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Immigration Reform Could End US Employers’ Compliance Nightmares


By Hector A. Chichoni

For quite some time now, the government has been carrying out immigration enforcement actions which have become a nightmare for employers in the United States. Although this nightmare often results from employers’ lack of compliance; the government shares a great deal of the blame for not providing employers with avenues to resolve those problems. In other words, because of political pressure, the government has created an immigration compliance imbalance by enacting laws which only provide for compliance and enforcement, but no solutions. Moreover, this imbalance can only be resolved by business-smart sweeping changes, which will allow employers to meet their human resource needs, avoid fines, and encourage compliance while protecting the domestic work force.

The following hot-off-the-press immigration information quoted directly from The Washington Post, Associated Press, and Politico, seems to suggest that an immigration reform deal being worked out in Congress will contain proposals that could end the nightmare. If these proposals are enacted, a wide variety of industries, such as hospitality, construction, retail, information technology, agriculture, meatpacking, healthcare, and others will be among the first industries to benefit. In his article, Business, Labor Dispute Holds Up Senate Immigration Proposal (Washington Post, March 22, 2013), David Nakamura states that:

"The AFL-CIO and Chamber of Commerce have agreed to a general framework that would add up to 200,000 new visas per year for a new guest worker program for foreigners. The Chamber has pushed for the workers – who would include maids, waiters, child care workers, home nannies and meat packer — to be paid one step below the median hourly wage scale in their respective industries. But the labor union wants them to be paid one step higher than the median. In the case of a waiter, for example, the difference would be between $8.93 per hour (or $18,600 a year) and $10.61 per hour ($22,100), according to the sources … Randy Johnson, the Chamber’s senior vice president of Labor, Immigration, and Employee Benefits, said in a statement: “Our position has consistently been that the wage issue should be resolved by sticking with current law.  Any temporary worker program would require that an immigrant worker be paid the greater of actual wages being paid to comparable American workers or the prevailing wages.  In some cases, the prevailing wage determination by the U.S. Department of Labor concludes that the employer’s actual wages are less than prevailing. If DOL so determines, then the employer must pay the prevailing wages in order to hire a foreign worker. The requirement to rely on a DOL prevailing wage determination has been in US immigration law since 1990. All the business community is saying is that we want to retain this standard.” Erica Werner, in her article Senate Gang Of 8 Close On Immigration Deal (The Associated Press, March 22, 2013) states that:

"A bipartisan group of senators is nearing agreement on a comprehensive immigration bill that would put illegal immigrants on a 13-year path to citizenship, officials with outside groups keeping up with the talks said Thursday. . . .  The legislation also would install new criteria for border security, allow more high- and low-skilled workers to come to the U.S. and hold businesses to tougher standards on verifying their workers are in the country legally, according to outside groups and lawmakers involved. Together, the measures represent the most sweeping changes in immigration law in decades . . . .   Several officials with outside groups said the biggest remaining areas of disagreement dealt with legal rather than illegal immigration. Top among them was a proposed program to bring in tens of thousands of new immigrants to fill low-skilled jobs. It had been the subject of difficult negotiations between the U.S. Chamber of Commerce and AFL-CIO . . . .  The two sides made substantial progress, including agreeing on a cap of 200,000 visas in the new program, but they continued to disagree on wages for the new workers, according to one official. Senators were mediating offers and counteroffers . . . .  The officials described the status of the discussions on condition of anonymity because they were not authorized to speak publicly about them . . .  The new bill would contemplate a 10-year wait for illegal immigrants already in the U.S. before they could get a green card allowing them permanent residency, senators have said. During that time they would be in a provisional legal status and would not have to return to their home countries as current law requires. Once they got the green card, they would have to wait three years to be able to apply for citizenship, compared to the five-year wait that most green-card holders currently have to abide, outside officials say they've been told. The new three-year wait was first reported by The New York Times. The bill will be lengthy and cover numerous other thorny issues, including mandating a currently voluntary program called E-Verify that helps businesses check their workers' papers, as much as doubling visas that go to high-tech workers, and limiting family-based immigration to put a greater emphasis on skills and employment ties instead."

Lastly, Kate Nocera, Manu Raju, and Anna Palmer in their article Senators Hit Late Snag In Immigration Talks (Politico, March 22, 2013), wrote that:

"Under the bipartisan outline of a deal the Gang of Eight reached in January, businesses would be able to hire lower-skilled immigrant workers when Americans were not available or willing to fill jobs. The outline calls for a program for immigrants to fill farm worker positions when Americans are unavailable. It would create a sliding scale based on the economy’s strength, allowing for more lower-skilled immigrants to enter the country in periods of job growth and for fewer foreign low-skilled workers when the economy is sagging."

The reality is that the U.S. Immigration and Customs Enforcement (ICE) will continue to send a very clear message that, for employers, their worst immigration compliance nightmare continues. Therefore, the present immigration compliance situation in our country is unsustainable. As we move towards a solution, Congress and the President will have to forge an agreement on immigration reform.  A reform with sweeping changes, which will try to cure the immigration compliance imbalance that has been created by previous laws and regulations, seems now within reach.  But the devil does not seem to be so much in the detail, but in the deal.

 

 
 
 
 

CBP Announces Automation of Form I-94 Arrival/Departure Record - Eliminates Paper Forms, Streamlines Admission Process


On March 21, 2013, the U.S. Customs and Border Protection (USCBP) announced that it submitted to the Federal Register a rule that will automate Form I-94 Arrival/Departure Record. 

This rule should streamline the admissions process for individuals lawfully entering the U.S.  Many readers of this blog would recall that CBP has already eliminated the use of Form I-94 for visitors entering the U.S. under the Visa Waiver Program (ESTA).

Form I-94 provides foreign national visitors and workers entering the U.S. evidence they have been lawfully admitted to the U.S. which is necessary to verify alien registration, immigration status, and employment authorization.

 The automation means that affected visitors will no longer need to fill out a paper form when arriving to the U.S. by air or sea, improving procedures and reducing costs. The change will go into effect 30 days after the rule is published in the Federal Register. 

 Travelers wanting a hard copy or other evidence of admission (which is important to have for those authorized for employment for purposes of Form I-9) will be directed to ww.cbp.gov/I94* to print a copy of an I-94 based on the electronically submitted data, including the I-94 number from the form, to provide as necessary to benefits providers or as evidence of lawful admission. (www.cbp.gov/I94 ).

As part of CBP’s work to bring advances in technology and automation to the passenger processing environment, records of admission will now be generated using traveler information already transmitted through electronic means. This change should decrease paperwork for both the officer and the traveler and will allow CBP to better optimize its resources.

For more information about this post, pleae contact Hector A. Chichoni at: 305.960.2277 or hachichoni@duanemorris.com.

This post does not constitute legal advice and does not establish an attorneyclient relationship.

 

 

 

 

 
 
 
 

USCIS Announces Today The Release of a New and Revised Form I-9


Today, Thursday, March 7, 2013, the U.S. Citizenship and Immigration Services (USCIS) announced that it will release tomorrow a new and revised version of Form I-9.  After several rounds of revisions and changes, the new and revised Form I-9 will be made officially available through the Federal Register. As required by the Immigration Reform and Control Act of 1986 (IRCA), the Form I-9 is used by employers to verify a new employee’s identity and to establish and employee’s employment eligibility in the United States. According to USCIS, the new Form I-9 contains formatting changes and the inclusion of additional data fields, including employee’s foreign passport information, telephone number, and email address.  Moreover, the new Form I-9 has been expanded from one to two pages and the form’s instructions provide additional clarifications. USCIS’s notice states that:  

 Employers must use the new Form I-9 immediately; however, USCIS recognizes that some employers may need additional time in order to make necessary updates to their business processes to allow for use of the new Form I-9. USCIS recognizes that modifications to electronic systems may be particularly necessary for employers utilizing electronic Forms I-9.  For these reasons, USCIS is providing employers 60-days to make necessary changes. USCIS believes that the 60-day period will help alleviate the burden that immediate implementation of the newly revised Form I-9 would have imposed on employers. Note that employers do not need to complete the new Form I-9 “(Rev. 03/08/13)N” for current employees for whom there is already a properly completed Form I-9 on file, unless re-verification applies. Unnecessary verification may violate the anti-discrimination provision at section 274B of the INA, 8 U.S.C. 1324b, which is enforced by DOJ’s Office of Special Counsel for Immigration Related Unfair Employment.

USCIS’s notice also contains the dates that employers should begin using the newly revised Form I-9 and announces the date that employers can no longer use prior versions of the form.  The new Form I-9 with a revision date of “(Rev. 03/08/13) N” is available for use beginning from the date of its publication in the Federal Register.  Prior versions of Form I-9 “(Rev. 08/07/09) Y” and “(Rev. 02/02/2009) N” can no longer be used by the public effective 60 days from the publication date of the new Form I-9 in the Federal Register. Failure to use the new and revised Form I-9 can result in the imposition of penalties under the Immigration and Nationality Act.  U.S. Immigration Customs Enforcement will be responsible for enforcing compliance with the new and revised Form I-9.

Employers can obtain the new Form I-9 by calling USCIS’ National Customer Service Center at 1-800-375-5283 or by visiting USCIS’s I-9 Central web page at www.uscis.gov/I-9Central. A Spanish-language version of the new Form I-9 is available at www.uscis.gov for use in Puerto Rico only.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an atttorney-client relationship.

 

 

 

 

 

 

 

 
 
 
 

Questionable Documents During the I-9 Process: Guidance from the OSC


Employers often encounter unfamiliar documents during the I-9 Employment Eligibility Verification Process.  Not only are there numerous types of documents issued by the Department of Homeland Security to foreign nationals, but there are also numerous versions of the social security card and at least 50 different state driver’s licenses. With so many possibilities it is often difficult for employers to decide when to reconsider a document that looks questionable and when not to.

The Office of Special Counsel (OSC) a division of the Department of Justice is  responsible for investigating immigration-related discrimination in the workplace.  The OSC has provided guidance to employers regarding presentation of questionable documentation during the I-9 process.  Employers should use this advice to create a standard policy to be followed in all circumstances. With consistency in implementation of the policy, employers may reduce their likelihood of violating any of the anti-discrimination provisions in the immigration law. The OSC recommends that to avoid even the appearance of a violation, employers should inspect documents in the same manner for all employees.

If an employer believes that a document being presented during the I-9 process does not reasonably appear to be genuine or relate to the person presenting it, the employer may reject the document.  In making this determination, employers should look to the photograph, the personal details, such as date of birth, height, and weight, as well as the quality of the document itself to make this determination. Presented documents may also be compared to photographs of official documents provided in the USCIS Employer I-9 Handbook.  Because, there are so many versions of immigration-related documents, it would be difficult to refuse to accept a document on this basis alone, although it is a helpful guide for employers.

Refusing I-9 Documents: When an employer decides that a document is not acceptable for whatever reason, the employer should ask the employee if he or she is able to provide other documents from the List of Acceptable Documents on page 2 of the I-9 form. The OSC advises that this will not be document abuse, if the originally presented documents were genuinely problematic.

The best way to approach an employee in this circumstance is to explain the problem with the existing documents and provide the employee with the List of Acceptable Documents and ask the employee to return with new documents, within 3 days of hire. No adverse action should be taken prior to the fourth day after hire, thus giving the employee the full legally allotted time to present the new documents.

The OSC also cautions, however, that if a work-authorized employee’s genuine documents are erroneously rejected based on the belief that they are fraudulent, the employee may choose to file a charge with the OSC.  In this instance, the OSC’s investigation will focus on the intent of the employer.  Therefore, as long as the employer had a non-discriminatory intent in requesting more or different documents, no charge will be brought against the employer.  

On the other hand, if an employer knows that a document is fraudulent and chooses to accept it during the I-9 process, the employer may be deemed  to have  knowingly hired an undocumented worker,  which is a civil and criminal violation of federal law.

Honesty Policies: The OSC also considers the situation wherein an employer refuses to rehire an employee who it believes provided fraudulent documents in the past. This could happen in two scenarios: (1) An employee whose documents were rejected within 3 days of hire and was thus terminated returns sometime later with new documents  or (2) an employee admits to the employer that he or she used fraudulent documents in the past, but now has valid documents.

In the first scenario, the OSC considers the evidence of fraudulent documents being  presented as  circumstantial and cautions that the rejection of a presently work-authorized individual from employment based on prior undocumented status, could allow for the employee to file a charge under the anti-discrimination provision.  The OSC does not provide guidance on the second scenario, but in general it is in the employer’s long-term best interest not to rehire the employee using the new documents.

If a claim were filed by an employee in either scenario described above, the OSC’s investigation would focus on  the following factors:

  • Does a company have an Honesty Policy?
  • How consistently is the employer’s Honesty Policy applied to employees who make false representations on employment applications or other employment forms?
  • Is the employer using enforcement of the honesty policy in this circumstance as a pretext for national origin or citizenship status discrimination?

         In general, the more consistently an employer follows its own honesty policy on a regular basis in all applicable instances, the less likely the OSC will be to find a violation when the claim involves I-9 documentation issues. If a company does not have an honesty policy or does not regularly follow it, decisions will have to be made on an ad hoc basis, but should always be guided by legal considerations, and prior company actions.

In any of the difficult  situations described above, whether it be reviewing questionable documents, completing I-9s with new documents, or terminating employees for false information, seeking the advice of employment and immigration law counsel is always advisable prior to making any decisions that could ultimately result in legal action against the employer.

For additional information regarding I-9s, immigration-related discrimination, or any other immigration matters, please contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

 

 
 
 
 

Social Security Numbers, I-9s and On-Boarding: Employers Beware


How can something so simple as a field on the I-9 form requesting an employee’s social security number be so complicated? “It’s the government, stupid.” In an attempt to clarify the issues surrounding social security numbers and the I-9 form, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has provided guidance to employers on when and how social security numbers and social security cards should be requested from employees.

The Basics:  There are three basic rules for social security numbers and I-9s: (1) If an employee refuses to provide his or her social security number when completing Part 1 of the form, the employer must accept this decision and may not take any adverse action against the employee for refusing to provide the number. (2) If an employee does not yet have a social security number, but is authorized to work, the employer cannot delay I-9 completion or hiring solely for this reason (3) The employer may never request to see specific documents, such as a social security card, for completion of Part 2 of the form.  Doing so would be considered to be Document Abuse, a form of I-9 based immigration related discrimination.

Making Requests for Social Security Numbers: In its recent guidance, the OSC addresses the situation when an employer requests the social security number or card from an employee for purposes other than completing the I-9 form such as for payroll or benefits. In this circumstance, OSC recommends communicating clearly the purpose for the request, as well as making the request outside of the I-9 completion process. Being clear about the purpose and keeping the request outside of the I-9 completion process will ensure that there is no confusion on the employee’s part and no appearance or suggestion of document abuse or other immigration-related discrimination. As always, employers should ensure that such requests remain consistent irrespective of the citizenship status or national origin of the employee. 

Electronic On-Boarding Systems: The OSC also warns employers against asking to see an original or even a copy of an employee’s social security card for any  purpose, even those unrelated to employment eligibility verification as it too may create the appearance of violating immigration-related anti-discrimination provisions. Similarly, the request for a social security card  during an electronic payroll or on-boarding process that combines various payroll and new hire procedures, including the employment eligibility verification process, may constitute a request for a specific document for employment eligibility verification purposes, potentially implicating the immigration related discrimination provision prohibiting document abuse.  

Late Issuance of SSNs: When foreign nationals who have been sponsored for work-related visas, such as H-1B, L-1A or TN, first enter the United States, it is often the case that the issuance of their social security numbers will take 4-8 weeks. Employers should develop a process to pay these  individuals while they are waiting for social security numbers to be issued.  The Internal Revenue Service (IRS) advises employers that no federal law prohibits either the employment of, or payment of wages to a person solely because that person lacks a social security number. State and federal labor laws may also be implicated if wages are delayed.  When facing this situation, employers should consult with counsel and follow IRS guidance to pay individuals who do not yet have social security numbers.

For additional information regarding Social Security Numbers, I-9s, or any other immigration matters, please contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

 
 
 
 

DOJ Office of Special Counsel Issues Guidance on Employment Hiring Practices


The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has cautioned against requesting that a job applicant specify their citizenship and immigration status during the application phase of hiring.  The OSC warns that such an act may lead potential non-citizen applicants to believe that the employer wrongly considered this information in its hiring decision.  According to the Immigration and Nationality Act, refusing to hire a work-authorized individual based on citizenship or immigration may constitute a violation of its anti-discrimination provisions. 

The warning comes in response to questions regarding software and internet sites that request the visa status of job seekers and then provide it to potential employers.  The OSC  advised that systems that attempt to determine immigration status and work eligibility in advance of an applicant’s acceptance of a job offer may lead to mischaracterizations and may not account for potential changes in an applicant’s status that may occur prior to completion of Form I-9.

The OSC is the agency responsible for the enforcement of laws that prohibit discriminatory practices in the recruitment, hiring, employment eligibility verification (Form I-9) process or dismissal of persons authorized to work in the U.S. as well as ensures compliance with the Immigration and Nationality Act. These practices include citizenship status discrimination, national origin discrimination, document abuse (requesting more or different documents during the I-9 process) and retaliation.  Below are some suggestions from the OSC as to how to avoid immigration-related employment discrimination:

  1. Treat all people the same regarding job announcements, submittal of applications, interviewing, job offers, work authorization verification, hiring, and firing;
  2.  Avoid “citizens only” hiring policies or requiring a certain immigration status;
  3.  Provide the same job information over the telephone and use the same application form for each applicant;
  4. Allow the employee to choose which documents to present, so long as they prove identity and work authorization and are included in the acceptable list found on the back of Form I-9; and,
  5. Base all decisions about termination on job performance and/or behavior.  Avoid decisions based on appearance, accent, name, or citizenship status.

For more information about the OSC and ways to avoid discrimination, visit: Office of Special Counsel.

 For additional information regarding The Office of Special Counsel for Immigration-Related Unfair Employment Practices, or any other immigration matters, please contact Valentine at 215-979-1840 or at vbrown@duanemorris.com. Special thanks to Ashley Litostanski, immigration paralegal, for assistance in preparing this blog.

 

 

 

 

 

 
 
 
 

Cautionary Document Abuse Tale for Electronic I-9 Users


John Fay, Esq. of the I-9 and E-Verify Blog writes about the latest investigation of the Department of Justice Office of Special Counsel for Immigration Related Discrimination. The Department has opened a document abuse investigation related to the documentation request system of the company's electronic I-9 provider. John explains the nateure of document abuse and what employers should look for when moving to an electronic I-9 provider.

Justice Department Sues Major U.S. Egg Producer for Discrimination Caused by Electronic I-9 System

 
 
 
 

Look at the Facts not the Faces: Rug Manufacturer Pays $10K to USC Citizen of Hispanic Origin for Discrimination during the I-9 Process


The Department of Justice (DOJ) announced another recent settlement with an employer for document abuse during the I-9  process. A former employee of Garland Sales, Inc., filed a complaint with the DOJ  Office of Special Counsel for Immigration Related Discrimination after he was terminated from employment for refusing to provide his employer with the specific documentation it requested for completion of his I-9 form.

The complainant was a naturalized U.S. citizen of Hispanic origin. For completion of his  I-9, he provided an unexpired driver’s license (List B) and an unrestricted social security card (list C). Garland accepted these, but also requested that he provide his green card, to prove that he was legal to work in the United States. When the worker objected, Garland terminated his employment.

The documentation the employee presented were absolutely sufficient for I-9 purposes, therefore Garland committed document abuse when it requested more and different documents than what was required for the I-9 form. The employee was well within his rights to refuse to provide the additional document, and in fact would not have even had a green card in his possession because he had already become a US Citizen.

In an effort to make sure that they are doing everything possible not to hire an undocumented worker, employers sometimes go beyond what is allowable during the I-9 process. Unfortunately this has negative consequences as well, as shown by the settlement Garland reached with DOJ, which included a civil money penalty, back wages and retraining of all workers involved in the I-9 process. 

In addition, it is much more likely now that Garland will be subject to an I-9 audit by ICE and repeated reviews of its I-9 and hiring practices by the DOJ.  The best way to avoid these long term consequences is to ensure that hiring, I-9 and E-Verify processes are fair and non-discriminatory in nature. As the DOJ campaign says “Look at the Facts, Not the Faces.”

For more on acceptable I-9 procedures, review the DOJ's Guide to Fair Employment.

 

 
 
 
 

5 States Add E-Verify Requirement for Employers


On January 1, 2012 several new E-Verify laws became effective: Now many employers in Louisiana, Alabama,  Gerogia, Lousiana, South Carolina and Tennessee, must use E-Verify.

  • Alabama:   The new requirement goes into effect for state contractors on January 1, 2012 and for all employers and business entities on April 1, 2012
  • Georgia:  The new E-Verify requirement mandates that employers with 500 or more workers use E-Verify for their employees starting on January 1, 2012.  As of July 1, 2012, businesses of 100 or more employees will have to start using E-Verify as well, and as of January of 2013, all businesses  with  10 or more employees will have to use the system.  Businesses of fewer than ten employees are exempt from the E-Verify requirement.
  • Louisiana:  The new requirement applies to private employers who will bid on public entity projects or enter into such contracts on or after January 1, 2012.  Under the new law, private employers who bid on or enter into a public entity contract for physical performance of services must confirm in a sworn affidavit that the employer is using E-Verify to validate the legal citizen or legal alien status for all employees in the United States.  If the employer in question is awarded the contract, he must conduct  E-Verify queries for all new hires in Louisiana who will be used for the duration of the contract..  This requirement applies to general and sub-contractors.
  • South Carolina: The South Carolina Illegal Immigration and Reform Act requires  all employers to enroll in E-Verify effective January 1. 2012, and to verify the legal status of all new hires via E-Verify within three business days. 
  • Tennessee:   The Tennessee Lawful Employment Act of 2011 mandates that all state and local government agencies, as well as all private employers with 500 or more employees, must enroll and participate in E-Verify or request and maintain an identity/employment authorization document from all new hires starting on January 1, 2012.   The implementation date of a mandatory E-Verify requirement  for private employers with 200 to 499 employees is July 1, 2012, and for employers with 6 to 199 employees the requirement starts on  July 1, 2013.

For more information on this or any other E-Verify topic, please contact Valentine Brown at 215 979-1840 or by email vbrown@duanemorris.com

 
 
 
 

Free Seminar hosted by ICE in NY on 9/20: IMAGE Program Basics


On Tuesday, September 20th, ICE will be holding an information seminar regarding its employer protection and compliance program, known by the acronym IMAGE (ICE Mutual Agreement between Government and Employers). The program aims to assist employers in discovering and avoiding fraudulent documentation in connection with their workplaces, as well as helping employers develop a more secure and stable workplace on the whole.  To become "IMAGE certified" employers will have to enroll in the government’s E-Verify program, establish a written hiring and employment verification policy that includes internal Form I-9 audits at least once per year, and submit to a Form I-9 inspection.  If employers satisfy all of these steps, ICE in turn promises to waive potential fines for substantive violations as long as they are discovered on fewer than fifty percent of submitted I-9s; mitigate fines if substantive violations prove to be present in more than fifty percent of submitted I-9s; forego I-9 inspection for another two years after an initial such inspection; and provide information and training before, during, and after inspections.  Beyond the abovementioned benefits available for enrolling in the IMAGE program, employers also benefit from public recognition of IMAGE certification, brand name protection, and avoidance of lawsuits or other legal actions arising from unauthorized employment. The seminar will take place specifically at Omni Berkshire Place at 21 East 52nd Street, New York, NY 10022.  ICE requests that those interested in participating in the seminar register at www.ice.gov/image 

For more information on I-9 compliance, I-9 audits and whether the IMAGE program may be advisable or even beneficial for your company, please contact me at vbrown@duanemorris.com  or 215 979-1840.
 
 
 
 
 

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.