Government Shutdown: Impact to Employers Immigration Compliance Efforts

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 shutdowns 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 appointments as scheduled  and to call 1-800-375-5283 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, query new hires, view or take action on any case, add, delete or edit user IDs, reset passwords will have to wait until operations resume. As well, the E-Verify Customer Support and related services are closed.  In its 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 shut down 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, check here.

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) LCAs, 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 employers 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 beneficiaries. 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?

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 subcontractors 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 contractors alleged improper request.

The OSC punted on responding to these questions directly.  While stating that it is not allowed to provide an advisory opinion 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 contractors request to have the subcontractors 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 subcontractors employees perceiving they have been discriminated against due to their citizenship or immigration status, if they are ultimately barred from employment; and

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

The OSCs 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 knowledge 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 verification 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 compliance 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!

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

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. Now is the time to get ready for an ICE audit.