ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


中文移民日报




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
© 1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

I-9 E-Verify Immigration Compliance

description

  1. Be Prepared for a Notice of Inspection from ICE, They May be at Your Door

    By: Bruce Buchanan, Sebelist Buchanan Law

    As Immigration and Customs Enforcement (ICE) branches out from their concentration of ICE audits of California employers to the heartland of the United States, such as Tennessee, Arkansas, and Texas, employers need to be ready to respond to ICE’s delivery of a Notice of Inspection/subpoena.

    One of the best ways to prepare for an I-9 inspection by ICE is to hire an immigration attorney, who is experienced in worksite enforcement and immigration compliance issues. Even if you currently have an immigration attorney for employment-based visas, there is a good chance that he or she does not handle worksite enforcement, such as ICE inspections. Therefore, if you have an immigration attorney, reach out to him or her and inquire as to whether they are experienced in worksite enforcement matters. If so, great but if not, ask him or her to refer to an experienced immigration compliance/worksite enforcement attorney. If you don’t have an immigration attorney, ask your corporate counsel for assistance in finding one. You don’t want to be doing this after ICE shows up at your facility.

    The next step is for your immigration compliance attorney to conduct or supervise an internal I-9 audit. Through this audit, numerous errors will be found, most of which can be corrected so that if ICE inspects your I-9 forms, the errors will not be considered a substantive error, for which you can be penalized for. And don’t kid yourself, your I-9 forms have lots of errors. In all my years of practice, I don’t recall any employer’s I-9 forms as impeccable although on more than one occasion an employer has stated such before the I-9 audit began.

    Also, don’t be fooled by the fact that all your employees are U.S. citizens. You can still have substantive and technical I-9 errors. Another common comment from employers is I’m in great shape as we use E-Verify. Although E-Verify is excellent in establishing who is authorized to work, it cannot locate substantive or technical errors on the I-9 forms. One proven method to reduce substantive or technical errors on the I-9 forms is using electronic I-9 systems as well as using the “smart” I-9 form, which was introduced by the USCIS in 2016.

    The reason preparedness is so important is because of the short time period ICE gives employers to respond and supply the subpoenaed I-9 forms. The Notice of Inspection/subpoena allows the company just three days to turn over their I-9 forms, along with a laundry list of other documents such as payroll information, tax statements and assorted corporate documents. Usually, your counsel will be able to get an extension of these three days but rarely will ICE extend the date by more than a week. However, even this timeframe is not nearly enough time for a company that was not already prepared for it, especially if the company has a lot of employees or former employees. ICE can and does subpoena I-9 forms of former employees. One helpful hint on former employees’ I-9 forms is they may be purged at certain times but not after the subpoena is delivered.

    Getting an attorney involved as soon as an ICE inspection is launched can help an employer in several ways. As stated above, an attorney may help the company negotiate a few days’ extension in responding to the subpoena. And/or the attorney may be able to get a reduction in the list of requested documents. Most importantly, an attorney can help the employer prepare to respond in a methodical and thoughtful way.

    Being prepared for a Notice of Inspection/subpoena requires a company to have proper procedures in place upon hiring. The best way to have these procedures in place is with an Immigration Compliance Policy. Unless you have retained an immigration compliance/worksite enforcement attorney, it is extremely unlikely you have such a policy. One paragraph in your employee handbook does not equal an Immigration Compliance Policy. Under such a policy, every employee responsible for completing I-9 records on behalf of the company should be trained to do so. To many people, it is hard to tell the difference between a green card and a work authorization document issued to a recipient of DACA or TPS. Yet, one represents permanent work authorization that should never be reverified, and the other requires the employer to reverify the I-9 form upon the document’s expiration.
  2. E-Verify Modernization Temporarily Postponed

    By: Bruce Buchanan, Sebelist Buchanan Law, PLLC

    The E-Verify modernization launch has been postponed from March 23, 2018 to a later date still to be determined. New system enhancements will feature improvements to photo matching, reduced Tentative non-confirmations and easier and faster creation of cases.

    The following are some of the highlights of upcoming E-Verify enhancements:


    1. Streamline the Tentative non-confirmation (TNC) process so that cases are sent to SSA and DHS simultaneously. If both agencies issue a TNC, then a dual TNC will be issued instead of two separate ones. The employee will be given a combined SSA and DHS Further action notice.
    2. Provide real-time feedback on errors.
    3. Prevent user in a Pending Termination status from submitting new cases.
    4. Streamline the E-Verify case creation process by removing unnecessary pages and steps in a case.
    5. Alert users earlier in the case creation process when a case is created, and duplicate is found. Users enter limited information and then the system checks for duplicate cases. If one or more duplicate cases are found, the user will be notified.
    6. Allow users to enter multiple names in the “Other Last Names” field so E-Verify can check all names entered in the field. If the employee doesn’t provide other last names, the user will have to check a box indicating that no other last names were provided on the employee’s Form I-9 to continue the case.
    7. Change the “Hire Date” to the employee’s first day of employment.
    8. Make the photo-matching process more compatible with smartphones and tablets.
    9. Created an, “Are You Sure?” alert that is personalized to the user and only shows fields that may have triggered a TNC rather than showing all fields.
    10. Require users to enter reason why employee is working after receiving a Final Non-confirmation (FNC).

    If you want to know more about E-Verify and I-9 compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.

  3. When does an Employer Need to Re-Verify?

    By: Bruce Buchanan, Sebelist Buchanan Law



    In our book, I-9 and E-Verify Handbook (http://www.amazon.com/dp/0997083379),
    Greg Siskind and I discuss reverification. Here is an excerpt from the book.

    3.1 What are the Form I-9 re-verification requirements?

    If an employee is not a U.S. citizen, lawful permanent resident, or noncitizen national, he or she is likely working based on a status with a defined end date. For these employees, the employer must note the expiration date of their documents on the Form I-9 and then must pull the employee’s Form I-9 before the expiration date and re-verify that the employee’s status has been extended. Employers should establish a reliable tickler system to prompt re-verification. Aside from complying with the re-verification rule, this system will also ensure that an employer that needs to extend a work visa for an employee will not forget to take care of this critical task (something that is, unfortunately, neglected by many employers and can result in an employee falling out of legal status). Green cards and passports with expiration dates do not need to be re-verified.

    3.2 What if the re-verification section of the form has been completed from a prior re-verification?

    In this case, an employer can complete and sign Section 3 of a new Form I-9. The employer should put the employee’s name in Section 1 and retain the new form with the original.

    3.3 Can an employee present a Social Security card to show employment authorization at re-verification when he or she had presented an expiring Employment Authorization Document or Form I-94 at the time of hire?

    Yes, an employee may present a Social Security card to show employment authorization at re-verification as long as the Social Security card is not restricted with a statement such as “not valid for employment,” “valid for work only with DHS [U.S. Department of Homeland Security] authorization” or “valid for work only with INS [Immigration and Naturalization Service] authorization.” If the Social Security card has this language, it is not a valid List C document. This type of Social Security card must be accompanied by an Employment Authorization Document (EAD) to be valid. Employers may not specify which documents an employee may present either at the time of hire or at the time of re-verification. An employee may have become a lawful permanent resident or otherwise received employment-authorized status allowing the employee to obtain a Social Security card, absent the sponsorship of the employer, so the employer should not assume the employee is unauthorized.

    3.4 What if a new Form I-9 comes out between the date the initial Form I-9 is completed and the time of re-verification?

    If a new Form I-9 has been released between the date of hire and the date of re-verification, the employer should complete Section 3 of the new version of the Form I-9 and accept only documentation of employment eligibility from the Lists of Acceptable Documents in the Form I-9 instructions. However, the U.S. Department of Homeland Security (DHS) will accept use of Section 3 on the existing completed Form I-9 if it has not been previously completed for prior re-verification.

    3.5 Do past employees resuming work with a company need to complete a new Form I-9?

    Returning employees often do not need to complete a new Form I-9, but if that is not done, the employer needs to re-verify the employee’s work authorization in Section 3 of the Form I-9, if the formerly listed work authorization has expired. If a new version of the Form I-9 has come out since the last time the Form I-9 was completed, the employer may complete a new form or use Section 3 of the existing completed Form I-9. And if the form has been completed in Section 3 from a previous re-verification, the employer should complete Section 3 of a new Form I-9.
    For an employee to be considered a “rehire,” the employer must be re-hiring the employee within three years of the initial hiring date of the employee, and the employee’s previous grant of work authorization must not have expired. Employers must:
    1. record the rehiring date;
    2. if the formerly listed work authorization has expired, write the document title, number, and expiration date of any eligible document presented by the employee;
    3. sign and date Section 3; and
    4. if the re-verification is recorded on a new Form I-9, write the employee’s name in Section 1.

    Of course, it may be easier just to complete a new Form I-9, and an employer can certainly opt for this. Note that the rules on returning employees also apply to cases of recruiting or referring an individual.

    3.6 What if a rehired employee is rehired after a new version of the Form I-9 is released?

    If the Form I-9 has been modified since the form was completed on the date of hire, the employer may complete Section 3 of the existing completed Form I-9 or Section 3 of the new form and attach the old form. The employee should provide documentation of continued employment authorization from the current Lists of Acceptable Documents provided in the Form I-9 instructions.

    3.7 What if an employee changes his or her name?

    An employee’s name change should be recorded by the employer in Section 3, although it is not mandatory to complete Section 3 for a name change. If an employee requests such, it is a best practice for the employer to request a document reflecting the name change, such as a marriage certificate or divorce decree.
    Reverification is often misunderstood by HR. Thus, it is important to know how to re-verify. It’s also important to know when not to re-verify. This is covered elsewhere in the book. The most important point on when not to re-verify is this – do not reverify after a permanent resident card, passport or driver’s license expires.
  4. NLRB – Employers Can’t Threaten Deportation in Response to Employees Going to Court

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

    The Division of Advice for the National Labor Relations Board (NLRB) reviewed the actions of EZ Industrial Solutions, LLC in relation to their employees’ participation in the “Day Without Immigrants” national protest on February 16, 2017 and EZ’s response - threatening to suspend employees on February 15, 2017, thereafter discharging eighteen employees on February 17 in retaliation for their support of the “Day Without Immigrants” national protest, and threatening to report discharged employees to “immigration services.” The Division of Advice concluded both actions were in violation of the National Labor Relations Act (NLRA). In this article, I will focus on the threat related to immigration.

    After EZ fired employees for engaging in the national protest and filed a charge with the NLRB, its Assistant Manager had breakfast with one of the discharged employees. The Assistant Manager inquired about the employees’ charge, the identification of the lawyer helping them, and where they went for help. The employee did not respond. The Assistant Manager then advised the employee that the owners of EZ had good lawyers and that “they wanted the employees to go to court so they could throw them out by immigration.” The employee responded that the owners were bad for wanting to hurt the employees in that way.

    The Division of Advice concluded the Assistant Manager’s threat regarding the employees’ immigration status in response to their charge filed with the NLRB violated Section 8(a)(4) of the NLRA. “Preserving and protecting access to the Board is a fundamental goal of the Act, as reflected in Section 8(a)(4).” The Assistant Manager’s explicit warning that the employees were placing their immigration status in jeopardy if they took EZ to court violated Section 8(a)(4) because such a blatant threat about deportation would dramatically affect the employees’ willingness to continue to seek protection under the NLRA.

    After the Division of Advice’s decision, EZ agreed to settle the matter with the NLRB. This is the second recent NLRB case where labor law and immigration law have interacted. Thus, when determining immigration compliance issues, it’s helpful to seek the input of your labor and employment attorney.
  5. ICE v. California – The Battle Continues

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC


    As any reader of this blog (or casual reader of immigration news) knows, the Trump administration has declared war against the State of California due to the State’s passage of various laws designed to protect undocumented immigrants as well as employers from unwanted federal intrusion into workplaces. Earlier this year, Thomas D. Homan, acting director of Immigration and Customs Enforcement (ICE), has criticized California for their efforts to protect undocumented immigrants and limit law enforcement’s ability to cooperate with immigration officials. Homan recently added “We’ve got to take these sanctuary cities on. We’ve got to take them to court, and we’ve got to start charging some of these politicians with crimes.”

    Upon this backdrop, in early March 2018, the Department of Justice (DOJ) sued California alleging three new state laws designed to protect certain undocumented immigrants from deportation by the federal government are unconstitutional. This article will focus on the employment-related statute - Immigrant Worker Protection Act. The DOJ is seeking preliminary and permanent injunctions that prohibit California from enforcing Immigrant Worker Protection Act against private employers.

    Under the Immigrant Worker Protection Act (AB 450), which became effective January 1, 2018, California has placed restrictions on how private employers in California must respond to ICE efforts to ensure immigration compliance, by requiring ICE agents to provide a judicial warrant to employers to access non-public portions of worksites. Thus, employers may not simply consent for ICE to have access to non-public portions of the worksite. Additionally, employers are prohibited from sharing confidential employee information, such as Social Security numbers, unless required to do so in a Notice of Inspection or provided a judicial warrant. The law also requires employers to provide employees and their authorized representatives, within 72 hours, with copies of written ICE notices providing results of inspections.

    According to the DOJ lawsuit, “These provisions, individually and collectively, have the purpose and effect of interfering with the enforcement of the INA and IRCA’s prohibition on working without authorization. California has no lawful interest in protecting unauthorized workers from detection or in shielding employers who have violated federal immigration law from penalty. These provisions, as applied to private employers, violate the Supremacy Clause by, among other things, constituting an obstacle to the United States’ enforcement of the immigration laws and discriminating against federal immigration enforcement.”

    California officials, including California Attorney General Xavier Becerra, assert they have the constitutional right to govern their state as they see fit because “States and local jurisdictions have the right to determine which policies are best for their communities.”

    “There is real uncertainty about who will win it,” said Ilya Somin, law professor at George Mason University. That's in part because the legal landscape on federal vs. state rights related to immigration is not clear. Lower courts have split on whether it is legal for the federal government to require local law enforcement to hand over immigrants. The lawsuit is a risky endeavor for the Trump administration because if it loses, it will potentially empower other states that want to defy the president to pass similar laws.
    I will keep you updated on this litigation. For a review of all employment and immigration-related state laws and other issues related to employer immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, available at http://www.amazon.com/dp/0997083379.
Page 2 of 77 FirstFirst 12341252 ... LastLast
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: