On March 8, 2013, U.S. Citizenship and Immigration Services (USCIS) announced the release of the new I-9 Employment Eligibility Verification Form.  All employers are required to use the new I-9 immediately to verify the identity and employment authorization eligibility of their employees.

Although USCIS requires employers to use the new Form I-9 beginning March 8, 2013, USCIS has provided a 60-day grace period for employers to continue to use the current version of the form issued 08/07/09 (the 02/02/09 version is also still valid) until May 7, 2013.  Failure  to ensure proper completion and retention of Forms I-9 may subject an employer to civil money penalties of up to $1,100 per I-9, and, in some cases, criminal penalties.  Although the new two-page Form I-9 mainly contains format changes, additional data fields, and further instructions to the employer, it increases the administrative burden placed on employers. 

Here is a section-by-section summary of the changes to the Form I-9:

Section 1: Employer Information and Attestation

• fields are added to list the employee’s email address and telephone number, but are optional; and
• employees who check “An Alien Authorized to Work Until….” and who were issued an I-94 card, will also need to list the foreign passport number and country of issuance.

Section 2: Employer Review and Verification

• employers will need to list employee’s full name at the top of Page 2;
• List A now has room to list three documents, which is helpful to the employer because the prior form only had room for two documents, and there are occasions when three documents are required, e.g., J-1 visa holders or F-1 students completing Optional Practical Training;
• the certification box adds numbers to the items the HR representative must attest to when reviewing the documents and separates out the place where the employer is required to insert the employee’s first date of work for pay;
• the List of Acceptable Documents, List A, Number 5 has revised language but essentially includes the same information regarding accepting foreign passports and I-94 cards;
• the List of Acceptable Documents, List C, Number 1 provides clarification that Social Security  Cards containing restrictions, such as “Not Valid For Employment,” “Valid for Work Only with INS Authorization,” or “Valid for Work Only with DHS Authorization” are not acceptable as List C documents; and 
• the List of Acceptable Documents includes a reference to Section 2 of the Handbook for Employers regarding information about acceptable receipts.

Section 3: Reverification & Rehires

• provides clarification that List B identity documents do not require reverification; and
• adds a field for the Employer representative to print his or her name.

To avoid discrimination claims, do not complete the new Form I-9 for current employees for whom there is already a properly completed Form I-9 on file, unless reverification applies.  Now is the time to ensure that all your personnel  responsible for completing the Form I-9 are trained on the new form.  If you have any questions or need additional information, visit our website at www.laborlawyers.com or contact any member of the Fisher & Phillips Global Immigration Practice Group.

Give your company the gift of an immigration audit this year – it may just keep your company off the government’s naughty list.  Here are the top 12 immigration mistakes employers made in 2012:

1.  Failing To Properly Pay H-1B Workers

USDOL debarred a Washington information technology consulting services company from participating in the H-1B program for two years, assessed $405,175 in civil money penalties, and ordered payment of $983,039.12 in back wages for numerous H-1B violations, including willful failure to pay required wages by demanding workers pay H-1B government filing fees.

2.  Employing Unauthorized Workers

Two Houston companies each forfeited $2 million and agreed to adhere to revised immigration compliance programs for employing unauthorized workers.  Both companies received multiple "no-match letters" from the Social Security Administration (“SSA”), which indicated employee names and Social Security numbers did not match SSA records. ICE completed an I-9 audit of both companies in 2011, revealing that from 2005 to 2009 about 44 percent of the workforce of one company was undocumented, many individuals were employed with numerous "egregiously suspect" identification documents, including misspellings of agency names and/or containing the words "novelty item."  Similarly, an I-9 audit of the second company revealed that about 269 of its 451-person workforce consisted of undocumented aliens.

3.  Failing to Properly Notify USCIS of an H-1B Worker’s Termination

USDOL has repeatedly held that H-1B workers are entitled to back pay for the entire period of the H-1B approval where the company failed to promptly withdraw the H-1B with USCIS and pay for the reasonable cost of the H-1B worker's return transportation to his or her home country.

4.  Visa Fraud

The head of a Los Angeles law firm was sentenced to 10 months in prison for his role in orchestrating a lengthy employment visa fraud scheme where he and other members of the firm set up nearly a dozen shell companies in order to file at least 137 fraudulent employment-based visa petitions for nearly 100 foreign national clients in exchange for payments of $6,000 to $50,000.

5.  Citizenship Status Discrimination

USDOJ reached an agreement with a manufacturer of semiconductor structures and advanced solar cells based in Illinois to resolve allegations that the company violated the anti-discrimination provision of the Immigration and Nationality Act (“INA”), when it placed six online job postings that explicitly stated citizenship status preferences or requirements that excluded certain work-authorized non-citizens from consideration.  The company will pay $12,000 in civil penalties. 

6. I-9 Document Abuse

In October, USDOJ settled a lawsuit against a Las Vegas Casino for $49,000 in civil penalties and full back pay to a former employee for unfair documentary practices.  The complaint alleged the casino required non-citizen employees to provide more or different documents or information than it required from citizen employees during the initial employment eligibility verification process.  The company then allegedly used the information gathered to impose improper document requests on non-citizens during the reverification process as a condition of continued employment.  The complaint further alleged that the casino subjected non-citizen employees’ documents to a heightened review process by senior human resources representatives that was not applied to documents presented by U.S. citizens.   

7.  Failure to Comply with State Immigration Laws

Employers are often unaware of the myriad of state immigration requirements.  A Survey of Immigration Laws is available on our website.

8.  Failing to Comply with the Deemed Export Rule

 The Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) impose licensing requirements on the export, reexport, and in-country transfer of a wide variety of items that are controlled for national security, foreign policy, and other reasons. The requirements include an obligation for U.S. persons, including corporate employers, to seek and receive a U.S. Government license before releasing in the U.S. to foreign persons, including foreign person employees from certain countries, various types of technology controlled by these regulations. This obligation is referred to by the Commerce Department as the “deemed export” rule because releases of controlled technology to foreign persons in the U.S. are “deemed” to be an export to the person’s country or countries of nationality.

9.  Failure to Properly Complete Form I-9s
 
A construction company with no history of previous I-9 violations was assessed fines in the amount of $17,200 for 103 I-9 violations, including failure to present I-9 forms for 10 employees, failure to list the proper List A document in Section 2 of the I-9, and twenty-seven I-9s with procedural or technical violations. 

10. Failing to Follow Proper E-verify Procedures

USDOJ reached a settlement with a provider of janitorial and facilities maintenance services based in Tampa to resolve allegations that the company violated the anti-discrimination provision of the INA when it failed to fully reinstate an employee in retaliation for asserting her right to work in the U.S.  The company has agreed to pay $6,800 in monetary relief to the charging party, which included back pay and interest, along with a $2,000 civil penalty.  The charging party alleged that the company failed to provide the employee with proper notice and instructions for contesting an initial data mismatch in E-Verify, resulting in E-Verify issuing an erroneous final response that she was not work authorized.    

11.  Taking Adverse Actions Against Employees Based Solely on SSA No-Match Letters

There is no clear guidance from the government on how an employer should respond to No-Match Letters received in 2012.  Employers should take the following steps upon receipt of a SSN No-Match letter:

• Check your records to make sure your Human Resources department accurately recorded the employee’s information.  If an error was made, provide the SSA with any corrections;
• If your records are correct, promptly notify the employee that you received a SSN No-Match letter and ask the employee to go to SSA to address any discrepancy;
• Do not take any adverse action against the employee based solely on the SSA No-Match letter;
• Apply any procedure developed to respond to the SSA No-Match letters in a non-discriminatory way; and
• Give the employee a reasonable amount of time to correct any discrepancy.  If the employee indicates that he visited SSA and the situation is resolved, please note the actions you and the employee took to resolve the discrepancy in the event of an audit. 

12. Not Preparing for an ICE Raid

In the chaos of an intrusive ICE raid, companies should ensure that their representatives are instructed not to volunteer statements to ICE agents or allow themselves to be interviewed or interrogated without an attorney present who represents the organization.
 
Last fiscal year, employers nationwide were ordered to pay nearly $10.5 million in civil fines for hiring violations. In addition, criminal charges were filed against a record-breaking 221 owners, employers, managers and/or supervisors – up from 196 in fiscal year 2010.  Once the final statistics for 2012 are tallied, 2012 is expected to be another record-breaking year for enforcement.  In order to avoid the above-listed costly errors, your company’s resolutions for 2013 should include ensuring immigration compliance programs are in place, up-to-date, and followed.

     Although the Presidential candidates will not be delving into all the volatile details of immigration in an election year, employers should tackle immigration issues to avoid monetary penalties and criminal sanctions.  Here are twelve steps all employers should take in 2012 to comply with the myriad of immigration laws:

1.    Conduct An Annual I-9 Audit

• The I-9 audit should be conducted by someone other than the person responsible for completing I-9s because the individual completing I-9s often repeats the same error.
• Correctable errors on the I-9 should be fixed, the change should be initialed and dated, and the words “Per Self Audit” should be placed beside the correction.
• Some I-9 errors cannot be corrected.  For example, if the employer completed Section 2 of the I-9 later than three business days from the employee’s first date of work for pay, the date cannot now be changed to show a timely completion.  

2.    Incorporate Immigration Policies in Handbooks

• Ensure immigration policies are in place, up-to-date, and followed.
• Develop and disseminate an immigration-related notification and response policy so all employees know how to handle unannounced government visits, including site visits from the H-1B Fraud Investigation Unit.

3.    Audit H-1B Public Access Files

     H-1B employers are required to maintain a public access file for each H-1B worker and must make the file available for public examination within one working day after the Labor Condition Application (“LCA”) is filed with U.S. Department of Labor (“USDOL”).  The public access files for most employers must contain:

• A copy of the certified LCA;
• Documentation of the wage rate to be paid to the H-1B worker;
• An explanation of how the actual wage was calculated (e.g. copy of the pay scale); 
• Documentation used to established the prevailing wage for the position;
• A copy of the internal notice of posting given to the union/employees; and
• A summary of the benefits offered to U.S. workers in the same occupation as the H-1B worker and an explanation of any differentiation in benefits.   

     Employers must retain all records one year beyond the end date on the LCA or, if a complaint is filed, until the complaint is resolved. 

4.    Properly Withdraw H-1Bs

• If an Employer terminates an H-1B worker or the worker resigns before the end of the three-year period of authorized admission, the employer should notify the U.S. Citizenship and Immigration Service (“USCIS”) in writing of the end of the employment and withdraw the underlying LCA with USDOL to avoid accrual of front pay and back pay damages. 
• The employer is also required by law to pay for the reasonable cost of the terminated H-1B worker’s return transportation to his or her home country.

5.    Implement Hiring/Application Practices that Avoid Discrimination Claims

     An employer can lawfully ask whether an applicant has unrestricted authorization to work in the U.S.  An employer cannot, however, request specific details about an applicant’s citizenship status or adopt an across-the-board policy of only hiring U.S. citizens.

6.    Abide by E-verify

     Employers cannot terminate or take any other adverse action against an employee who contests a tentative non-confirmation (“TNC”) of an E-Verify query while the TNC is in process. The employee is allowed eight federal government work days to contact the appropriate federal agency to correct the data.

7.    Do Not Ignore SSN No Match Letters

     There is no clear guidance from the government on how an employer should respond to No-Match Letters received in 2012.  Employers should check their records and give the employee a reasonable amount of time to correct any discrepancy.  If the employee indicates that s/he visited the U.S. Social Security Administration (“SSA”) or the USCIS and the situation is resolved, the employer should note the actions taken to resolve the discrepancy in the event of an audit.

8.    Implement Export Control Practices

     Under the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”), releases of controlled technology to foreign persons in the U.S. are “deemed” to be an export to the person’s country of nationality.  Thus, employers need to determine if export control licenses are required for foreign national employees.   

9.    Avoid Taking a Hands-off Approach to Immigration

     As the petitioner, the employer signs immigration petitions under the penalty of perjury.  Therefore, the employer should consult its own immigration attorney who will fully inform the employer about its legal obligations - rather than relying on an attorney retained by the employee.                    

10.  Avoid Passing Immigration Fees onto Employees in Violation of the Law

     For instance, USDOL regulations require the employer to pay for all fees and costs associated with applying for the first step of the three-step permanent residence process for foreign national employees.  Thus, such fees and costs cannot be passed onto the employee or deducted from their pay.  

11.  Utilize Contract Employees Properly

     Although employers are not required to complete I-9s for independent contractors, the USDOL and U.S. Department of Justice take the position that employers are obligated to do so if the contractors should be classified as employees.  Similarly, if an employer uses H-1B contractors, USCIS will scrutinize the end-user to determine which employer truly exercises control over the contractor to determine which employer should be filing the H-1B work visa petition.  
 

12.  Budget Time and Expenditures for Immigration

     Although many countries, such as the U.S. and Canada, allow for expedited immigration processing for intra-company transferees, employers need to allow sufficient lead time and budget for receiving the proper immigration approvals prior to sending an employee on a work assignment abroad.  The time to consult your immigration attorney is when a candidate is in consideration for a transfer, not when the candidate is already working in another country without authorization.  

Your company has a temporary position in the Sydney, Australia office and it has been difficult to find the perfect person for the assignment. During the selection process, you discover that your top candidate is a U.S. Lawful Permanent Resident (LPR) and that a long stay outside the U.S. could affect his LPR status and his eligibility for U.S. naturalization.  He asks that, if selected, you take the necessary steps to ensure he does not lose his LPR status or his eligibility for U.S. citizenship. The company’s immigration lawyer advises you that a LPR who remains outside the U.S. for more than one year could be considered to have relinquished his LPR status and an absence of six-to-twelve months could break his continuous residence for naturalization. You expect the assignment to last up to two years and determine that the following steps are necessary to protect the candidate while he is overseas:

• Apply for a Reentry Permit – An LPR who has been absent from the U.S. for more than one year could be found to have abandoned his LPR status and be refused admission.  A Reentry Permit (RP) allows a LPR to reenter the U.S. during the validity period (generally two years) under the presumption that he has not abandoned his LPR status. The LPR must apply for the RP and complete the biometrics step in the U.S. before departure. He may depart before the RP is approved. If the overseas assignment will run longer than two years, the LPR may apply for a new RP but he must return to the U.S. before the RP expires and be physically present in the U.S. when he reapplies;

• Apply to preserve residence for naturalization – A LPR must meet several requirements to naturalize, including:

♦ residing continuously in the U.S. for five years (3 years if qualifying as a U.S. citizen spouse) following the granting of LPR status; and

♦ being physically present in the U.S. for at least half of the qualifying period (30 or 18 months, as applicable).

A break in the continuity of residence requires the LPR to reset the five (or three) year clock once he returns to the U.S.  Absences under six months do not break the continuity. Absences of six-to-twelve months will not break the continuity if the LPR has a reasonable explanation, e.g., employment overseas for a U.S. employer. An absence of more than one uninterrupted year will break the chain unless the LPR files an application to preserve the continuity of residence. The LPR may file this application if he:

♦ has been physically present and resided in the U.S. as a LPR for one uninterrupted year prior to the absence; and

♦ will be employed overseas by the U.S. government, a U.S. research institute, a U.S. corporation engaged in foreign trade and commerce (including a U.S. majority-owned subsidiary), or an international organization of which the U.S. is a member.

You agree to file the necessary applications for the LPR and also advise him to discuss with immigration counsel the additional things he must do to maintain LPR status while overseas (e.g., filing U.S. tax returns as a resident of the U.S. and maintaining other ties with the U.S., including ownership of property, bank accounts, driver’s license). Now you are ready to secure the necessary visa for the LPR to work and reside in Australia and make any other arrangements necessary to get him on his way to his overseas assignment.