A new edition of the I-9 employment eligibility verification form was introduced last week.  USCIS has been working on the revised I-9 form for more than a year.  The revised M-274 Handbook for Employers can be accessed at the same link.  Many areas on the I-9 Central website have also been updated.  Note the webinar schedule for the new form.

The new edition of the I-9 Form, dated March 8, 2013, will take effect immediately on publication and will become the only acceptable version of the form.  Employers who need to make necessary updates to their business processes to allow for use of the new Form I-9 may continue to use other previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09)Y until May 6, 2013.  Effective May 7, 2013, all employers must use the revised Form I-9 for each new employee hired in the United States.  Employers who are not using the I-9 form following the 60-day grace period will be subject to fines and penalties under 274(a) of The Act (The Immigration and Nationality Act),  IRCA, as well as ICE.

The revised Form I-9 has several new features, including new fields and a new format to reduce errors, and more clearly describes the information employees and employers must provide in each section. The instructions to the form are now 7 pages in length, and we recommend that you provide the instructions and the list of documents to your new employees to refer to during the process.  The form looks much more official and now displays the DHS seal at the top left of the form with space built in to eventually implement future barcode technology.  Helpful new images have been added to the M-274 Handbook to illustrate how employees and employers can complete Sections 1-3 of the new form. Please also see page 23 for updated guidance on recording changes of name and other identity guidance.

In the USCIS Stakeholder conference held on March 11, 2013, many of the questions centered around the following topics that we thought might be helpful to share with you, as follows:

1. Do I need to fill out a new I-9 forms for all employees?  You do not need to do new I-9 forms for those employees who already have one.
2. When to accept receipts:  Receipts for initial employment or renewal (during reverification) of employment are not acceptable.  There are 3 different documents that qualify as receipts are:  (a) Receipts may be presented for sections 2 and 3 if the document was lost, stolen or damaged; the receipt is valid for 90 days.  (b) Temporary I-551 (a printable notation on a machine-readable immigrant visa inside a foreign passport).  This is a 1-year permanent residency stamp for a foreign national that has received permanent status abroad.  The Form I-551 (permanent residency card) must be presented prior to or no later than the expiration stamp inside the passport.  (c) An I-94 entry card with an unexpired refugee stamp.  This is considered a receipt for an Employment Authorization Document (EAD card), or a combination of an unrestricted Social Security Card and a List B document and is valid for 90 days.
3. Rehires and Reverifications:  If you are rehiring an employee who completed an I-9 form within 3 years, you can continue to use the existing I-9 form, and record any name changes, the rehire date and other required information in Section 3 and change the date of hire in Section 2 (initial/date).  If their work authorization as changed you can make the correction on the existing form if still valid or generate a new form I-9 and fill in Section 3 and attach to the old form.  As a reminder, do not reverify US citizens, permanent residents, conditional residents, asylees with unrestricted work authorization and List B identity documents such as driver’s licenses and state ID cards.
4. The use of notaries:  Notaries are “designated agents” of the employer.  They should not imprint their notary stamp on any I-9 documentation or attach same to the I-9 form.  The employer is responsible for their actions and any violations relating to Form I-9.  Photocopies of I-9 forms are also not acceptable from Notaries.  A notary or any other designated agent appointed by the employer must examine the original documents presented to them and thoroughly complete and sign section 2 of the form and return the original to the employer, along with photocopies of the presented documents should this be a company policy.
5. Recording social security numbers:  On the List of Acceptable Documents for List C, Social Security card restrictions are explained to better assist in examination of the document.  Note that individuals with temporary work authorization are issued restricted social security cards that indicate:  “Not valid without USCIS/DHS work authorization
6. Recording the date of hire in Section 2:  When an offer of employment is extended and accepted but the employee has not yet started, the I-9 may be completed using that date instead of the ‘actual’ start date of employment.  You may then go back into the form and adjust the date to the actual start date (the 1^st day of work for pay).  Recruiters or recruiters for a fee are not required to enter the employee’s first day of employment.  However, you may enter the first day the employee was placed in a job pool after an offer of employment and acceptance.
7. Must employee present documents that correspond to box checked in Section 1?  No, employers may not insist on viewing any particular documents. However, if information is recorded in section 1 that puts the employer “on notice” that work authorization may be expiring, you are required to track that date and follow-up with the employee concerning their continued work authorization.

USCIS has indicated that a good place to begin implementing the use of the new I-9 form is to take time to first thoroughly read and digest the revised M-274 Handbook for Employers.  Download it from the USCIS website and provide a complete copy to each and every employee charged with processing and managing the I-9 function at your place of employment to ensure that they are aware of the changes and are equipped to properly implement them.  Update your company policies to reflect the changes in the form.

For those of you who manage your I-9 forms via an electronic software vendor, this is absolutely the right time to have a conversation with them concerning their compliance with the new form and make sure that it complies with all pertinent rules and regulations for I-9 electronic software .  This is also an excellent time to think about additional training for your staff.  Refer here for our services and solutions.

To order copies of the new I-9 form from USCIS, you can call 1-800-870-3676.

The SSA Program Policy Information Site contains the public version of the Program Operations Manual (POMS).  The POMS is a primary source of information used by Social Security employees to process claims for Social Security Benefits.

Today, SSA issued updates on several topics of interest to our readers and clients concerning I-9, EAD and SSA document examination and interpretation, as follows:

1)       EAD’s for NIVs:  https://secure.ssa.gov/poms.nsf/lnx/0110211420

2)       How to Verify Asylee Status:  https://secure.ssa.gov/poms.nsf/lnx/0110211213

3)      Evidence of Asylee Status When Form I-94 (Arrival and Departure Record) is Submitted:  https://secure.ssa.gov/poms.nsf/lnx/0110211207

4)      Evidence of Asylee Status for an SSN Card:  https://secure.ssa.gov/poms.nsf/lnx/0110211205

You will find this a wealth of excellent information and a great resource.  Should you have any questions or comments, please feel free to contact our office.

House Judiciary Committee holds Hearing Feb 27, 2013 on E-Verify to determine how it works and how it benefits American employers and workers

Areas of discussion were:

• Penalties for using E-Verify as a Pre-Screening Tool:  Doing so is abuse of the system and totally prohibited, although at this time there are no penalties for pre-screening candidates prior to the acceptance of a job offer.    The Monitoring and Compliance Unit of USCIS has indicated that they do indeed  investigate employer usage particularly when there are patterns of abuse, and can be referred to OSC.
• The panel discussed that Mandatory E-Verify as part of a CIR bill should not require employers to verify their entire workforce – but just their existing employees.
• Identity Fraud:  the Social Security Administration is working on a fix to identity fraud whereby one will be able to lock in their SS# to prevent multiple usage of numbers.  SSA anticipates that this feature will be ready to roll out by the end of the year.  As it stands now, a prospective employee can present fraudulent documents for the entire I-9 process for all 3 lists and be ‘work authorized’.

Further discussion ensured regarding the “phase in” process and whether or not the national usage mandate should become effective with the existing system while changes are implemented or wait until the system is further perfected.  Additional discussion took place around establishing an official procedure for those workers who have been terminated due to incorrect Final Non-Confirmation (FNC) notices so that they can rectify the incorrect data.

The following is a statement by Rep. Gutierrez:

“Today’s hearing is remarkable because we are talking about employment verification systems in their proper context.  We are discussing how to actually make them work and work for American workers with the right sorts of protections and appeals processes that make sure any errors are corrected in a timely manner.  And we are talking about electronic verification systems as part of a broader reform that legalizes the current workforce and allows for legal immigration in the future.”

There’s certainly more to track as discussions ensue, and we will keep you posted on this topic.

We expect the newly revised, 2-page I-9 form will be released in the first quarter of 2013.

Some Background …On March 27, 2012 USCIS released an initial draft of the I-9 form for public comment.  The new version is very different than the current I-9 form in use, with several new fields, a new layout and a form that is double the size.

USCIS received an amazing 6,200 comments and suggestions on the initial draft and then published an updated version of the form with instructions that includes several changes to the first draft published in May (see below). You can find more information about the newly proposed revisions to the Form I-9 here.   Please note that this proposed form is not in use; we are still using the form with the revision date of August 7, 2009 until further notice.

To help ensure compliance with the new changes, employers need to be ready to supply the necessary information, prepared to update training materials, and to partner with third-party I-9 experts.  With the right preparation and education, employers can be confident that they are meeting requirements and avoiding the hefty fines that come with mistakes as they develop the workforce that will help them meet company hiring requirements and goals, while maintaining a compliant workforce.

If you haven’t taken the time to do some comparing between the proposed I-9 form and the current one, here are some highlights that may assist you in ramping up for the upcoming changes.  Overall, we note:

• Improvement in heading lines for the document fields clarify where List B and C information should be placed on the form.
• Perjury language has been repositioned and enumerated for clarification and readability to avoid any confusion.
• New language helps employers understand what documents are acceptable for non-immigrant aliens, and the instances in which a Social Security Card does not grant an individual permission for work.
• The new form asks for “the employee’s first day of work for pay.” Although this has always been  the implied definition of “start date”, it is now described as such in the proposed new version.

Section 1

1. Last and First Name Fields: The form now shows “Last Name (Family Name)” and “First Name (Given Name)”, rather than the reverse.

2. Maiden Name is now called “Other Names Used (if any)”. Instructions state:  “Provide all other names used, if any (including your maiden name).  Write N/A if you’ve not had other legal names.”

3. Address – Must be a US address, except for border commuters from Canada and Mexico.

4. The Social Security Number boxes are now formatted to fit the requisite 9 digits.  Instructions now indicate that SS number are required for employers enrolled in E-Verify.

5. Email Address and Telephone Number – New fields.  Optional, per the instructions, but not marked as such on the form.  Note:  Though these fields are optional, many feel that the DHS should not have this information, as it could be used to contact individuals directly to probe for potential employer violations.

6. A-Number vs. USCIS Number: The instructions note that the “USCIS number is the same as the A-number without the “A” prefix. Another clarification: Foreigners authorized to work can provide either the A-Number/USCIS Number OR the Form I-94 number.

7. Form I-94 Admission Number: find the admission number on Form I-94 or “as directed by U.S. Customs and Border Protection in connection with your arrival in the United States.”  – leaving room for future CBP changes.   Note: The CBP has started the process of creating a new identification number for non-citizens to be used throughout the immigration process.

8. Barcode: – A space for a 3-D Barcode has been added to page 1 and 2, along with a “Do not write in this space” notation.   We are unsure at this time concerning the purpose of the barcode.

9. Stop Sign Icons:  The form now has two “Stop Sign” icons at the bottom of page 1, instead of “Go to Next page.”  This is to clearly prevent employees from accidentally completing section 2.

Section 2

10. Includes words concerning an “Authorized Representative,” that a designated agent or notary can act in an agent capacity in completing Section 2.

11. Moved the employee name fields (Last, First, and Middle initial) underneath the Section 2 heading and added the words “from Section 1” indicating that it is acceptable for the employer to enter this data.

12 Added new fields for the document title and issuing authority of second and third list A documents which more frequently pertain to foreign employees with certain document types.

Section 3 and List of Acceptable Documents

Minor changes, mostly related to formatting and clarification of the “Social Security Account Number card” restrictions.

Should you wish to consult with us on compliance matters, please refer to our compliance services and solutions here  or contact our office at info@immigraticompliancegroup .com or call 562 612.3996.

As 2012 winds down, with year-end planning sessions and budget meetings for 2013, how would you rate your company’s employment eligibility compliance program, as it stands right now?  We are not in the bubble bursting business, but we’ve yet to see a compliance program that doesn’t need some upgrading and refinement – no one’s is perfect.

According to new data from ICE, since 2007, employer I-9 audits have increased from 250 to more than 3,000 in 2012.  From fiscal years 2009 to 2012, the total amount of fines grew to nearly $13 million from $1 million.  Statistics released by ICE in July 2012 stated that overall, $87.9 Million in fines have been imposed on employers for violations. The number of company managers arrested has increased to 238.  Widespread employer audits will continue to increase this year.  Plain and simple, failing to comply with IRCA’s I-9 rules will continue at a rapid rate, resulting in significant fines, loss of access to government contracts, an onslaught of negative publicity, business closure, criminal penalties and imprisonment.

With all the advice, blogs and articles written about the most complicated 1-page form on the planet, there are some basics – a simple formula that, if implemented, followed and maintained, will greatly enhance your level of I-9 compliance and reflect your company’s genuine desire to get its compliance house in order.  This is what we recommend:

• Invest in a comprehensive I-9 audit by a knowledgeable attorney or professional who actually practices in this area of the law.  Don’t engage in a self-audit without participating in a thorough training program first.  This will cause more harm than good; it’s like the blind leading the blind.
• Following the audit and the review of your report of findings, get trained before the correction process begins.  Who should be trained?  All those who have hands-on exposure to the I-9 process at all of your organization’s locations…and all those who supervise the process and staff.  Make training and reading the M-274 Employer Manual absolute requirements for those assigned to I-9 processing and management.
• Establish a written Compliance Policy.  This does not need to be a huge undertaking, but should reflect your company policy concerning the steps you’ve taken to assure a compliant workforce and a culture of compliance at your organization.  It will be your road map and reflects that you take compliance seriously.  ICE will request this document, amongst many others, should they ever come knocking on your door.
• Appoint a Compliance Guru – one who has a senior level of knowledge, who will monitor your internal compliance program, review your I-9 forms every few months for accuracy and completeness, provide updates and arrange for refresher training on a yearly basis.
• Consult with a trusted professional in the field when questions or challenges arise – don’t guess.

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.  Stay informed, subscribe to our Blog, newsletter, and join in the conversation on our LinkedIn Group I-9/E-Verify: Smart Solutions for Employers.  Check out our compliance services and solutions here, and make a concerted effort this year to increase your level of compliance by following the above formula.

The National Immigration Law Center released this week FAQ’s concerning worksite rights for DACA employees.  The information is very helpful for those who are applying for DACA and for those who have been granted deferred action under the DACA Program.  There is also some excellent guidance for employers concerning the I-9 form for DACA new and existing employees, social security cards, employment verification letters, and more.  We also link to a previous blog post with updated FAQ information on the USCIS website.

Please be aware that this is ‘general’ information only.  We always recommend that you seek guidance from a skilled immigration attorney or professional who is familiar with DACA and employer compliance issues.  As always, we are available to work with you on your casework and to assist employers with employment eligibility verification issues.  Please contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996 and visit our I-9 Employer Resource Center.

The OSC announced today that they had reached an agreement with a janitorial and facilities management company in Florida that was fined for mishandling the TNC process with the employee.  The employer was fined $8800 (back pay and civil penalties) and had to agree to training by the Justice Department on the anti-discrimination provision and training by the Department of Homeland Security on proper E-Verify procedures.

It is imperative that you follow appropriate TNC procedures and supply your employees with the required documentation so that they can resolve TNC issues.  Sit down with them, show them the information that you input into E-Verify and make sure that it’s accurate.  Provide them with the appropriate  TNC notice and  SSA or DHS referral letter.  Here is an excellent training video that we recommend you use as a tool in your organization.

Check out our employer resource center here:  www.I-9Audits.com and our services and solutions here:  www-employer-compliance.com.   Stay informed and sign up to receive our information.

On Sept. 16, 2012, E-Verify provided several enhancements to improve your experience with the program. We particularly like these new features:

• For Corporate Administrators: A new Web-based tutorial replaces the live webinar training required of new Corporate Administrators. The tutorial also serves as a resource for existing Corporate Administrators. To access the E-Verify Tutorial for Corporate Administrators, select the ‘Take Tutorial’ link under My Resources in the left-hand navigation menu.

•  A new E-Verify User Manual for Corporate Administrators is now available from the ‘View User Manual’ link under My Resources in the left-hand navigation menu.

•  They have also come up with a process for HR’s who must record the foreign passport and I-94 arrival-departure card (that can now take up to 45 days to access) in E-Verify

Should you wish to sign up for USCIS’ free E-Verify training, they have several monthly sessions.  You can access their training schedule here.

By the way, the program is now compatible with Firefox, Chrome and Safari.

This employer really crossed the line in continuing to employ unauthorized workers AFTER an ICE audit of their I-9 records commenced, and failed to produce I-9 records for them on 3 previous occasions while transferring them to other jobsite locations.

Here’s the story….  The charges against the owner and Production Manager, Yoel A. Wazana, Wazana Brothers International, Inc., based in Van Nuys, CA, doing business under the name Micro Solutions Enterprises (MSE), are the result of an investigation into MSE’s hiring practices that was initiated by HSI in 2007. According to court documents, shortly after MSE received notification in April 2007 that HSI planned to audit the company’s payroll and hiring records, Wazana directed that about 80 of MSE’s most experienced employees – at least 53 of whom did not have work authorization – be relocated to another manufacturing facility. When investigators requested hiring records from MSE on three separate occasions, the company failed to provide paperwork for those unauthorized workers. The plea agreements filed in this case also describe how, after learning of the ICE audit, Wazana conducted meetings with MSE’s assembly line workers, instructing them to obtain valid work authorization documents and return with those documents, suggesting that he did not care if the documents were actually theirs.

In February 2008, HSI special agents executed a search warrant at MSE’s Van Nuys plant. During the enforcement operation, special agents arrested eight current and former company workers on criminal charges and another 130 employees on administrative immigration violations.  The felony charge of false representation of a Social Security number carries a maximum penalty of five years in prison and a $250,000 fine.

MSE has agreed to plead guilty to one misdemeanor count of continuing employment of unauthorized aliens. In a plea agreement filed last month, the firm admits hiring approximately 55 unauthorized workers, and then continuing to employ them after the ICE audit had begun. The company admits that it knew, or deliberately avoided knowledge of the fact, that the individuals were not authorized to work in the United States.

The company’s plea agreement represents a global settlement of criminal and civil charges against the firm. Under the terms of the plea agreement negotiated by ICE and the United States Attorney’s Office, MSE agreed to pay approximately $267,000 in civil and criminal fines.

Beyond the monetary sanctions, the plea agreement calls for the company to be on probation for three years, during which time it will implement a series of stringent measures to ensure it is complying with the nation’s hiring laws. Those steps include retaining an independent compliance monitor (this is the first time we’ve heard of an ‘independent compliance monitor’ being mentioned) to oversee the completion and maintenance of the firm’s hiring records, and providing training to employees regarding federal hiring laws. The plea agreement takes into account the company’s willingness to take responsibility for its prior criminal conduct and to implement a rigorous program to ensure full compliance with federal hiring laws in the future.

In 2009, HSI implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. Under this strategy, HSI is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. In the last year, HSI has levied a record number of civil and criminal penalties against employers who violate immigration laws.

An employer’s blatant disregard for employment-related immigration law has been proven time and time again in our blog reporting of these cases to be an expensive, painful, reputation damaging and unnecessary path.  Call our office to establish a compliant workforce, 562 612.3996.

The Department of Homeland Security issued an update today that the Department of Homeland Security (DHS) is working to resolve this issue and will have a fix on September 14, 2012.

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Without any advance notice, the CBP has made changes that affect the I-9 form by no longer issuing paper I-94 cards and no longer stamping I-20 forms for F and M student visas, or form DS-2019 Certificate of Eligibility for Exchange Visitors and Foreign Students, affecting both J and F visa holders.

Customs and Border Protection is in the process of automating traveler arrival records (I-94 cards) to streamline passenger processing. The current processing time for entering foreign visitors’ travel information into the I-94 database is 30 days or more. This does not affect the majority of foreign travelers visiting for business or leisure and will not affect any visitor’s record of departure.  But it will greatly influence how you document Section 2 of the I-9 form for the nonimmigrant employee that produces a List A foreign passport with an I-94 entry card.

PLEASE NOTE: With the newly proposed 2-page I-9 form, no guidance has as yet been provided regarding the I-94 card as an acceptable List A document in concert with a foreign passport. We will keep you posted concerning these changes as soon as we receive new guidance. In the meantime, we recommend that you print out this information and attach it to any new employee’s I-9 form who would normally produce an I-94 record (but doesn’t have one and is waiting to access an electronic version) along with a foreign passport as a List A document.

CBP has suggested the following:  Nomiggrants may need to prove their legal-visitor status within the first 30-45 days of their U.S. stay to:

Employers;
Motor vehicle registration or drivers’ licensing agencies;
The Social Security Administration;
U.S. Citizenship and Immigration Services; or
Universities and schools.

If during this timeframe, visitors need to provide evidence of legal status they should include the following:

Unexpired foreign passport; and
Country of Citizenship
CBP Arrival/Departure Record, Form I-94 (if issued)

Contact CBP for more information or with questions.

Tel: (877) CBP-5511
TTD: (866) 880-6582

If a state benefit granting agency rejects an unstamped Form I-20/DS-2019, applicants may make an appointment with USCIS online through InfoPass and take their Form I-20/DS-2019 to their local USCIS office to be stamped. ( InfoPass ) This transitional step will end on Nov. 21, 2012.

International students and scholars who encounter issues with their state or federal benefit applications should continue to contact the Immigration and Customs Enforcement Student and Exchange Visitor Program (SEVP) at (703) 603-3400 or SEVP@dhs.gov.

Please feel free to contact our office should you have questions concerning these changes, 562 612.3996 or email info@immigrationcompliancegroup.com