On April 8, 2008, as part of a news release announcing a raid of a hotel resort in northern Virginia, Immigration & Customs Enforcement (ICE) stated the following: Today's enforcement action is part of ICE's nationwide aggressive pursuit of unauthorized workers and employers who violate the law," said Mark X. McGraw, Deputy Special Agent in Charge of the ICE office of investigations in Washington, DC. Companies that use cheap, illegal alien labor as a business model should be on notice that ICE is dramatically enhancing its enforcement efforts against illegal employment schemes."

With all the government enforcement of illegal immigration, it is important to remember that no employer may knowingly employ a person that does not have authorization to work in the United States. The government requires all employers to verify employment authorization for each employee by reviewing documents and completing form I-9. Form I- 9 was recently updated and employers were required to begin using the new form December 26, 2007.

The government has very specific requirements in how form I-9 must be completed. Specifically, section 1 must be completed by the new hire on the first day he/she reports for work. The employee is required to sign and date Section 1.

Section 2 must be completed by the employer no later than the third day of employment. The employer's representative must review original documents supporting the employee's identify and authorization to work. In completing section 2, an employer either completes List A OR List B and C. If a document provides identity and authorization to work, such as a United States passport, that document is noted in List A. If a document provides only identity, such as a driver's license, that document is noted in List B. Documents that show authorization to work only, such as an un-annotated social security card, are noted in List C. Again, either List A or List B and C are completed, but not all three..

In Section 2, an employer is required to specify the date the employee began employment and to sign and date the document. The employer must also review section one to verify that the employee fully completed the form.

The government may audit I-9 forms at any time. Employers that have incorrectly completed the forms may be subject to monetary fines, called paper violations. Remember, these fines just increased, up to $5000 per violation. Unfortunately, even if every employee within a company has authorization to work, the company may still be subject to monetary fines for incorrectly completed forms.

I recommend a company conduct an I-9 audit annually to ensure (1) that an I-9 form exists for each employee, and (2) that the forms are completed correctly. This internal audit should be conducted by one that is not preparing the forms in the normal course of business. A person may be preparing the forms incorrectly, on a consistent basis, and not even be aware of it. Thus, having fresh eyes review the forms will lead to the best audit and the best protection for the company. Many companies hire outside counsel to conduct these audit. Not only will this result in a trained person reviewing the forms, but it may result in outside counsel training company employees on correcting common mistakes and ensuring future compliance.

Each employer must keep I-9 records for (1) three years after the date of hire, or (2) one year after the date employment terminates, whichever is later. Since I-9 records are open to a government audit, it is recommended that these forms be kept separate from personnel files. There is no point opening up the personnel records to the government if it is not entitled to them.

ICE may use an I-9 audit as a precursor to an actual raid. As you can imagine, if they compare personnel records with I-9 forms and find a discrepancy, they may conclude that those employees without an I-9 form are unauthorized to work. Further, if an employee or employer has not signed form I-9, ICE takes that position that the person was unwilling to sign their name under penalty of perjury to the truthfulness of the documents or statements made on the form. Thus, they must not be truthful.

With the climate of enforcement being so high, it is imperative that employers do all they can to ensure compliance with immigration and employment regulations. If you would like more information on I-9 compliance or have any immigration questions, please contact me at 469-916-7900.

By: Martha James - click here for more information

On June 9, 2008, President Bush issued an executive order prohibiting federal contracting agencies from contracting with any companies who do not use an electronic employment eligibility verification system designated by the Secretary of Homeland Security. The Executive Order does not specify when contractors must comply nor does it designate the specific electronic verification system contractors must use. However, Secretary Michael Chertoff of the Department of Homeland Security resopnded to the Executive Order by designating E-Verify as the system of choice "to ensure that the federal government only does business with companies that agree to verify the legality of their new hires and further, that the specific employees tapped to perform contract services in the United States for the federal government are authorized to work in this country."

The E-Verify program (formerly the Basic Pilot Program) is a voluntary, internet-based system, jointly managed by the Department of Homeland Security (DHS) and the Social Security Administration (SSA). The E-Verify program requires participating employers to verify employment eligibility of new hires by checking the employee's I-9 information against the SSA and DHS databases.

Regulations implementing this executive order are not yet finalized so the deadline for compliance is not established. However, companies with federal contracts and others should begin planning the implementation of E-Verify immediately. Because the use of E-Verify is not risk-proof, cautious employers should contact an immigration attorney before acting. Badmus Immigration Law Firm (BILF) offers counseling and training in E-Verify implementation. Contact your BILF attorney immediately to avoid the pitfalls of this new turn in immigration compliance.

By Ann Massey Badmus

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As part of its ongoing attempt to ensure that U.S. employers are only hiring people authorized to work in the United States, the Department of Homeland Security (DHS) instituted an online verification program entitled E-Verify (formerly known as Basic Pilot Program.) E-Verify is a free online system that allows employers to confirm the legal working status of new hires, sometimes instantaneously. The Federal government made employer use of the system voluntary. However, many states, frustrated by Congress' failure to institute comprehensive immigration reform, have passed legislation mandating E-Verify use. Mississippi and Arizona are two of the states mandating E-Verify use. Other states, including Colorado, Oklahoma, and Georgia mandate its use for companies entering into state contracts with those particular states. Interestingly, Illinois prohibited its use by any employer within the state. That legislation is currently not being implemented pending the outcome of a lawsuit brought by the DHS seeking a determination that the law violates federal regulations.

E-Verify does not guarantee that the documents provided in support of an I-9 belong to the person providing them. It only verifies that the person named on the documents either has the authorization to work in the U.S. or does not. It relies upon the Social Security Administration's database, which is not always 100% accurate or completely up to date. As such, there are situations where a person is authorized to work in the United States, but the E-Verify system reports the person as unauthorized.

E-Verify is only authorized by Congress through 2008, unless Congress extends the program. There is a lot of movement afoot in Congress now to scrap the program in favor of an alternative program. This bill, if passed, would create a mandatory electronic employment verification system (EEVS) that would require all employers in the U.S. to use a federal government database to verify the work authorization status of newly-hired employees, both U.S. citizens and immigrants alike. The bill creates a voluntary biometrics option that employers could choose to use in the verification process. Basically, it would authorize employers to require collection of "biometrics," such as a fingerprint, to accurately ensure a person's identity and then authorization to work. One of the major failures of the current system is the inability to verify with absolute certainty that the person providing documentation is the person listed on that documentation. Identity theft is rampant and it is hoped that the use of collecting biometrics will provide some surety to the hiring process. The bill also increases penalties on employers for hiring employees not authorized to work in the U.S.

Remember, E-Verify is only one tool in the I-9 process. If you are considering using it, be sure to check the requirements to ensure you are complying with the regulations and discuss this issue with the attorneys at Badmus Immigration Law Firm.

By: Martha James

On June 9, 2008, Secretary Chertoff annouced that Department of Homeland Security (DHS) will begin issuing two year work permits, instead of one year work permits, for certain individuals who have pending adjustment of status cases (pending green cards). This change will allow employers to re-verify the employment eligibility of these employees every two years, rather than annually as is now the case.

For the full press release, click the link below.

By Michelle Richart

USCIS Service Center Operations has provided the following information to the American Immigration Lawyers Association regarding processing cases under the current H-1B cap:

1. Except for cases that were being reviewed as potential duplicate filings, all receipts have been issued for those cases selected in the random lottery. The CSC and VSC completed data entry on all selected cases on May 23, 2008, and mailing of all receipts was completed on May 24, 2008.

2. Cases that were thought to be duplicate filings are being hand reviewed to determine if they are true duplicates. USCIS has received approximately 500 petitions that are believed to be duplicates. However, some of these were submitted as "protective filings" due to courier delivery confirmation problems or where the petition was sent to an incorrect Service Center. Each will be reviewed and determined on a case-by-case basis. If the second submission was accompanied by an explanation of the reason for the second submission, there is a good chance of acceptance.

3. USCIS has determined that the number of petitions selected during the random selection process will be sufficient to meet the cap limit. Therefore, the use of the reserve/cushion will not be necessary this year. USCIS has begun to mail out rejections this week.

By AILA InfoNet Doc. No. 08061261 (posted Jun. 12, 2008)

email: ppowell@badmuslaw.com

phone: 469-916-7900

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