What’s New with the Immigration Reform Bill and I-9/E-Verify Compliance

Feature Articles:  What is the Status of Immigration Reform?

• In the Senate:  Historic Immigration Bill Passes the House

The Senate’s immigration bill crafted by the Gang of 8 takes us a small step closer to a less punitive and more open immigration policy. It legalizes most of the unlawful immigrants here and provides pathways for legal immigration in the future. The good news is that it’s a huge “win” on many fronts

The fate of the bill now rests with John Boehner in the House of Representatives – an unpredictable and risky precipice for the heavy lift required to reform an immigration system  that is completely out of step with the modern era.

The Senate bill is not perfect, but it’s a win on many fronts.  Refer to our article for some specifics.

• In the House:  The Ball is in Their Court on Immigration; What have they Accomplished so Far?

  There is no single House Republican view on immigration reform. Maybe Republicans will decide to accept bipartisan immigration reform as a step toward becoming a party with something to offer Latino and Asian voters besides hostility and fear.  Boehner has a choice. He can let reform go forward with bipartisan support — House Republicans and Democrats together could pass a good bill, or he can stand back and let his party kill reform.  The questions is...can the Republican party survive with the collapse of immigration reform in light of the country’s changing demographics?  What’s been accomplished so far? On the House’s dilemma, the NY Times has done a very insightful Op-Ed

I-9 and E-Verify Updates

1. Employers Must Use Revised Form I-9, Employment Eligibility Verification Form as of May 7, 2013

   USCIS reminds employers that beginning May 7, 2013, they must use the revised Form I-9 Employment Eligibility Verification (Revision 03/08/13 N) for all new hires and reverifications. All employers are required to complete and retain a Form I-9 for each employee hired to work in the United States. Also, refer to one of our previous articles.

An excellent resource - New I-9 Form FAQs

Please provide a copy of the new M-274 Employer Handbook to all employees that are involved with the I-9 process.  We recommend that you make reading it mandatory

Check out the free USCIS I-9 webinars

Our Employer Resource Center is full of excellent information on I-9 compliance audits and training.

2. USCIS Enhances E-Verify's Capability to Directly Notify Employees of an Information Mismatch

This latest improvement to E--Verify is made possible by a recent revision to the I-9 form that allows employees to be directly notified by email of a TNC. To date, employees learned of TNCs only through their employers. Now, if an employee voluntarily provides their email address on the new I-9 form, they will be notified by USCIS directly through that email address. The email address is strictly voluntary and employers are still required to notify employees when there is a mismatch of information.  Note that the employer cannot prompt the employee to fill in this field, or which email address to use (business or personal). It is entirely voluntary and the employee should be referred to the I-9 instructions that should be provided to each and every employee filling out a new I-9 Form. More information here.

To view a sample copy of the email that your employee will receive from USCIS in response to a TNC, refer here.

3. House Republican Lamar Smith (Tx) Reintroduces Mandatory E-Verify Bill

Titled the Legal Workforce Act, H.R. 1772, that would require all employers in the United States to use the E-Verify system within three years and repeals the current paper- based I-9 system and replaces it with a completely electronic work eligibility check.  His thinking is that this will bring the process into the 21st century.

4. Tips for Preparing for Mandatory E-Verify

A key component of the Senate immigration reform proposal is implementation of the E-Verify system nationwide. It’s important that employers take proactive measures now to be compliant with immigration laws.

5. How the New Electronic I-94 Entry-Departure Card Effects the I-9 Process

As I’m sure you are aware, the I-94 card is a commonly presented List A document for I-9 purposes.  When an employee changes their status inside the USA, changes employers or extends their stay, (such as an H-1B visa holder), USCIS will continue to print the I-94 records at the bottom right of the USCIS I-797 approval notices.  If Customs and Border Protection (CBP) issued an electronic I-94 entry card to one of your employees upon their admission to the United States at an airport or seaport, they are required to print the document from the CBP website for I-9 purposes.  They can do so here.. If they are unable to access their I-94 information from the CBP website, they should call or go to a CBP deferred inspection location to correct the problem. For more information about Deferred Inspection Sites. refer to the link. In the alternative, they may file Form I-102 with USCIS and request their Form I-94; however, there is a filing fee and this process may take weeks.  Note that when accessing the form online, the name must be entered exactly as it appears on the passport. We find that many problems retrieving the I-94 are due to incorrect name entries.  Refer to the I-9 Demonstration Video.

6. Preventing Discrimination in the Form I-9 Process

7. OSC Technical Assistance Letters

The Office of Special Counsel (OSC) SC provides a valuable resource in sharing their letter responses to various I-9 compliance inquiries from stakeholders. The topics include: Non-Discrimination Practices, Pre-Employment Inquiries, Document Abuse, SSA No-Match, Falsification Issues, and much more. We recommend the OSC free webinsars. Check them out here.

8. ICE Guide: Examining Travel and Employment Authorization Documents

This is an excellent guide and should be printed out along with copies of the new I-9 Employer Handbook for all those involved with the I-9 process.

9. OSC Enters into Memorandum of Understanding with National Labor Relations Board (NLRB).

10. Recent OSC Settlements Concerning Discrimination, Document Abuse, Immigration Related Unfair Employment Practices and more.

11. The National Restaurant Association surveyed about 800 restaurants on their experiences with E-Verify.

      80 percent who use it would recommend it to a colleague. Read more.

Recent Case Settlements in the News

• 7-Eleven Owners Face Immigration Charges. 114 stores in Va., N.Y. seized; 40 more investigated More than a dozen 7-Eleven franchises took in more than $180 million in revenue by running a “modern-day plantation system,” prosecutors in New York charged, built on the unpaid labor of dozens of illegal immigrants hired using sham Social Security numbers. Read more.
• On April 9, 2013, OSC entered into a settlement agreement with a national residential property management firm that improperly reverified the documentation of lawful permanent residents when their documentation expired but did not reverify the expired documentation of other permanently work-authorized individuals.
• On March 25, 2013, OSC entered into a settlement agreement with a Georgia pecan supplier that required more or specific documentation from work-authorized non-U.S. citizens than from U.S. citizens when completing the Form I-9 and the employment eligibility verification process.
• On February 28, 2013, OSC entered into a settlement agreement with an Illinois staffing agency that treated work-authorized non-U.S. citizens differently during the employment eligibility verification and E-Verify process. OSC began investigating through a referral from U.S. Citizenship and Immigration Services (USCIS) under a memorandum of agreement between the Civil Rights Division and USCIS.
• On February 20, 2013, OSC entered into a settlement agreement with a national retail florist that retaliated against a worker after he alleged unfair documentary practices and expressed his intention to assert his rights under the anti-discrimination provisions of the Immigration and Nationality Act.

Case Settlements from OCAHO, the Office of the Chief Administrative Hearing Officer

Administrative Law Judges hear cases and adjudicate issues arising under the provisions of the INA relating to: (1) knowingly hiring, recruiting, or referring for a fee or the continued employment of unauthorized aliens, and failure to comply with employment eligibility verification requirements of section 274A of the INA (employer sanctions); (2) immigration-related unfair employment practices in violation of section 274B of the INA; and (3) immigration-related document fraud in violation of 274C of the INA. Complaints are brought by the Department of Homeland Security, the Office of Special Counsel for Immigration-Related Unfair Employment Practices in the Department of Justice, or private individuals as prescribed by statute.

OCAHO has reduced penalties in several cases where they have found that they are not “sufficiently meaningful to accomplish the purpose of deterring future violations, without being ‘unduly punitive’ in light of the respondent’s resources.”  It appears that every time an employer has chosen to fight a Notice of Fines issued in an I-9 ICE government audit, bringing the case for hearing before OCAHO, their fines have been reduced.  Below are a few examples:

• OCAHO Reduces I-9 Fine from $34.9K to $14.5K: Seven Elephants Distributing Corp.

The employer hired thirty-three named individuals for whom it failed to properly   complete section 2 of Form I-9, and hired an employee for whom they failed to produce an I-9 form. 7 of the 34 employees were unauthorized to work. All violations were substantive in nature.

• OCAHO Reduces I-9 Fine from $11,000 to $2200

The employer engaged in 20 violations for which penalties of $11,000 were sought. Upon examining the I-9 forms, it was found that with two exceptions, driver’s licenses had been improperly entered as List A documents in section 2 of the form; no List B or C documents were entered. On two forms, a voter registration card and a school ID had been entered as List A documents, and no List B or C documents were entered. These are substantive violations.

• OCAHO Finds That Missing and Defective I-9s Do Not Equal a Lack of Good Faith

OCAHO reduced fines, finding that based on the respondent’s circumstances and resources, the proposed penalty was modified from being close to the maximum permissible fine, to an amount closer to the mid-range of possibilities. (U.S. v. Siam Thai, 3/18/13).

InFOCUS for HR’s | Hiring Foreign National Employees

The HR professional receives legal advice from his or her immigration counsel, in-house immigration attorneys or specialists; however, it is also highly important for the HR professional to understand certain key immigration terms and concepts in order to adequately assist the company in hiring foreign national employees.

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Disclaimer: This newsletter does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed. © Copyright 2005-2013 Immigration Compliance Group.