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Chinese Immig. Daily
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By Bruce Buchanan, Sebelist Buchanan Law
On February 14, 2017, the USCIS finally released the new “Handbook for Employers – Guidance for Completing Form I-9” (also referred to as M-274). In a comical note (at least for immigration compliance gurus), the USCIS backdated the handbook with the date of January 22, 2017.
As you probably know, the M-274 Handbook for Employers is the USCIS’s guidance on how to complete and retain the I-9 form. Additionally, this M-274 handbook captures policy and regulatory changes since 2013, explains guidance regarding automatic extensions for certain Employment Authorization Documents, features more current sample documents, and provides an overview of unlawful discrimination due to citizenship status or national origin, document abuse, and retaliation. (These prohibited practices are not enforced by the USCIS; rather, they are enforced by the Immigrant and Employee Rights (IER) of the Department of Justice’s Civil Rights Division, which was formerly entitled Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC)).
A new M-274 handbook was necessary due to USCIS’s introduction of the new I-9 form (eff. date 11/14/2016), which became mandatory for use for new hires on January 22, 2017. (This date explains the USCIS’s interest in backdating the M-274). As explained in a previous blog entry, the new I-9 form added a number of new features, including: modifying Section 1 to request certain employees to enter either their I-94 number or foreign passport information, rather than both; replacing the “Other Names Used” field in Section 1 with “Other Last Names Used”; requiring “N/A” be entered instead of blanks in certain fields in Section 1; providing a box for employees to check if they did or did not use a preparer or translator; modifying the I-9 form by adding a supplemental third page if using multiple preparers and/or translators; and adding an area in Section 2 to enter additional necessary information, such as for TPS extensions, OPT STEM extensions and H-1B portability. The new M-274 handbook offers guidance on how to utilize the new features of the I-9 form.
The 64-page handbook is an important tool for Human Resource employees, who handle I-9 compliance, as well as immigrant attorneys, who want the latest guidance from the USCIS. Many of its explanations are repetitive from the instructions that accompany the I-9 form or information available on I-9 Central – an Internet-based website that answers many I-9 related questions. However, the M-274 handbook is a convenient go-to document that answers many questions.
I recommend all individuals involved in I-9 compliance read the new handbook. For non-immigration compliance gurus, the reading of the handbook may be the answer for insomnia.
The USCIS recently announced more than 500,000 employers now use its E-Verify program. The free tool allows employers, small businesses and large corporations alike, to confirm their new employees’ eligibility to work. This is a sharp increase in usage since the program began in 1996. Originally, just 11,474 companies in fiscal year 1996 signed up for E-Verify. That number jumped ten-fold to 111,671 companies in FY 2012.
Why the increase?
In FY 2013, employers’ use of E-Verify increased by almost 500%. Much of the increase can be attributed to improved accuracy since, according to USCIS, 98.8% of work-authorized employees are confirmed instantly or within 24 hours, requiring no further employee or employer action. Additionally, many states have passed their own E-Verify laws and federal contractors and subcontractors are often required to use E-Verify. A useful map of state by state E-Verify requirements is available here .
It would also be hard to ignore the continued enforcement efforts by Immigration and Customs Enforcement (ICE) whereby certain companies have agreed to use E-Verify, conduct self-audits, and submit to an ICE audit as part of settlement agreements for violations or in acts of voluntary compliance under the “IMAGE” program.
An immigration lawyer’s perspective
From an immigration lawyer’s perspective, the increased use of E-Verify means employers are relieved of some of the burden of determining whether an employee’s I-9 Form documentation is authentic. Additionally, E-Verify can act as a safe harbor for employers in many instances.
Businesses wishing to learn more about E-Verify should read USCIS’s Employer Manual located here .
The U.S. government’s recent $34 million settlement with India-based Infosys Limited over alleged visa fraud and I-9 violations sheds more light on the H-1B visa program at a time when proposed immigration reform would change the number of visas that employers may obtain.
With a current annual cap of 65,000 visas for the H-1B category, the U.S. government alleged Infosys circumvented the H-1B cap by misusing a different, and cheaper, visa category –the temporary B-1 visitor visa– to bring computer programmers and coders from India to the United States to perform work that required legitimate H-1B visa holders or authorized workers. Generally, B-1 visitors are not authorized for employment and may only enter the United States temporarily for limited business purposes; for example, to attend business meetings or conventions. B-1 visitors are not permitted to remain in the United States and accept employment, regardless of whether they perform skilled or unskilled labor.
The investigation into Infosys’s conduct involved numerous federal agencies, including the U.S. Attorney’s Office, Immigration and Customs Enforcement (ICE) and its Homeland Security Investigations (HSI) division; U.S. Citizenship and Immigration Services (USCIS); Diplomatic Security Service (DSS); and the Department of State (DOS).
In addition to visa fraud, the U.S. government investigated I-9 form violations by Infosys. The government alleged Infosys “failed to maintain accurate I-9 forms and records” and did not “update and re-verify the employment authorization status of a large percentage of its foreign national employees for each foreign national as required by law” - the Immigration Reform and Control Act of 1986.
As part of the settlement agreement, Infosys agreed to undergo I-9 form audits for two years at its own expense to ensure compliance. For the same period, Infosys’ B-1 visa filings and related documents submitted to the government’s immigration bureaus will be subjected to further scrutiny and random sampling. The findings for both years will be reported to the U.S. Attorney for the Eastern District of Texas to determine whether Infosys remains in compliance with the settlement agreement.
Infosys’ $34 million penalty is a reminder that employers must institute policies and internal control systems, and abide by such, to prevent violations of immigration laws when employing domestic or foreign workers.