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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.