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Saturday, December 31, 2011

AILA Midyear Conference Focuses on Worksite Enforcement as I-9 and E-Verify Issues Continue to Heat Up the Headlines

by Marcine Seid, Guest Blogger

AILA’s 2012 Midyear Conference traditionally brings together the leadership of the Immigration Bar to provide intensive focus on national issues that affect our clients. This year’s conference will analyze worksite enforcement practice issues and the surrounding politics that will increasingly affect US employers.

How Hot is the Worksite Enforcement Issue?

During the past few years, we have seen unprecedented enforcement and legislative activity relating to Form I-9 and E-Verify worksite compliance. Since fiscal year 2009, Immigration and Customs Enforcement (ICE) has audited more than 6,000 employers, debarred 441 companies and individuals, and imposed more than $76 million in financial sanctions. Meanwhile, states and cities across the country have been mandating the use of E-Verify at the local level, sometimes implementing rules which go above and beyond federal I-9 requirements. The result has been a virtual patchwork of employment verification requirements which are difficult to track, let alone maintain.

Below are just a few of the hot topics which we’ll be discussing at the AILA Midyear conference

  • Judiciary Marks Up Mandatory E-Verify Bill - Chairman Lamar Smith of the House Judiciary Committee has pushed his mandatory E-Verify bill through Committee markup. Individuals who start work will be subject to mandatory E-Verify processing and a potential final nonconfirmation without the ability to correct errors in the DHS/SSA databases before termination of employment. The bill also contains a provision that would make the misappropriation of a Social Security number a felony.

  • Silent Raids Continue - In fiscal year 2011 ICE conducted 5 times as many I-9 audits than it did in fiscal year 2008. Josie Gonzalez will lead a panel examining problematic I-9 issues facing employers and will provide effective resolution strategies.

  • ICE Carrot and Stick Approach - ICE is inviting “express” membership in the IMAGE program, with the possibility of an individual agreement that may allow the mitigation or waiver of even substantive I-9 errors if there is less than a 50% error rate after a voluntary Form I-9 inspection. At the same time, however, ICE is aggregating penalties against employers who are first time violators after issuance of a Notice of Inspection (NOI).

  • The Employer Compliance Inspection Center (ECIC) – ICE has continued to grow its auditor workforce which in turn has lead to increased I-9 audits and worksite investigations of large employers across the nation.

  • Pre-NOI Remediation as an Effective Compliance Strategy - ICE has made it abundantly clear that the agency will look favorably upon I-9 corrections made before the issuance of an NOI. Charles M. Miller will discuss how attorneys can successfully conduct an immigration compliance audit before ICE comes knocking at the door using innovative and detailed audit tools.

  • The Burrito Effect – Case Studies of Chipotle, IFCO, and American Apparel at the Intersection of SEC and Immigration Law – Dan Siciliano of Stanford Law School will discuss a new kind of I-9 liability that has arisen from the increasing fiduciary, legal, and ethical oversight responsibilities of publicly traded companies.

  • Constructive Knowledge in Today’s World – Kathleen Campbell Walker will lead a discussion of recent case law and policy developments which give new meaning to constructive knowledge and reckless disregard. The 2012 AILA Midyear Conference is a must-attend event for attorneys representing clients in today’s new worksite enforcement regime. Don’t miss this exciting and topical opportunity to interact with a host of experts on worksite enforcement, I-9, and E-Verify issues. This is your chance to learn and engage with the immigration leaders in our community as they share their invaluable knowledge on how to survive the worksite enforcement jungle.

Thursday, December 22, 2011

Form I-9 Remediation in a Private Audit: The Bridge Over Troubled Waters


U.S. employers have had continuing troubles with the Form I-9 since its delayed roll out in September 1987.  Employers have used the I-9 to verify the identity and employment authorization of every person hired after November 6, 1986.  While Homeland Security deemphasized  civil enforcement of the IRCA employers sanctions laws in the years following 9-11, it swung the pendulum back to emphasize high profile criminal investigations beginning in 2006.  In 2009, however, ICE worksite enforcement investigations changed focus to administrative inspection of critical infrastructure employers, and in 2010 to America’s largest companies.

A decade later, the  Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) was passed to strengthen enforcement efforts, but to allow employers to correct deficient I-9s that were the products of innocent, but deficient recordkeeping.  On the one hand IIRAIRA featured an amendment that reduced the number of documents that employers could accept to eliminate fraud.  On the other hand, the bill contained a good-faith defense against technical or procedural Form I-9 paperwork violations for employers. This amendment allows employers ten days after agency notice to effect good-faith corrections avoiding the substantive violations penalties.  In 1997,  the INS brought out the Virtue Memorandum which ICE continues use as guidance to ICE agents and the public as to the cure of the technical and procedural violations that plagued employers.  

While the Virtue Memorandum remains viable agency policy, in October,  2011 ICE began to discuss with AILA’s Verification Committee another policy toward employers who, after conducting a private audit,  remediated  (cured or corrected)  I-9 errors in good faith,  prior to the time that the agency initiated an administrative inspection through a Notice of Inspection (NOI).   

This policy represents a potential departure from the agency’s previous interpretation of  the IIRAIRA good faith defense. The agency previously had taken the position  that substantive paperwork  failures could not be corrected. This would bring ICE policy in line with Department of Justice OCAHO administrative decisions, which attach weight to remediation measures for mitigation of damages, application of the general good faith defense and to begin the running of the statute of limitations for certain penalty provisions.

In our American Bar Association book Immigration Compliance Auditing for Lawyers, Marcine Seid, Chris Stowe and I,  provide a remediation analysis to be used by attorney auditors employed in a private immigration auditing.  The auditor recommends remediation for substantive and technical or procedural I-9 paperwork failures and knowingly hiring or continuing to employ unauthorized employee violations.  The external auditor additionally recommends remediation which extends to all potential violations under the Immigration and Naturalization Act. This remediation opportunity is necessary to mitigate potential penalties and to begin the running of the statute of limitations. The ABA book contains guidance for the remediation of substantive and technical paperwork violations, missing I-9s, as well as knowing hiring and continuing to employ violations.  This recognizes that the role of the private attorney auditor is broader than the ICE forensic auditor or special agent, looking to mitigation of damages and the running of the statute of limitations.

The ICE IMAGE program has also included the private audit as a necessary part of its new Express program, and has encouraged membership by mitigating or waiving potential penalties where the total percentage of violations is less than 50%. The combination of private audit remediation and this penalty amnesty makes for an attractive inducement.  We will keep you informed of our efforts to  seek  IMAGE agreements that  would allow the private audit described in the ABA book  to replace an ICE inspection as a condition of Express membership.   That would truly represent a bridge over troubled waters. 
copyright 2012 Charles M. Miller.  All rights reserved.

Friday, November 4, 2011

USCIS Document Matrix Useful I-9 Reference for Employers

The Citizenship Status/Document Matrix is a useful USCIS reference for employers during the I-9 verification process.  The Matrix contains an outline of the List A, B and C documents that are listed and accompany Form I-9.   It also provides valuable information as to the appropriate citizenship or immigration status for each document.

U.S. employers or recruiters for a fee have the duty to ensure that every newly-hired employee completes and signs section 1 of the Form I-9 on the first day of hire. The employer’s verification responsibilities include an examination of the employee’s documentation of List A or B and C documents of identity and employment eligibility, and the necessary completion of the employer's certification portion of the Form I-9 form within three days of hire. The employee hired for a period of less than three days must present the required List A or B and C documents on the first day of employment. USCIS 2011 Handbook for Employers at 5.

The employee must check off one of the four employee status boxes in section 1.
·        Citizen
·        National
·        Permanent resident, or
·        Alien authorized to work until a specified date

Federal  antidiscrimination law prohibits employers from requesting specific identity or authorization documents from applicants during the I-9 verfication process.  Nevertheless, the employer cannot ignore the situation where the documentation produced from the employee is inconsistent with the marked status block.  If the employee is not able to produce a list A, or a list B and C document, within the three-day permitted period, the employee must be terminated.It should be noted that the employer’s failure to review and verify a proper list A document or a list B and a list C document is a substantive error under the Virtue Memorandum and the ICE 2008 Guide.



Friday, September 23, 2011

OCAHO Reduces Paperwork Penalties for Small Employer

In U.S. v. Teelah Inc., OCAHO Case No. 09A00026 (Dec. 22, 2010), ICE filed a two-count complaint alleging that a Subway franchisee had I-9 substantive section verification  paperwork violations for 31 persons as well as  failure to prepare or present I-9 forms paperwork violations for another 85 individuals. Judge Ellen K. Thomas found no genuine of material fact with regard to liability, and her ruling as regard to the civil money penalty assessment is of significance.

The Immigration Reform and Control Act (“IRCA”) and the implementing regulation at8 C.F.R. § 274a.10 (b)(2) set the framework for determining civil money penalties for paperworkviolations.  Due to the civil monetary penalties inflation adjustment the current minimum penalty for paperwork violations are a minimum of $110 and the maximum penalty at $1110. 8 C.F.R. § 274a.10a9(b)(2). The statute provides five factors that must be given due consideration in making a determination regarding the amount of the penalty, as follows: 1) The size of the business of the employer being charged; 2) The good faith of the employer; 3) The seriousness of the violation; 4) Whether or not the individual was an authorized alien; 5) the history of previous violations.

The ICE  Forensic Auditor established the agency’s  base fine by first ascertaining that the percentage of employees for whom there were violations was 100% so that the base penalty for each violation was $935.00. He then considered the five statutory factors and concluded that two of those factors warranted aggravating the penalties by 5% each, or a 10% enhancement. He treated the other three factors as neutral so the government's final figure for each violation was $1,028.50. While the judge mentioned the ICE penalty methodology, she did not adopt it.

Judge Thomas did  not give equal weight to each statutory factor, or limit her assessment to the use of only the five specified factors in assessing the civil monetary penalties. New China Buffet Restaurant, 10 OCAHO 1133 (2010),  Hernandez, 8 OCAHO 1043 (2000).

While the judge found that the violations were serious and that the employer lacked good faith, nevertheless she found that Teelah is a small employer, had no unauthorized workers and no previous violations.  She found that three of the statutory factors pointed to mitigation and two to aggravation. Judge Thomas further found that the amount ICE sought, $119,306.00, was disproportionate to the company's size and resources,  that there was a depressed economy and that the penalties should be reduced to fall in the lower end of the permissible range.

For count I, Judge Thomas penalized Teelah $250 for 24 verification paperwork violations and $300 for 7 backdated verification paperwork violations, for a total of $6900.  The penalty for the violations in Count II was assessed at $250 for each of the 85 named individuals, or $21,250. For both counts, the total was $28,150.00, or more than a 75% reduction from the ICE complaint amount.

Tuesday, July 26, 2011

Video Archive-Stanford Law School Worksite Immigration Compliance Symposium


The Homeland Security Compliance Council has provided the complete seven video archive for Stanford Law School’s first annual Worksite Immigration Compliance Symposium, a one-day event which focused on corporate immigration compliance. Featuring experts from the Department of Homeland Security, the Department of Justice, lawyers from private practice and academia, the symposium videos cover recent trends in I-9 related worksite enforcement, various government programs (including E-Verify) and emerging best practices from the field. The keynote speech was delivered by Paul W. Virtue, former INS General Counsel, and author of the 1997 Virtue Memorandum, the policy which still implements the procedures of the IIRAIRA good faith paperwork violation defense. 

The video archive may be accessed after free registration, selection of a user name and password.

Tina Sciocchetti, Assistant US Attorney in the Northern District of Albany and the lead prosecutor in the IFCO case,  discussed the corporate charging factors for employers with criminal I-9 violations. In particular, the prosecutor must weigh all of the factors normally considered in the sound exercise of prosecutorial judgment: the sufficiency of the evidence; the likelihood of success at trial; the probable deterrent, rehabilitative, and other consequences of conviction; and the adequacy of noncriminal approaches. Prosecutors will also consider the nature and seriousness of the crime, pervasiveness, company history, existence of compliance programs, remedial actions, collateral consequences, and the adequacy of civil or regulatory remedies.

Paul Zulkie, Eric S. Bord and AUSA Tina E. Sciochetti discussed ICE and U.S. Attorney Negotiations

 




Friday, July 1, 2011


Take an I-9 Auditing IQ Test

 Charles M. Miller, co-author of the ABA’s new best-selling book Immigration Compliance Auditing for Lawyers, provides this I-9 Auditing IQ test for our readers. There are 10 questions in total, which address various Form I-9 rules, auditing principles, and interesting facts. Please note that you only get one shot at a particular question.
Read full story in the I-9 and E-Verify Blog...

Tuesday, June 14, 2011

Time to Upgrade Your Company's Immigration Compliance Program

All U.S. employers face enhanced responsibilities to effectively comply with recent Department of Homeland Security changes to the Form I-9 and the lists of acceptable documents. Certain government contractors and subcontractors have been required to join the E-Verify electronic verification system which augments the I-9 attestation and maintenance responsibilities.

These new compliance duties require that the employer adopt an effective worksite enforcement compliance strategy. The efficient execution of this compliance plan must be a high priority. By the time there is an ICE worksite enforcement action, remediation and any possible negotiations will be under the supervision of the DHS and/or the U.S. Attorney’s office in the city where the enforcement action takes place.


It would be a mistake for employers to reduce compliance efforts because of the Obama Administration’s return to the primacy of administrative civil sanctions as an enforcement tool of choice. The April 30, 2009 ICE Office of Investigations Worksite Enforcement Strategy memorandum reemphasized that the agency’s worksite enforcement operations, including the criminal prosecution of noncompliant employers, the removal of an unauthorized workforce and the debarment of government contractors, would remain significant deterrence options. Nevertheless, the ICE Worksite Enforcement strategy memorandum emphasizes that administrative I-9 inspections remain the agency’s primary enforcement tool and will support later criminal investigations and prosecutions.

How an employer fills out a one page I-9 form could result in Homeland Security's seizure of a business. Small business owners and large corporations now have reason to dread the Immigration and Customs Enforcement (ICE) ramp up of its I-9 administrative inspections which come with administrative subpoenas that ask for payroll and other government agency records.

While employers are required to verify the identity and work eligibility of all employees, including U.S. citizens, on Form I-9, they also have the duty to refuse to employ a person whose authorization and/or identity documents are unacceptable.

Informer tips and related worksite investigations throughout the United States have provided ICE with information regarding questionable employment practices of thousands of employers. In addition to administrative civil fines, targeted employers also faced criminal charges with potential seizure and forfeiture of company and personal assets. Companies are in federal courts across the United States facing felony criminal charges with potential prison terms, fines and forfeiture of assets.

Many criminal acts covered under the U.S. Code are subject to seizure and forfeiture of all property which has been or is currently being used in the commission of the violation. This includes harboring of unauthorized aliens, money laundering, visa and document fraud, and the knowing hire of 10 or more unauthorized aliens. The property that is subject to seizure and forfeiture includes boats, vehicles, aircraft, bank accounts and other traceable assets.

How to Upgrade the Immigration Compliance Program

One of the most effective compliance techniques is to conduct an internal evaluation of the existing compliance program. The advantages to doing this are that once a company has answered the questions that help evaluate the program including the strengths and, yes, the weaknesses, of existing efforts will be revealed. It is recommended that this be done in advance of the decision to join the E-Verify or IMAGE programs, or before a private external audit. This will allow the company’s compliance staff to learn about the latest compliance techniques, and it will save the company future expense.

The employer’s existing compliance program should be evaluated both for its policies and how those policies are implemented into compliance program procedures. Written compliance manuals and training programs should be assessed to determine whether the company’s IRCA Form I-9 verification and retention, anti-discrimination, no-match letter, contractor liability, and FAR (E-Verify) government contractor policies are up-to-date and reflected in current compliance procedures.

The employer’s immigration law compliance policy manual should provide the human resources department with clear guidance on the various record-keeping and penalty provisions including H-1B posting, benching and public access requirements. The company’s immigration compliance training program for executives, managers and hiring agents should be evaluated for its effectiveness. Further, the company’s recruitment, hiring and termination policies and training must be evaluated for their compliance to the anti-discrimination and unfair immigration-related employment practices laws. Some key factors to evaluate are the following:

Compliance Policy - Does the company have a written Form I-9 and immigration law policy? A written policy manual serves several purposes: (1) It sets forth the line of supervision and responsibility for compliance decision making; (2) it provides the compliance staff with clear indications of which decisions require a manager and which do not; and (3) it provides directors. officers. managers. supervisors and responsible compliance employees with a frame of reference as to the requirements of the law, taking into consideration the employer’s compliance
history.

Training Program - Does the company have an ongoing compliance training program? If so, does it include anti-discrimination. Form I-9 verification and contractor and subcontractor issues? Does the employer have legal counsel to call on when there is the need for more information on a particular compliance issue? Does the company require managerial employees to receive compliance training? Are there library and reference files dedicated to Form I-9 verification and other compliance issues?

• Training on worksite compliance issues pays dividends over time. It helps the company develop an institutional attitude of compliance which continues to provide staff with confidence that they are performing their compliance tasks correctly.

• One effective training method is a compliance training teleconference with legal counsel every six months. This regular training is particularly helpful for companies with remote worksites that are performing Form I-9 verifications, such as retail stores.

• An effective compliance training program is good evidence that the company treats its compliance responsibilities seriously and in good faith. Government agencies and courts are impressed with a company that continually seeks to improve its compliance efforts with a current training program.

• All anti-discrimination notices to employees about their rights should
be prominently posted.

• All personnel involved with immigration-related hiring, including managers and supervisors, should be educated about the requirements for compliance with the anti-discrimination laws including document abuse, national origin, citizenship and immigration status violations, retaliation, and other unfair immigration-related employment practices.

Tickler System – Does the company maintain a tickler system to keep track of the expiration dates of employee Form I-9 forms and allow sufficient time for reverification? The tickler system should highlight the expiration date by which the employer must actually undertake reverification of the alien’s work authorization, as well as provide a warning date to remind the employee to obtain an extension of an employment authorization document, if necessary, allowing sufficient time for CIS processing, taking into consideration the deadline date for reverification.


At the end of the internal evaluation, it may be valuable to discuss your employer's compliance with an immigration attorney with I-9 compliance expertise.  An immigration compliance audit is the the surest way to eliminate noncompliance and upgrade your immigration compliance program for the future. 

Handbook for Employers Updated

A new electronic version of the Handbook for Employers: Instructions for Completing Form I-9 (M-274) (Rev. 06/01/11) N is available in the Employer Section of the Publications Page on our Website. This version includes:

  • Expanded guidance on how to complete Form I-9
  • Illustration of I-9 completion for minors and persons with disabilities (special placement)
  • TPS special rules
  • Verification and reverification of F-1 Students, including Optional Practical Training, Curricular Practical Training, Cap Gap and STEM extensions
  • J-1 Exchange Visitors and M-1 verifications and reverifications
Employers are advised to now begin to use the new version for a general reference for the completion of the Form I-9.

In the area of employment verification and worksite enforcement, the USCIS is responsible for Form I-9 and for the administration of the E-Verify employment eligibility verification program. The USCIS publishes the Form M-274 Handbook for Employers, as instructions for employment verification on Form I-9, and maintains a Website, www.uscis.gov .

Haiti receives TPS Redesignation

The USCIS has redesignated Haiti for Temporary Protected Status (TPS) and extended the country’s current TPS designation for 18 months—through Jan. 22, 2013.

Haitian nationals should review the Federal Register notice published on May 19 and the Federal Register notice published on May 23, as well as the TPS page at www.uscis.gov, regarding the redesignation of Haiti for TPS to determine whether it is necessary to file a new TPS application and Form I-765, Application for Employment Authorization.

The agency reminds employers that Haitian TPS employees with expired EADs may still be authorized to work. A May 23 Federal Register notice describing the re-registration procedures for Haitian TPS beneficiaries announced that employees from Haiti who have Temporary Protected Status (TPS) and an EAD based on TPS received an automatic six-month extension of their EADs.

To determine if an employee’s EAD has been automatically extended by the Federal Register notice, employers should do the following:

  • Look at the “Category” section on the expiring (or expired) EAD.
    • If either A12 or C19 is listed, the EAD was issued under the TPS program.
  • Look at the expiration date of the EAD.
    • If the expiration date on the EAD is July 22, 2011, then the employee is a TPS beneficiary from Haiti and his or her employment authorization has been automatically extended to January 22, 2012.
    • If a different category or expiration date is listed, then the six-month automatic extension does not apply, and the usual Form I-9 reverification rules apply upon expiration of the card.

Thursday, June 9, 2011

The Stanford Law School Worksite Immigration Compliance Symposium

STANFORD, CA –Stanford Law School held its first annual Worksite Immigration Compliance Symposium, a one-day event focusing on corporate immigration compliance, hosted by the Stanford Law School Rock Center for Corporate Governance.

Featuring experts from the Department of Homeland Security, the Department of Justice, lawyers from private practice and academia, the symposium covered recent trends in I-9 related worksite enforcement, various government programs (including E-Verify) and emerging best practices from the field.

Symposium attendees received a copy of the ABA’s Immigration Compliance Auditing for Attorneys . This book provides authoritative, step-by-step guidance for conducting immigration compliance audits under the Department of Homeland Security regulations and related employment laws. Charles M. Miller, Marcine A. Seid and S. Christopher Stowe, Jr., the distinguished authors of this ABA best-seller, served as moderators for several of the panels. Remediation is the crux of the Immigration Compliance Audit – it allows mitigation and preserves good faith. The remediation steps outlined Immigration Compliance Auditing for Attorneys include how to deal with missing I-9s, timeliness violations, knowingly hired/continuing to employ violations, and paperwork errors.

Paul Virtue, the former INS General Counsel, responsible for the "Virtue Memorandum" concerning the treatment of I-9s in the workplace, was the Symposium's keynote speaker.

Tina Sciocchetti, Assistant US Attorney in the Northern District of Albany discussed the corporate charging factors for employers with criminal I-9 violations. In particular, the prosecutor must weigh all of the factors normally considered in the sound exercise of prosecutorial judgment: the sufficiency of the evidence; the likelihood of success at trial; the probable deterrent, rehabilitative, and other consequences of conviction; and the adequacy of noncriminal approaches. Prosecutors will also consider the nature and seriousness of the crime, pervasiveness, company history, existence of compliance programs, remedial actions, collateral consequences, and the adequacy of civil or regulatory remedies.

SLS Associate Dean and Rock Center Faculty Director, Dan Siciliano spoke on corporate immigration compliance in a Sarbanes-Oxley, Dodd-Frank World. As part of his presentation Dean Siciliano demonstrated how corporate awareness of I-9 compliance issues could be compared to studies of the observation of extrinsic factors, illustrated by this the Invisible gorilla video.

The Symposium speakers discussed recent enforcement actions where thousands of large high-profile publicly traded companies and hundreds of other companies have recently undergone extensive, and often expensive, scrutiny at the hands of the Department of Homeland Security. Recent headlines are testament to the increasing impact of administrative sanctions leveled against those employers that err in the process of preparing and maintaining I-9s (the document companies must complete to establish and evidence that employees are eligible to work in the U.S.). In addition to expanded record keeping audits, the ICE Worksite Enforcement Program has increasingly focused on employers that have knowingly hired unauthorized workers using ICE inspections that generate civil and criminal penalties for thousands of noncompliant companies.

Friday, May 20, 2011

Stanford Law School Worksite Immigration Compliance Symposium

Monday, June 6, 2011
8:15 am - 6:30 pm

About the event: This Symposium, in the form of panel discussions and keynotes presented by experts from government, private practice and academia, will explore the trends that underlie this expansion in enforcement activity, describe recently enumerated best practices concerning voluntary employer compliance with DHS verification programs, and evaluate the likely impact this will have on corporate behavior and community relationships with various federal agencies.

Registered paying symposium attendees will receive a copy of the ABA’s 2011 Immigration Compliance Auditing for Lawyers. This book provides authoritative, step-by-step guidance for conducting immigration compliance audits under the Department of Homeland Security regulations and related employment laws. Charles M. Miller, Marcine A. Seid and S. Christopher Stowe, Jr., the distinguished authors of this ABA best-seller, will serve as moderators for several of the panels. In addition, Paul Virtue , the former INS General Counsel, responsible for the "Virtue Memorandum" concerning the treatment of I-9s in the workplace, will be the Symposium's keynote speaker.

A complete agenda can be viewed by clicking here.

Registration Information: This event is open to the public but advanced registration is required (walk-in attendees cannot be accommodated). For more information and to register, please visit the event webpageon the Stanford Law School calendar.

General Admission (includes lunch and book) = $99.00
Rock Center Affiliates (includes lunch) = Free*
Stanford Staff, Faculty or Student (includes lunch) = Free*

Click here to register

Questions? Email rockcenter@law.stanford.edu or (650) 723-5905.

Sunday, April 17, 2011

USCIS Publishes the Form I-9 Unexpired Document Final Rule

Fourteen years after the passage of the IIRAIRA and more than a decade after the earlier INS proposed rule, the CIS published the Final Rule that continues the agency’s implementation of the statute’s document reduction mandate. The Final Rule adopted the 2008 Interim Rule without change. The Interim Rule was published with a February 2, 2009 effective date, but DHS subsequently delayed the implementation of the Form I-9 Interim rule until April 3, 2009. Both permissible 2009 versions of the I-9 now contain the lists that reflect the Unexpired Document Final Rule’s requirements.

The Final Rule requires that all documents presented during the Form I-9 verification process be unexpired adopting the Interim Rule’s the dual rationale that expired documents are prone to fraud, and that they may not possess the current biometric safeguards. A document containing no expiration date, however, such as the social security card, is considered unexpired.

The Final Rule contains the updated Form I-9 Lists A and C, deleting some documents and adding others. The three expired and out-of-issue documents deleted from List A are: (1) Form I-688, Temporary Resident Card; (2) Form I-688A, Employment Authorization Card; and (3) Form I-688B, Employment Authorization Card.

Two documents were added to List A: (1) The temporary I-551 printed notation on a machine-readable immigrant visa, in addition to the foreign passport with a temporary I-551 stamp; (2) and a passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

The computer-generated Form I-94A was added to List A, to accompany the familiar Form I-94 that nonimmigrants continue to use for admission at U.S. ports of entry and preclearance offices. While the rule did not add the Passport Card to the regulation, it did add that document to the U.S. Passport listed on List A that is found on the Form I-9 revision.

Technical revisions to the lists of documents include replacing the term “employment eligibility” with “employment authorization” necessary to conform the regulations to the statutory language. The rule also corrects the titles of two State Department documents: Form FS-545 is now correctly titled “Certification of Birth” and Form DS-1350 is correctly entitled “Certification of Report of Birth.”

The Form I-9 itself was revised and published in the Federal Register as part of the interim rulemaking. The revision to the form included the above changes to the List A and C documents, as well as adding a “noncitizen national of the United States” box to the employee's attestation block to Section 1 of the form.

Social Security Resumes Sending No-Match Letters

In an April 2011 transmittal the Social Security Administration has announced that after a four year hiatus that it has resumed sending no-match letters to employers. SSA did not send the letters for tax years 2006 through 2009 and has discontinued the EDCOR letters which contained multiple employee data. SSA has resumed sending employer DÉCOR letters for individual employees in April 2011, for tax year 2010, and has discontinued the EDCOR letters which contained multiple employee data.

Employers send the SSA earnings reports (W-2 Forms) with the employee's name and Social Security number (SSN). Prior to 2007, if the W-2 information that the employer submitted did not match SSA records, the SSA sent employer correction request educational correspondence (EDCOR) also referred to as a “code v” or “no-match” letter, which informed the employer of the discrepancy. In the alternative, if the address if the name and/or social security number listed on the employer’s submitted W-2s did not match the information in the SSA database SSA could send an employee version of the employer decentralized correspondence (DECOR) letter to employees at their home address .

SSA reminds employers that there are many possible reasons why the information they reported did not match SSA records. For example, the discrepancy could be due to a transcription or typographical error, an incomplete or blank name or SSN, or a name change. Employers are requested to check if the information provided to SSA matches employer records. A no-match between an employee's name and SSN in the employer and SSA’s records does not mean that the employee lacks work authorization, nor does it make any statement regarding a worker's immigration status. The entire SSA April Transmittal is found on our Publications page. A sample DÉCOR letter is also found on our Website.

The no-match letters are one of the employer records that ICE agents and forensic auditors request and/or subpoena during the I-9 administrative inspections. While no-match letters are not currently considered direct evidence of the constructive knowledge for knowingly continuing to employ civil and criminal charges, they are treated as investigative indicia that the employer has been notified that reported information does not match SSA records.

Thursday, March 3, 2011

New from the American Bar Association: Immigration Compliance Auditing for Lawyers


The immigration compliance responsibility placed on employers by the federal government can be overwhelming. This cutting-edge resource provides authoritative, step-by-step guidance for conducting immigration compliance audits under the Department of Homeland Security regulations and related employment laws.

Charles M. Miller, Marcine A. Seid and S. Christopher Stowe, Jr. have written the definitive step-by-step guide for conducting immigration compliance audits. Immigration Compliance Auditing for Lawyers contains an authoritative analysis of the latest federal law and policy required for competent, independent and ethical immigration compliance auditing. If your client is faced with and immigration compliance audit, this essential book will provide you with the necessary tools and resources needed for the audit, including the auditing of I-9 Forms, compliance programs, employers' civil and criminal liability and anti-discrimination. From the I-9 Audit Checklist to the Auditor's step-by step Guide, auditors are provided an integrated auditing system that incorporates the latest ICE policies and OCAHO decisions.

Monday, February 21, 2011

Employer Immigration Employment Date Alert: April 1, 2011 begins the H-1B filing season

TOP 2011 H-1B PLANNING TIPS

Charles and Terri Miller provide their 10 best planning tips for employers and employees, in advance of the April 1, 2011 USCIS H-1B filing season.


Employers use the H-1B visa category to employ nonimmigrant foreign workers who possess the equivalent of a U.S. bachelor’s degree for professional jobs each year. The first date that H-1B petitions will be accepted by the USCIS for employer filing for October 1, 2011 employment is April 1st.

In 2008 there was a USCIS random selection of the successful petitions for those numbers as well as the 20,000 additional numbers for the recipients of U.S. advanced degrees. While the current economic situation may reduce the number of petitions from 2008 record levels, it is unlikely that the low cap numbers will be sufficient for the current demand and that the cap will close sometime in the next fiscal year.
To maximize your chances for H-1B employment authorization, your company should consider the following:

1. Use an immigration lawyer with experience in successful H-1B filing.

2. U.S. advanced degree recipients’ petitions are placed in a more favorable pool of an additional 20,000 cap exempt numbers. There is also competition for those additional numbers as that cap was reached in the previous fiscal year.

3. Professionals from Chile or Singapore are given extra numbers, which are unlikely to be used up. Those H-1B1 petitions need special filing treatment and allow specialty professional jobs for qualified persons who have the threshold bachelors’ degrees.

4. Canadian and Mexican professionals also have specialty professional programs, allowing TN status without the need to compete for H-1B numbers. TNs are now eligible for a three year admission, providing flexibility for employers’ long-term employment strategy of the North American foreign professionals.

5. Australian professionals are eligible for E-3 professional visa status, a program which is not limited by the H-1B cap.

6. The O-1 category for aliens of extraordinary ability is a non-cap alternative for persons who have reached the highest level of accomplishment in their fields.

7. DHS now allows a 17 month extension of optional practical training from 12 to 29 months for F-1 students who major in specified science, technology, engineering and mathematics (STEM) SEVIS authorized programs. The accepted employment must be with employers enrolled and considered by the CIS to be in good standing in the E-Verify program. The successful STEM OPT extension, with the approval of the school’s DSO and the proper and timely filing of the extension, may represent a bridge to an opportunity for the unsuccessful applicant’s next opportunity for successful H-1B petition.

8. A qualified institution of higher education or research non-profit organization is exempt from the H-1B cap and can sponsor a H-1B visa at any time of the year these include: an institution of higher education; related or affiliated to a higher education institution nonprofit entity, and a nonprofit research organization or a governmental research organization.

9. Duration of status and any post-completion OPT work authorization is automatically extended for an F-1 student who is the beneficiary of a timely-filed H-1B petition requesting change of status and an employment start date of October 1, 2011.

10. Some foreign-based and educated persons will qualify for up to 18 months employment in qualified training programs through J-1 sponsorship.

For further information about the Miller Law Offices immigration benefit legal services, please contact Charles Miller or Terri Miller at (818) 508-9005 or direct your E-mail to Charles Miller atcmiller@millerlawoffices.com

New Adjustment of Status Version of EAD (Form I-766) Card Includes Advance Parole

The USCIS is now issuing employment and travel authorization on a single card for certain foreign national applicants filing an Application to Register Permanent Residence or Adjust Status in the U.S. The new dual-purpose card looks almost identical to the current Employment Authorization Document (EAD), except for one line of text near the bottom which reads, “Serves as I-512 Advance Parole.”

Saturday, January 29, 2011

Is Your I-9 Audit Notice in the Mail?

On January 20, 2011, ICE Director John Morton announced that ICE Notices of Inspection, providing companies with 72 hours’ notice requiring the production of their I-9 and related employment forms for their workforce, are forthcoming to the nation’s largest employers. Charles M. Miller provides analysis of the effect of I-9 audits on the Fortune 500. Read the entire article..

Thursday, January 13, 2011

Hiring foreign professionals? The New H-1B Filing Season Opens April 1st

Employers use the H-1B visa category to employ nonimmigrant foreign workers who possess the equivalent of a U.S. bachelors degree for professional jobs each year. The USCIS will close the current year’s H-1B filings when the 2011 cap numbers are exhausted. April 1st , 2011 is the first date that H-1B petitions will be accepted by the USCIS for employer filing for employment that begins no earlier than October 1, 2011.
To maximize your applicant’s chances for employment authorization, your company should also consider the following :

1.U.S. advanced degree recipients’ petitions are placed in a more favorable pool of an additional 20,000 cap exempt numbers.

2.Professionals from Chile or Singapore are given extra numbers, which are unlikely to be used up. Those H-1B1 petitions need special filing treatment and allow specialty professional jobs for qualified persons who have the threshold bachelors’ degrees.

3.Canadian and Mexican professionals also have specialty professional programs, allowing TN status without the need to compete for H-1B numbers.

4.Australian professionals are eligible for E-3 professional visa status, a program which is not limited by the H-1B cap.

5.The O-1 category for aliens of extraordinary ability is a non-cap alternative for persons who have reached the highest level of accomplishment in their fields.

6.Some foreign-based and educated persons will qualify for up to 18 months employment in qualified training programs through J-1 sponsorship.

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Evaluate Your Employer’s Homeland Security Immigration Compliance Program

All U.S. employers face enhanced responsibilities to effectively comply with recent Department of Homeland Security changes to the Form I-9 and the lists of acceptable documents. Certain government contractors and subcontractors have been required to join the E-Verify electronic verification system which augments the I-9 attestation and maintenance responsibilities.

These new compliance duties require that the employer adopt an effective worksite enforcement compliance strategy. The efficient execution of this compliance plan must be a high priority. By the time there is an ICE worksite enforcement action, remediation and any possible negotiations will be under the supervision of the DHS and/or the U.S. Attorney's office in the city where the enforcement action takes place.

It would be a mistake for employers to reduce compliance efforts because of the Obama Administration’s return to the primacy of administrative civil sanctions as an enforcement tool of choice. The April 30, 2009 ICE Office of Investigations Worksite Enforcement Strategy memorandum reemphasized that the agency’s worksite enforcement operations, including the criminal prosecution of noncompliant employers, the removal of an unauthorized workforce and the debarment of government contractors, would remain significant deterrence options. Nevertheless, the ICE Worksite Enforcement strategy memorandum emphasizes that administrative I-9 inspections remain the agency’s primary enforcement tool and will support later criminal investigations and prosecutions.

One of the most effective compliance techniques is to conduct an internal evaluation of the existing compliance program. The advantages to doing this are that once a company has answered the questions that help evaluate the program including the strengths and, yes, the weaknesses, of existing efforts will be revealed. It is recommended that this be done in advance of the decision to join the E-Verify or IMAGE programs, or before a private external audit. This will allow the company's compliance staff to learn about the latest compliance techniques, and it will save the company future expense.

The employer's existing compliance program should be evaluated both for its policies and how those policies are implemented into compliance program procedures. Written compliance manuals and training programs should be assessed to determine whether the company's IRCA Form I-9 verification and retention, anti-discrimination, no-match letter, contractor liability, and FAR (E-Verify) government contractor policies are up-to-date and reflected in current compliance procedures.

The employer's immigration law compliance policy manual should provide the human resources department with clear guidance on the various record-keeping and penalty provisions including H-1B posting, benching and public access requirements. The company's immigration compliance training program for executives, managers and hiring agents should be evaluated for its effectiveness. Further, the company's recruitment, hiring and termination policies and training must be evaluated for their compliance to the anti-discrimination and unfair immigration-related employment practices laws. Some key factors to evaluate are the following:

Compliance Policy - Does the company have a written Form I-9 and immigration law policy? A written policy manual serves several purposes: (1) It sets forth the line of supervision and responsibility for compliance decision making; (2) it provides the compliance staff with clear indications of which decisions require a manager and which do not; and (3) it provides directors. officers. managers. supervisors and responsible compliance employees with a frame of reference as to the requirements of the law, taking into consideration the employer's compliance
history.

Training Program - Does the company have an ongoing compliance training program? If so, does it include anti-discrimination. Form I-9 verification and contractor and subcontractor issues? Does the employer have legal counsel to call on when there is the need for more information on a particular compliance issue? Does the company require managerial employees to receive compliance training? Are there library and reference files dedicated to Form I-9 verification and other compliance issues?

• Training on worksite compliance issues pays dividends over time. It helps the company develop an institutional attitude of compliance which continues to provide staff with confidence that they are performing their compliance tasks correctly.

• One effective training method is a compliance training teleconference with legal counsel every six months. This regular training is particularly helpful for companies with remote worksites that are performing Form I-9 verifications, such as retail stores.

• An effective compliance training program is good evidence that the company treats its compliance responsibilities seriously and in good faith. Government agencies and courts are impressed with a company that continually seeks to improve its compliance efforts with a current training program.

• All anti-discrimination notices to employees about their rights should
be prominently posted.

• All personnel involved with immigration-related hiring, including managers and supervisors, should be educated about the requirements for compliance with the anti-discrimination laws including document abuse, national origin, citizenship and immigration status violations, retaliation, and other unfair immigration-related employment practices.

Tickler System -
Does the company maintain a tickler system to keep track of the expiration dates of employee Form I-9 forms and allow sufficient time for reverification? The tickler system should highlight the expiration date by which the employer must actually undertake reverification of the alien's work authorization, as well as provide a warning date to remind the employee to obtain an extension of an employment authorization document, if necessary, allowing sufficient time for CIS processing, taking into consideration the deadline date for reverification.

Wednesday, January 12, 2011

Recovery Hiring? Don’t Forget to Update Employer Immigration Compliance

Human resources managers and professionals face new forms, requirements and procedures when they return to recruit foreign students on college and university campuses in 2011, after a hiatus in hiring brought on by the recession. They will also find that there have been enhanced I-9 responsibilities that affect all new hires, not just the foreign college graduates.

Your HR department will require the latest information concerning the Department of Homeland Security's worksite enforcement program, as well as other immigration-related issues that affect employers on a daily basis. Recovery hiring will bring new topics to your administrative offices concerning the E-Verify electronic verification system, state immigration laws. Thousands of government contractors and subcontractors now face federal regulations which require them to use the E-Verify electronic system.

Chuck Miller of the Miller Law Offices provides the following Homeland Security Compliance tips for 2011:

1. DO remember to use the new Lists A and C for the reverification of the employment authorization documents of existing employees whose document(s) expire.

2. DO NOT reverify an expired U.S.passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired.

3. DO remember that the receipt rule is only for the receipt for the replacement of lost, stolen or destroyed authorization documents, not for renewals that have been filed but have not been issued.

4. DO reverify on section 3 of Form I-9; if you run out of room you may write the employee’s name in section 1 and complete section2 of a currently valid Form I-9. You can also use a new Form I-9 section 3. Remember to attach the new Form to the previously filled out I-9.

5. DO remember that ONLY UNEXPIRED DOCUMENTS FOUND ON THE CURRENT LISTS A, or B and C, MAY BE VERIFIED OR REVERIFIED.

6. DO be aware that there are new tables of temporary employment authorization documents found in the M-274 Handbook for Employers (April 3, 2009 edition)that may be accepted IN ADDITION to the documents found on Lists A, B and C.

7. DO remember to complete section 1 of the Form I-9 on the first day of employment; For other than short term employees (3 days or less) the USCIS has adopted the “Thursday Rule” for the Section 2 Employer Verification: 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.

8. DO NOT request specific documents; to do otherwise may violate the document abuse discrimination law.

9. ONLY E-Verify employers must require a social security number and a List B photo ID.

10. Do remember that all employees, except for short term employees, may take advantage of the receipt rule.

USCIS Releases the Handbook for Employers January 5, 2011 edition

The USCIS has published a revision to the Form M-274 Handbook for Employers, the agency’s instructions for employment verification on Form I-9. We provide the M-274 in an Adobe PDF format on our Website, along with the latest version of Form I-9. The Handbook is an excellent source for the current version of the List A, B and C documents that employers must verify for all new hires and for reverification of existing employees whose authorization documents expire. This revised edition contains updated illustrations of authorization and identity documents and expanded instructions for verification and storage issues for Forms I-9, including the following situations:
• J-1 documentation of the Form DS-2019 accompanied by Form I-94 or Form I-94A, with a referral to the J-1 program designated officer when clarification is necessary.

• Permissible use of common abbreviations such as DL for driver’s license or SS for Social Security.

• Permanent Resident Cards with either an expiration date or no expiration date are List A documents that should not be reverified.

• If an employee presents an expired Permanent Resident Card along with a Form I-797, Notice of Action, that indicates that the card is valid for an ad¬ditional year, this combination is acceptable List C evidence of employment authorization for one year as indicated on Form I-797.At the end of the one-year period, you must reverify. 2011 Handbook at 9

• Refugees and Asylees are authorized to work because of their immigra¬tion status, a refugee or asylee should write “N/A” on the line calling for an expiration date. Id. at 10

• CAP-GAP F-1 students who seek to change to H-1B status may be eligible for a cap-gap extension of status and employ¬ment authorization through September 30 of the calen¬dar year for which the H-1B petition is being filed, but only if the H-1B status will begin on October 1. The term cap-gap refers to the period between the time a nonim¬migrant’s F-1 student status would ordinarily end and his or her H-1B status begins. Id. at 16

• The 240 Day Rule-The Handbook provides verification instructions for this common situation for nonimmigrant workers. While the peti¬tion is pending, your existing employee is authorized to continue to work for you, for up to the applicable time period—120 days to 240 days depending on the catego¬ry petitioned for—or until USCIS denies your petition, whichever comes first. Id. At 18.