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E-Verify 2012-2013 Update


By Hector A. Chichoni

From an US immigration compliance perspective, 2012 was an extreme busy year for E-Verify.  In light of the upcoming immigration reform, 2013 promises to be no less.  The following are a few E-Verify highlights gathered from a variety of government sources:

Made available on line:

1. Self-Assessment Guides for E-Verify users;

2. Quick Audit Report (which allows employers to quickly review their E-Verify activity);

3. The E-Verify Employers Search Tool (which allow users to see which employers are using E-Verify);

4. Tentative Non-confirmation Notices and Referral Letters in 9 additional languages;

5. E-Verify overview in Spanish.

Expanded the following services:

1. Self-check available nationwide in February 2012, giving access to everyone over the age of 16;

2. Florida became the second state to join "Records and Information from DMVs for E-Verify" (RIDE);

Incorporated the following technical enhancements:

 1. Supports mobile Web browsing as well as four major browsers: Internet Explorer (version 6.0 and above), Firefox (version 3.0 and above), Chrome (version 7.0 and above) and Safari (version 4.0 and above).

Experienced a tremendous growth:

1. E-Verify enrollment increased by 35% in 2012, and it continues to grow by more than 1,500 employers each week;

2. On January 12, 2013, there were more than 424,000 employers enrolled in E-Verify (1.2 million worksites) and, as of March 19, 2013, there are more than 432,000 employers enrolled. 

If you wish to obtain additional information in connection with this post, please contact Hector A. Chichoni at: 305.960.2277 or at hchichoni@duanemorris.com.

This post does not constitute legal advice for, or establish an attorney-client relationship with, the reader. 

 
 
 
 

USCIS Provides An Update On The 2014 H-1B Cap


By Hector A. Chichoni

Today, Monday, April 8, 2015, the United States Citizenship and Immigration Service (USCIS), issued an update on the 2014 H-1B cap stating that:

"For the first time since 2008, USCIS, reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period ... USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing." 

The content of this post does not constitute legal advice or establish an attorney-client relationship with the reader. 

If you need further information, please contact Hector A. Chichoni at hachichoni@comcast.net or at 305.960.2277. 

 
 
 
 

CBP Publishes Interim Rule on Automation of Form I-94 Arrival/Departure Record - Eliminates Paper Forms, Streamlines Admission Process


U.S. Customs and Border Protection (CBP) today published an interim final rule in the Federal Register to automate Form I-94, Arrival/Departure Record. Effective on April 26, 2013, the rule streamlines the admissions process for individuals lawfully visiting the United States.

Readers of our alerts would recall that CBP had announced on 03/21/2013 that it has submitted to the Federal Register a rule that would automate Form I-94 Arrival/Departure Record to streamline the admissions process for individuals lawfully visiting the United States.

Form I-94 provides international visitors 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.

It is expected that once the process is fully implemented, it will facilitate security and travel while saving CBP an estimated $15.5 million a year.

Travelers wanting a hard copy or other evidence of admission will be directed to www.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 ).

CBP’s 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.

If you wish to obtain additional information in connection with this post, please contact Hector A. Chichoni at: 305.960.2277 or at hchichoni@duanemorris.com.

This post does not constitute legal advice for, or establish an attorney-client relationship with, the reader. 

 
 
 
 

The U.S. Customs and Border Protection Announced that Has Submitted to the Federal Register a Rule that Will Automate Form I-94 Arrival/Departure Record


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. 

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.

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).
 
 
 
 

H-1B Cap-subject Petitions Likely To Be Subject To A Lottery


On March 18, 2013, the U.S. Citizenship and Immigration Services (“USCIS” or “the Service”) announced, based  on feedback received from “stakeholders,” that it anticipates receiving “more petitions than the H-1B cap between April 1, 2013 and April 5, 2013," and that it may receive “more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. master's degree or higher between April 1, 2013, and April 5, 2013.” USCIS also stated that “this could be the first time since April 2008 that the H-1B cap will require a lottery.” 

So, what does USCIS mean by the H-1B cap requiring a lottery? It means, nothing less, that USCIS will conduct a random lottery for all H-1B cap-subject petitions, which have been accepted for processing, if the number of petitions received is significantly higher than there are numbers available under the cap.

USCIS has conducted similar random lotteries for past fiscal years. In FY2008, for example, USCIS conducted a random lottery for H-1B petitions subject to cap received for processing from April 1 to April 5, because it had received a significantly higher number of petitions, almost twice as many, for the number of available spots under he cap. USCIS, however, can implement a random lottery at any time if it begins to receive a large number of petitions for a fewer number of available spots. A good example of this type of H-1B lottery is the one USCIS conducted at the end of January 2011.

However, if an employer submits an H-1B petition to USCIS on April 1, 2013 and the petition is accepted for processing; and spots are still available under the cap, then the petition will not be subject to a lottery.

No one knows exactly how quickly the H-1B cap will be reached, but our advice to petitioners is to file the H-1B petitions by April 1, 2013 to ensure that they do not miss the FY 2014 cap, or the lottery, if one is implemented.

For Further Information If you have any questions about this posting, please contact Hector A. Chichoni at hachichoni@duanemorris.com or 305.960.2277.

 

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

 

 

 

 

 

 

 
 
 
 

E-Verify Launches RIDE Program to Include Driver's License Verification; Starts with Mississippi


On June 13, 2011, U.S. Citizenship and Immigration Services (USCIS) launched the Records and Information from DMVs for E-Verify (RIDE) program. Once fully functional, the RIDE program will enable the E-Verify system to check driver's license information provided by employees against what is contained in state motor-vehicle records. Currently, Mississippi is the only state participating. At this time, 4,336 employers representing more than 9,000 worksites in Mississippi use E-Verify.

 

USCIS reports that more than 80 percent of employees present driver's licenses for I-9 completion; therefore, this tool may be beneficial in helping to improve E-Verify's accuracy and to combat document fraud. The agency's ultimate goal is to extend this program to all state departments of motor vehicles (DMVs) nationwide.

 

This is part of a strategic expansion reported in the Government Accountability Office's December 2010 report. Prior E-Verify, enhancements included the addition of U.S. passports to the photo-matching process in September 2010.Employers should be aware that full implementation of RIDE will likely lead to a large increase in tentative nonconfirmations due to discrepancies and errors in state motor-vehicle databases.

 

 

 
 
 
 

Summer Will Be Sweltering for 1,000 Employers Caught in Latest ICE Crackdown


This article was originally published in Human Resources News by HR Hero (M. Lee Publishers).  It is reproduced here with permission.

 

Summer Will Be Sweltering for 1,000 Employers Caught in Latest ICE Crackdown

By Holly Jones

 

Temperatures aren’t the only things heating up this week. On Wednesday, June 15, the Obama administration shifted the ever-intensifying immigration dialogue back to federal turf when U.S. Immigration and Customs Enforcement (ICE) announced that it will begin conducting its second round of immigration audits this year.

 

Authorities with ICE, a division of the Department of Homeland Security, declined to name the businesses that will be targeted or their locations, but at least 1,000 companies soon will be subject to inspection of their I-9 forms and other hiring records. The businesses range in size and reportedly include those “critical to infrastructure and key resources."

 

The goal of these investigations is to ensure that companies of all sizes and in all states are hiring only individuals who are authorized to work in the United States. A similar round of audits was conducted in February, bringing the total for the fiscal year to a record 2,338 audits. Additionally, over $7 million in fines have already been assessed against employers found in violation of federal immigration laws.

 

Hector A. Chichoni, a partner with the Florida law firm of Duane Morris LLP and chair of the firm’s [Florida] immigration practice, weighed in with his thoughts on the ICE announcement: “The Obama administration has targeted employers since the beginning. It is disappointing to hear about this new round of audits, but not surprising. We predicted that a new wave of audits would take place in January 2011, when ICE announced the establishment of a new Employment Compliance Inspection Center to centralize the processing and review of I-9 employment eligibility verification forms. This new center gives ICE the ability to pursue a large number of I-9 audits simultaneously. The sad reality is that these audits create more problems than they solve. They are very costly to employers, and in times of economic downturn, they have a tremendous impact in terms of loss of productivity and are expensive to defend them. U.S. employers need creative immigration solutions that will allow them to strengthen our economy, not I-9 audits.

 
 
 
 

Navigating the Barriers to Global Mobility


"March 21, 2011 at 1:39 pm by: HR Hero Line

By Hector A. Chichoni

 

Because of tremendous advances in technology and transportation, companies are able to locate resources and skills in different parts of the world and manage them as if they were in one place. Competition for resources and skills is brutal and requires speedy and fluid access to global markets. When U.S. employers have a global workforce, HR is responsible for strategizing, planning, and frequently implementing transfers of employees internationally.

 

That can be a daunting task considering the many variables and barriers that can come up regarding transfers. Those barriers can include but aren’t limited to numerous international immigration laws and regulations that are often confusing. HR also must consider employment and benefits laws, types of assignments, compensation, allowances, taxes, social security, housing, and health care.

 

Many employees will have family concerns, including a spouse’s ability to find work and schooling for children. Finally, global transfers can be made even more difficult by cultural, social, and language differences as well as other factors, such as the war against terrorism, tsunamis, and many other different kinds of unforeseen events.

 

HR is essential to the strategic management of global mobility. Great care must be taken for transfers to work well and efficiently. Moreover, strategic management of global mobility must take into account employees’ expectations and allow sufficient time for a smooth transition to take place. Failing to manage expectations or rushing a transfer will irreparably hinder the international assignment. No wonder it is not uncommon to hear of global transfers that end in vain.

 

In most instances, the key to successful global transfers is planning well in advance. In general, HR managers have many methods at their disposal to strategically manage global mobility. For example, international HR managers can establish forward bases in other countries to allow the processing of employees as well as subcontract country-specific providers of specialty and allied services, which can assist to resolve any local issues and barriers.

 

Here are a few of the most important variables and barriers HR needs to know about to ensure smooth global transfers.

 

Immigration

 

Each country has its own immigration system. Some immigration systems are well developed with their own sets of laws, regulations, rules, and policies regarding visa and/or work permit options for employees on foreign assignment (e.g., the United Kingdom, Singapore, and Brazil).

 

Most of the world’s developed countries have established bureaucratic systems to determine who has access to their internal markets. For many, those systems are administered by a combination of at least two or three distinct government ministries or agencies under those ministries (e.g., ministries of labor and employment, interior, justice, foreign relations, and, in some cases, law enforcement). However, almost all countries, with rare exceptions, have their consular offices involved in visa issuance overseas.

 

Visas are generally obtained from embassies and consulates in the country of departure before entering foreign countries. Processing times vary depending on the consulate or embassy involved and the applicant’s nationality. Some exceptions exist.

 

Usually, employees and businesspersons may enter a country to engage in business negotiations and to begin or finalize a transaction or services agreement (the equivalent of the B-1 visitor for business visa in the United States).

 

The number of professional work visas available varies greatly from country to country. Countries often have a basic visa category for professionals with college degrees entering on a temporary basis (the H-1B visa in the United States).

 

The validity periods also differ significantly from country to country. They usually range from three months to a year, with renewals or extensions still possible. It can take from two or three weeks to three or four months to obtain work visas. Larger companies/employers with good track records tend to receive faster visa approval.

 

A great number of countries favor multinational corporate transferees — in other words, visas for “intra-company” transfers, which allow managers, executives, and those with specialized knowledge to enter and work in the country on a temporary basis (similar to the L-1A visa for managers and executives and the L-1B visa for specialized personnel employees in the United States).

 

Most HR managers and employees on foreign assignment are aware that processing times can be lengthy and unpredictable, especially as the security environment has become more rigorous since September 11, 2001. As a general rule, the key to visa approval is to present well-documented and well-qualified cases with the assistance of local specialists with excellent track records in providing legal immigration services.

 

Assignments

 

Different types of assignments are involved in global mobility: long-term, short-term, business trips, and more. Within each, there are definitions and requirements, and needless to say, every assignment also contains the potential for success or failure.

 

Depending on the employer/company, assignments longer than a year could be considered long-term assignments. Companies usually transfer the employee, as well as her family, with full relocation benefits provided. Assignments lasting less than one year could be considered short-term assignments. Short-term assignments usually come with benefits like housing, modified per diem/cost of living and hardship allowances, and tax equalization coverage.

 

Business trips are regarded as assignments lasting between one and 90 days. Employees in those types of assignments typically are paid by the home country. Instead of housing, the company places the employee in a hotel and provides a per diem allowance or reimburses her for expenses incurred.

 

Assignment Allowances

 

Some different types of incentive allowances are overseas mobility, premium, hardship, cost of living, housing, and home leave. Roughly half of U.S. companies provide mobility incentives to employees going overseas, basically paying an additional 10 to 20 percent of the gross home salary. Some companies have a salary cap for location and hardship allowances, but the majority don’t.

 

Location-dependent mobility allowances may cap at 30 or 35 percent, but some companies add additional allowances for such things as remoteness, being in a war zone, and security. For cost-of-living adjustments, a large number of companies use outside service providers (e.g., ECA International) that use a calculation of base salary, net salary, home spendable income, index, and host spendable income. Cost-of-living allowances are calculated by applying an index of spendable income.

 

Meanwhile, HR often will have to determine whether the company will provide free host housing or whether an employee contribution is required. Limits for housing allowances may also have to be set. Those limits often are determined by such things as the employee’s seniority, position/title, salary, and family size. Many of the determinations would have to include consideration for home leave and car/transportation allowances.

 

Taxes

 

Like immigration, tax issues can have a great effect not only on the employee but also on the employer. Advance tax planning is highly recommended before any international assignment, especially in cases involving long-term assignments. Advance tax queries should include qualifying periods for tax residence, treatment of foreign-source income, consideration of income tax treaties, and even social security tax equalization (totalization agreements).

 

Labor and Employment

 

Many countries don’t have “employment at will” like most of the United States does. Employers can be surprised by the extensive compensation or penalties that other countries require them to pay to employ or dismiss workers.

 

Employers expanding internationally should consider addressing not only immigration and visa issues for personnel working internationally but also things like taxes, assignments, and other issues that are a part of the much larger employment picture. While addressing those issues likely will continue to be a challenging responsibility for HR, long-term economic planning suggests that global mobility will continue, and therefore, its barriers are likely to get worse before they get easier. HR is well advised to plan ahead."

 
 
 
 

ICE Auditing 1000 More Companies' Hiring Records


 

[Read More]
 
 
 
 

Export Control Compliance and the New I-129 Form


Beginning February 20, 2011, employers filing the new Form I-129, and completing Part 6, to petition workers in the H-1B, H-1B1, L-1, and O-1A nonimmigrant categories, will have to certify, under penalty of perjury, that they have reviewed the Export Administration Regulations (“ERA”) and the International Traffic in Arms Regulations (“ITAR”), and that they have determined that either:

 

(1) A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or

 

(2) A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

 

Federal law prohibits the "export" of controlled technology and technical data to certain foreign nationals in the United States without a license. In completing Part 6, the petitioning employer is now required to understand U.S. export control law. Laws and regulations governing export controls are complex.

 
 
 
 

I-9 Compliance Crackdowns


Reprinted with  permission of the Society for Human Resource Management (www.shrm.org), Alexandria, VA, publisher of HR Magazine. © SHRM

I-9 Compliance Crackdowns

Vol. 56 No. 2 

2/1/2011  By Hector Chichoni 

Attention to detail is critical in filling out and checking eligibility-to-work documents.

Since enactment of the Immigration Reform and Control Act of 1986 more than two decades ago, employers have failed to fully appreciate the importance of the law in terms of Form I-9 compliance. With the federal government cracking down on noncompliant I-9s, employers need to take immediate steps to get their houses in order.

Officials with the U.S. Department of Homeland Security, specifically U.S. Immigration and Customs Enforcement, know that most U.S. employers are not fully compliant, so employers are at the center of the crackdowns. The agency’s strategic plan through 2014 states it will continue targeting employers by pursuing “effective worksite enforcement.” This includes civil and criminal enforcement.  

By establishing and maintaining effective Form I-9 compliance policies, employers can prevent potential liability and mitigate many potential violations. Employers should implement effective I-9 procedures that result in accurate, consistent and uniform preparation, maintenance and, ultimately, disposal of the forms.  

In addition, employers must, in the context of Form I-9 compliance, assess their legal exposure, educate managers on legal risks, and adopt HR practices that identify and prevent liability.  

Different Versions of I-9  

U.S. Citizenship and Immigration Services (USCIS) makes Form I-9 available in English and Spanish.  

The English version must be retained, while the Spanish version can be used for translation purposes only. The exception: In Puerto Rico, employers may retain and use either version.  

Form I-9 has undergone several revisions during the last two decades, with the first occurring in 1991. Subsequent 2007 and 2009 revisions primarily updated the number of acceptable forms for establishing identity and work authorization, and eliminated unsecure or out-of-date documents.  

During 2009, Form I-9 was revised twice. Important changes included a mandate that employers accept only unexpired documents, updates to List A and List C, and the addition of “non-citizen national of the United States” to the employee’s attestation box in Section 1.  

It is critical that employers use the proper Form I-9, available at www.uscis.gov/i-9, and complete it correctly.  

All new employees must complete Form I-9 if they were hired on or after Nov. 7, 1986, regardless of citizenship.  

Filling Out I-9s

On or before the employment start date, employers must provide a new hire with Form I-9, its instructions and the lists of acceptable documents to establish identity and work authorization. Ensure that the new employee legibly and properly completes Section 1 of Form I-9 and signs the form or acknowledges the signature no later than the first day of hire.  

An employer cannot request a Social Security number when the employee is completing Section 1 unless the employer is registered for and using E-Verify. The employee must provide a physical address, not a post office box. The new employee has three business days from the employment start date to present the necessary documents to establish his or her identity and employment authorization. USCIS has issued a clarification on how to calculate the three business days for I-9 purposes. According to instructions for E-Verify, the date of hire is counted as day zero, not day one. But the safest approach is to count the date of hire as day one.  

Moreover, employers should require employees who indicate on Form I-9 that they are “aliens authorized to work” to identify specifically their status and classification on the form.

The employee chooses which documents to provide. Although this specific requirement has been in place since 1986, it is often neglected.  

Employers are responsible for completing Sections 2 and 3 of Form I-9. The new employee must provide either one original document from List A or one original document from List B (regarding identity) plus one original document from List C (regarding work authorization). Further, if an employee provides a document from List A that meets the requirements, the employer should neither request additional documentation nor complete any portion of the List B or List C parts of Section 2 of the form.  

One important distinction: Employers registered for E-Verify must, when an employee presents a document from List B, require a document with a photograph.  

Employers are responsible for reviewing acceptable unexpired original documents and for comparing the information on the documents to that in Section 1. When reviewing originals, confirm that they reasonably appear to be genuine and relate to the new employee. Examine them carefully for obvious errors.  

Employers can compare documents to pictures found in USCIS’ Handbook for Employers (M-274) or Guide to Selected U.S. Travel and Identity Documents (M-396) for obvious errors relating to font, seal, photograph alignment and document presentation. Employers registered for E-Verify must use the information contained on Form I-9 to conduct a query on the newly hired employee. Therefore, it’s important to ensure that the form is correct.  

When an employee’s work authorization expires, the employer must reverify his or her employment eligibility. If Section 3 has been already used, use a new Form I-9 by writing the name of the employee in Section 1 and completing Section 3 of the new form. The new form must be attached to the original form. The employee must present a document that shows either an extension of employment authorization or new work authorization. If an employee is unable to show current work authorization by providing a document from List A or List C, the employer cannot continue to employ the individual.  

Employers can also use Section 3 when rehiring an ex-employee within three years of his or her departure. However, doing so makes it more difficult to keep track of the expiration of documents. An employer rehiring an ex-employee within three years should use a new Form I-9 to ensure that the latest list of acceptable documents is being used.  

One important I-9 rule is the “receipt rule.” An employer may accept a receipt in lieu of a document from List A, B or C if the receipt is for a replacement of a lost, stolen or damaged document. In this case, the receipt is valid only for 90 days from the date of hire, or, for reverification, until the date that the employment authorization expires. Receipts cannot be accepted if employment is to last less than three days. When the employee provides an acceptable receipt, record the document in Section 2 of Form I-9 and write down the word “receipt” and its document number in the “Document #” space. When the employee returns and presents the actual document, cross out the word “receipt” and the number, write the actual document’s number, and initial and date the change.  

The Immigration Reform and Control Act allows, but does not require, employers to make a copy of Form I-9 documents. If the employer copies documents for one new employee, it must do so for all new employees. Copies of documents should be attached to Form I-9 for audit purposes. Federal officers have informally commented that they prefer to see a copy of the documents when going through audits. Having the copies readily available can go a long way to show that an employer has complied with the act’s verification process in good faith.  

I-9 Audits  

Employers that audit their I-9 forms can use those audits to review, revise and correct their written policies. It is therefore important that employers assess their legal exposure and conduct internal audits of the forms. If an audit uncovers incorrectly completed forms, take steps to address the deficiencies, but don’t backdate any corrections or amendments to forms. Instead, conspicuously initial and date changes when remedial steps are taken.

If deficiencies are found in Section 1, the employee must sign and date any corrections. The employer must suspend or terminate any employee discovered to be working without authorization. It is wise to consult with an attorney before suspending or terminating an employee, as wrongful termination could lead to charges of discrimination and other claims.  

Substantive Violations

Federal agents or auditors often inspect I-9s. The purpose is to identify violations that might lead to criminal prosecution as well as substantive or technical violations that might result in issuance of administrative fines or warning notices.

Since the 1996 amendment to the Immigration Reform and Control Act, the federal government distinguishes between technical errors and substantive violations.  

Examples of technical or procedural violations include failure to:  

Ensure that an individual provides her maiden name, when applicable, or his or her address or birth date in Section 1 of the I-9.

Ensure that the individual dates Section 1 at the time employment begins.

Provide the document title, identification numbers and expiration dates of proper List A documents or proper List B and List C documents in Section 2 or 3, but only if legible copies of the documents are retained with the forms and presented at the I-9 inspections.

Provide the title, business name and address in Section 2.

Provide the date of rehire in Section 3.

The federal government must provide employers at least 10 business days to correct technical violations after notification. If an employer fails to correct violations on time, it will be subject to fines.  

Examples of substantive violations include failure to:

Prepare or present Form I-9.

Ensure that the individual provides his or her printed name in Section 1.

Ensure that the individual checks a box in Section 1 attesting to whether he is a citizen or national of the United States, a lawful permanent resident, or an alien authorized to work until a specified date.

Ensure that an alien authorized to work provides his or her alien number in Section 1, if the number is not provided in Section 2 or 3, or on a legible copy of the document that is retained with the I-9 form.

Ensure that the individual signs the attestation in Section 1.

Review and verify a proper List A document or proper List B and List C documents in Section 2 or 3.

Sign the attestation in Section 2.

Date Section 2 within three business days of the date the individual begins employment or, if the individual is employed for three business days or less, at the time employment begins.

Sign Section 3.

Date Section 3 not later than the date that the work authorization of the individual hired expires.

Penalties

Employers may be subject to fines for substantive and uncorrected technical violations. U.S. Immigration and Customs Enforcement has the power to determine if an employer knowingly hired or continued to employ unauthorized workers. If so, the employer may be fined and, in certain situations, may be prosecuted criminally. Debarment is also possible.  

Procedural consistency is critical to protect the company from discrimination claims that may arise as a result of an untrained employee going beyond the procedural and substantive I-9 rules.  

Accuracy is of extreme importance for purposes of Form I-9 compliance. Employers often complete forms but fail to pay attention to detail. Proper completion requires knowledge of complex and often confusing rules and diligence to maintain accuracy and uniformity.  

The author is an attorney with Duane Morris in Miami.”  

 
 
 
 
 

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Michael W. Casey III, Kevin E. Vance, Mark J. Beutler, and Teresa M. Maestrelli practice labor and employment law, with a particular focus on labor and employment litigation, including Title VII, ADEA, ADA, Florida Civil Rights Act, and whistleblower claims, as well as non-compete litigation, in state and federal trial and appellate courts in Florida and throughout the United States. They also represent employers before the National Labor Relations Board (NLRB), the National Mediation Board (NMB), the U.S. Department of Labor, including the Wage and Hour Division and the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and various state and local agencies, as well as in arbitrations, collective-bargaining negotiations and union representation elections. Hector A. Chichoni practices in the area of US and global immigration law. He chairs Duane Morris's Florida Immigration Practice. The editors of Chambers USA 2010 also selected Mr. Chichoni as a "Leader in the Immigration Field." He has represented a vast number of corporate and individual clients throughout his career ranging from premier US health care organizations, Fortune 100 and Fortune 500 companies, multinational corporations and universities to doctors, professors, researchers and students. His international experience includes handling matters relating to export controls and global corporate compliance and business transactions. He has represented clients in a wide variety of cases before the US Immigration Court.
© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.