RS Banner from website
Immigration Newsletter
Spring 2011 - Volume 3, Issue 2
In This Issue
Ask RS
Recent Immigration News
In the News: What's Happening at RS
Ross Silverman LLP
59 Temple Place, Suite 605
Boston, MA  02111
Phone: (617) 542-5111
Fax: (617) 542-2331
Attorneys at RS

Ellen F. Driver

Join Our Mailing List!


Two years ago, Janet Napolitano, the Secretary of the U.S. Department of Homeland Security, announced the government's intention to move away from mass arrests of undocumented immigrant workers and instead heighten focus on the illegal activities of business owners, managers and supervisors, and human resources staff. Since that time, Immigration and Customs Enforcement (ICE) investigators have followed through in conducting hundreds of worksite compliance investigations, including I-9 investigations, imposing hundreds of thousands of dollars in fines and building criminal cases against business owners and executives.

As a result, it remains extremely important that U.S. employers establish and implement good hiring practices and worksite compliance policies, which will serve to protect business owners and executives from criminal charges and civil penalties and fines.  Moreover, it is not uncommon for another form of government action, such as an I-9 audit or Department of Labor Wage & Hour Public Access File audit, to trigger an ICE investigation.

The goal of developing a compliance plan is for an employer to address all hiring and immigration-related issues throughout their organization and help reduce the number of violations, thereby limiting a company's liability. A thorough immigration and worksite compliance program will also demonstrate the employer's "good faith" effort to maintain a legal workforce and be in compliance with all applicable immigration laws and statutes pertaining to hiring and employment eligibility verification - in other words, I-9 compliance. It will also limit any possible criminal charges and exposure to severe financial fines and penalties for "knowingly hiring or continuing to employ" people who are not authorized to work in the U.S. Without such policies in place, company executives and upper management are not shielded from the actions of lower-level management and employees.

Fundamental to ensuring I-9 compliance is avoiding fractured and decentralized hiring and I-9 practices, which leave I-9 verification responsibility to individual managers who may apply inconsistent or improper practices, or nothing at all.

In January of this year, U.S. Citizenship & Immigration Services (USCIS) published an updated version of the Handbook for Employers, Instructions for Completing Form I-9 (Rev. 01/05/2011)N, which provides comprehensive, invaluable guidance on how to complete Form I-9. Of particular note is that this new handbook provides guidance for I-9 completion on behalf of employees who hold various nonimmigrant statuses, including F-1 students working pursuant to Curricular Practical Training and Optional Practical Training, as well as H-1B employees who are extending status or "porting" to a new employer. The Handbook also provides clarification on issues that in the past were not clearly articulated, such as an employer's ability to rely on proof of delivery confirmation for an H-1B extension or portability case. Finally, the Handbook includes several pages of questions and answers regarding the I-9 verification process, completion of the form and acceptance of documents, and retention of Form I-9 records, among other questions of interest.

In their most recent effort to educate employers about I-9 requirements, USCIS this month launched "I-9 Central", an online resource center providing tips and guidance for completing and understanding the I-9 process. I-9 Central includes sections about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and additional information on acceptable documents for establishing identity and employment authorization. I-9 Central also includes a discussion of common mistakes to avoid when completing the form and guidance on how to correct errors. 

Ask RS


At Ross Silverman, we are experienced at handling worksite compliance and enforcement matters, representing clients who are subject to government investigations by the U.S. Department of Homeland Security, Department or Labor and ICE, and defending undocumented workers who are placed in immigration removal proceedings.  We provide advice, counseling and representation in the following areas:  Comprehensive Worksite Enforcement & Compliance Policies; I-9 Training & I-9 Compliance Programs; and I-9 Audits.  Please see our website for the full range of legal services that we provide in this area.


Following are some common questions and answers about completing the I-9 form: 


Q.  How do I complete Form I-9 for employees who work offsite or remotely? 


A.  There are a number of options for dealing with offsite employees: you may require that they report to headquarters to present their documents; you may have the I-9 completed by a regional manager, hiring manager, recruiter, or another designated employee; or you may designate an agent or notary public to fill out the Form I-9 on your behalf.  The designated agent must complete the entire Form I-9, ensuring that the employee properly completes Section 1 on or before the first day of work, and verifying the employee's identity and employment authorization documents to complete Section 2 within the first three business days of the start of employment.  You remain responsible, however, for the Form I-9 and will be liable for any violations as a result of the agent's actions in completing the form and verifying the employee's identity and work authorization.



Q.  I have an employee in H-1B status for whom we filed an extension of status with USCIS, but we have not yet received the official receipt notice, and his current H-1B expires next week.  How do I properly complete Form I-9 for this employee?


A.  You must first update Form I-9 by writing in the margin next to Section 2 "240-day extension" and recording the date that the Form I-129 H-1B extension was received by USCIS.  You must then re-verify in Section 3 once you receive the USCIS approval notice, or by the end of the 240-day period, whichever is first.  You also should retain the following documents with the employee's Form I-9: a copy of the new Form I-129; proof of payment of the filing fee; and evidence that you mailed the Form I-129 to USCIS, including the Form I-797 receipt notice once that is received from USCIS.



Q.  I filed an H-1B change of status petition for an employee who is currently in F-1 status working on Optional Practical Training (OPT).  The OPT expires in June, but the H-1B start date is not until October 1.  Can I continue to employ this person or will the student have to go off payroll?  If I can continue to employ him/her, how do I complete the I-9?


A.  You may be able to continue employing this person without interruption.  If the H-1B petition was filed to request a change of status while the student was in valid status during the OPT period, the student will be eligible for an automatic "Cap-Gap" extension of both F-1 status and work authorization.  The student must have his or her I-20 endorsed by the designated school official and this, along with the student's expired employment authorization document (EAD card), constitute an acceptable List A document and should be recorded in Section 2, or Section 3 if re-verifying, on Form I-9.  You must again re-verify employment authorization at the end of the cap-gap period, which would typically be October 1st (i.e. once the H-1B takes effect).  


NOTE:  Cap-Gap extensions are only available for students who are requesting a change of status on the I-129 petition.  Further, students who are in F-1 status at the time of filing the H-1B petition but whose OPT has expired (i.e. the student is in his or her grace period) are eligible for an extension of F-1 status (meaning they may remain in the country) but not work authorization, and therefore will not be authorized to work until the H-1B status goes into effect on October 1st.



Q.  Do employees have to provide their Social Security Number (SSN) in Section 1?


A.  No.  Providing an SSN is voluntary for all employees, unless your company participates in the USCIS E-Verify Program, in which case it is required.



Q.  Do I need to update or re-verify an employee if he or she changes their name?


A.  You are not required to update the I-9 form if an employee changes their name.  However USCIS recommends that employers note any name changes on Section 3 of the form.  The employee is not required to provide documentation of their name change, but you can accept such evidence and keep it with the I-9 form.



Q.  Can I accept a receipt as a List A, B, or C document?


A.  Yes, in certain circumstances.  Page 6 of the new I-9 Handbook provides a useful chart that indicates what types of receipts can be accepted, and how long they are valid.  Please note, however, that a receipt indicating that an individual has applied for an initial EAD or extension of an EAD is not acceptable proof of employment authorization for I-9 purposes.



Q.  Can my company use an electronic I-9 system?


A.  Employers may use paper or electronic systems, or a combination of the two, as long as the electronic system includes the following: reasonable controls to ensure the integrity, accuracy, and reliability of the system; reasonable controls designed to prevent the unauthorized or accidental deletion of an I-9 record; a quality assurance program that periodically checks electronically stored I-9s; indexing system that permits the retrieval of relevant documents and records; and the ability to reproduce legible and readable paper copies.



Recent Immigration News


USCIS Continues to Accept Cap-Subject H-1B Petitions for FY2012


U.S. Citizenship and Immigration Services (USCIS) has announced that, as of May 13, 2011, it has received approximately 11,200 H-1B petitions counting toward the annual cap of 65,000, and approximately 7,900 petitions counting toward the 20,000 visas set aside for individuals with advanced U.S. degrees.  The usage of H-1B figures is lower than it was at this time last year, though we have no way of knowing whether this trend will continue.  In the meantime, you can continue to consider candidates that will require H-1B sponsorship.



Mumbai Consulate Discontinues H and L Visa Processing


Effective March 7, 2011, the U.S. Consulate in Mumbai, India is no longer scheduling visa appointments for H and L applicants due to infrastructure issues within the Consular building.  Such applicants must apply through the U.S. Consulates in Chennai or Hyderabad or the U.S. Embassy in New Delhi.  The U.S. is in the process of building a new Mumbai Consulate which is slated to open later this year, at which point H and L processing will presumably resume in Mumbai.  Until then, any employees who will be visiting the Mumbai area and need a visa stamp will need to plan their travel accordingly.



USCIS Issuing Combined EAD-AP Card for Some Applicants


In February, USCIS began issuing a combined document for employment authorization and Advance Parole (EAD and AP) to permanent resident applicants who concurrently-file their EAD and AP applications.  Applicants must still file both applications (with the required filing fees, when applicable); however, they will no longer need to deal with separate documents for their work and travel authorization.  From the employer's side, the only change you will likely notice is that the new combined card contains an additional notation above the validity dates - "Serves as I-512 Advance Parole".  Note that not all applicants are eligible to concurrently-file their EAD and AP applications, as renewal applications must be filed based on the validity dates of the current documents, and can only be filed 120 days in advance of the current documents' expiration.  Since some individuals have EAD and AP which expire months apart, those individuals will need to continue filing their applications separately and receiving separate EAD and AP documents.



Resumption of Social Security No Match Letters


Beginning April 6, 2011 for tax year 2010, the Social Security Administration (SSA) is once again sending "no-match" letters that advise employers when their workers are using a social security number that does not coincide with SSA's records.  While there may be many reasons for the no-match letter, such as typographical errors, name changes, or incomplete information, the employer is required to work with the employee to try to resolve the error in a reasonable period of time.  The letter alone should not be used as a basis to take any adverse action against the employee.  However, an employer who does nothing in response to a no-match letter, or one who does not follow up when an employee is unable to correct the problem, may be found in the future to have knowingly employed an individual who is not authorized to work in the U.S.



In the News: What's Happening at RS

April 20, 2011: Sharryn Ross spoke to graduate and undergraduate students at Boston University about Options after OPT


April 27, 2011: Howard Silverman and Heidi Snyder presented an immigration panel at the Network of South Asian Professionals - Boston (NetSAP-Boston) career and networking fair.


May 5, 2011: Howard Silverman spoke on an teleconference regarding issues related to relief from removal.


May 9, 2011: Howard Silverman spoke at a training session on post-deportation immigration law for the Boston Bar Association and the Post-Deportation Human Rights Project.


May 17, 2011: Rhonda Tietjen moderated AILA New England's Advance Practice Roundtable on I-9 compliance issues.


May 19, 2011: Howard Silverman spoke on a panel at the AILA New Members Division about the basics of practicing before the immigration court. 


June 16 - 17, 2011: Sharryn Ross will speak on a panel entitled, "Understanding the Four Levels of Prevailing Wage," and Howard Silverman will speak at the ICE Open Forum at AILA's Annual Conference in San Diego, CA. 



This newsletter does not constitute legal advice and is not a substitute for consulting with an attorney.  Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.