E-Verify to Go Dark This Weekend

The federal government’s electronic employment verification system will be unavailable this weekend due to system upgrades.

U.S. Citizenship and Immigration Services (USCIS) announced that E-Verify will be shut down from midnight March 23 to 8 a.m. March 26 Eastern Time. E-Verify users are encouraged to complete and close any open cases prior to the system shutdown.

The Department of Homeland Security and the Social Security Administration will not be able to assist employees with case resolution issues during the outage. myE-Verify, the system’s resource portal for workers, will also be unavailable.

“During the suspension, employers will not be able to access their E-Verify accounts and employees will be unable to resolve E-Verify tentative nonconfirmations,” said Michael H. Neifach, an attorney in the Wahington, D.C., regional office of Jackson Lewis. “The E-Verify outage does not change any Form I-9 requirements,” he added. “Form I-9s must be completed no later than three business days after employment.”

To minimize the shutdown’s impact, the agency stipulated:

• The three-day rule for creating E-Verify cases is suspended for cases affected by the outage. If an employee’s first day occurs between March 20 and March 26, employers will have until March 29 to create an E-Verify case.
• Workers will have two additional federal working days to resolve tentative nonconfirmations.
• Workers will have an additional two federal working days from the date listed on their referral date confirmation to contact the agencies.
• Employers may not take adverse action against an employee because the E-Verify case is in interim case status or during the extended interim case status due to the suspension. Federal contractors with E-Verify clauses should contact their contracting officer to inquire about extending contractor deadlines.

USCIS is prepping for a move to an upgraded user interface later this month. Enhanced features are expected to include a streamlined process for creating and managing cases, modernized data-matching to reduce tentative nonconfirmations, and improved data integrity.

USCIS Releases New I-9 Form

On July 17, 2017, the USCIS announced the release of a revised version of Form I-9, Employment Eligibility Verification.

Key information:

• The revised version may be used immediately, but it must be used no later than September 18, 2017.
• Employers can continue using Form I-9 with a revision date of 11/14/16 N through September 17, 2017, however we recommend that you destroy any existing versions and begin using the new version immediately.
• Employers must continue following existing storage and retention rules for any previously completed Form I-9.

The changes below also can be found in the newly revised Handbook for Employers: Guidance for Completing Form I-9 (M-274).

Revisions to the Form I-9 instructions:

• The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been changed. Its new name is Immigrant and Employee Rights Section (IER).
• The instructions on Section 2 have been slightly changed to read: “Employers or their authorized representative must complete and sign Section 2 within 3 business days of the employee’s first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9:

• The Consular Report of Birth Abroad (Form FS-240) was added as a List C document and all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined.
• The List C documents have been renumbered, except for the Social Security card, which remains #1 on the list.

If you have any questions about the new form or would like us to send you a copy of the new I-9 form and instructions, please contact our office.

New  Version of I-9 Form Released

U.S. Citizenship and Immigration Services (USCIS) has released an updated version of the Form I-9, Employment Eligibility Verification. The new Form I-9, dated 11/14/2016N, will become mandatory on Jan. 22, 2017, replacing the version dated 03/08/2013 N, which may continue to be used until Jan. 21, 2017.  

The new Form I-9, which must be used for all newly hired employees and those who require the re-verification of their U.S. employment eligibility, contains a number of new features, including but not limited to:

1) Clarification of the “other names used” field in Section to request only “other last names used” and the numbering of immigration status categories in Section 1;

2) Additional details regarding the preparer/translator category, including the ability to select multiple preparers/translators;

3) A designated area to enter additional information that previously needed to be entered as a margin note, such as the auto-extension of an individual’s work-authorized status, where applicable;

4) A separate page (Page 3) for Section 3 of the Form I-9;

5) Additional prompts and electronic enhancements, such as drop-down lists and calendars, to facilitate the proper entry of required information.

Expired Form I-9 Still in Effect

The current version of the Form I-9, the most fundamental tool used to determine if applicants are eligible to work in the U.S., expired on March 31. Until further notice, though, employers should keep using the expired form until the recently proposed “smart” I-9 is in effect, according to U.S. Citizenship and Immigration Services (USCIS).

Dave Basham, a senior analyst in the verification division at USCIS, has been answering the following question a lot recently: “What will happen on March 31, 2016, when the Form I-9 expires?” Basham says: “Employers should continue to use the current version of the form as it continues to be effective even after the OMB [Office of Management and Budget] control number expiration date March 31, 2016, has passed.”

On March 28, 2016, USCIS published a second round of proposed changes to the form in the Federal Register, giving the public 30 days to comment. Once the comment period ends April 27 and comments are considered, USCIS may make further changes before sending the proposal to OMB, which will need to review and approve it. The form will be available for download at www.uscis.gov upon being approved.

“Employers must continue to use the current version of Form I-9 until the proposed version is approved and posted on the USCIS website,” said Amy Peck, an immigration attorney in the Omaha, Neb., office of Jackson Lewis.

The proposed, revised form is designed to address frequent points of confusion that arise for both employees and employers.

The proposed changes specifically aim to help employers reduce technical errors for which they may be fined, and include:

• Validations on certain fields to ensure information is entered correctly. The form will validate the correct number of digits for a Social Security number or an expiration date on an identity document, for example, Fay said.
• Additional spaces to enter multiple preparers and translators.
• Drop-down lists and calendars.
• Embedded instructions for completing each field.
• Buttons that will allow users to access the instructions electronically, print the form and clear the form to start over.
• A dedicated area to enter additional information that employers are currently required to notate in the margins of the form.
• A quick-response matrix barcode, or QR code, that generates once the form is printed that can be used to streamline audit processes.
• The requirement that workers provide only other last names used in Section 1, rather than all other names used.
• The removal of the requirement that immigrants authorized to work provide both their Form I-94 number and foreign passport information in Section 1.
• Separating instructions from the form. Employers are still required to present the instructions to the employee completing the form, however.
• The addition of a supplement in cases where more than one preparer or translator is used to complete Section 1.

The proposed changes will have far-reaching impact because all employers are required to complete and maintain the Form I-9 for each employee hired to verify their identity and authorization to work in the United States.

Case Study: Company Hit with Largest I-9 Penalties to Date

Failure to thoroughly complete I-9 paperwork has left an event-planning company with a fine of $605,250 (the largest amount ever ordered) serving as a reminder that employers need to be taking I-9 compliance very seriously.

On July 8, 2015, the Office of the Chief Administrative Hearing Officer (OCAHO), which has jurisdiction to review civil penalties for I-9 violations, ordered Hartmann Studios to pay the fine for more than 800 I-9 paperwork violations.

Immigration and Customs Enforcement (ICE) audited the company in March 2011.

The bulk of the violations charged against Hartmann were due to a repeated failure to sign section 2 of the I-9 form. Employers are required to complete and sign section 2 within three business days of a hire, attesting under penalty of perjury that the appropriate verification and employment authorization documents have been reviewed.

ICE found 797 I-9s where section 2 was incomplete. About half of these incomplete forms related to individuals from the International Alliance of Theatrical Stage Employees Union Local 16A, who worked for Hartmann on a project-by-project basis during the term of a collective bargaining agreement. Even though the union workers worked on a project-by-project basis, they were not terminated upon completion of a project and remained “on-call.” The union created a “three-in-one” form that combined a portion of a W-4 form, parts of sections 1 and 2 of an I-9 form, and a withholding authorization for union dues. No separate I-9 form was completed for these workers nor did Hartmann sign section 2 of the union form.

Hartmann could have been charged with the more-substantive offense of having failed to prepare any I-9 form at all for the 399 union members, because the union’s form is not compliant, but OCAHO declined to do so.

Hartmann told OCAHO it believed that the union form was sufficient to confirm that the workers had proper employment authorization, and that nothing further needed to be done to confirm their eligibility for employment. The company also said that it did not know signing section 2 of the form was a legal requirement. 

In addition to failing to sign section 2, Hartmann was also cited for:

• Failure to fill out any I-9 form at all for four individuals.
• Failure to locate the I-9 forms for eight individuals at the time of the     inspection.
• Failure to ensure that three workers checked a box in section 1 indicating immigration status.
• Failure to ensure that two workers signed section 1.
• Failure to ensure that two workers entered their alien numbers on the form.
• Missing List A, B and C documents.

This case demonstrates the need for employers to conduct routine self-audits of their I-9 inventories to ensure that the forms have been properly completed and retained and are ready for inspection.

Employers should also ensure that acceptable proof of audits and training is kept so that it may be used as evidence of good faith in court proceedings.

Tips To Prepare Your Company For An I-9 Audit

The Immigration Customs and Enforcement division (ICE) of the Department of Homeland Security, continues to issue Form I-9 Notices of Inspection to businesses of all sizes across the nation. In fiscal year 2012, ICE served over 3,000 Notices to businesses, resulting in over $12 million in fines. Additionally, ICE made 520 criminal arrests tied to worksite enforcement investigations. These criminal arrests involved 240 individuals who were owners, managers, supervisors, or human resources employees.  

 

The Notices of Inspection allow ICE to inspect employers I-9 forms to determine compliance with employment eligibility-verification laws. Once the Notice of Inspection has been issued, the targeted employer has three days to provide ICE with the company’s I-9 forms to be reviewed. In addition to I-9 forms for current and recently terminated employees, employers will be asked to turn over payroll records, list of current employees, and information about the company’s ownership.

 

Civil penalties for errors on the I-9 form can range from $110 to $1,100 per violation. Civil penalties for knowingly hiring and continuing to employ unauthorized workers range from $375 to $3,200 per violation for first time violations. In determining penalty amounts, ICE considers five factors: 

 

1) The size of the business; 
2) Good-faith efforts to comply; 
3) The seriousness of the violation; 
4) Whether the violation involved unauthorized workers
5) Any history of previous violations. 

 

Here are 12 tips to help protect your company and limit exposure for I-9 violations:

 

1. Make sure you are using the correct I-9 form. U.S. Citizenship and Immigration Services recently released a new version of the I-9 form. Beginning May 7, 2013 only the 03/08/13 version of the I-9 form will be accepted. 

 

2. Have employees complete the form in a timely manner.  For a new hire, the employee must complete Section 1 before starting work on the first day.  You must complete Section 2 and the Certification by the end of the third business day.

 

3. Ensure that the Preparer/Translator Section is completed if the employee received assistance completing Section 1 of the I-9 form.

 

4. Don’t accept any expired documents.

 

5. Avoid discrimination or document abuse. When completing the I-9 process, do not require the employee to provide specific documents or more documents than minimally required. 

 

6. Don’t play detective. If a document presented by the employee is on the List of Acceptable Documents, reasonably appears to be genuine, and relates to the person presenting it, you may accept that document to complete Section 2 of the I-9 form.

 

7. Re-verify expiring work-authorization documents before they expire and do not allow any employee to continue to work after a work-authorization document expires.   

 

8.Don’t re-verify U.S. passports or passport cards, Permanent Resident Cards, or List B Identity documents.

 

9. Keep I-9 forms in a separate binder for current employees and another for terminated employees. Do not keep I-9 forms in employee personnel files.

 

10. Train the individuals in your company who complete the I-9 process.

 

11. Conduct self-audits. Correctable errors on the I-9 form should be fixed, the change should be initialed and dated, and the words “Per Self Audit” should be placed beside the correction.

 

12. Know your rights. If ICE appears to review your I-9 forms and conduct an audit, insist on a written Notice of Inspection and your right to have three business days before you turn over your original I-9 forms.

 

It’s clear from recent events that ICE will continue auditing employers’ I-9 forms to ensure that all employers are complying with immigration laws. Creating a culture of compliance and auditing your company’s forms is the best way to prepare your company for an ICE I-9 audit.

 

Please contact our office regarding any questions that you may have on performing an I-9s or how to perform an I-9 audit.