Hunton Immigration and Nationality Law Blog : Immigration Lawyer & Attorney : Hunton & Williams Law Firm : Workplace Enforcement, Immigration Visas

Last month, the Homeland Security Investigation Worksite Enforcement Unit of Immigration & Customs Enforcement (ICE) announced a significant change in policy regarding use of electronic I-9 software.

Many such systems integrate data from other HR databases in order to prepopulate information on Section 1 of Form I-9, the section employees fill out during the employment eligibility verification process.

In an April 11, 2013, meeting with the Verification and Documentation Liaison Committee of the American Immigration Lawyers Association (AILA), ICE has now confirmed its position that this practice is impermissible, even if the preparer/translator section of Form I-9 is completed, and even though the employee provided the prepopulated information in the first place.  ICE also confirmed that the pre-population prohibition applies to both existing and future I-9s.

• Email This
• Print
• Trackbacks
• Share Link

On April 30, US Customs & Border Protection began a phased elimination of the paper I-94 Admission/Departure Record that visitors to the United States have become so familiar with.

By May 5, CBP will no longer issue paper I-94s at airports in Charlotte, Orlando, Las Vegas, Chicago (O’Hare), Miami, and Houston (IAH).  By May 21, I-94s at all other air and sea ports will be systematically phased out, per the schedule in CBP’s Travel Advisory.  Paper I-94s will continue to be issued at all land ports of entry.

• Email This
• Print
• Trackbacks
• Share Link

On March 8, 2013, USCIS issued a major revision of its Form I-9 Employment Eligibility Verification form, pursuant to a Federal Register announcement.

The newly revised Form I-9 adds data fields, including the employee’s foreign passport information, telephone and email address; improves and expands the form's instructions (now six pages); and revises the form layout to two pages, one for the employee and one for the employer.

Employers should begin using the new Form I-9 immediately, but are required to use it beginning May 7, 2013.  On that date, all prior versions of Form I-9 – (Rev. 08/07/09) Y and (Rev. 02/02/09) N – will become invalid.

• Email This
• Print
• Trackbacks
• Share Link

US Citizenship and Immigration Services (USCIS) is advising that the current version of Form I-9 should continue to be used by employers despite the August 31, 2012 expiration date specified on the form.  USCIS is in the process of updating the form once again, and presumably the new version will be available in the coming months.

Form I-9, Employment Eligibility Verification, must be used by U.S. employers to verify the identity and employment eligibility of all newly-hired employees.

Please contact Hunton & Williams if you have any questions about Form I-9 or related requirements.

• Email This
• Print
• Trackbacks
• Share Link

USCIS has announced a voluntary service that allows members of the public to verify their employment eligibility in the United States. E-Verify Self Check may be useful to anyone who wishes to confirm that the government's records about them are accurate, and to address any mismatches among Department of Homeland Security and Social Security Administration databases. Once employment eligibility is confirmed in E-Verify Self Check, job seekers are unlikely to experience any delays when hired by an employer that uses the E-Verify system. 

Before the verification process is completed, individuals must answer a series of questions by a third party identity verification service. These questions are similar to those one would encounter when requesting a credit report, i.e., names of prior employers, prior addresses, amounts of car or mortgage payments, etc. USCIS states that none of the personal information from this "quiz" is stored in its records.

At this time, the service is only available to residents of Arizona, Colorado, the District of Columbia, Idaho, Mississippi and Virginia. Once the initial trial period is completed, the service will be available to residents of additional states.

• Email This
• Print
• Trackbacks
• Share Link

The USCIS has revised and released its Employer Handbook.  The Handbook contains detailed instructions for completing Form I-9, which is used to verify the identity and employment eligibility of all new hires.  It also contains a detailed FAQ section that answers the more common I-9 questions.  Employers should ensure that all those involved in the I-9 process have a copy of the updated Handbook.  A copy can be found HERE.

• Email This
• Print
• Trackbacks
• Share Link

DHS announced the expansion of the E-Verify system with regard to new hires presenting US passports and passport cards during the I-9 process identification and employment eligibility process.  This new enhancement allows employers to instantly verify the validity and authenticity of US passport and passport cards, and is intended to strengthen the ability to detect fraudulent documents.  According to DHS, 10% of employees subject to E-Verify present US passports for I-9 purposes.

• Email This
• Print
• Trackbacks
• Share Link

On July 1, 2010, the Vital Statistics Office of the Commonwealth of Puerto Rico began issuing new, more secure Puerto Rican birth certificates to US Citizens born in Puerto Rico.  As of October 1, 2010, all certified copies of Puerto Rican birth certificates issued prior to July 1, 2010, will no longer be valid.  Accordingly, the Citizenship and Immigration Services (USCIS) issued a press release providing guidance to US employers with regard to the I-9 process.  For new employees, employers may continue to accept all Puerto Rican birth certificates through September 30, 2010; after that date, only the new Puerto Rican birth certificates (issued on or after July 1, 2010) we be acceptable for I-9 purposes.  Therefore, as of October 1, 2010, employers must pay close attention to the issuance date of Puerto Rican birth certificates presented for I-9 purposes.

• Email This
• Print
• Trackbacks
• Share Link

The USCIS has issued guidance to users of its eVerify system with regard to the "hire date" for new employees.  If the E-Verify record was created before the employee began working for pay, the E-Verify hire date is the date the case was created in E-Verify; if the E-Verify record was created on or after the employee began working for pay, the E-Verify hire date is the date the employee began working for pay.  Employers working under federal contracts containing the FAR E-Verify clause and are creating E-Verify records for existing employees must use the original dates those employees began working for pay, even if completing new I-9 forms.  The USCIS guidance can be found here.

• Email This
• Print
• Trackbacks
• Share Link

In its continuing effort to deter immigration fraud, the US Citizenship and Immigration Services (USCIS) has unveiled a new permanent resident ("green") card with additional security features.  The new card is already being produced and issued to those granted permanent resident status.  A sample of the new card can be viewed here.  The new card contains a pre-printed return address for easy return of the card to the USCIS if lost.  Employers should ensure that those responsible for completing I-9 verification forms are familiar with the new design.

• Email This
• Print
• Trackbacks
• Share Link

DHS announced today that it is extending Temporary Protected Status (TPS) for Honduran and Nicaraguan nationals who already hold TPS.  TPS allows qualifying individuals to remain and work lawfully in the United States until conditions in their home countries improve.  The new extensions allow qualifying individuals from Honduras and Nicaragua to reapply for TPS and work authorization that will be valid until January 5, 2012.  The re-registration period for begins on May 5, 2010, and ends on July 6, 2010.  Employment authorization documents held by qualifying individuals already set to expire on July 6, 2010, are automatically extended through January 5, 2011.  Employers can rely on the DHS announcement for I-9 employment verification and reverification purposes.  The DHS press releases and FAQs for applicants and employers can be found at these links: HONDURAS and NICARAGUA.

• Email This
• Print
• Trackbacks
• Share Link

In April 2010, the USCIS updated the FAQs for Federal contractors required to participate in the eVerify system.  The updated FAQs can be found at this link.  While the FAQs provide general information about the eVerify requirements for Federal contractors, companies should consult with counsel about the specifics.

• Email This
• Print
• Trackbacks
• Share Link

On November 19, 2009, U.S. Immigration and Customs Enforcement (ICE) announced it would serve 1,000 Notices of Inspection on U.S. employers whose business activities affect "critical infrastructure" (i.e., public safety and national security).  ICE agents will review I-9 forms, which all U.S. employers must use to verify employees' identity and U.S. work authorization.

• Email This
• Print
• Trackbacks
• Share Link

On October 7, 2009, the Department of Homeland Security officially rescinded its August 2007 rule establishing "safe-harbor procedures" for employers who receive Social Security no-match letters.  These procedures never went into effect because a federal court in California issued a preliminary injunction against the rule after the AFL-CIO and other organizations filed suit.  The rescission reinstates the former rule on what constitutes "constructive knowledge" on the part of an employer that an employee is working without authorization.  The final rule, as published in the Federal Register, may be read here.

• Email This
• Print
• Trackbacks
• Share Link

US Immigration and Customs Enforcement (ICE) fined a Missouri poultry plant $450,000 for I-9 violations following a worksite enforcement investigation.  ICE arrested more than 130 employees who were not authorized to work in the United States.  As part of the settlement, the company agreed to train its human resource personnel on how to avoid hiring undocumented workers, and to establish a compliance program to ensure that its hiring and employment practices are consistent with US law.  In addition to the I-9 paperwork violations and violations for knowingly employing undocumented workers, two of the company's employees were convicted of harboring undocumented workers and inducing illegal aliens to remain in the United States.

With increased worksite investigations, employers should periodically conduct internal I-9 audits, and review its compliance procedures with appropriate personnel to minimize any type of fines that could be assessed in the event of a government investigation.

• Email This
• Print
• Trackbacks
• Share Link

On September 8, 2009, U.S. Citizenship and Immigration Services published additional guidance for contractors subect to FAR E-Verify.  The new guide may be read and downloaded here. 

• Email This
• Print
• Trackbacks
• Share Link

Under the Federal Acquisition Regulation (FAR), September 8, 2009, is the effective date for certain federal contractors to begin using E-Verify to confirm that their employees are authorized to work in the United States.  Although the new rule will apply to many federal contracts, there are broad exemptions and limitations.

• Email This
• Print
• Trackbacks
• Share Link

The US Citizenship and Immigration Services (USCIS) has issued a new Form I-9 that employers must use as of April 3, 2009.  Under the Immigration Reform and Control Act of 1986 (IRCA), employers must complete Form I-9 for each new employee within three days of hire, and retain the form in the event of governmental investigations.  Employers can be fined for failing to complete the forms properly and for knowingly employing unauthorized workers.  The USCIS memo announcing the new Form I-9 can be read here and the new Form I-9 can be downloaded here.  A new Handbook for Employers that provides useful information on the I-9 process can be found here.

• Email This
• Print
• Trackbacks
• Share Link

On March 26, 2009, President Obama extended Deferred Enforced Departure (DED) for qualifying Liberian nationals.  DED is used by the President as an exercise of his constitutional power to conduct foreign relations, and provides qualifying individuals a temporary stay of removal, as well as employment authorization.  In response to the President's announcement, the USCIS extended employment authorization documents (EADs) for Liberian nationals through March 31, 2010.  Qualifying Liberian nationals can take steps to obtain new EADs to allow them to continue working lawfully in the United States.  They may continue working lawfully under this provision through September 30, 2009, without new EADs, but must have new EADs in hand to continue working after that date.  The President's memorandum can be read here.  The USCIS announcement and its Questions/Answers on DED can be read here and here.  The Federal Register notice explaining the DED/EAD application procedure and how employers can update their I-9s can be read here.

• Email This
• Print
• Trackbacks
• Share Link

The DOJ's Office of Special Counsel has released "Do's and Don'ts" guidance for companies participating in the eVerify program.  eVerify is a voluntary program for employers to verify the identity and work eligibility of all new hires.  The "Do's and Don'ts" can be found here.  Information about the E-Verify program can be found here.

• Email This
• Print
• Trackbacks
• Share Link