Category: Worksite enforcement policies


Understanding E-Verify: What is It, What Are Employer’s Obligations, and What Does Your Data Tell the Government

December 20th, 2013 — 9:52am

E-Verify is a free, Web-based program that allows employers to verify the employment eligibility of their new hires and certain other workers electronically. Operated as a partnership between DHS and the Social Security Administration (SSA), the program is administered by USCIS.  The program was established to reduce unauthorized employment, reduce employment-verification-related discrimination, reduce the burdens on employers, and protect employers from civil and criminal penalties related to claims of hiring unauthorized workers. While the program is mostly voluntary, some employers are required to use the program to ensure their employees are work authorized. Those required to use E-Verify include most federal contractors and subcontractors who enter into or continue contracts with federal executive departments and agencies for all new hires and/or all persons performing services for certain federal contracts. In addition, some states require E-verify for their contractors, and Arizona requires it for all of its employers. There is little doubt that E-Verify will become mandatory for all employers as part of any comprehensive or even piecemeal immigration reform that is enacted in the future. In the meantime, employers considering registering for the program now should understand the requirements that attach to their participation and some of their potential liabilities:

Employers who use E-verify have a number of obligations that commence after an employer registers and signs an electronic E-Verify Memorandum of Understanding (MOU), which explains the terms and conditions. Under the MOU, the employer agrees to: (1) use E-verify only after new hires have accepted employment offers and completed their Form I-9s, Employment Eligibility Verification; (2) use E-Verify within three days of their new hire’s actual start date; (3) use E-Verify  only for new hires, not existing workers, unless otherwise required; (4) use the data obtained on Form I-9 to enter information into the E-Verify system; (5) display federal notices for E-Verify at their workplace; and (6) accept only “List B” identification documents with photographs as part of I-9 procedures.  Employers who use E-Verify also agree to comply with other responsibilities related to record-keeping and response procedures when information provided by the new hire does not match federal records. This includes reviewing “tentative nonconfirmation” (TNC) responses issued by SSA with their employee and reporting back to SSA/DHS with details on resolving the TNC. Participating employers also agree to permit DHS or SSA to make periodic visits to review its E-Verify records and share information with other government agencies.  During those periodic visits, DHS or SSA officials are permitted to interview employees directly. Employers who participate in E-Verify can terminate the program but only after giving 30 days notice.

In early December, E-Verify released new and revised MOUs that bind existing users and new users to changes made to the program. Most of these changes are not substantive but instead appear to reflect improved language and organization, as well as some enhanced privacy protections and instructions for reporting privacy and security breaches. While existing users do not need to execute new MOUs, they are bound by these changes. The effective date for existing users is January 8, 2014.  For new users, the effective date of the revised MOUs is December 8, 2013.

A new feature of E-Verify is that the system now can lock Social Security numbers (SSNs) that appear to have been used fraudulently, like a credit card company can lock a credit card that appears to have been stolen. If an employee attempts to use a locked SSN, a TNC will be generated.

As mentioned above, participating employers agree to governmental information sharing. Three years ago, DHS formalized such information sharing and entered into an agreement with the Department of Justice’s (DOJ) Office of Special Counsel (OSC), the division in DOJ that prosecutes claims of discriminatory hiring practices. Under the agreement, DHS shares with OSC citizenship status and documentation data, which initially was to be used to identify trends that may indicate an employer’s discriminatory practices. However, once the DHS/OSC information sharing program was up and running, OSC began using this data to initiate investigations of employer discrimination, even in the absence of employee complaints.  And, such investigations are on the rise.

With more and more employers enrolling in E-Verify — either because they want greater confidence in the validity of the documents presented by their employees and less risk of fines for making mistakes, or because they are now required to do so — it has become increasingly important for employers to understand all aspects of the program and ensure that their staff are well versed and trained in the program’s requirements. For starters, employers who use E-Verify are strongly encouraged to review and familiarize themselves with the new or revised MOU that applies to them. Employers should also adopt best practices, which include preparing a policy-and-procedure manual for I-9 and E-Verify compliance; providing annual and mandatory training for all individuals who complete the company’s I-9s; and periodically auditing and reviewing the company’s processes to ensure that they are being followed properly.

Comment » | Immigration and Customs Enforcement, Worksite enforcement policies

USCIS Releases New Employment Eligibility Verification Form I-9

March 8th, 2013 — 3:50pm

On March 8, 2013, U.S. Citizenship and Immigration Services (USCIS) released the official, newly revised Form I-9.

Employers are required to use the Form I-9 to verify the identity and the employment eligibility of their newly hired employees hired after November 1986.

What is Different in the new I-9?

USCIS has finalized the new form with the following major changes:

  • New data fields, including employee’s foreign passport information, telephone and email address;
  • Clarifying the form’s instructions; and
  • Revising the layout of the form and expanding it from one to two pages.

Form I-9 Revision Date

The new, revised Form I-9 will contain a revision date of “(Rev. 03/08/13)N.”  Employers should begin using this new form immediately.

Employers will have a 60-day grace period, until May 7, 2013, to comply by using the new form.  After May 7, 2013, employers who fail to use this new form may be subject to penalties imposed under the Immigration and Naturalization Act.  These provisions, as usual, would be enforced by Immigration and Customs Enforcement (ICE).

The M-274 Handbook for Employers is in the process of being updated as well by USCIS in order to correspond to the new Form I-9.  Employers are advised by USCIS to follow instructions on the new Form I-9 until the revised M-274 Handbook for Employers has been updated.

Click here to access the USCIS I-9 website for the I-9 announcement.

Click here to access a downloadable copy of the new I-9

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

Connect with us today to learn how we can help you further your hiring goals.

Comment » | Department of Homeland Security, E-Verify, I-9, Immigration and Customs Enforcement, Worksite enforcement policies

Alabama Enacts Immigration Law

April 26th, 2012 — 3:26pm

 

The new Alabama law targeting undocumented immigrants has come under attack by advocate groups and federal judges, who have found key provisions of the law to be unconstitutional. In addition to being ruled as unconstitutional, agricultural interest groups have claimed the law has created labor shortages in the fields and business groups fear it is fostering a hostile economic climate throughout the state.

Recently, flaws of the immigration law were exposed when a Mercedes-Benz executive, visiting from Germany, was detained for hours by the local police, after failing to prove his legal status when his only identification was his German I.D. State lawmakers are undeterred and instead of repealing the law, they are tweaking it in hopes of avoiding future embarrassment. Unfortunately, throughout the process, they have made things much worse.

The modifications not only leave intact much of the law’s original features, but make some aspects even harsher. For example, a revision concerning the checking of legal status of detained individuals was changed to require police officers to conduct such checks only when issuing a traffic citation. The trouble is that police officers can almost always find reasons to issue traffic citations, if they are so inclined. Another provision of the law states that the legal status of passengers can be checked if the driver is believed to be an illegal immigrant. This invites racial profiling, and in some instances, even makes profiling okay.

Religious groups worry that the new laws will make it illegal for them to offer aid to struggling, undocumented immigrants. The existing law states it is illegal to offer aid to ten or more illegal immigrants, but the revision would lower this number to five. Virtually anything can be considered “offering aid,” even simply giving them a ride to work. Similarly, the revised law seems to favor large corporations over small or family-owned business when the law would allow firms’ licenses to be revoked if the revocation “serves the public’s interest.”

Although relatively few undocumented immigrants inhabit the state of Alabama, the thousands that did have since fled the state. Zulkie Partners, LLC, a business immigration law firm, boasts a team of attorneys, who are experts in corporate immigration law. If you feel you need assistance in navigating the complicated and convoluted immigration laws of the United States, Zulkie Partners, LLC, can help. The attorneys of Zulkie Partners understand that clients are looking for value beyond simple legal expertise and are dedicated to helping you every step of the way.

 

 

Comment » | Customs and Border Protection, Immigration and Customs Enforcement, Immigration reform, Worksite enforcement policies

Immigration and the Executive

December 19th, 2011 — 11:16am

While the Justice Department efforts to protect individual rights and to preserve the right of the federal government to enforce immigration law have been laudatory, a number of other significant policies of the current Administration have angered pro-immigration supporters, not the least of which has been the record number of deportations that have transpired in the last three years. Some 1.2 million undocumented foreign nationals have been deported since President Obama took up office, compared to almost 1.6 million deported during the eight-year Presidency of George Bush. In FY2011 alone, an unprecedented 400,000 people were deported. However, just last month the Administration took real action to provide relief for the undocumented who pose no threat to the country and who commit no crime.

Prosecutorial Discretion

 A new DHS-ICE policy encouraging the exercise of prosecutorial discretion in appropriate cases was launched in mid-November – complete with fairly comprehensive guidelines and procedures – and is being piloted in Baltimore and Denver, December 4 through January 13, 2012. DHS (the Department of Homeland Security) had announced in June its intent to eliminate low priority cases from the immigration court dockets and instead focus its enforcement priorities on the removal of those who have broken criminal laws, threats to national security, recent border crossers, repeat violators of immigration law, and immigration court fugitives. In August, DHS and ICE (Immigration and Customs Enforcement) issued a directive to ICE attorneys to review pending court cases as well as cases where a charging document had not yet been filed to determine if the agency should decide not to prosecute the case. DHS also announced the establishment of a joint DHS-DOJ working group to review the approximately 300,000 pending cases and identify cases for administrative closure. The pilot program just launched was designed to identify cases most clearly eligible and ineligible for a favorable exercise of discretion. During a six-week period, USCIS, ICE, and CBP (Customs and Border Protection) attorneys are to review cases according to the agency’s general prosecutorial discretion guidance as well as by a set of more focused criteria. Ultimately, DHS expects to implement “best practices” on an ongoing basis nationwide.

While it is still too soon to judge the results of the pilot program and the impact of the agency’s new policy, in Baltimore, at least, removal cases normally set in December and January have been scheduled well into the future.  Stay tuned.

Other DHS guidance issued in November on when immigration charging documents should be issued dove-tails with its prosecutorial discretion policy.

Adjudications, Entrepreneurs, Small Business

More informally, the Administration has engaged the public and immigration stakeholders on a variety of issues and has done so more directly that ever before. Recently, the USCIS Ombudsman’s Office held an Annual Conference attended by 300 to discuss improving the delivery of immigration benefits and services. USCIS also has hosted a number of teleconferences with the public. A teleconference was held on USCIS’s then-changed policy on where and to whom I-797 approval notices are sent. (Feedback from the call contributed to USCIS changing its policy.) Another teleconference was held on small and start-up business immigration issues and involved not only immigration officials but those from the Small Business Administration and other federal agencies. On a related note, USCIS just launched an “Entrepreneurs in Residence” initiative and hopes to bring business experts in-house to work alongside USCIS staff to ensure that its policies are reflective of industry realities. This could be a valuable opportunity for business experts and immigrant entrepreneurs, especially those who have engaged in the U.S. immigration system through immigrant visa applications, to join USCIS’s tactical team and affect how the agency adjudicates cases. Business members, however, must be U.S. citizens. To apply for the Entrepreneurs in Residence program, see http://www.dhs.gov/xabout/careers/loaned-executive-business-expert-uscis.shtm

It’s anyone’s guess whether the Administration’s formal policy changes (prosecutorial discretion) or its informal meetings and public engagements will result is administrative fixes that have real teeth. At the end of the day, however, these changes represent only modest remedies to a system that cries out for wholesale reform.

Comment » | Customs and Border Protection, Department of Homeland Security, Immigration and Customs Enforcement, Immigration reform, Worksite enforcement policies

Immigration and the Courts

December 19th, 2011 — 11:11am

Supreme Court Enters Arizona Fray

On December 12, the U.S. Supreme Court agreed to decide whether Arizona may impose its tough anti-immigration law, S.B. 1070, including a requirement that state-law enforcement officials determine the immigration status of anyone they stop or arrest if the officials have reason to believe that the individual might be an undocumented immigrant. The Ninth Circuit blocked the provision and others in this Draconian, controversial law, which was enacted in 2010 and spawned copycat legislation in a number of other states.  By taking on the case, the Court has thrust itself into the center of American political life and will weigh in on what has been called one of the most combustible issues in American politics. The Supreme Court’s ultimate decision in the case, however, may not have precedential value. Justice Elena Kagan will not take part in the decision of the high court – she worked on the issue previously while solicitor general – which raises the prospect of a 4 to 4 vote. If that were to happen, the Court’s decision would carry no precedential significance for the other state laws being challenged. The Court is expected to hear the case in April.

 Federal Court Challenges to Utah and South Carolina State Immigration Laws

In the wake of congressional inaction on immigration, state legislatures continue to attempt to reform the law and the federal government continues to wrestle with the states to maintain its control or preemptive rights over the issue. As these battles persist and are played out in the federal courts, the Department of Justice (DOJ) has been center stage.  In addition to suits in Arizona and Alabama, DOJ recently filed a lawsuit in federal district court against a South Carolina law, Act No. 69, parts of which go into effect, on January 1.  Filed on behalf of the Departments of State, Justice, and Homeland Security, the lawsuit argues that certain provisions of the South Carolina law are unconstitutional and interfere with the federal government’s authority to set and enforce immigration policy. Then, on November 23, DOJ filed another suit, this time against Utah, to block implementation of HB 497, which mandates that local police enforce immigration laws. These laws are similar to those in Arizona (SB 1070) and Alabama. (The same day the Supreme Court accepted review of Arizona’s SB 1070, a federal court blocked a provision of Alabama’s immigration law that would have forced undocumented immigrants to leave their mobile homes. The ruling means that people paying for their annual mobile home registration tags required for residence will not have to prove their legal residency for now.)  DOJ is also reviewing laws in Georgia and Indiana that already have been challenged by private groups and individuals.

In its press releases announcing these lawsuits, DOJ cited the irreparable harm caused by the laws, including “the harassment and detention of foreign visitors and legal immigrants, as well as U.S. citizens, who cannot readily prove their lawful status.” The reality of this concern was borne out recently when a German Mercedes Benz executive was arrested under Alabama’s anti-immigrant law while in town visiting the automaker’s facilities, followed by the arrest of a Japanese Honda employee also in Alabama.

Clearly, DOJ’s efforts in these cases reflect a commitment to protecting constitutional principles and individual rights, which we applaud.

Comment » | Department of Homeland Security, Worksite enforcement policies

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