I-9

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Effective January 1, 2018, AB-450, which was signed into law by Governor Jerry Brown on October 5, 2017, imposes the following requirements on public and private employers in California:

  • Except as otherwise required by federal law, an employer or other person acting on the employer’s behalf is prohibited from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor unless the agent provides a judicial warrant, except as specified
  • Except as required by federal law, an employer or other person acting on the employer’s behalf is prohibited from providing voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without a subpoena or court order, subject to a specified exception
  • Requires an employer to provide current employees notice containing specified information, by posting in the language the employer normally uses to communicate employment information, of an inspection of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving the federal notice of inspection
  • Requires an employer, upon reasonable request, to provide an affected employee* a copy of the notice of inspection of I-9 Employment Eligibility Verification forms.
  • Prohibits the reverification of the employment eligibility of a current employee, except when required by federal law

Violations of each of the above provisions will subject employers to civil penalties ranging from $2,000 up $5,000 for a first violation and $5,000 to $10,000 for subsequent violations.

Employers in California should make sure to have in place an internal I-9 compliance policy and that employees who are responsible for administering the program and those who are the employers’ first points of contact to the general public are trained on AB-450’s new requirements.

* Employee identified by the immigration agency’s inspection results to be an employee who may lack work authorization or whose documentation has deficiencies.

U.S. Citizenship & Immigration Services (“USCIS”) is scheduled to release a revised Form I-9, Employment Eligibility Verification, on July 17, 2017. The previous version, dated 11/14/16 N, remains valid, but only through September 17, 2017. On September 18, 2017, employers must use the new form.

The new form changes the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, the Immigrant and Employee Rights Section.  In addition, several key changes have been made to the List C, Acceptable Documents to Prove Employment Eligibility:

  1. The Consular Report of Birth Abroad (Form FS-240) is now acceptable and is included on the drop-down menus in “smart” Form I-9 and in E-Verify.
  2. All certifications of report of birth that are issued by the U.S. Department of State (Forms FS-545, DS-1350 and FS-240) are now listed at #2 of List C.
  3. List C documents are now renumbered, except the Social Security card; for example, the EAD is now at #7 instead of #8

USCIS plans to update its “Handbook for Employers: Guidance for Completing Form I-9” (Form M-274) to include these revisions in the near future.  Additional information is available at What’s New | USCIS.

The USCIS released its updated Handbook for Employers, which is available as a free download here.  The Handbook is a great resource for human resources personnel involved in the I-9 identity/work eligibility/reverification process.  Part Seven (FAQs) and Part Eight (acceptable documents) are especially helpful sections of the Handbook.

United States Citizenship and Immigration Services (“USCIS”) released the new version of Form I-9 today, a week earlier than previously announced. As a reminder, all U.S. employers are required to use the new version by January 22, 2017, to verify the employment eligibility of new hires and to reverify continued employment eligibility of employees, when necessary.  Employers may continue to use the version dated 03/08/2013, through January 21, 2017.

Continue Reading USCIS releases revised Form I-9, Employment Eligibility Verification

On November 22, 2016, the United States Citizenship and Immigration Services (“USCIS”) will publish a revised Form I-9, Employment Eligibility Verification.  Employers must use the revised Form I-9 by January 22, 2017, but may continue to use the current Form I-9, dated 03/08/2013, through January 21, 2017.  We will post an update as soon as the revised Form I-9 is published.

Employers enrolled in the E-Verify program were unable to access the E-Verify system during the recent government shutdown.  While employers were still required to complete paper I-9s for new hires, they were not able to enter the data into the E-Verify system within the required three days.  USCIS has issued guidance for E-Verify participants.  The guidance addresses handling tentative non-confirmations received between September 17, 2013, and September 30, 2013; SSA final non-confirmations; and how to comply with the three-day rule (which must be completed by November 5, 2013).

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.

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.

Continue Reading CBP To Eliminate Paper I-94s by May 21, 2013

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.

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.