labor Certification case with the Department of Labor that is not subject to lottery selection. This can be done for a prospective employee inside or outside the USA or for your F-1 OPT employee as a backup to your H-1B filing, creating a direct path to permanent residency.

Our office is available to assist you with your case filing strategy and case submissions. We are already in planning mode. We can be contacted at info@immigrationcompliancegroup.com

…Which came as a complete surprise to the business community, particularly at a time when his administration has done nothing but attack legal immigration, making the H-1B application process nearly unbearable for employers since the release of his “Buy American – Hire American” Executive Order. So, what could Trump do if he was ‘really’ interested in high skilled immigration?

Government enforcement activities at businesses significantly increased in 2018 and are anticipated to continue in 2019.  The Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security (DHS) conducted close to 6,000 audits last year compared to 1,360 audits in 2017. This is consistent with the Trump administration’s focus on immigration enforcement, and it will continue this year.

The whole purpose of the I-9 form is to ensure that you are hiring a legal workforce.  In this article we will unpack Section 3 of the I-9 form, and offer some guidelines that will help you navigate when you must use this part of the form.

Employers must complete Section 3 of the I-9 Form when:

• Your employee’s employment authorization or documentation of employment authorization has expired.
• Your employee is rehired within 3 years of the date that Form I-9 was originally completed.
• Your employee has a legal name change.

When completing Section 3, you must also complete the last name, first name and middle initial fields in the Employee Info from Section 1 area at the top of Section 2.

When your employee’s employment authorization or, in most cases, employment authorization documentation (see below for more information) expires, you must reverify to ensure your employee is still authorized to work. To find out if your employee’s employment authorization expires, look in Section 1 for the date that employment authorization expires and in Section 2 for the date that the employment authorization document expires.

The employment authorization expiration date provided by your employee in Section 1 may not match the document expiration date recorded under List A or List C in Section 2. The earlier date must be used to determine when reverification is necessary.

We suggest that you remind employees, at least 90 days before the date reverification is required, that they will be required to present a List A or List C document (or acceptable receipt) showing continued employment authorization on the date that their employment authorization or documentation whichever is sooner, expires. If your employee has a Form I-765, Application for Employment Authorization, pending with USCIS, and the application has been pending for 75 days, your employee may call the USCIS Contact Center or schedule an InfoPass appointment at a local office to request expedited processing.

Employers should not reverify:

• U.S. citizens and non-citizen nationals
• Lawful permanent residents who presented a Form I-551, Permanent Resident or Alien Registration Receipt card for Section 2. This includes conditional residents.
• List B documents

Unless reverification does not apply (for the situations stated above), then when your employee’s employment authorization or employment authorization documentation expires your employee must present unexpired documents from either List A or List C showing authorization to work. Receipts for a lost, stolen or damaged document are acceptable for reverification.TEmployers should not reverify:

To complete Section 3, you must:

• Examine the unexpired documents to determine if they appear to be genuine and to relate to your employee. If you feel the document does not reasonably appear to be genuine and relate to your employee, allow your employee to present other documentation from the List of Acceptable Documents.
• Record the document title, document number and expiration date, if any.
• Sign and date Section 3.

If you previously completed Section 3, or if the version of the form you used for a previous verification is no longer valid, you must complete Section 3 of a new Form I-9 using the most current version and attach it to the previously completed Form I-9.

Rehires

If you rehire your employee within 3 years of the date that a previous Form I-9 was completed, you may either complete a new Form I-9 for your employee or complete Section 3 of the previously completed Form I-9.

To complete Section 3 for rehires, you must:

• Confirm that the original Form I-9 relates to your employee.
• Review the original Form I-9 to determine if your employee is still authorized to work, including whether employment authorization documentation presented in Section 2 (List A or List C) has since expired (or have been auto-extended). Use the guidelines to determine if reverification applies.
• If your employee is still authorized to work and his or her employment authorization documentation is still valid, enter the date of the rehire in the space provided in Section 3.
• If your employee is no longer authorized to work or the employment authorization documentation has since expired and requires reverification, request that the employee present an unexpired List A or List C document. Do not reverify an employee’s List B (identity) document. Enter the document information and the date of rehire in the spaces provided in Section 3. If the current version of Form I-9 is different from the previously completed Form I-9, you must complete Section 3 on the current version.
• Sign and date Section 3.

Entering Dates in Section 3

     Section 3 includes three spaces to enter dates:

• If you rehire a former employee: enter the rehire date that your employee begins employment for wages or other remuneration, which can be a future date, if necessary, in Block B.
• If you reverify your employee: enter the date the employee’s new work authorization document expires in Block C.
• When completing Section 3 for any reason: enter the date you complete and sign the attestation.

Recording Changes of Name and Other Identity Information for Current Employees

You are not required to update Form I-9 when your em­ployee has a legal change of name. However, it is recom­mended that you maintain correct information on Forms I-9 and note any name changes in Section 3. Although Form I-9 regulations do not require employees to present documentation to show that they have changed their name, you should take steps to be reasonably assured of your employee’s identity if there has been a legal name change. Such a change may call into question your continued ability to rely on the documents your employee previously presented, as they reasonably relate to the employee. These steps may include asking the employee to provide documentation of a legal change of name to keep with his or her Form I-9, so that your actions are well-documented if the government asks to inspect this employee’s Forms I-9.

You may encounter situations other than a legal change of name where an employee informs you that his or her identity is different from the time Form I-9 was previously completed. If your employee informs you that the name, date of birth, or Social Security number is substantially different from what he or she previously provided on Form I-9, and is unable to provide evidence linking the new information to the identity previously used you should:

• Complete a new Form I-9
• Write the original hire date in “The employee’s first day of employment (MM/DD/YYYY)” space in Section 2; and
• Attach the new Form I-9 to the previously completed Form I-9
• If the Section 1 information has not substantially changed but the employee has offered different evidence of work authorization, then you should examine the documentation to determine if it appears to be genuine and to relate to your employee presenting it. If so, complete Section 3 of the previous Form I-9. If the current version of Form I-9 is different from the previously completed Form I-9, you must complete Section 3 on the current version

For more information:  Handbook for Employers

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Contact our office; we are experts in I-9 Consulting and Audits or call 562 612.3996.

US permanent residency via PERM Labor Certification is one of the few practice areas in business-related Immigration at this time that has not come under attack by the Trump administration.

Our firm has been through all three of the Department of Labor programs: The traditional method, Reduction in Recruitment (RIR) and PERM. Our depth of expertise is extensive as is shown by our perfect record of approvals over the years. The three parties involved (the employee, the employer and the attorney) all have a distinct role to play in this labor-intensive, highly detailed process that sets the strategy and the roadmap to obtaining a green-card.