New! Form I-9 Webinar On-Demand

On September 25, 2014, USCIS published the first Form I-9 Webinar On-Demand.  Now you can watch the free Form I-9 webinar at any time.  Choose the chapters of your choice or watch the entire 22 minute video in one sitting. You will see how to complete Sections 1, 2 and 3, best practices and much more.  It’s a great training tool. 

Visit I-9 Central to learn more and view other videos in the multi-media section.

Source: USCIS

 

This information is intended to be educational and should not be considered legal advice on any specific matter. 

Updated outreach materials in new languages

OSC is pleased to announce that its outreach materials are now available in additional languages.  OSC has published translations of its “E-Verify Know Your Rights,” “Know Your Rights” and “Name and Social Security Number (SSN) ‘No-Match’ Information for Employees” flyers in Arabic, Eastern Punjabi, Haitian Creole, Hindi, Korean, Russian, Simplified Chinese, Spanish, Tagalog, Traditional Chinese, Urdu, Vietnamese, and Western Punjabi.  OSC has also updated its Refugee/Asylee flyers for both employers and workers.  OSC has posted translations of the worker Refugee/Asylee Flyer in Amharic, Arabic, Armenian, Burmese, Farsi, French, Kayah, Nepali, Russian, Sgaw Karen, Simplified Chinese, Somali, Spanish, and Tigrinya.  These translations are available on OSC’s website: http://www.justice.gov/crt/about/osc/htm/worker.php.

Source: DOJ

This information is intended to be educational and should not be considered legal advice on any specific matter.

E-Verify is Available

E-Verify has resumed operations following the federal government shutdown. All E-Verify features and services are now available. 

The following information addresses questions on how the federal government’s shutdown affected E-Verify and Form I-9.

Information For Employers

Form I-9

The Form I-9 requirements were not affected during the federal government shutdown. All employers must complete and retain a Form I-9 for every person hired to work for pay in the United States during the shutdown.

E-Verify

Employees who received a Tentative Nonconfirmation (TNC)

If an employee had a TNC referred between September 17, 2013 and September 30, 2013 and was not able to resolve the TNC due to the federal government shutdown, add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation.’ Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If you have an employee who decided to contest his or her TNC while E-Verify was unavailable, you should now initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.

Employees who received a SSA Final Nonconfirmation (FNC) or DHS No Show result

If an employee received a Final Nonconfirmation (FNC) or No Show because of the federal government shutdown, please close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the Tentative Nonconfirmation (TNC) that led to the FNC result.

 

Creating Cases: Three-Day Rule

You must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013. If you are prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.

Federal Contractor Deadlines

During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. If your organization missed a deadline because E-Verify was unavailable or if it has an upcoming deadline for complying with the federal contractor rule, please follow the instructions above and notify your contracting officer of these instructions.
Information For Employees

If the federal government shutdown prevented you from contesting a Tentative Nonconfirmation (TNC), you will be allowed additional time to contact the Social Security Administration (SSA) or Department of Homeland Security (DHS). If your TNC was referred between September 17, 2013 and September 30, 2013, and you were not able to resolve the mismatch due to the federal government shutdown, you should:

• Add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation’ that your employer provided you after you contested the TNC. Federal business days are Monday through Friday and do not include federal holidays.
• Contact SSA or DHS by the new date to resolve your TNC.

If you received a Final Non-Confirmation (FNC) because you could not contact DHS or SSA during the federal government shutdown, or because you could not contact DHS or SSA in the first ten days after the government reopened, please contact your employer and request that the employer re-enter your query. For more information about contesting your TNC or FNC, please refer to Employee section of the E-Verify website.

Customer Support

E-Verify Customer Support expects an increase in requests for assistance. Due to this increase, customers may experience longer than normal delays and response times. We apologize for any inconvenience and appreciate your patience. For any questions or additional information about how the federal shutdown affects E-Verify, please email E-Verify@dhs.gov. For questions about Form I-9, please visit I-9 Central or email I-9Central@dhs.gov. Employers and employees may also contact E-Verify at 888-464-4218. Customer Support representatives are available Monday through Friday 8:00 am to 5:00 pm local time.

 

Source: USCIS
 

This information is intended to be educational and should not be considered legal advice on any specific matter.

 

 

 

Complying with E-Verify During the Government Shutdown

By Roy Maurer 

Employers enrolled in E-Verify, the federal government’s electronic employment verification system, are required to use the system to run checks on new workers within three days of hiring them. In the absence of an operational E-Verify system during the government shutdown, it is impossible for employers to comply with the law. What are employers supposed to do now that E-Verify has gone dark?

U.S. Citizenship and Immigration Services (USCIS) has stated that employers will not be able to access their E-Verify accounts during the shutdown. However, “to minimize the burden on both employers and employees,” the agency has announced the following key policies:

• The “three-day rule” for E-Verify cases is suspended for cases affected by the shutdown. USCIS will provide additional guidance once it reopens. This does not affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.
• The time period during which employees may resolve tentative nonconfirmations (TNCs) will be extended. “Days the federal government is closed will not count towards the eight federal government workdays the employee has to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS),” the agency said.

How Does the E-Verify Shutdown Affect Employers?

Throughout the duration of the government shutdown, employers will be unable to:

• Enroll in E-Verify.
• Verify employment eligibility.
• View or take action on any case.
• Add, delete or edit company information.
• Reset passwords.
• Terminate an account.
• Run reports.

In addition, E-Verify Customer Support and related services are closed, resulting in:

• Telephone and e-mail support being unavailable.
• Employees being unable to resolve TNCs.
• E-Verify webinars and training sessions being cancelled.
• E-Verify Self Check being unavailable.

So how can employers enrolled in E-Verify comply with the program’s requirements?

Normally, the employer enters information from the I-9 into E-Verify within three days of hire, but that won’t be possible while the system is unavailable, said Josie Gonzalez, partner at Stone Grzegorek & Gonzalez, during an Oct. 3, 2013, LawLogix webinar titled “Staying I-9 & E-Verify Compliant During the Government Shutdown.”

“One hopes that the government will offer guidance once the shutdown is over and one can only speculate what that guidance will be,” she said. Either the three-day clock will begin running the day the shutdown ends, or the government will provide more than three days so employers can catch up with entering the potentially large volume of cases. “Imagine the employer who hired 100 people during the shutdown. I think the government should offer 30 days as an extra grace period,” Gonzalez said.

“One of the biggest issues for employers and employees is not being able to resolve TNCs,” said Wendy Madden, counsel at Balch and Bingham, based in Birmingham, Ala.

“Especially if you initiated a case before the shutdown, you’ll be stuck,” she said during the webinar.

Federal contractors with a federal acquisition regulation E-Verify clause should contact their government contracting officers to extend deadlines, advised Gonzalez. “I imagine there will be leniency on this,” she said.

Do Not Take Adverse Actions

Employers may not take any adverse action against an employee while the employee’s case is in an extended interim case status due to the federal government shutdown, USCIS said.

“Don’t fire anyone because you can’t resolve a TNC,” explained Madden. “Continue to treat them the same as you would during the eight-day period, providing training, benefits etc.,” she said. Also, don’t refuse to hire anyone because they can’t be verified in the system.

“No worker should be prejudiced because of the shutdown,” Gonzalez said.
“There will be some enforcement if you take these actions against employees, once the government resumes operations,” she added.

Prepare for the Resumption of Service

The backlog created as a result of the shutdown might have a significant impact on employers who process many E-Verify cases and specifically on the HR staff members and other team members in charge of the E-Verify process, said Ann Cun, immigration attorney and counsel for LawLogix. “If you haven’t already, plan, plan and plan some more, because it’s unclear how long a shutdown may last,” she said.

Here are some tips to prepare for the resumption of E-Verify service:

• Prepare for the increased volume of cases. Keeping good records is critical, said Madden. Document all the cases you’ve hired that you haven’t run through E-Verify. “If you don’t keep track of who has or hasn’t been run through E-Verify, you will have a problem,” she said.
• Designate specific personnel to complete the follow-up process in E-Verify once the system resumes. Develop a way to follow up with the employees who have completed the Form I-9 process but still need to be run through E-Verify. “This makes sense, especially if you have a large team processing I-9s,” said Madden. “This will offer more control and make it less likely that people fall through the cracks.”
• Align with legal counsel or your compliance team to ensure a uniform message is indicated in the E-Verify system as to why the cases were delayed.

When E-Verify service resumes, there is an option to alert USCIS of issues encountered during the shutdown. 
 
Cun cited the following option from the recently updated E-Verify User Manual (pages 18-19):

If an E-Verify case is not created by the third business day after the employee begins work for pay, the user must indicate the reason for the delay. Select from one of the following reasons:

• Awaiting Social Security number
• Technical Problems
• Audit Revealed that New Hire Was Not Run
• Other

Select “Other,” then enter “government shutdown” in the field provided, she advised.

Don’t Be Afraid to Hire

It’s been reported that some employers have been skittish to hire because of the E-Verify shutdown. The experts say don’t be afraid. “Your I-9, completed in good faith, is your affirmative defense if the government says that you knowingly hired unauthorized workers,” said Gonzalez. “If your business requires it, and you have job applicants, go ahead and hire the people you need.”

Roy Maurer is an online editor/manager for SHRM.

This information is intended to be educational and should not be considered legal advice on any specific matter.

Justice Department Releases Educational Video About Discrimination in Employment Eligibility Verification

The Justice Department announced today the launch of a new educational video to assist employers in avoiding charges of discrimination in the employment eligibility verification form I-9 process and in the use of E-Verify. The video also helps educate employees about their legal rights. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) within the department’s Civil Rights Division enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), which prohibits employers from discriminating against work-authorized individuals in hiring, firing, recruitment or referral for a fee, regardless of their citizenship status or national origin. The law also prohibits discrimination during the form I-9 and E-Verify processes.

OSC developed its latest video to address issues that frequently arise from calls to its hotline and charges filed. Employers sometimes incorrectly believe that they need to request more documents than are necessary for the employment eligibility verification form I-9. Additionally, employers using E-Verify may improperly request specific documents due to misunderstanding of E-Verify requirements. OSC’s new video highlights some practices that are not permissible and may lead to claims under the anti-discrimination provision.

 

“We believe this video will help both employers and employees across the country understand employment eligibility verification rules,” said Gregory Friel, Deputy Assistant Attorney General for the Civil Rights Division. “Federal law prohibits discrimination in the employment eligibility verification process, and the Justice Department is committed to enforcing the law.”

 

The video may be viewed at http://youtu.be/VNHFDusJqRg

 

The latest OSC video is part of OSC’s educational video series that can be found here: http://go.usa.gov/2P6m. OSC also operates a hotline for employers and workers, frequently providing guidance to employers on how to avoid discrimination and educating employees on rights protected by the anti-discrimination provision. OSC offers live webinars for both employers and employees to educate employers on avoiding workplace discrimination and to educate employees about their rights. For more information about protections against employment discrimination under the immigration law, call OSC’s worker hotline at: 1-800-255-7688 (1-202-616-5525, TTY for the hearing impaired); call OSC’s employer hotline at: 1-800-255-8155 (1-202-616-5525, TTY for the hearing impaired); send an e-mail to: osccrt@usdoj.gov; or visit OSC’s website http://www.justice.gov/crt/about/osc.

 

Source: DOJ

 

This information is intended to be educational and should not be considered legal advice on any specific matter.

Have You Heard? Over 60 Free Webinars Scheduled For May!

What better way to learn more about the revised Form I-9, E-Verify, Self Check and Employee Rights than by taking advantage of a free webinar in May. To meet demand, the Department of Homeland Security has scheduled over 60 webinars this month.

We invite you to take part in this great opportunity. Visit the E-Verify Webinar webpage, I-9 Central or view the flyer for a list of this month’s sessions.

REMINDER: Beginning May 7, 2013, employers must only use the new Form I-9 (revision 03/08/13)N. Learn more at I-9 Central.

Source: USCIS

For more information on this and other services offered, please contact THOMAS HOUSTON at 800.330.9000. 

This information is intended to be educational and should not be considered legal advice on any specific matter.

Immigration Bill Creates New Worker Visas, Mandates E-Verify

After months of negotiations, a bipartisan group of senators unveiled sweeping landmark legislation, proposing substantial changes to the country’s immigration laws.

The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, filed April 16, 2013, lays out a 13-year path to citizenship for most of the 11 million people living in the United States illegally, allocates billions of dollars to be spent on border security, creates new legal guest worker programs for low-income jobs and farm labor, mandates the use of E-Verify for most companies hiring new workers and expands overall immigration to the U.S. by 50 percent in the next 10 years.

The bill proposes ways to clears up green card backlogs, raises the cap for H-1B workers and creates a new “W-visa” program for lower-skilled workers.
 
The bill was crafted by four Democratic senators: Charles Schumer of New York, Dick Durbin of Illinois, Robert Menendez of New Jersey and Michael Bennet of Colorado; and Republicans John McCain of Arizona, Jeff Flake of Arizona, Lindsey Graham of South Carolina and Marco Rubio of Florida.

Click here to read more.

Source: SHRM

This information is intended to be educational and should not be considered legal advice on any specific matter.

Huge Jump in I-9 Audits

The number of I-9 audits multiplied over the past decade, rising from almost none—just three in 2004—to 500 in 2008 and 3,004 in 2012.

Employers should pay attention accordingly, as the fines for substantive and procedural violations of the Immigration Reform and Control Act (IRCA) can add up quickly, Daniel Brown, an attorney with Fragomen in Washington, D.C., said on March 12, 2013, at the Society for Human Resource Management’s 2013 Employment Law & Legislative Conference.

Penalties

For knowing violations, IRCA penalties range from:

• $375-$3,200 for each unauthorized employee for a first offense.
• $3,200-$6,500 per unauthorized worker for a second offense.
• $4,300-$16,000 per worker for a third offense.

For paperwork violations, the fines range from $110 to $1,100 per violation, he added.

When the government assesses penalties, the biggest factor it examines is the percentage of reviewed I-9 forms that have errors, said Brown, who is a former counselor to the assistant secretary at the U.S. Immigration and Customs Enforcement (ICE). If more than 50 percent have paperwork violations, for example, the paperwork fines typically are $900 per I-9, which may be adjusted up or down, he added.

Put Yourself, Not Notaries, on the Hook

One frequent error employers make is failing to have someone physically present on their behalf while the new employee holds the I-9 in his or her hands and the employer representative fills out Section 2.

“The law has not kept up with business practice,” Brown remarked, noting that ICE has refused to ease up on this requirement even though telecommuting far from any office is commonplace. “Large employers ask all the time how they’re to do this,” he said.

A notary public is one option, but increasingly, notaries are hesitant to act in this capacity out of fear that they may be held liable if there are I-9 penalties later.

“We’ve helped employers prepare memos to take to notaries noting that the employer would be on the hook, not the notary,” he said, explaining that this makes it more likely the notary will agree to act on the employer’s behalf.

The notary doesn’t need to act in his or her official role as a notary, Brown added. A new employee’s mother could act on the employer’s behalf, though that wouldn’t ordinarily be advisable, he joked.

A local law firm is another option.

Or an employer may send a new employee to a bank, which probably has a notary who could act on the employer’s behalf.

“It’s a difficult thing to find a solution, especially within three days,” Brown acknowledged. Section 2 of the form must be completed within three business days of the employee’s first workday.

The notary is not required to sign the form as an agent of the employer but may simply sign it. And notaries should put the company’s address below the signature, not their own, but write in their name, Brown said.

Targeted Employers

I-9 audits used to be random, but now they are more often the result of disgruntled former employees complaining to ICE.

Also, ICE likes to go after companies connected with the nation’s critical infrastructure, such as those that run power plants, food-service businesses, those connected to airports, or anything else that seems like “homeland security writ large,” Brown said.

Source: Allen Smith, J.D., is manager of workplace law content for SHRM. 

This information is intended to be educational and should not be considered legal advice on any specific matter.

 

E-Verify Laws changed in 3 States

Laws mandating E-Verify use kicked in for some businesses in several states on Jan 1, 2013. Here is a quick synopsis of those impacted as of Jan 1, 2103:

North Carolina

Private employers in North Carolina with 100 or more employees must now confirm the work authorization of each new employee through E-Verify as per House Bill 36 (Session Law 2011-263). The law does not apply to seasonal temporary employees who are employed for 90 or fewer days during a 12-consecutive-month period.

Penalties: Failure to comply can result in civil fines ($10,000+) and notification to U.S. Immigration and Customs Enforcement and local law enforcement agencies.

Pennsylvania

Public works contractors and subcontractors in Pennsylvania must now use E-Verify to confirm employment eligibility of each new employee, as per Senate Bill 627 (Act 127), the Public Works Employment Verification Act.

Penalties: First violations incur a warning letter detailing the violation, posted on the website of The Department of General Services of the Commonwealth. On a second violation, the contractor is debarred from public work for 30 days. On subsequent violations, the contractor is debarred from public work for 180-365 days. In the case of a willful violation, the contractor is debarred from public work for a period of three years. Contractors will also incur a penalty of $250-$1,000 per violation.

Tennessee

Tennessee employers with more than 5 employees must now use E-Verify to confirm the work eligibility of new employees, or maintain a copy of a specified identity document, as per the Tennessee Lawful Employment Act, Public Chapter 436 (HB 1378).

Penalties: Employers can incur penalties of $500 plus an additional $500 for each employee not verified for a first violation; $1,000 plus an additional $1,000 for each employee not verified for a second violation; and $2,500 plus an additional $2,500 for each employee not verified for subsequent violations.

Source: E-Verify & I-9 News

This information is intended to be educational and should not be considered legal advice on any specific matter.

ComForcare discrimination claim settled

Source: Department of Justice

The Justice Department announced on December 3, 2012 that it reached an agreement with ComForcare In-Home Care & Senior Services, a home care provider for sick and elderly patients in Tigard, Ore.  

The investigation stemmed from a charge filed by a naturalized U.S. citizen, who was not allowed to work for ComForcare after the company received an initial mismatch in her data in E-Verify, called a tentative non-confirmation. E-Verify is an Internet-based system run by U.S. Citizenship and Immigration Services (USCIS) that confirms employment eligibility by comparing information from an employee’s Form I-9, the form that all new employees must complete upon hire, to data in the Department of Homeland Security’s and Social Security Administration’s records. 
 

“This case illustrates the importance of following E-Verify rules consistently regardless of citizenship status or perceived status, or risk running afoul of the anti-discrimination provision,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “Subjecting naturalized citizens to heightened documentary standards that result in the loss of employment constitutes discrimination, and the Division is fully committed to enforcing the law that prohibits it.”

 

Click here to read the full release.
 

For information on the affirmative action services offered by THOMAS HOUSTON please call (800) 330-9000 or click here to schedule a convenient time to receive a call from a member of our Sales Team.

This information is intended to be educational and should not be considered legal advice on any specific matter.