Monday, July 26, 2010

Electronic I-9 Final Rule Allows Employer Flexibility

USCIS published a final rule (75 Fed. Reg. 42575 (July 22, 2010)) which amended 8 C.F.R. §274a.2 to allow employers who choose to use an electronic I-9 system flexibility in the following:

• Employers may switch to an electronic I-9 system without converting their retained paper I-9 forms to a digital storage data. The rule expressly provides that the employer may use paper, electronic systems, or a combination of paper and electronic systems;

• Employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations;

•Employers are allowed to index in such a manner that permits the identification and retrieval of documents and records, but are not required to search by any data element.

• Employers need not retain audit trails of each time a Form I–9 is electronically viewed, but only when the Form I–9 is created, completed, updated, modified, altered, or corrected; and

• Employers may provide or transmit a confirmation of a Form I–9 transaction, but are not required to do so unless the employee requests a copy.

Thursday, July 22, 2010

Administration Increases Criminal Prosecutions, Border Enforcement

Similar to the immigration enforcement that preceded the introduction of the 2007 comprehensive immigration reform efforts in Congress, the Obama Administration enforcement statistics have reached the record levels of the Bush administration. The Department of Homeland Security's enforcement statistics show that ICE prosecutions are the highest level since that agency was created in 2005 according to Syracuse University's TRAC office.

On August 1st, National Guard troops will be deployed on the Mexican border, in Arizona, Texas, California, and New Mexico in an effort announced by President Obama in May.

The New York Times reported that during the past year, Immigration and Customs Enforcement has conducted audits of employee files at more than 2,900 companies. The agency has levied a record $3 million in civil fines in 2010.

The enforcement efforts may be attributed to the Obama administration's litigation with Arizona to enjoin its state enforcement legislation and the speculation that there will be a lame duck Congressional immigration reform bill this Winter.

Thursday, July 15, 2010

USCIS "Thursday Rule" Provides Employers Extra Day to Complete Verification

In June, 2010, USCIS provided clarified guidance to E-Verify member employers reinterpreting the three-day rule for creating a timely E-Verify case in that program’s system, as follows: “An E-Verify case is considered late if you create it later than the third business day after the employee first started work for pay.” In effect, the June 2010 E-Verify guidance allows an additional business day for employer completion of the Section 2 verification and attestation. USCIS, “Three-Day Rule”, found online at (last updated June 16, 2010).

The USCIS advises employers that this policy affects E-Verify Case Creation, and may “overlap” with I-9 policy previously provided to employers in the Handbook for Employers, which called upon employers to : “Review the employee’s document(s) and fully complete Section 2 of Form I-9 within 3 business days of the first day of work.” Handbook for Employers at 5.

The June 2010 “Thursday Rule” has been explained by USCIS as follows: “ If the employee starts work for pay on Monday, the third business day after the employee started work for pay is Thursday (assuming all days were business days for the employer). The first day the employee starts work for pay is not included in the three business day calculation.” USCIS, “What's the Hire Date for E-Verify” found online at (last updated June 30, 2010).

Wednesday, July 7, 2010

ICE 5-year Plan Includes Hiring Additional Auditors

The Immigration and Customs Enforcement(ICE)5-year strategic plan for FY 2010-14, details the prospective strategic policy regarding its worksite enforcement program. The 5- year plan reveals that ICE is strengthening its civil audit program by hiring additional auditors and centralizing certain auditing functions.

Emphasizing the ICE IMAGE and E-Verify programs, ICE intends to hold U.S. employers accountable for their hiring practices by creating a “Culture of Employer Compliance” using:
“(1) aggressive criminal and civil enforcement against those employers who knowingly violate the law; and (2) continued implementation of programs, such as E-Verify and ICE’s IMAGE program, to help employers comply. Criminal investigations will increasingly focus on employers who abuse and exploit workers or otherwise engage in egregious conduct.”