The following are excerpts from a meeting between the American Immigration Lawyer’s Association (AILA) and ICE/HSI (Homeland Security Investigations) from November 19, 2013 that represents some material changes in regulations concerning several important issues such as pre-population, how many violations per I-9 is permitted, E-Verify and new hires, and more, as follows:

Electronic I-9s

 AILA Question: In the January 2013 liaison meeting with AILA, and again in April 2013, ICE HSI indicated that pre-population of Section 1 of an electronic Form I-9 did not comply with regulations. In the April 2013 liaison meeting with AILA, USCIS confirmed that pre-population of Section 1 in an electronic Form I-9 was not acceptable, regardless of whether the company’s representative signed the translation section.  AILA has received information indicating that HSI has recently announced that it has no position on pre-population of Section 1 of an electronic I-9.  Can HSI please clarify for AILA what its current position on pre-population is? Does HSI consider pre-population acceptable under certain circumstances? What are those circumstances?

ICE Response: What may constitute “pre-population” varies substantially. In reviewing any specific pre-population practice, ICE will examine the company’s practices overall to determine
whether a violation occurred and a sanction should be imposed.

How many Notices of Inspection did HSI serve in 2013?

ICE Response: ICE served 3,100 NOIs.

Multiple penalties for single I-9

AILA Question: AILA members have reported that employers have been assessed separate fines for every error on one Form I-9. In other words, a Form I-9 with five errors will generate a fine that is five times more than a Form I-9 with one substantive error. OCAHO cases and ICE’s “Form I-9 Inspection Overview” Fact Sheet indicate that “the standard fine amount” is calculated against each Form I-9 with substantive violations, regardless of the number of substantive violations on the Form I-9. Please confirm that a form with one substantive error would generate the same fine as a form with five substantive errors in the same Form I-9 audit.

ICE Response: There can only be two violations per Form I-9: (1) a knowing hire, continuing to employ violation; and/or (2) a paperwork violation. Only one paperwork violation should be assessed per Form I-9. If more than one paperwork violation per I-9 is cited, attorneys should raise the issue with the ASAC or SAC.

Pervasive single error on I-9s: AILA Question:  We frequently work with employers who due to a training error make the same error on the Form I-9 (such as repeatedly omitting the List C issuing authority). As it is one pervasive error, it does not indicate the more pervasive problems or potential disregard for the verification process, as would employers whose forms I-9 have many different errors. Would HIS consider adjusting its penalty matrix or making some other accommodation to take into account the fact that one common mistake on multiple Forms I-9 should not lead to the same penalty as different or multiple mistakes on the same number of multiple Forms I-9?

ICE Response: ICE is considering this issue. ICE acknowledged that one pervasive error on multiple I-9s seems like a different level of violation than wide-ranging multiple errors. ICE agreed to consider ways to address this.

I-9s for owners of closely held corporations. AILA Question: The OCAHO decision in Santiago Repacking, 10 OCAHO No. 1153 (Aug. 24, 2012) held that an owner in a closely-held corporation, who also works there and draws a paycheck, does not need to have an I-9 form. Please confirm that HSI follows this decision.

ICE Response: ICE stated that it follows all OCAHO decisions.

NOI Notices

AILA Question: The current NOI notices include language that suggests that HSI will require employers to provide access to their electronic I-9 systems. Is this a current practice? If so, what have been the results of these audits? Has HSI considered any employer’s I-9s to be uniformly invalid due to non-compliance of the electronic system used, or does HSI determine whether the electronic I-9s have substantive/technical deficiencies on a case-by-case basis for each I-9?

ICE Response: In some cases ICE has asked the employer to provide a live demonstration, not just a canned demonstration. This applies to both commercially available software and in-house applications.

E-Verify Q&A

Roll-over of employer data. AILA Question: At recent meetings, USCIS has informed AILA that future releases of E-Verify would enable an employer who terminates its MOU (at least for reasons of merger or change in designated agent) to have continued access to its prior E-Verify records and allow transfer of historical data to the updated account. What is the status of this development? If an employer with a terminated MOU needs access to historical E-Verify information, what is the process for obtaining it?

USCIS Response: There is currently no mechanism for an employer to continue to have access to E-Verify data after termination of an MOU.  Once an account is closed, all access to the account and its associated records are terminated. USCIS is developing a method and/or feature for the retention of historical E-Verify data, but there is no tentative date set for this enhancement. At this time, the best workaround to preserve E-Verify records is for the employer and E-Verify Employer Agent to create and retain a complete user audit report for themselves and their clients. From within the Administrator’s functions, an employer can create an Excel spreadsheet with all of the information.  Note that this report would not relieve the employer’s responsibility under the MOU for either copying the E-Verify receipt number on the Form I-9 or attaching the E-Verify record to the form.

AILA Question: What if an electronic I-9 vendor or Employer Agent goes out of business: can an employer have direct access to the information?

USCIS Response: Under data privacy rules, E-Verify is required to “archive” old data, which essentially means that the data is no longer available. The protocol anticipates archiving at the ten year anniversary of data collection, but so far, only pre-1996 data is subject to immediate archive.  Eventually all E-Verify data will be subject to archiving rules. Verification recommends as a best practice that employers print-out and retain the E-Verify records.

E-Verify and Re-hires

AILA Question: It appears that Verification recognizes that an E-Verify query is not always necessarily a rehire situation where the employer is allowed under I-9 regulations at 8 CFR §274a.2(c)(1)(i) to continue to rely on the re-hired employee’s original I-9.  The following guidance is posted in E-Verify FAQs:

Do I need to create a case in E-Verify if my company rehires an employee?

If you rehire a former employee within three years of his or her previous hire date, you may rely on the information on his or her previous Form I-9.  If you rehire an employee for whom you never created an E-Verify case and the employee’s and the employee’s previous Form I-9 lists an expired identity document (List B), then you may either:

–  Complete Section 3 of the employee’s previous Form I-9 and not create a new case for the employee in E-Verify or

–  Complete a new Form I-9 for the employee and create a new case for the employee in E-Verify

See the Handbook for Employers: Instructions for Completing Form I-9 (M-274) for more   information on rehires.  The above guidance, however, does not address the proper way for an employer to treat employees in the most common rehire circumstances – (1) where the rehired employee was not subject to E-Verify at the time of the original hire; and (2) where a rehired employee was previously run through E-Verify and does NOT have an expired identity document. The current guidance suggests, but does not state explicitly, that an E-Verify query based on the rehire date is required in situation (1) and that an employer should not re-query the rehired employee in (2). It was suggested that USCIS provide further clarification to the E-Verify rules for rehired employees and suggested the following amendment to the FAQ as follows:

An employer may rely on previous E-Verify queries for rehired employees in certain circumstances.  If you rehire a former employee within three years of his or her previous hire date, you may rely on the original Form I-9 as long as the work authorization (List C) documentation originally presented by the employee is still valid. If the rehire date is more than three years from completion of the original I-9, or if the employee’s work authorization has since expired, you must complete a new I-9 and run a new E-Verify query using the rehire date as the date of hire.  For purposes of E-Verify, where the employer can rely on the original I-9 and the rehired employee was subject to an earlier E-Verify query, you may continue to rely on the earlier query. If the rehired employee was not previously subject to an E-Verify query and the employee’s identity document is still valid, you may run the E-Verify query based on the data in the original I-9, but using the rehire date as the E-Verify hire date. If, however, the rehired employee’s identity document (List B) has expired, you cannot run an E-Verify query as the system will not accept expired documents. In that case, then you may either:

– Complete Section 3 of the employee’s previous Form I-9 and not create a new case for the employee in E-Verify or

– Complete a new Form I-9 for the employee and create a new case for the employee in E-Verify,  using the rehire date as the E-Verify hire date.

USCIS Response: USCIS updated the rehire section in the newest version of the E-Verify user manual and now provides the following guidance:

If you never created a case in E-Verify for the employee, you must have the employee complete a new Form I-9 and create a case in E-Verify. If you previously created an E-Verify case, but did not receive an employment authorized result, you must have the employee complete a new Form I-9 and create a case in E-Verify.  If you previously created a case in E-Verify for the rehired employee and received an employment authorized result, complete Section 3 of the employee’s previous Form I-9 and do not create a new case for the employee in E-Verify. Alternatively, you may choose to complete a new Form I-9 and create a case for the employee in E-Verify.  Employers are reminded that if you rehire your employee within three years of the date that the initial Form I-9 was completed, you may complete a new Form I-9 for your employee or complete Section 3 of the previously completed Form I-9. If more than three years has elapsed since the initial Form I-9 was completed, employers must complete a new Form I-9 for a rehired employee and create a case in E-Verify for the rehired employee.

That’s all for now.  We will continue to update as announcements are made concerning new interpretations concerning I-9/E-Verify compliance matters.

We are hearing in the field that they are if the employer-employee relationship can be evidenced through an independent Board of Directors that controls the terms of employment of the entrepreneur and can be convincingly and thoroughly documented, along with appropriate corporate formation documents and a viable business plan. Keeping this in mind when developing the structure of a start-up is exceedingly important for immigration purposes.

Here are USCIS FAQ’s on the subject.

Wall Street Journal (09/12/13) Article Reprinted in Staffing Today

“U.S. Immigration and Customs Enforcement has notified 1,000 companies across the country that they must submit employment verification documents for audits. This is the largest audit since July 2009. The audits target restaurants, food processors, high-tech manufacturers, the agriculture sector, and other industries that cumulatively employ tens of thousands of workers.

The audits will not lead to deportation of illegal workers, but those workers will lose their jobs, which critics point out can drive immigrants to exploitative, off-the-books work. They can also cause lost productivity and result in large fines and the loss of employees to competitors. ICE typically requests Forms I-9, worker rosters, and payroll stubs, then issues notices of suspect documents to employers, which inform their workers they must either produce legal documentation or quit. More than 10,000 employers have been audited in the past four years. The audits have grown more intense, and ICE now requests not just basic paperwork but weekly work schedules, names of managers, lists of temporary staffing firms used, and the company’s articles of incorporation.”

This is certainly NOT what you want to take place in your company. If you know that you are overdue for an I–9 audit (whether full or partial), or require additional training or should have your policies and procedures examined in light of recommended best practices, being proactive will always be your best defense. So, do not procrastinate. We’d be glad to work with you toward this end.  You contact us at info@immigrationcompliancegroup.com or by calling 562 612.3996.

Reprint here:  http://staffingtoday.net/2013/09/13/

This gives you a good look at what the OSC is targeting these days.

We’d also like to take the opportunity to remind you to schedule I-9 audits yearly (they don’t have to be full audits – but can be partial) so that you can see what’s buried in  your paperwork and catch it before the issues become reoccurring problems AND before ICE  knocks on your door.  Training:  Well, we can’t say enough on training.  Employers need to provide ongoing ‘refresher’ training every year.  The issues change from year to year as do the interpretations.  Lastly, review your policies and procedures in relation to compliance best practices for your business.  Make sure they are up to date, and make sure that every employee who is involved with  processing I-9 forms participates in yearly training, reads the M-274 Employer Handbook and remembers to provide to every employee a List of Acceptable Documents along with the I-9 form Instructions when they fill out the form.  So many errors can be caught at the onset just by reviewing the instructions and the List of Acceptable Documents.

Lastly, our Employer Resource Center is an excellent resource, as is our Blog and our LinkedIn Group, I-9/E-Verify: Smart Solutions for Employers.  Sign up and keep yourself informed

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. After today, USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received through April 5, 2013. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process. Also, USCIS is currently not providing the total number of petitions received, as we continue to accept filings today. USCIS will continue to accept and process petitions that are otherwise exempt from the cap.
USCIS will provide more detailed information about the H-1B cap next week.

We are disheartened to see that USCIS is not basing their count on a first come first serve basis.  If the cap is open and your case is received before the cap is exhausted, you should be guaranteed that your case has been accepted for processing.  We are not in favor of the computer-generated random selection lottery approach that USCIS has taken this filing season, where all cases received through April 5th will be put into a lottery.  This creates tremendous uncertainty for employers who planned in advance…Just another sign that we are seriously in need of H-1B reform and a process that permits business and the economy to regulate the process.

We will keep you posted as more information is released.

April 29, 2013 Update:  We link to a recently released Demonstration Video that walks you through the required information to access your I-94 record and provides information how to maneuver through the fields of the online template.

Yesterday our firm participated in a CBP Stakeholder teleconference on this topic and we were surprised how much progress they have made since the last call which left us very nervous about how the automation process of the I-94 would play overall and particularly for I-9 purposes.

I have to say, after yesterday’s call, we really didn’t have any complaints. We share some of the pertinent points with you below:

1)       The website to access I-94 arrival-departure cards is www.CBP.gov/I94 .  It will be “live” the end of April as they phase in automation at air and sea ports commencing April 30, 2013.   The website will provide access to I-94 records going back two years.

2)      Electronic I-94’s will be available on the website for printing immediately upon entry (that was very good news).  So, there should be no lag time with a new employee’s ability to produce an I-94 record  when required for I-9 purposes or for social security cards, DMV, etc.

3)      When an employee changes their status inside the USA, changes employers or extends their stay, (such as an H-1B visa holder), USCIS will continue to print the I-94 records at the bottom right of the USCIS I-797 approval notices.

4)      CBP will post on their website a sample electronic I-94 for viewing.

5)      Whereas one will no longer be able to immediately check to see that the  information stamped on the I-94 matches up with their visas and I-797 approval notice, it was clear that applicants will need to be more proactive in verbally clarifying this with the CBP officers, particularly in situations when an H-1B visa holder is traveling on a still valid visa annotated with the name and validity date of a previous employer petition, but now  has a new employer USCIS I-797 approval notice with a different validity period.

6)      More on #5, it was stated that one could immediately check their I-94 on a mobile device and if there was an error, could get it corrected by getting back in line at the airport.

7)      CBP plans to provide nonimmigrants with a brochure or a list of instructions in 12 different languages upon entry concerning how to obtain their I-94’s online.

8)      The paper version of the I-94’s can still be turned in at the airport upon departure; however, they will collect departure information electronically through the departure manifest when leaving the USA.

9)      DMV was represented on the call and indicated that they were having problems with incorrect name entries and FNU’s being entered.  It was stated that the name on the electronic record will either match the name as it appears on the visa or the passport.  When accessing the record online, the name, passport number, date of birth and date of admission will be required information to access the electronic I-94 record.

If you have any questions, please feel free to call our office at 562 612.3996 or email info@immigrationcompliancegroup.com.

USCIS released I-9 instructions to employers today regarding how to fill out the I-9 form for new and existing DACA employees.  There have been many questions and speculations  concerning how to handle the Form I-9 with existing employees; thus, this guidance is certainly welcomed.  We would advise you to print out the instructions and keep them for reference and attach them to either your I-9 reverifications or your new I-9 forms (whichever is appropriate based upon the instructions) for existing DACA employees.

Please note also that the DACA website has been updated with new FAQ’s, instructions offered in various languages and Filing Tips.

To review, the DACA initiative offers a two year grant of reprieve from deportation as well as work authorization for unauthorized immigrants who were under the age of 31 as of June 15, 2012 and who can demonstrate that they meet the following criteria:

• Entered the United States before the age of 16
• Have continuously resided in the United States since June 15, 2007 and up to
the present time, and were physically present on June 15, 2012 and at the time
of application
• Are currently in school, have graduated from high school or earned a GED, or
are honorably discharged veterans of the US armed forces (including the Coast
Guard)
• Have not been convicted of a felony, significant misdemeanor, or three or more
misdemeanors; or otherwise pose a threat to public safety or national security
• Entered the country illegally or overstayed their visa prior to June 15, 2012.

You might wish to refer to our previous blog post on DACA and sign up to receive our free newsletters, blog posts and I-9 information and updates.

By:  Timothy Sutton, Communications Editor

Neil Rivas, a Latino artist in the San Francisco Bay area has created a series of immigrant status parodies on America’s most beloved comic book superheroes. The Ramp Gallery at the SOMArts Cultural Center in San Francisco that displays a hallway lined with Rivas’s parodies, which urge viewers to call ICE agents on heroes such as Superman, Wolverine, and Wonder Woman. Each poster sites the immigrant origins of the heroes and their undocumented status.

The exhibit highlights the gravity of loss our country would incur if we strictly applied our current immigration policies. What would our world be without Clark Kent or the scruffy Canadian Wolverine? I took the parody a step further considering my America without immigrants:

Without immigrants many of our favorite foods, like artichokes, would not be available. Were it not for the French and Italian American immigrants, the artichoke would not have found its home in California. Further, the “hand-labor” required by the agriculture industry relies heavily on immigrant, temporary, and even undocumented workers to survive. Not thrive, but merely survive.

The recent wave of state legislation denying rights to undocumented immigrants has greatly contributed to the growing social unrest with our current immigration politics. NBC News recently reported that a US permanent resident is currently locked up in Etowah County Detention Center because he mistakenly marked his status on a motorcycle driver’s license application “US Citizen.” The social and financial costs of our broken immigration systems are magnified even more by the speed and breadth of our modern communication mediums and social networks.

The ACLU recently challenged the validity of an Alabama state law that required immigration checks for school students; the Eleventh Circuit ruled they imposed a “significant interference with the children’s right to education” and therefore violated the equal protection clause of the Constitution. The general public is becoming increasingly sensitive to how theses secular immigration laws impact civil rights. “Illegal Super Heroes” is a perfect example of how current immigration issues have moved out of the legal and political realm into American’s daily lives.

For more information about the latest immigration court rulings and other breaking immigration news, subscribe to our blog and contact our office to discuss your business visa needs, I-9 audits, training and compliance program,   562 612.3996, info@immigrationcompliancegroup.com.

The Department of Justice Office of Public Affairs recently published a press release pertaining to the employment of two refugees resolving allegations that the company discriminated under the anti-discrimination provision of the Immigration and Nationality Act (INA), when it impermissibly delayed the start date of two refugees after requiring them to provide specific Form I-9 documentation.  Best Packing’s violations occurred when they required the refugees to supply the company with additional Form I-9 verification documents in excess of the law. The claim alleged that other non-refugee employees were not required to supply documents other than state issued licenses and social security cards.

In two charges filed with the department, the refugees alleged that they were not allowed to begin employment until they produced unexpired, Department of Homeland Security-issued employment authorization documents, despite the fact that they initially presented sufficient documentation for employment eligibility verification purposes. The charging parties had presented unexpired state identification cards and unrestricted Social Security cards.  The state ID’s and unrestricted SS cards were deemed insufficient proof of work authorization.

It is necessary for all those charged with Form I-9 processing at your organization to be very familiar with the list of acceptable documents and to have a thorough understanding of the fact that each employee has the right to present a list A document or a combination B plus C document as long as they are acceptable documents, appear to be genuine and represent the employee that is before you.

Under the settlement agreement, Best Packing agreed to pay $4,379 in back pay and comply with all the requirements of the INA.  Understanding the Form I-9 requirements for verifying refugee/asylee(s) will prevent your company from falling victim to similar discriminatory hiring practices.

The process by which an employer is required to verify the employment eligibility of a refugee/asylee(s) when presented with documentation other than the above-referenced List B plus List C combination, can be a bit complicated.  Let’s review this.

Asylees and Refugees are individuals seeking the protection of the United States due to persecution suffered in the home country based upon: race, religion, nationality, social group, or political ideology. These individuals are authorized to work in the US because of their immigration status. When presented with documentation of asylum or refugee status, it is advisable to be aware of the following in regard to examining the I-9 form and the documents presented:

SECTION 1:

1. The employee should check the “An alien authorized to work” box
2. Write the I-94 or Alien Registration Number in the first space
3. Write “N/A” in the second space, because their employment authorization does not expire

The Immigration Compliance Group InFOCUS News and update is available for December 2011.  If you’re not signed up to receive our free news and information, we invite you to do so here.

In this issue we address the Outmoded H-1B Cap, H.R. 3012 that eliminates country limits for skilled worker green-cards that just passed the House, application processing times,  miscellaneous News Bytes, and other new in the immigration community.

Should you wish to contact our office to discuss business immigration or employment eligibility verification issues, we’d be glad to hear from you.