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  1. Requirements of Form I-9 recordkeeping

    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 Form I-9 recordkeeping. Here is Chapter 4 from the book.

    4.1 What are the Form I-9 recordkeeping requirements?

    Employers must keep Forms I-9 for all current employees, though the forms of certain terminated employees may be destroyed. In the case of an audit from a government agency, the forms must be produced for inspection. The forms may be retained in either paper or electronic format as well as in microfilm or microfiche format.

    4.2 When can a Form I-9 be destroyed?

    For terminated employees (the date employment ceased or ceased in the United States for employees transferred abroad), the form must be retained for at least three years from the date of hire or for at least one year after the termination date, whichever comes later.

    Employers should note two dates when an employee is terminated. The first is the date three years from the date of the employee’s date of hire. The second is the date one year from the termination date. The later date is the date until which the Form I-9 must be retained.

    There is a different rule for recruiters or referrers for a fee. Those entities are required to maintain Forms I-9 for only a three-year period from the date of hire, regardless of whether the employee has been terminated.

    In addition to establishing a reminder system to re-verify Forms I-9, employers should establish a tickler system to destroy forms no longer required to be retained.

    4.3 Should recordkeeping be centralized at a company?

    Keeping records in one location is generally advisable because it is easier to conduct internal audits to ensure the employer is complying with the rules of the Immigration Reform and Control Act (IRCA), and also to more easily prepare for a government inspection, given that having the forms at one location will allow more time for review. However, there may be situations in which keeping the records at each location is more convenient or practical.

    The forms themselves can be kept onsite or at an offsite storage facility as long as the employer is able to produce the documentation within three days of an audit request from a federal agency.

    4.4 Does an employer need to keep copies of the documents presented by the employee?

    No, retaining copies of the supporting documents is voluntary except in certain circumstances where using E-Verify. Under E-Verify, if an employee presents a Permanent Resident Card, Employment Authorization Document or U.S. passport or passport card as the verification document, the employer must make a copy of that document and keep it on file with Form I-9.

    Employers can retain copies of documents and must keep the copies with the specific Form I-9. Although retaining copies of documents may leave an unnecessary paper trail for government inspectors, maintaining documentation could provide a good faith defense for an employer that needs to show it had reason to believe an employee was authorized even if the paperwork was not properly completed. Retaining copies of documents also makes it easier for an employer to conduct internal audits to ensure compliance; this allows the attorney or other auditor to see what documents were actually provided to the Human Resources representative responsible for completion of the Form I-9. Furthermore, if copies are retained and some data are missing in Lists A, B, or C, such as the issuing authority or expiration date, it is only a technical error, not a substantive one.

    Whatever a company decides, however, it is important that the policy be consistently applied and to remember that simply having copies of the documents does not relieve the employer of responsibility for fully completing Section 2 of the Form I-9.

    Consistency is paramount. Employers should keep all the documents or keep none of them because keeping copies for only certain employees could open the employer up to charges of discrimination.
    In Tennessee, for those employers with less than 50 employees, an employer must copy and maintain a certain designated document (such as an unexpired U.S. passport, permanent resident card, Employment Authorization Document, birth certificate, certificate of naturalization, or state-issued driver’s license or identification) unless the employer uses E-Verify. Of course, E-Verify has its own rules on what documents must be retained. If the employer in Tennessee has 50 or more employees, it must utilize E-Verify, as of January 1, 2017.

    In Louisiana, employers must retain an employee’s picture identification and a copy of a U.S. birth certificate, certificate of naturalization, certificate of U.S. citizenship, or a Form I-94 with an employment-authorized stamp for all employees, unless the employer uses E-Verify.

    4.5 Can a Form I-9 completed on paper be stored in another format?

    Yes. In addition to paper, Forms I-9 may be retained in an electronic, microfilm, or microfiche format. The U.S. Department of Homeland Security (DHS) suggests the following with respect to microfilm or microfiche:


    • Use film stock that will last the entire retention period (which could exceed 20 years for some businesses).
    • Use equipment that allows for a high degree of readability and that can be copied onto paper.
    • For microfilms, place the index at the beginning or end of the series; and for microfiche, place the index on the last microfiche.


    4.6 Should the Form I-9 records be kept with the personnel records?

    Keeping Form I-9 records with personnel records is generally a bad idea. First, it could compromise the privacy of employees by allowing government inspectors to review items that are completely unrelated to the Form I-9. Employers that want to prevent this would have to manually go through the personnel records and pull the Form I-9 paperwork, some-thing that could cost valuable time as the employer prepares for the government inspection. Keeping the Forms I-9 separate will make it easier to conduct internal audits to ensure compliance with the Immigration Reform and Control Act (IRCA) and to re-verify forms as needed.
  2. Tired of Waiting for the USCIS? Think Mandamus!

    What’s the most common complaint of people who have applied for immigration benefits? And for those who have been interviewed by the USCIS?

    Take a wild guess or simply click the video below and close your eyes!



    Back in the 60s, a British Rock Group called the Kinks had a major hit with a song that began:

    I’m so tired,
    Tired of waiting,
    Tired of waiting for you…

    In the 1970s when I worked as an Attorney for the U.S. Immigration and Naturalization Service (INS), immigrants sometimes had to wait for what seemed like forever to get their appointments or to get a decision on their application even after an in-person appointments.

    Fast forward to 2018. These days, it takes even longer for you just to get an interview date and can sometimes take months or even years after your appointment to get a decision.

    Are You Tired of Waiting?

    You may be able to solve your problem by making an InfoPass appointment with the USCIS. If that doesn’t work, you may want to meet with someone from the staff of your Member of Congress’s office and have them write an inquiry letter to the USCIS. Sometimes, these strategies work, and sometimes they do not.

    But you’ll be happy to know that there is a strategy that almost always works, and we have been successfully using this strategy for over 30 years!

    Petition for a Writ of Mandamus

    If you have applied for asylum, a green card or US citizenship, and all you have got from the USCIS is a receipt and maybe a biometrics appointment, and you have waited way more than what the USCIS has stated on their website is the average waiting time, wait no more!

    The same applies if you have been interviewed and it is now months later, and you have yet to receive a decision.



    You can have an immigration lawyer file a Petition for a Writ of Mandamus in Federal Court to force the USCIS make a decision in your pending case.

    The Federal Judge can not tell the USCIS whether they should approve or deny your case but the Judge can order the USCIS to make a decision on your pending application and to do it quickly.

    In fact, it has been our experience over the past 30+ years that just filing a Mandamus action in Federal Court usually prompts the USCIS to grant our request way before the matter even comes before the Judge.

    Of course, we only bring Mandamus actions when our client has a good case and in almost all of the actions that we have filed, our clients have received a positive response from the USCIS.

    This year, we filed a Mandamus action in Sacramento and received a long delayed adjustment of status interview. Our client is now a lawful permanent resident. Earlier, we filed a Mandamus action in San Francisco which prompted the USCIS to our client’s asylum application.

    Of course, going to Federal Court is certainly not the least expensive way to solve your case, but if you are so tired, tired of waiting, Mandamus may be your best bet!

    Mandamus Resources

    Updated 04-09-2018 at 12:07 PM by CShusterman

  3. Trump Administration Giving Immigration Judges 700 Case Per Year Quota

    by , 04-03-2018 at 09:30 AM (Matthew Kolken on Deportation And Removal)
    In January of this year the Department of Justice issued a new set of deportation case priorities and immigration court performance measures.

    This past Friday, Director James McHenry establised performance metrics for immigration judges, which will be implemented as of October 1, 2018. All goals are measured annually, from October 1 to September 30. The goals set a 700 case per year quota, a remand rate (including BIA and Circuit Courts) of less than 15%, and establishment of the following "benchmarks":

    Performance is deemed satisfactory when an immigration judge meets at least half of the applicable benchmarks.

    - In 85% of non-status detained removal cases, no more than three days elapse from merits hearing to immigration judge case completion.
    - In 85% of non-status, non-detained removal cases, no more than 10 days elapse from merits hearing to immigration judges case completion, unless
    completion is prohibited by statute (e.g. a cap on grants of relief) or completion is delayed due to a need for completion of background checks.
    - In 85% of motions matters, no more than 20 days elapse from immigration judge receipt of the motion to adjudication of the motion.
    - In 90% of custody redetermination cases, case is completed on the initial scheduled custody redetermination hearing date unless DHS does not produce the alien on the hearing date.
    - In 95% of all cases, individual merits hearing is completed on the initial scheduled hearing date, unless, if applicable, DHS does not produce the alien
    on the hearing date.
    - In 100% of credible fear and reasonable fear reviews, case is completed on the initial hearing date unless DHS does not produce the alien on the hearing date.

    Performance is deemed unsatisfactory when case completions fall below 560 cases per year, or the Judge has a remand rate (including BIA and Circuit Courts) of greater than 20%, or the immigration judge’s performance includes one or more of the following unsatisfactory benchmarks:

    - In greater than 35% of non-status detained removal cases, more than three days elapse from merits hearing to immigration judge case completion.
    - In greater than 35% of non-status, non-detained removal cases, more than 10 days elapse from merits hearing to immigration judge case completion,
    excepting cases where completion is prohibited by statute (e.g. a cap on grants of relief) or completion is delayed due to a need for completion of background checks.
    - In greater than 35% of motions matters, more than 20 days elapse from immigration judge receipt of the motion to adjudication of the motion.
    - In greater than 30% of custody redetermination cases, case is not completed on the initial scheduled custody redetermination hearing date excluding cases where DHS does not produce the alien on the hearing date.
    - In greater than 25% of all cases, individual merits hearing is not completed on the initial scheduled hearing date, excluding cases where DHS does not
    produce the alien on the hearing date.
    - In greater than 20% of credible fear and reasonable reviews, case is not completed on the initial hearing date, excluding cases where DHS does not
    produce the alien on the hearing date.

    Click here to read the full EOIR performance plan.

    Updated 04-04-2018 at 07:39 AM by MKolken

  4. Immigration Judges Condemn Sessions' Imposition of Quotas for Deciding Cases. Is Trump's DOJ Moving Toward Assembly-Line Deportation? Roger Algase

    Update, April 4, 11:02 am:

    An April 4 article in Salon.com warns that the Trump administration's attempt to pressure immigration judges into rushing their decisions and not giving immigrants time to obtain lawyers or prepare their cases properly, in order to speed up deportations in support of the president's racial immigration agenda, may backfire by clogging up the federal courts with even more immigration-related litigation, as was the case when G.W. Bush's AG, John Ashcroft, tried a similar strategy in the wake of 9/11. See Amanda Marcotte's April 4 Salon.com article:

    Jeff Sessions' new "quotas" for immigration judges: Pathway to mass deportation?

    https://www.salon.com/2018/04/04/jef...s-deportation/

    My original comment follows:

    While the president continues to rant on Twitter about "dumb" and "ridiculous" immigration laws - presumably those which give asylum seekers at the US border the right to a hearing in the United States before being turned back - there is a new development with dangerous implications for the integrity and independence of the immigration court system, and for due process and the rule of law in general in America. Jeff Sessions' Department of Justice, which is responsible for that system, has, for the first time, imposed a case resolution quota for immigration judges of 700 per year, amounting to about 3 cases a day for each judge.

    This means that finishing cases quickly will take priority over deciding them fairly and with full respect for due process of law, and that the courts will risk being turned into an assembly line to rubber-stamp Donald Trump's mass deportation agenda.

    The American Bar Association Journal reports that Immigration Judge A. Ashley Tabaddor, the president of the National Association of Immigration Judges, has criticized the quotas as:

    "an egregious example of the conflict of interests of having the immigration court in a law enforcement agency."

    She also warned that immigration judges may begin to make decisions based on concern about keeping their jobs, rather than based on what is legally correct, and that the DOJ has now:

    "...compromised the integrity of the court."

    http://www.abajournal.com/news/artic...king_independe

    Also, CNN quotes Paul Schmidt, a retired longtime Immigration Judge, as saying that immigration judges will get the message from the Justice Department and that Sessions' efforts to tighten immigration law speak volumes, According to Schmidt:

    "Evaluating someone's performance on the number of cases they close is obviously going to have some effect on the substance of the decisions...You know the boss wants removal orders, not grants - all these things have to have some sort of effect."

    https://www.cnn.com/2018/04/02/polit...ota/index.html

    Will A.G. Jeff Sessions, who has shown himself eager carry out Trump's agenda in a number of areas, including mass deportation of Latino and other immigrants of color in order (as many observers maintain) to appease Trump over the president's rage and threats against Sessions for failing to "protect" Trump with regard Mueller's Russia investigations (see the AP's February 28 report):

    http://www.yourglenrosetx.com/news/2...snt-keep-quiet

    next set quotas for how many immigrants Immigration Judges must order deported every year in order to keep their jobs as judges?

    Trump's Justice Department appears to be headed in that direction, in which the due process of law and right to fundamental fairness in court on which America's democracy depends risk being thrown out in Donald Trump's mad rush to deport as many brown-skinned immigrants as possible, as quickly as possible.
    _________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 30 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards though employment and family sponsorship.

    Roger's email address is algaselex@gmail.com

    Updated 04-07-2018 at 12:12 AM by ImmigrationLawBlogs

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