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Alabama Immigration Law Journal

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The Key to E-Verify’s Lock Out Enhancement

Posted in E-Verify, I-9, ICE, Worksite Enforcement

The U.S. Citizenship and Immigration Services (“USCIS”) recently announced an ehnacment to the E-Verify program to combat identity fraud with respect to social security numbers.  Basically, USCIS will “lock” social security numbers that appear to have been fraudulently used.  If an employee provides a locked social security number while completing the I-9 form, E-Verify will generate a Tentative Nonconfirmation (“TNC”), which then will require the employee to contest the TNC at a local Social Security Administration field office.

Prior to this enhancement, USCIS believed it was more likely that a stolen social security number would not raise any red flags or result in a TNC, if the employee also provided the name and date of birth of the individual to whom the social security number belonged.  Thus, for example, if I stole the name, date of birth, and social security number of John Smith, I may get through the E-Verify process with no problem, because there was no mechanism to catch that the social security number had been stolen.

Combating identify fraud is something everyone can support, but here are the  bad news for E-Verify employers.  Multiple TNCs may result in USCIS sharing such information with ICE, which in turn may result in an audit of the employer’s I-9s and other work authorization processes.

So, here is the “key” to the lock out.  Employers must focus on I-9 compliance first and foremost. Specifically, employers should make an honest effort to examine whether the original documents presented by the employee appear to be genuine and belong to the employee. If the employee chooses to present a social security card  as a List B document, pay close attention and make sure it appears to be genuine.  (In conducting audits, I have seen many fake social security cards that even my 10 year old could have spotted.)  If it’s reasonably clear that the documents presented are fake, the employee should not even get through the I-9 process, thus avoiding the social security number being run through E-Verify.

E-Verify employers who ignore or don’t even try to identify fake documents and thereby rely on E-Verify as a safety net are making a mistake.  It is no safety net, and the fact you used E-Verify and the employee does not receive a TNC will provide no immunity from liability if it turns out that the documents presented by the employee, including the social security card turn out as fake as monopoly money.  Obtaining some basic training on spotting fake documents will go a long way for E-Verify employers, now more than ever.

Also, employers must remember that the employee has a choice of what documents to present. Requiring an employee to present specific document to avoid a TNC  likely will be considered document abuse.  As we have discussed in prior posts, the Office of Special Counsel receives statistical analysis from E-Verify regarding the types of documents presented by employees and initiates enforecement actions when they find patterns that suggest an employer is mandating a particular set of documents be presented for I-9 purposes.

 

Government Shutdown: Impact to Employers’ Immigration Compliance Efforts

Posted in E-Verify, Federal Immigration Law, ICE, Office of Special Counsel

The current government shutdown will affect several areas of immigration compliance for employers and individuals. While attempting to be comprehensive, the following post is by no means exhaustive of the shutdown’s impact.

First, a quick guide of what we consider to be the most significant disruptions to employers and individuals:

  1. Lack of access to E-Verify
  2. The inability of individuals to apply for visas at U.S. Consulates;
  3. The inability of employers to obtain certified LCAs  for H-1B petitions;  PERM labor certifications and prevailing wage determinations.
  4. The inability of individuals in obtaining replacement Social Security Cards.
  5. ICE will continue to issue Subpoenas and Notices of Inspection to employers, but audit processing may be delayed.

Second, a more detailed list of the impact of the shutdown broken down by the various agencies of the US government that interface with employers in the Immigration arena.

US Department of Homeland Security

USCIS Immigration Benefits

As an agency funded by filing fees, USCIS will continue normal operations with regards to most of its adjudication operations during the shutdown. Any fee for service activities performed by USCIS will not be affected by the shutdown. This means that employers (and beneficiaries) may continue to file petitions for employment visas (temporary or permanent), adjustment of status applications, and other benefits like EADs and advanced parole petitions.   Naturalization ceremonies however appear to have been cancelled. USCIS directs users to report to interviews and appointmest as scheduled  and to call I-800-375-5283 with questions.

E-Verify

Given that E-Verify is a free service, it will be unavailable to users during the shutdown. This means that employers who want to: enroll in E-Verify, querry new hires, view or take action on any case, add, delete or edit user ID’s, reset passwords will have to wait until operations resume. As well, the E-Verify Customer Support and related services are closed.  In it’s most recent alert, E-verify provides the following practical guidance:

  • The “three-day-rule” for new E-verify cases is suspended until further notice.
  • The timeframe for resolving TNC (FAN) will be extended. The days the government is shutdd own will not count towards the 8 day deadline.
  • Federal contractors need to contact contracting agent to inquire about extending deadline for compliance.
  • Employers should NOT take any adverse action against an employee due to E-Verify interim cases status.

Customs and Border Protection

CBP will continue to operate, as its mandate is deemed an “essential function” of the US Government. Border security and customs procedures and processes at the various US land and sea ports of entry are expected to remain unchanged and will continue to accept applications for admissions. However, delays may be expected as CBP  is giving a furlough to more than 10 percent of its staff.

US Department of State

At this moment, the Bureau of Consular affairs will continue operations through out its worldwide consular offices until current funding is runs out. Funding is only expected to last a few more days. Fox News Latino reported that after current funding is exhausted consular posts will focus solely on diplomatic services and emergency services for American citizens. Further, visa processing, except in emergency cases, will cease if the shutdown is prolonged. Employers should note that in previous  shutdowns, business reasons have not qualified for emergency visa processing.

US Department of Justice

During the government shutdown, the Office of the Chief Administrative Hearing Officer will maintain its ability to issue subpoenas and accept for filing any complaints that must be filed to comply with statutory deadlines.

Immigration courts nationwide are continuing to adjudicate detained cases. Court functions that support the detained caseload will continue, but other functions are suspended. For specific information about a particular court, please visit http://www.justice.gov/eoir/ICstatus.htm.

The Board of Immigration Appeals (BIA) is processing emergency stay requests as well as cases where the alien is detained, including case appeals, motions, federal court remands, and bonds. The stay line is open (for emergency stay calls only), but all other telephone lines have been switched to closed status.

US Department of Labor

Most of the DOL agencies like Wage and Hour and Occupational Health and Safety, will completely close during the shutdown. Further in the Immigration arena, the DOL has announced that the Employment & Training Administration, which handles Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification will cease operations.

OFLC’s web site, last updated September 26, 2013, announced that “OFLC will neither accept nor process any applications or related materials (such as audit responses) LCA’s, Prevailing Wage Determinations, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification.   OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online account.”

This will result in delays and will likely prevent an an employer’s ability to file petitions with USCIS, or engage in recruitment efforts, when those petitions require an application approved by DOL. The current backlog of adjudications will likely grow during this time.

Social Security Administration

SSA personnel will continue to perform”essential services”  like issuance of checks for beneficaries. However, it will not accept applications for new or replacement Social Security cards or issue receipt notices for those that have lost or stolen cards. This may impact an employers ability to complete I-9 forms.

We will continue to update our readers as more information becomes available.

 

So What Can You Request of Your Contractors?

Posted in Discrimination, I-9, Office of Special Counsel

Recently, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) issued a technical advisory letter in response to a subcontractor inquiry who was facing a difficult question by its general contractor on the project.  The general contractor requested  the subcontractor’s employees, prior to being allowed to work on the project,  to provide the original documents (e.g., U.S. passport, drivers license, social security card) that were provided to the subcontractor during the I-9 verification process.  The subcontractor asked the OSC if such practice was “permitted”, and if not, what “remedies” were available to the subcontractor for the general contractor’s alleged improper request.

The OSC punted on responding to these questions directly.  While stating that it is not allowed to provide an advisory opnion on any set of facts or involving a particular individual or entity, the OSC did say that:

(a)  there were practical issues or problems associated with the general contractor’s request to have the subcontractor’s employees to present the same documents due to the passage of time between the original completion of the I-9 and the request by the general contractor;

(b) such practice might result in subcontractor’s employees perceiving they have been discriminated against due to their citizenship or immigration status, if they are ultimately barred from employment; and

(c) the subcontractor’s employees might  allege discriminatory I-9 practices in violation of the anti-discrimination provision of the Immigration and Nationality Act.

The OSC’s letter touches on a  topic important to clients who have contract workers on their properties and premises.  The general question asked is, “What can I do to make sure that contract workers are authorized to work, since I can be held responsible if they aren’t?”  Here are a few things to consider:

  • As the owner and not the employer, you are only at risk if you know or have constructive knowleged that a contractors employee is unauthorized to work in the U.S.
  • Solid contractual provisions  between you and the contractor that also flow down to any subcontractors are key. Make sure they address immigration law compliance, the I-9 verfication process,  E-verify  (if applicable), as well as indemnification for non-compliance.
  • The applicable regulations state that the I-9 form is to be used only for enforcement of the immigration laws, so  requests to audit I-9 forms, obtain copies of I-9 forms, or to obtain copies of documents presented to complete I-9 forms should be discussed with legal counsel. 
  • As the owner, your legitimate interest is access to property and not employment, so you want to separate the two concepts with any requests or obligations you place on your contractors.  For example, you may require individuals working on your property to present appropriate identification prior to having access to your premises. This is separate and distinct from any I-9 form process that occurs between your contractor and its employees.
  • Requiring your contractors to go through an immigration compliance audit by a third party you select may be the route to go, especially if you are allowing access to safety-sensitive, valuable, highly regulated or critical infrastructure property.

The bottom line is that there are right and wrong ways to ensure  immigration compliace by your contractors and to reduce risk that you will be responsible for any non-compliance on their part.

News from USCIS and E-Verify – We Plan to Contact Your Employees!

Posted in E-Verify, I-9

If you wondered why USCIS chose to include “optional” fields for phone numbers and email addresses of employees in the recently updated Form I-9, you do not have to  guess any more.

 USCIS plans to contact your employees.  Yes, you heard it right. USCIS plans to contact employees (who provide their email address on their I-9 forms) if their respective E-Verify case results in a TNC (Tentative Non Confirmation).  Presently, there is no plan for telephone communication, but that can change. As well, USCIS recently stated that it presently does not plan to copy employers on such e-mail notifications.

 During the last USCIS Stakeholder Conference, USCIS informed the public that it will contact employees in the following three cases:

 Initial Alert:  Employees who provided an e-mail address when completing Section 1 of Form I-9 will receive a notification informing them of a TNC.

  • Reminder:  Employees will receive a reminder that they have 8 federal working days to begin the process of resolving the TNC if they choose to contest it.  It is our understanding that if the employee notifies the E-Verify system that it will contest the TNC but fails to contact the agencies to initiate the resolution process within 4 days of making such election, the system will prompt an e-mail reminder.
  • Post Determination Notification:  Upon final verification, even when the results of the case confirm that the employee is authorized to work in the United States, the system will remind the employee to contact SSA or DHS, or avail itself of Self-Check in order to prevent future TNCs if he/she were to change employment.

In addition, the Initial Alert will contain a section on “Reporting Violations” that informs employees how and where to report employers for violations of E-Verify rules and discrimination or “unfair” treatment.

 So, what can employers do?

 Our clients have asked if it is permissible for an employer to direct the employee not to provide an e-mail address when completing form I-9. The answer is no. While the email and phone number fields in Section 1 of the Form I-9 are entirely optional to compete, the option still belongs to the employee. Therefore, employers may not direct employees not to provide such information.   Arguably, it may be permissible to tell employees that providing an e-mail address is optional by referring them to the applicable instruction (Note that the I-9 form itself does NOT mention that the e-mail address or phone number is “optional”).  The employer also may be able to inform employees that whatever e-mail address and phone numbers are provided must be provided to the government.

In addition to not being able to tell employees NOT to provide an e-mail address, an employer cannot force an employee to provide an e-mail address.  If the employer is not familiar with the I-9 instructions, it could easily ask an employee to complete the e-mail and phone number fields on the I-9 in the interest of making sure the I-9 is fully completed.

 USCIS also advised that an employer may not fail to provide the employee’s e-mail address if the employee opted to provide it in the I-9.  In other words, if the employee chooses to provide it on the I-9, the employer must provide it during the E-Verify process.

 The employee may also  choose what email address they will provide, including a company e-mail address. While employers may have a policy that prohibits the use of company email for personal purposes, communication related to a TNC arguably is a legitimate business purpose, thereby allowing employees to provide such if they so choose.

 Finally, if your company is currently utilizing an electronic I-9 system to complete the forms and submit the cases to E-Verify, you should ensure that your vendor has updated the form and is currently aware of this issue.

Alabama Department of Agriculture and Industries Advices Its Members to be Ready for ICE Audits

Posted in Uncategorized

Recently, the Commissioner for the Alabama Department of Agriculture and Industries released an advisory notice to its constituents stating that Immigration and Customs Enforcement (ICE) visited an Alabama business to conduct an investigation. Further, the advisory cautioned Alabama employers to ensure their I-9 and E-Verify documents are compliant and in order as required by federal and Alabama law.

We obtained confirmation from ICE and our other sources that this event is not an isolated ICE enforcement audit, but is part of a new wave of enforcement activity nationwide. Usually, they will audit anywhere between 500 and 1,000 employers in each of these initiatives.

My colleague Wendy Madden recently addressed the need to be prepared for an ICE audit  in the  Birmingham Business Journal.  Both the Commissioner and Wendy Madden are right.  Now is the time to get ready for an ICE audit.

Employers Get Ready, Set, Go …. New 2 Page I-9 is HERE

Posted in Federal Immigration Law, I-9, ICE, Worksite Enforcement

On March 8, 2013, USCIS will release the much awaited, and somewhat dreaded, two page I-9 Form. Click here to see the advanced Fed. Register Notice.   You’ll see format changes, new fields (some mandatory, some optional), clarified instructions and much more.   Click here to see earlier-proposed versions of the form released on 3/27/2012 and 8/23/2012.   The new, revised Form I-9 will contain a revision date of “(Rev. 03/08/13)N.”  Once available, a copy of the new form will be available on the USCIS webstite. Employers should begin using this new form immediately.

 Here are a few key things to know:

 By May 8, 2013, employers must be using the new form exclusively.  Using the old form after May 8 will be a basis for penalty assessment. 

  • The timeframes for completing  and retaining the I-9 Form remain the same.
    • Section 1 of the Form I-9 must be completed (and signed) by the employee on the first day of work for pay or before the first day of work for pay, if the employer has offered the individual a job and if the prospective employee has accepted it.
    • Section 2 of the I-9 Form must be completed (and signed) by the employer within three business days of the employee’s first day of work for pay.
    • Section 3 of the I-9 Form (if required) must be completed by an employer if an employee’s employment authorization or documentation of employment authorization has expired – re-verification must occur on or before the employee’s work authorization expires.   An employer may choose to complete Section 3 when an employee is rehired (within three years of the date that Form I-9 was originally completed) or when an employee changes his or her name.
    • Just as with the expiring Form, employers must retain the new Forms for three years from date of hire or one year from date of termination whichever is longer

For employers using an electronic I-9 system, ICE’s position remains: “buyer beware;” each employer is ultimately responsible for ensuring system compliance. Therefore, please ensure your vendor is aware of this new release. Do not be afraid to ask the tough questions to ensure your vendor’s system is compliant with the regulations. We know that some vendors, including LawLogix, are aware of this development and have been diligently working to make sure the new I-9 Form is timely available on their system.

The Game – Immigration

Posted in Federal Immigration Law

A strong, bi-partisan effort continues…

Last week the President met with GOP Senators to talk about immigration legislation.

According to the Senators the meeting went very well, and they believe that the President will be flexible. While details were not discussed on the record, the talk is that both parties understood the pathway to citizenship will be tied to border security.

A small group of Senators from both parties continues to meet each day to work on comprehensive legislation, and based on comments from participants in both parties, there is strong optimism that an agreement will be reached. The House is a bit different.

The talks there are much more delicate because they have to pass a Republican-controlled chamber where a majority of members represent districts with a Hispanic population of less than 10 percent, and while they’re in safe Republican Districts, they fear a challenge in their primary. This week it was illustrated when a potential 2016 Republican Presidential candidate, Jeb Bush, positioned himself to the right of Marco Rubio, one of the Senators working on the bi-partisan bill.

GOP leaders are engaging in “listening sessions” to educate members, and will probably approach the overhaul in pieces instead of moving one comprehensive bill, working on the low hanging fruit first, and then working on tougher elements later. The details are being circulated but it’s hard to tell what’s real and what’s a trial balloon. One a good note, last week the House Judiciary Chairman said he did not support an eventual path to citizenship for undocumented immigrants, however, this week he seems to be more open to compromise.

This week the President’s Cabinet Secretary for Homeland Security Secretary said that immigration reform is the top priority for her Department this year, but she also came under fire for releasing immigration detainees due to the budget sequester. Immigration and Customs Enforcement under the Department of Homeland Security will need to release 1,000 detainees a week through March to deal with the budget cuts. Republicans accused Immigration and Customs Enforcement of releasing people charged with serious crimes and are concerned that up to 10,000 detainees could ultimately be released. Some Members of Congress are also accusing the Administration of using the sequester as a way to enact immigration changes that would not get through Congress, and they feel that this illustrates that even with comprehensive immigration reform, the Administration cannot be trusted to enforce the law if passed.

As a footnote, there was also a House Judiciary Committee hearing this week where members of both parties questioned the H-1B visa program. There is concern that some employers have abused the program by hiring people at entry-level wages which ultimately undercuts many American workers. There was an effort last year to categorize 50,000 green cards, that are usually offered as part of a lottery, for graduates in science, technology, engineering and mathematics (STEM). Democrats objected that it favored one group of immigrants over another. Democrats supported simply increasing the number of green cards for the STEM category. This may be one issue that moves early in the House.

What you can take from this week’s activities is that all parties are making a strong effort on this issue. So far there has been minimal political posturing, and it’s the only issue in Washington where you see cooperation…

THE GAME – IMMIGRATION

Posted in Federal Immigration Law

Immigration reform was still hot last week (and this week)…
 
by Bill Stiers, February 25, 2013
 
On the good news front, Republicans got over the “leaked” Obama plan, discussions continued, committee hearings moved forward and legislation is expected before April.
 
The talks in Congress boil down to two main issues – border security and a process for checking the immigration status of workers. The latter is of greatest importance to employers, who will likely bear the responsibility of any new process for ensuring work authorization or immigration status of workers. Securing the borders before allowing the nation’s illegal immigrants to move toward citizenship is a critical issue for conservatives, while a simplified and cost effective employment verification system is essential to business.
 
The AFL-CIO and U.S. Chamber of Commerce agreed on basic principles for low-skill workers, this compromise would likely mean that U.S. workers should get the “first crack” at jobs, it would also create a new guest worker program process, and establish an oversight office to provide transparent, data-based labor information to Congress.
 
Now for the not-so-good news. The House Judiciary Committee Chairman said he does not support an eventual path to citizenship for undocumented immigrants. Border State House members voiced opposition to the Senate plan, and a recent Reuters poll shows more than half of U.S. citizens believe that most or all of the country’s 11 million illegal immigrants should be deported. When broken down by party, 75% of Republicans think most undocumented immigrants should be deported, while only 40% of Democrats would send them away. No wonder Republican Members of Congress are reluctant to endorse immigration reform until they see the details.
 
Some of those Republicans are scarred from the battle in 2007, but most of them have never debated immigration reform. In fact, more than half of Congress has turned over since comprehensive immigration reform legislation was last considered. House leaders have been moving at a deliberate pace so that they can educate more than 100 first and second term members, and Republicans believe the poll numbers can be moved at the grassroots level.
 
A new GOP super PAC has been created to push for immigration laws supporting a conservative, broad-based approach to immigration reform, funded by a cross-section of industries. The Democratic controlled immigration PACs are far ahead of their Republican counterparts, and although their contributors are different, they are ultimately working together for the same outcome.  Motivations may be different, but these unusual bedfellows both understand, “No peso, no say-so.”

Although the noise from the sequester debate overshadows these developments, today Republican Senators head over to the White House for a chat with the President, and Congress holds a hearing to define “Border Security” – things are moving and still look good…

THE GAME – Immigration

Posted in Federal Immigration Law
On Friday, immigration reform looked good, then came Saturday…

by Bill Stiers, February 18, 2013

Last week, immigration reform looked possible. The Administration had been giving small bi-partisan groups in the House and Senate room to work on compromise legislation, comments from both sides of the aisle were very positive, and things generally looked good.

That was Friday.

On Saturday, the Administration draft proposal was leaked to the press. On Sunday, Republicans denounced it. Now it’s Monday, a Federal holiday, the government is shut down, and Congress is in recess for the rest of the week. Where will this go now?

Forget about how or why the Administration proposal was leaked. Yes, it’s interesting, but not important. It is the substance of the proposal you should examine.

The President’s proposal would create a new visa entitled “Lawful Prospective Immigrant” which would allow illegal immigrants to work and travel after paying fees and passing a criminal background check. Immigrants holding the “Lawful Prospective Immigrant” visa could apply to become a legal permanent resident (green card) after eight years. Current law allows green card holders to apply for full U.S. citizenship after five years.

Some Republicans call this “Amnesty” and will not support any plan that contains a path to citizenship for undocumented workers, but many seem willing to move forward as long as the borders are secured. Reluctant GOP members point to the last immigration reform legislation in 1986  that granted blanket amnesty to illegal immigrants, and allowed them to cut into line for a green card if they could prove they had been in the U.S. for five years. On top of that, they also argue that it does nothing to address guest workers or future immigration.

There are some things that the Republicans do like – increased funding for Border Patrol, additional immigration judges and expanded use of the E-Verify system for employers to check the immigration status of job applicants. There were other tidbits for the GOP mentioned in the Administration proposal like requiring “Lawful Prospective Immigrants” to pay back taxes and pass English and civics tests currently only required for citizenship applicants. Nevertheless, this is a draft proposal. Democrats interpret it as a ”trial balloon” while Republicans see it as a “veto threat”, but I see it as a good sign.

Congress was making progress on the issue, and moving forward quickly. The Administration realized it, and knew that they needed to quickly define its position more clearly than it did in the State of the Union Address. While it was clumsy, putting their unofficial position on the table as Congress left town for a week was probably a good idea. They’ve said their piece, appeased their supporters, ticked off the Republicans, and can now work on other agenda items. When Congress gets back to town next week, the Republicans will have cooled off, the Administration “leak” will be old news, and the working groups in the House and Senate can get back to work. And, it would be a good idea for the Administration to hold their peace until Congress starts moving legislation.

There is still a very good chance we’ll see something move forward in 2013, but then comes 2014, a mid-term election year…