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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.
After months of negotiations, landmark legislation was unveiled that proposed substantial changes to the U.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 U.S. 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% in the next 10 years.
The bill proposes ways to clear up green card backlogs, raises the cap for H-1B workers and creates a new “W-visa” program for lower skilled workers.
Aspects of the bill that would impact the workplace include the following:
Mandatory E-Verify
All employers would be required to use the E-Verify electronic employment verification system, phased in over a 5 year period. Large employers with more than 5000 employees would be phased in within two years.
Every non-citizen would be required to carry a “biometric work authorization card”.
Enhancements to the E-Verify system would include a photo-matching tool and the capability for employees to “lock” their Social Security numbers in the system to prevent others from using them. In order for the non-citizen to be cleared for a job, the picture on the card presented by the employee to the employer will have to match the identical picture the employer has in the E-Verify system. Employers would be required to certify that the photograph presented in person matches the photograph in the system.
Legal Immigration
The bill addresses what’s been one of the biggest programs with the current system. Beyond employment- based visas, the bill would create an entirely new category of “merit-based” visas. A merit-based visa, created in the fifth year after the bill becomes law, would award points to individuals based on their education, employment, length of residence in the U.S., and other considerations. Individuals with the most points would earn one of the 120,000 visas that will be available per year. The number would increase by 5% annually if demand exceeds supply in any year where unemployment is less than 8.5%.A maximum cap of 250,000 merit-based visas is proposed.
Under this system, the DHS would allocate merit-based immigrant visas beginning Oct. 1, 2014, for employment-based visas that have been pending for 3 years, family based petitions that were filed prior to enactment and have been pending for 5 years, and to long term immigrant workers who have been lawfully present in the country for more than 10 years. It is this category that those who are in the country illegally now would be funneled into after a decade as legalized residents.
Currently, only about 14% of green cards granted are employment based. That percentage could increase to as high as 50% under this proposal. The bill also emphasizes the need to shift immigration resources toward high-skilled immigrants. It creates a start up visa for foreign entrepreneurs who seek to emigrate to the U.S. to launch their own companies.
The bill exempts the following categories from the annual numerical limits on employment-based immigrants: derivative beneficiaries of employment-based immigrants; aliens of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in science, technology, engineering, and mathematics (STEM) fields; and physicians who have completed the foreign residency requirements or have received a waiver.
The bill also redistributes 40% of the worldwide level of employment-based visas to high skilled workers and those who have earned a master’s degree or higher in STEM fields from an accredited U.S. institution. The bill increases the percentage of employment visas for skilled workers and other professionals to 40%, maintains the percentage of employment visas for certain special immigrants to 10% and maintains visas for those who foster employment creation to 10%.
Married children over 30 years of age and siblings of U.S. citizens would no longer be eligible for a family preference in the visa application process and the bill would eliminate the 55,000 Diversity Visa Program recipients awarded by lottery each year that go largely to immigrants from Africa and Eastern Europe.
Those who were or are selected for diversity immigrant visas for fiscal years 2013 or 2014 would still receive their visas.
H-1B Reforms
The plan calls for a sizable increase in high-skilled visas, fees for employers that hire large numbers of foreign workers, and institutes a ban on those companies applying for additional H-1B visas in the future.
The legislation would increase the current number of H-1B visas from 65,000 to 110,000. The current 20,000 visa exemption for U.S. advanced degree holders would be amended to a 25,000 visa exemption for advance degree graduates in science, technology, engineering, and mathematics from U.S. schools.
Provisions designed to keep high-skilled hiring from hurting U.S. tech workers include “H-1B dependent employers” paying significantly higher wages and fees than normal users of the program and prohibiting companies whose U.S. workforce largely consists of foreign guest workers from obtaining additional H-1B and L visas. In 2014, companies will be banned from bringing in any additional workers if more than 75% of their workers are H-1B or L-1 employees.
New Visa on the Block
The bill creates a new visa for lower-skilled workers in the service sector, construction and agriculture. The program begins April 1, 2015 and would be initially capped at 20,000 and would rise to 75,000 by 2019.
The spouse and minor children of the W visa holder will be allowed to accompany or follow to join and will be given work authorization for the same period of admission as the principle visa holder.
Immigrants would apply at the U.S. embassies and consulates in their home countries and the visa would be valid for 3 years. If visa holders are unemployed for 60 days or more, they would be required to leave the United States. The workers must be paid the prevailing wage and cannot be employed in areas where unemployment is above 8.5%. Employers cannot fire American workers 90 days before or after the hiring of guest workers.
Agriculture Program Revised
A new agricultural guest worker visa program would also be established. A portable, at-will employment based visa (W-3 visa) and a contract based visa (W-2 visa) would replace the current H-2A program.
As many as 337,000 new three-year visas would be available for farm workers. After five years, an annual visa limit based on market conditions would be set.
The bill would allow current undocumented farm workers to obtain expedited legal status. Undocumented farm workers who “have made a substantial prior commitment to agricultural work in the U.S.,” show that they have paid all taxes, have not been convicted of any serious crime, and pay a $400 fine would be eligible to adjust to legal permanent resident status.
Spouses and minor children would receive derivative status.
Next Steps
Hearings have been scheduled before the Senate Judiciary Committee to review the bill and a committee vote is expected in May. The bill would then go on to the full Senate.
The official revised Employment Eligibility Verification Form I-9 was released March 8, 2013 by the U.S. Citizenship and Immigration Services (USCIS).
Employers should begin using this new form immediately. The new Form I-9 will contain a revision date of 03/08/13 that is located on the bottom left-hand corner of the form.
Final Changes to the Form I-9
The revised Form I-9 makes several improvements designed to minimize completion errors. The key revisions to Form I-9 include:
60-Day Grace Period
Prior versions of the I-9 will no longer be accepted and should not be used after May 7, 2013. The agency is providing employers 60 days to make the necessary internal changes in their business processes to implement the new form.
The new I-9 form can be downloaded here.
A Spanish-language version of the new Form I-9 is available, however may only be filled out by employers and employees in Puerto Rico only.
Handbook for Employer
The M-274 Handbook for Employers is in the process of being updated as well. Employers are advised by USCIS to follow instructions on the new Form I-9 until the revised handbook has been updated.
Employers are required to maintain an I-9 for as long as an individual is employed and for the required retention period following their employment termination, which is the later of three years after the date of hire or one year after the date employment ended.
Failure of an employer to ensure proper I-9 completion and retention may subject the employer to civil monetary penalties, and possibly even criminal penalties.
USCIS noted that employers do not need to complete the new Form I-9 for current employees for whom there is already a properly completed Form I-9 on file, unless reverification applies.