USCIS Releases New E-Verify Enhancements

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Alabama Employers should not be surprised if the next time they enter the E-Verify portal they see some changes. The United States Citizenship and Immigration Services (USCIS) released its latest round of E-Verify enhancements, on September 16, 2012, which will go into effect immediately for all users of the E-Verify web interface. Unlike the previous June 2011 update, these changes are fairly subtle – which will be welcome news for all who are responsible for constantly updating internal manuals, training guides, and policies.

This latest E-Verify release only affects those organizations (or agents) that access E-Verify directly through a web browser.  Employers using an electronic I-9 system or designated agents (which automatically sends I-9 information to the E-Verify system through a secure connection) will be unaffected by these changes today.

More Web Browsers Supported

This new release will allow users to access the E-Verify portal through the following browsers (in addition to Internet Explorer 6.0 and above):

  • Firefox (version 3.0 and above)
  • Chrome (version 7.0 and above)
  • Safari (version 4.0 and above)

Quick Audit Report Now Available

During the past two years, employers have seen a steady increase in E-Verify compliance initiatives – both at the state and federal levels. The USCIS Monitoring and Compliance unit and the Office of Special Counsel are also requesting with increased frequency detailed E-Verify reports when issues of potential E-Verify misuse (or discrimination) arise.

To facilitate such inquiries, the USCIS has added a new “Quick Audit Report” which will allow companies to generate an Excel spreadsheet of E-Verify case data (e.g, basic company and case identifiers and case resolution information) for a particular time period and state location. This report will allow Alabama Employers to monitor and track potential red flag items and patterns of misuse. I reccomend that E-Verify administrators familiarize themselves with this feature and incorporate its use into  their compliance monitoring activities.

New Fields for Foreign Passport Number and Country of Issuance

Perhaps the most significant change (at least for those who deal with foreign national new hires) is a new set of fields that  will automatically appear for “aliens authorized to work” who present a Foreign Passport with an attached I-94. Under this new enhancement, employers will now be required to enter the “country of issuance” and “foreign passport number” into the E-Verify case before they can move forward.

As many of you may not know, the U.S. Customs and Border Protection (CBP) is in the process of eliminating the paper I-94 Arrival/Departure record which is issued to certain foreign nationals upon entry to the U.S. In doing so, CBP is now taking up to 45 days to input the I-94 information into the DHS system. Since E-Verify relies upon that information to confirm work authorization, the agency has been warning that employers may experience an increase in Tentative Nonconfirmations (TNC). Providing the foreign passport number and country issuance may enable an employer to avoid the dreaded TNC altogether.

New Web-Based Tutorial for Corporate Administrators

With this enhancement, USCIS has added a new Web-based tutorial for Corporate Administrators (those who manage multiple E-Verify accounts) which replaces the live webinar training that was previously required.

New Manual for Corporate Administrators

The USCIS has also added a new E-Verify User Manual for Corporate Administrators, which you can download here.

How will DHSs Deferred Action (DACA) process affect Alabama Employers?

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Lets first discuss new employees.  Alabama employers now have a segment of new potential employees.  Deferred Action for Childhood Arrivals (DACA) beneficiaries are eligible for employment authorization if they file a petition for employment authorization (USCIS Form I-765) and receive their Employer Authorization Document I-766 (EAD).  Absent this, they are not authorized to work in the United States.

Next, lets discuss current employees.  If an existing employee informs his or her employer that he or she has filed for DACA consideration, this means that the employee is currently not authorized to work in the United States, which in turns means the employer has knowledge or at least constructive knowledge of the employees lack of work authorization, because only individuals who are not lawfully present in the United States may apply for DACA consideration.  To comply with the law, the employer must terminate employment immediately.

Why would the employee tell his or her employer that he or she has filed for DACA consideration?  Consider this scenario: Employee comes to HR department and asks for a letter or documentation to confirm that he or she has been working for the employer for a specified period of time. When asked what will this information be used for, the employee states that he or she is applying for DACA.   Ooops!

Adding to the risk associated with continuing to employ the individual who is currently applying for DACA consideration is the fact that any employment information provided by a DACA petitioner may be shared with ICE, which might lead to an investigation or audit into the hiring practices of the employer.

Issuance of New I-9 Form Delayed Employers Will Continue to Use Current I-9 Form Even After August 31 Expiration Date

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USCIS recently announced that employers who were eagerly awaiting the release of the new I-9 Form will have to wait a little longer.  http://www.uscis.gov/i-9   But hold on a moment.  The current I-9 Form has an expiration date of 8/31/2012 printed in the upper right hand corner. So, what are employers supposed to do if a new form is not released by August 31, 2012?  Indeed, employers could get into trouble if they use expired I-9 forms.

Per USCIS, even after the current form expires on August 31, 2012, employers should continue to use the current I-9 Form until USCIS instructs otherwise.  USCIS instructions for the Form I-9 currently available on I-9 Central also indicate that the agency will accept the use of the prior version of the Form I-9 that bears a revision date of February 2, 2009.  (The February 2, 2009 I-9 Form has an expiration date of June 30, 2009.)

Why the delay? As announced in March of 2012, USCIS is in the process of updating and publishing a newly revised two-page Form I-9. When the comment period of the revisions was opened to the public, USCIS received a large number of comments over 3,000.  So, USCIS is taking a little longer than expected to absorb all these insightful comments.

To B-1, Or Not To B-1? Or Is That The Question? Palmer v. Infosys Technologies.

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Imagine your worst compliance nightmare, then rest assured that folks (present and former) at Infosys have endured worse in the case of Palmer v. Infosys Technologies Ltd., Inc., M.D. Ala. 2:11-cv-217.  Civil jury selection is set to begin August 20 in U.S. District Judge Myron Thompsons courtroom in Montgomery, Alabama.  Criminal grand jury proceedings are referenced in the civil filings, but the criminal investigation record is not open to the public.  The claimant has asserted, in detail, a massive, corporate-directed visa fraud and tax evasion scheme, the purpose of which, he says, was to run our governments H-1B visa blockade by certifying that Indian software developers, database administrators and other skilled IT professionals, assigned to work on client projects here, were but temporary, B-1 business visitors.   Material differences include the uncertainty, delay and cost of an H-1B visa (months, thousands of dollars, if granted), the ineligibility of a B-1 visa holder to engage in local employment or labor for hire, and their consequent  exclusion from tax-withholding payrolls.  A business visitor is supposed to come to the meeting here, then go home.  According to the whistleblower in this case, Infosys forced him and others to write false, fill-in-the-blank welcome letters affirming B-1 eligibility, to be offered to support B-1 visa issuance.  Perhaps worse, Infosys allegedly coached the visa holders how to conceal and falsify the employment purpose of their travel to the United States.  As the Ginsu knife guy always said, But wait, theres more!

The whistleblower says that corporate HR and legal department managers admitted to him that the scheme existed and that it was illegal.  Initally, they planned to investigate and clean it up.  But they were over-ruled and either quit or fell in line, the whistleblower says.  Some of those who quit are named as witnesses for the whistleblower.  Both inside and outside Infosys counsel have been deposed and may be called to testify at trial.  In short, says the whistleblower, his reports first internally, then to the feds started a battle among executives that the bad guys won.

While generally denying the visa fraud scheme, Infosys lawyers defending the suit are seeking to have it dismissed on grounds irrelevant to the alleged scheme.  They say that, even if all those allegations are true, the whistleblower was not, due to his reports, subjected to sufficient, Infosys-directed retaliation to justify his legal claims.  For example, Infosys says that the evidence fails to prove a material reduction of the whistleblowers compensation or that the threats (including death threats) he received were made by an agent of the company in the course and scope of employment.  Briefing of the defense motion concluded June 15, 2012.   Unless the motion is granted entirely, it seems that Judge Thompson will begin jury selection on August 20.

Infosys, headquartered in Bangalore, India, is a global provider of tech-enabled business solutions.  Many U.S. companies have relied on Infosys to staff critical projects with skilled people who are in very short supply here such as Oracle software developers and database administrators.  This case appears to be a morality tale about the stark, unappealing options of a whistleblowers superior, but it also exposes the broken, dysfunctional H-1B visa program and its potentially catastrophic consequences for U.S. businesses.

Should Alabama Employers Consider Joining IMAGE?

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What is IMAGE?  IMAGE stand for ICE Mutual Agreement between Government and Employer.   In my words, IMAGE is a government  outreach program to emphasize compliance relating to worksite enforcement.  IMAGE used to be considered by some as the bad boys club for employers who were facing significant liability for poor immigration practices and were forced to join the club as a remedial effort.  However, ICE made some changes to IMAGE in an attempt to improve its programs image.

I recently heard Adam Wilson, Section Chief of ICE, provide ICEs new selling points to employers to join IMAGE.  The employer must:

1.  Enroll in E-Verify within 60 days.  (Pursuant to the Alabama immigration law, all Alabama employers should already be enrolled in E-Verify);

2.  Establish a written hiring and employment eligiblity verification policy that includes internal Form I-9 audits at least once per year (No one knows how extensive or comprehensive the annual audit must be); and

3.  Submit to a Form I-9 inspection by ICE (Now thats something to think through before agreeing to it).

To entice employers to consider joining IMAGE, ICE will do the following:

1.  Waive potential fines if substantive violations are found on fewer than 50% of the employers I-9 forms (From my experience, some employers might exceed the 50% threshold);

2.  In the event more than 50% of the I-9 forms have substantive violations, mitigate the fines or fine at the  minimum of $110 per violation;

3.  Not conduct another I-9 inspection for two years (Is two years long enough?); and

4. Train the employer before, during and after the I-9 inspection (ICE probably provides good training, but the training is probably  from ICEs perspective only and not from the perspective of other government agencies such as the OSC).

Any takers?   There are definite pros, but there could be significant cons depending on the circumstances.  Definitely seek counsel before signing on the dotted line.