DHS Proposes EAD for H-4 Spouses

The U.S. Department of Homeland Security (DHS) has proposed a regulation allowing for issuance of an employment authorization document (EAD) for certain H-4 spouses.  It will primarily be used where the H-1B principal already has an approved I-140 immigrant petition and is waiting for their priority date to become current before they can file for permanent residency.  DHS did not advise how long it would take for the proposed regulation to go final.  Most likely, it will be at least several months.  However, this is a good sign for H-4 spouses. The purpose of the rule is to make it easier for talented foreign nationals to remain working in the U.S.  For more information, click here.

Important Employment and Immigration Cross Over Issues

Employers are faced with a plethora of employment and immigration cross over issues.  Here’s a list of 7 important tips:   

  1. Don’t include the I-9 with the job application.  You can only request that the I-9 be filled out once the applicant has accepted a job offer.
  2. Make sure you have a completed I-9 on file for every employee at your company.
  3. Keep the I-9’s in binders rather than the employee’s HR file.  Have one set of binders for active employees and one set for terms.
  4. Employers have begun to see more instances where an employee has recently legalized their status and presented a work permit and new social security number.  When the employee was originally hired they presented what were presumed to be valid work authorization documents. Now the employee comes forward and says my real name is different, and here is my new SSN and work permit.  In such a case, fill out a new I-9, attach a memo explaining the situation and a copy of the new work permit and social security card, and staple all of this to a copy of the old I-9.  Usually, the employer must terminate the old name in their HR information system and process the new one as a new hire.  In such a case, the original old I-9 can go into the term binder along with a copy of the memo as well.
  5. Anytime you are presented with a discrepancy in the employee’s SSN (i.e. a mis-match letter from any government agency), call the employee in to verify there isn’t a simple typographical error on the original hire paperwork.  If not, send them to the Social Security Administration and ask them to bring back verification of their SSN.  If no verification is forthcoming within 30 to 60 days, contact legal counsel re probable termination.
  6. If an undocumented employee files a labor/employment based claim with the employer, and the employer subsequently discovers that the employee is undocumented, the employee must be terminated since they are not work authorized.  However, the employer will be liable for the employment claim that led to the discovery of the undocumented status.
  7. When making a job offer to an H-1B or similar non-immigrant visa holder, indicate on the job offer letter that the job is still terminable at will despite the fact that you are petitioning for them for x number of years on the visa petition.  Also indicate that you are under no obligation to sponsor the employee for permanent residency, but even if you decide to do so in the future, it won’t alter the terminable at will relationship.

For more information, please contact Greg Berk, Chair of the CDF Immigration Practice Group.

H-1B Work Visa Can Be Filed on April 1

The U.S. Department of Homeland Security will accept new H-1B visa filings on April 1 for a start date of Oct 1.  H-1B work visas are for foreign national employees that are college degreed professionals such as software developers, engineers, chemists, scientists, financial analysts, etc.  The annual quota of 85,000 visas applies to first time H-1B’s, not to extensions with the same company or transfers to other companies.

It is suggested that employers query their departments to see if they have a need for such a visa for either a possible new hire or to keep a valued current foreign national employee work authorized.  This year's quota is expected to fill up relatively fast.

Many employers have valued foreign national employees working on a one-year work permit after college (known as Option Practical Training or OPT).  Since the OPT will expire, it’s important that the H-1B visa be explored to allow them to remain work authorized. Some employees are eligible for a one-time extension of their OPT (based on their STEM education in science, technology, engineering, and math), but eventually will still need the H-1B visa.

For more information, please contact Greg Berk, Chair of the CDF Immigration Practice Group.

Impact on Employers of California’s New Law Authorizing Driver Privileges for Illegal Immigrants

Governor Jerry Brown signed AB 60 into law on October 3, 3013.  The law allows individuals without immigration status to obtain driver privileges (DP) and to obtain a DP identification from DMV.  The law goes into effect on January 1, 2015 in order to give DMV sufficient time to publish regulations and procedures and to staff up to meet the expected demand.

CDF reminds employers that the DP identification will not satisfy I-9 requirements.  While a state issued driver license is an acceptable List B document, a DP card will not be.  By definition, anybody who applies for the DP identification is most likely not work authorized.

It is the opinion of this author that Congress will eventually grant employment authorization documents (EAD’s) sometime during the next two years to this same population segment – however it remains to be seen when.  Until then, employers are reminded to remain vigilant regarding accepting proper I-9 documentation for new hires and reverifications.

For more information on the new DP, click here.

For information on other immigration matters, please contact Attorney Greg Berk, Chair of the CDF Immigration Practice Group.

Immigration Consequences of DOMA Decision

The recent U.S. Supreme Court Case regarding the Defense of Marriage Act (Windsor v. Schlain, No. 12-307 (U.S. 2013)) has numerous immigration consequences for certain same-sex spouses that are married.  The June 26, 2013 decision opens the door for many immigration benefits for certain qualifying spouses.  

If the marriage takes place in a state that recognizes a same-sex marriage, then U.S. Citizenship & Immigration Services (US CIS) will allow the U.S. Citizen or permanent resident partner to sponsor their foreign national spouse for permanent residency in the U.S.   Currently, there are 14 states where the marriage will be recognized as valid for immigration purposes, including  California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, Washington DC.

And the U.S. Citizen spouse could even sponsor the foreign national partner on a fiancé visa if they are overseas and plan to marry within 90 days of entry to the U.S.

In addition, it will allow non-immigrants who are applying for a temporary visa (such as H-1B, L-1, TN, etc.) to have their spouses join them on a derivative visa if their same-sex marriage is recognized as valid in the overseas country where the marriage took place.  Currently, there are 15 countries that recognize same sex-marriages including Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, and Uruguay.

US CIS has indicated that the place of marriage (celebration) will dictate eligibility as opposed to the current place of residency.  For example, if a couple marries in California and then moves to Wyoming, then they will still be able to petition for permanent residency since the location of the ‘place of celebration” of the marriage controls. 

Spouses may also marry overseas in a country that recognizes same-sex marriages and US CIS will recognize that marriage for visa purposes.

US CIS is expected to provide more guidance on this in the months to come.  See here

For more information, please contact Greg Berk, Chair of the CDF Immigration Practice Group.

DHS Issues New I-9 Manual

Following its recent release of a new I-9 form, the U.S. Department of Homeland Security has now announced that a new I-9 manual has been released.  The manual is a useful guide to some of the more obscure procedures involved with the I-9 form.  The manual can be found here

New I-9 Form Released

On Friday, March 8, 2013, the U.S. Department of Homeland Security finally issued the long-awaited updated I-9 Form.  The old form can still be used for two months until May 7, 2013.  The new I-9 form is available here.

The I-9 form is used to verify work authorization of new hires in the U.S. as well to re-verify work authorization of foreign nationals working with temporary work authorization.  The new and old forms are very similar in content.  However, unlike the old one-page form, the new form is 3 pages long and easier to understand and fill out.  The new form also clearly differentiates between employees who only need to be verified once (U.S. Citizens and permanent residents) and foreign nationals who are here temporarily and must be re-verified whenever their work authorization expires. 

Regarding the list of acceptable documents that an employee tenders, the new form emphasizes that if a social security card is selected by the employee as a List C document, only an unrestricted social security card is acceptable.  If the social security card has any restrictive language on it, it cannot be used for I-9 purposes since the individual may have obtained it when they had temporary work authorization and now no longer do. 

Although there is a Spanish version of the I-9 form as well, it may only be used in Puerto Rico. 

As a reminder, at the time of hire, employers must inspect an original document chosen by the employee from List A, or one each from Lists B and C.  It must be done within the first 3 days of hire.  It is recommended that copies of the documents be attached and retained to the I-9 as further proof of the good faith efforts by the Employer to comply with the mandate.  If the documents appear to be authentic, then the employer will not be liable if it later turns out they are not authentic.  The I-9 forms should be retained for 3 years after termination of employment.  Employers who have enrolled in E-Verify must still have a paper or digital I-9 on file for every employee. 

Employers are encouraged to periodically audit their I-9’s and take corrective action where errors are found. 

H-1B Work Visas Can Be Filed on April 1

The U.S. Department of Homeland Security will accept new H-1B visa filings on April 1 for a start date of Oct 1.   H-1B work visas are for foreign national employees that are college degreed professionals such as software developers, engineers, chemists, scientists, financial analysts, etc.   The annual quota of 85,000 visas applies to first time H-1B’s, not to extensions with the same company or transfers to other companies. 

It is suggested that employers query their departments to see if they have a need for such a visa for either a possible new hire or to keep a valued current foreign national employee work authorized.   This year's quota is expected to fill up relatively fast. 

Many employers have valued foreign national employees working on a one-year work permit after college (known as Option Practical Training or OPT).  Since the OPT will expire, it’s important that the H-1B visa be explored to allow them to remain work authorized.  Some employees are eligible for a one-time extension of their OPT (based on their STEM education in science, technology, engineering, and math), but eventually will still need the H-1B visa.

For more information, please contact Greg Berk.

The New Immigration Waiver:  What Does It Really Mean?

The U.S. Department of Homeland Security recently announced that certain foreign nationals who are in the U.S. who either entered the U.S. illegally, or entered legally and overstayed, will be eligible for waivers of the bar to receiving their immigrant visa from abroad.  The program begins March 4, 2013 and only certain individuals will qualify.

As a brief background, most individuals must be in status in order to obtain a green card in the U.S.  However, some individuals who either had no status or were out of status were nonetheless still able to do so if they had immigrant petitions filed by employers or certain family members prior to April 30, 2001.   Individuals who were out of status and had immigrant petitions filed after April 30, 2001 are not eligible to adjust status in the U.S. to obtain permanent residency and must instead obtain an immigrant visa abroad from a U.S. Consulate. 

Complicating matters was that Congress created a "ten-year bar" in 1996 whereby individuals who were out of status and then left the U.S. were not allowed to return for 10 years unless they can show extreme hardship to a U.S. Citizen spouse or parent.  As a result, many people left the U.S. to file their waiver applications from abroad, only to get stuck abroad (usually at Ciudad Juarez, Mexico) for up to a year while their hardship waiver applications laggard in a long queue. 

Fortunately, under the newly announced program, eligible individuals can apply for their waiver state side and then upon approval, they will only need to spend 2 weeks abroad.

Eligible individuals must first have an approved immigrant petition filed by a sponsor and be able to show extreme hardship to a U.S. Citizen spouse or parent if the waiver of the 10-year bar is not approved.  Ironically, a showing of extreme hardship to U.S. Citizen children does not qualify under the law as written by Congress back in 1996.  3Also, if an individual has other grounds of inadmissibility (crimes, prior deportation, misrepresentation etc.) then the I-601A waiver will not apply.

The announcement from Secretary Janet Napolitano can be viewed here.

President Signs Extension of EB-5 Immigrant Investor Program

Last week, President Obama signed a bill extending for another three years the EB-5 Immigrant Investor Program.   The program allows foreign investors to invest $500,000 in an approved Regional Center in exchange for the grant of permanent residency to themselves and their family.  Alternatively, they can invest $1,000,000 in their own business in the U.S. in exchange for permanent residency.  In an age of large backlogs and wait times for permanent residency, the EB-5 Program has become a very popular way to move to the front of the visa line.  For more information, contact Greg Berk.

DHS to Give Work Permits to Certain Undocumented Individuals

The U.S. Department of Homeland Security (DHS) made a major announcement Friday, indicating that beginning sometime in the next 60 days, certain undocumented individuals who have continuously resided in the U.S. for at least 5 years will be eligible for deferred action from deportation and will be given work permits for 2 years.  And their status and work permits will be renewable.   

To be eligible, the individuals (1) must have entered the U.S. prior to age 16 and be under age 30, (2) they must be in high school, have graduated high school, or  received an honorable discharge from the U.S. military, and (3) must have good moral character. 

This goes beyond the previously proposed “Dream Act” which contemplated requiring the individual to be in college or have a U.S. college degree.   Deferred Action means that the Government recognizes that the person is deportable but will defer any action to deport the individual.

Estimates are that up to 800,000 young individuals in the U.S. may qualify for this benefit.  California generally has at least 25% of the U.S. foreign national population which means this could affect over 200,000 Californians. 

The Obama Administration used their executive authority to grant deferred action as the legal basis to offer this benefit.  The rule underscores how date sensitive immigration cases are.  Individuals who won’t qualify include those who entered the U.S. on or after age 16, or have not yet lived here continuously for 5 years, or are age 30 or over.    

The Government will be issuing more details in the ensuing weeks.  The CDF Immigration Practice Group can assist with further questions.
The initial DHS announcement is available here.

For more information about immigration issues, we invite you to attend CDF's complimentary webinar on June 20, 2012, which will cover a variety of important immigration law issues.  For more information and to register, click here.

ICE Releases New STEM List for Foreign National Graduates

U.S. Immigration & Customs Enforcement released an updated list of college majors that will qualify for an extension of the Optional Practical Training (OPT) work permit after a foreign national graduates college.  Those students majoring in science, technology, engineering, and math (STEM) can qualify for a 17 month extension of their work permit, beyond the usual 12 month OPT period.  This allows employers more time flexibility in sponsoring the individual for an H-1B work visa.  For a full list of STEM majors, click here.  For  more information, contact Greg Berk, with CDF's Immigration Practice Group.

H-1B Visa Quota Will Open April 2

The Government will accept new H-1B visa filings on April 2 for a start date of Oct 1.   H-1Bs are for college degreed professionals such as software developers, engineers, chemists, scientists, teachers, financial analysts, pharmacists, and dentists.  The annual quota of 85,000 visas applies to first time H-1Bs, not to extensions with the same company or transfers to other companies. 

It is suggested that employers query their departments to see if they have a need for such a visa for either a possible new hire or to keep a valued current foreign national employee work authorized.   Due to the recession, the annual quota is not expected to fill up right away.  However, employers should not wait too long.  It is hard to predict when this year’s quota will be filled – possibly anywhere from one to five months.

Many employers have valued foreign national employees working on a one-year work permit after college (known as Option Practical Training or OPT).  Since the OPT will expire, it’s important that the H-1B visa be explored to allow them to remain work authorized.  Some employees are eligible for a one-time extension of their OPT (based on their education in science, technology, engineering, and math), but eventually will still need the H-1B visa.

Please note that it’s important that before you extend a job offer to a foreign national who requires sponsorship, you make sure that all immigration eligibility issues are covered such as their immigration history, eligibility for the visa, how much time in H-1B status they will be allowed, prevailing wage, etc. You don’t want any surprises. 

Immigration issues should first be addressed on your job application and include two questions regarding work authorization:  First, “Are you authorized to work in the U.S.” and second,  “Will you require sponsorship to work in the U.S.”   If the applicant answers “yes” to sponsorship, there are a host of permissible follow up questions regarding immigration status and history that can and should be delved into prior to extending an offer.

For more information and/or assistance with H-1B issues, please contact Greg Berk at (949) 622-5851 or gberk@cdflaborlaw.com.

Supreme Court Says States May Require Use of E-Verify

On May 26, 2011, the U.S. Supreme Court held that Arizona may suspend and terminate business licenses of employers who are found to willfully employ workers who are not authorized to work in the U.S. The Court also found that the state may require E-Verify as a prerequisite to doing business in the state. For the Court's full decision inChamber of Commerce v. Whiting, click here.

In the 5-3 ruling, the U.S. Supreme Court majority relied on a portion of the 1986 Immigration Reform and Control Act (IRCA) which expressly provided that states and cities could impose criminal or civil sanctions for immigration violations of employers through licensing laws. And that's what Arizona took advantage of when it crafted its legislation in 2007.

The Court also noted that while E-Verify is optional at a national level, the federal statute was silent as to the states' role and therefore it did not precludestates from imposing a mandatory scheme. We arenot aware of any businesses to date that have been fined or shut down in Arizona as a result of the state statute. However, the U.S. Supreme Court decision certainly clears the way for Arizona to begin aggressive enforcement if it so chooses.

It should be notedthat it would be far easier for Arizona to enforce mandatory E-Verify than it would be to determine if an employer is willfully hiring unauthorized workers. The latter is a complex matter that even U.S. Immigration & Customs Enforcement (ICE) finds challenging.We don't foresee the State of Arizona or its municipalities becoming I-9 audit experts. Furthermore, E-Verify is only to be used for new hires unless the employer is a federal contractor.

The most likely impact of this decision for California businesses is that it is going to put pressure on Congress to roll out with mandatory E-Verify nationwide. Otherwise, Congress will likely find that states will continue to create a patch-work of inconsistent rules. Rep. Lamar Smith (R-Texas and Chairman of the House Judiciary Committee) has indicated that he plans to introduce such a bill in the near future. California employers may want to enroll in E-Verify soon so that they are ahead of the curve and avoid having to scramble to implement it when Congress makes it mandatory.

Critics have complained that E-Verify is not accurate. However, most of those criticisms are out-dated. E-Verify has made enormous strides over the last 3 years. CIS has an army of software developers working full time to continually improve the system. The latest figures show that 99% of all inquiries are now confirmed within minutes. Of the remaining 1%, most are for people that are not work authorized. Of the few that are, the Social Security Administration is more than willing to keep a case open for several months in order to make sure that they do not cause a U.S. worker to be wrongly terminated based on immigration status. The eight-day tentative confirmation period for E-Verify can now be easily tolled by the federal government when the facts warrant it.
Furthermore, in an effort to assist employers with the complicated I-9 process, US CIS has also recently rolled out with a more simplified on-line I-9 assistance center. It is called "I-9 Central" and has sample photos of various permissible documents and offers simplified guidance to filling out the I-9. To review this information, click here. For additional I-9 guidance and CDF's top 10 do's and don'ts, see our prior post on the subject here.

EDD Will Deny Unemployment Benefits to Claimants Not Authorized to Work in US

When EDD receives a new application for unemployment, they are first verifying the social security number to determine if it is valid and assigned to that person. If there is any discrepancy, they are sending a letter to the Employer requesting clarification.

As part of the eligibility for unemployment, EDD requires that the claimant be "ready and willing to immediately accept new employment." Therefore, if the applicant does not have the legal right to work in the U.S., then they are not eligible for unemployment benefits.Click here for EDD information on this subject.

Suppose also that the Employer has decided to merely reduce the hours of an existing employee, and the employee then files an unemployment claim for partial benefits with EDD. If EDD then sends a social security mis-match letter to the Employer, it will be deemed by Immigration & Customs Enforcement (ICE) as constructive notice to the Employer that the individual may not be work authorized. This would require the Employer to take further investigative action. For protocols from the U.S. Department of Justice on how to handle social security mis-match letters, click here.

For more information on immigration matters, contact Greg Berk, Chair of the CDF Immigration Practice Group at (949) 622-1661 or at gberk@cdflaborlaw.com.

DHS Rolls Out E-Verify Self Check

U.S. Citizenship & Immigration Services announced that they have rolled out with a pilot project called "E-Verify Self Check." The program allowsindividuals to prescreen themselves through E-Verify by submitting on-line confidential data regarding their identity and immigration status. This will enable people to pre-determine if they are confirmed in the E-Verify database as authorized to work in the United States. If not, it will put them on notice that they need to visit the Social Security Administration to resolve the problem. This pilot program is only available in five states currently--Mississippi, Arizona, Idaho, Colorado, Virginia, and the District of Columbia. California is not included at this time. For more information, contact Greg Berk, Chair of the CDF Immigration Practice Group at gberk@cdflaborlaw.com.

US CIS Releases New I-9 Manual

U.S. Citizenship & Immigration Services (CIS) released a new I-9 manual on January 5. The manual is a big improvement from previous versions in that it helps clarify many issues and is easier to navigate through. It can be found at http://www.uscis.gov/files/form/m-274.pdf.

Also, it should be noted that Immigration & Customs Enforcement (ICE) has been aggressively fining companies for mere technical I-9 violations. Even where the company has no unauthorized workers, ICE has recently been coming down hard on mere technical violations.

For example, in September 2010, Abercrombie and Fitch was fined $1 million because it's digital I-9 software had a glitch which resulted in some I-9's having blank fields. Even though all of the employees in question were work authorized and all had I-9's, ICE still fined the company in order to send a message. The Officer in Charge of the investigation noted: "This settlement should serve as a warning to other companies that may not yet take the employment verification process seriously or provide it the attention it warrants. " The ICE press release can be seen at http://www.ice.gov/news/releases/1009/100928detroit.htm.

Until Congress creates a digital social security card to help employers through the process, I-9's that are not compliant will affect the value of your company and expose management to liability. Employers are encouraged to be proactive in this area and ensure compliant I-9 practices.

H-1B Professional Visa Quota Will Be Reached Soon

If your company is thinking of sponsoring a foreign national worker for an H-1B visa, be advised that the quota will likely be reached soon -- possibly later this month or sometime in January. Approximately 82% of the quota has been used up. The H-1B visa is for professional workers working in such fields as information technology, science, engineering, accounting, etc. Once the quota is reached, the next filing period will begin on April 1, 2011 with a start date of October 1, 2011.

Be advised that generally speaking, a foreign national who is already in H-1B status and working for another company, is eligible to transfer and work for your company. They are not subject to the H-1B quota since they are already in H-1B status. However, their authorized time to remain in the U.S. does have limits and this needs to be explored prior to extending any job offer.

Immigration issues should first be addressed on your job application and include two questions regarding work authorization: First, "Are you authorized to work in the U.S." and second, "Will you require sponsorship to work in the U.S." If the applicant answers "yes" to sponsorship, there are a whole host of permissible follow up questions that can and should be delved into prior to extending an offer.

For more information, please contact Greg Berk, Chair of the CDF Immigration Practice Group at (949) 622-1661 or gberk@cdflaborlaw.com. Before extending a joboffer to a foreign national, employers are encouraged to seek legal advice to ensure eligibility and immigration compliance so as to avoid any surprises.

DOJ Gives Guidance Regarding Social Security No-Matches

The U.S. Department of Justice (DOJ) weighed in this week with guidance on how Employers should handle social security number no-matches for employees. DOJ stressed that a no-match should merely be the start of an inquiry and a request to the employee to help resolve the discrepancy. It should not be cause for an immediate termination, or immediate filling out of a new I-9.

There is still an open question as to how much time an Employer has before they should request a new I-9, and if necessary terminate an Employee with a social security no-match. DOJ stressed that each case is fact specific. Interestingly, they also noted that for E-Verify employers, the Social Security Administration (SSA) can now hold a tentative non confirmation in abeyance for up to 120 days if the facts warrant it.

Causes of social security no--matches include: name changes due to marriage or divorce, input errors by SSA staff; reporting errors by an employer or employee, identity theft, errors in reporting hyphenated surnames, and fraud.

This new guidance from DOJ is helpful. However, employers are still concerned whether U.S. Immigration & Customs Enforcement (ICE) will have the same view as to how much time is reasonable to resolve a no-match. Until Congress decides to create a uniform electronic verification system, employers will still be left with many uncertainties. For information on the latest DOJ pronouncement, see: http://www.justice.gov/crt/osc/htm/SSA.php. For case specific questions, contact Greg Berk, Chair of our Immigration Practice Group at gberk@cdflaborlaw.com.

Federal Government Turns Up The Heat On I-9 Violators

The U.S. Attorneys Office in San Diego has recently criminally prosecuted a French bakery for allegedly engaging in an intentional pattern and practice of hiring unauthorized workers. As part of the indictment, the Government is seeking hefty monetary fines, prison time for the owner and management, and asset forfeiture of the entire business to the Government. While the Government does not have experience running a French bakery, they are getting very serious about enforcing I-9 regulations.

Congress and the Executive Branch are frustrated with the entire immigration process in the United States. In 1986, Congress passed a blanket amnesty for millions of undocumented individuals and simultaneously created employer sanctions for employers who hire undocumented individuals. INS immediately created the I-9 Form to effectuate that law. This one page form was supposed to seal the borders by taking away the incentive for people to cross the border illegally -- namely jobs. Of no surprise to many, the Form I-9 was not successful in sealing the borders. A large shortage of unskilled workers continued to exist, fake documents that looked genuine were easily available on the black market, and our long Southern border was not easily sealable. This created a difficult situation for the government to enforce the I-9 regulations.

The Department of Homeland Security is working very hard to utilize advances in technology and data mining to develop a more effective I-9 system, as well the use of technology to better seal the borders. The E-Verify I-9 internet based confirmation system is being continually enhanced. In addition, biometric social security cards and other ideas are being advanced.

Employer sanctions are likely to grow as Congress and the Executive Branch consider a possible guest worker program or amnesty. Our Firm recommends that employers re-double their efforts to make sure their current I-9's conform to the law. Here is the CDF list of Top 10 tips to help employers comply:

1. After an Employer makes a job offer and the applicant accepts the offer, request that the I-9 be filled out and examine the original documents that the applicant chooses to show as proof of work authorization. Once an offer has been accepted, an Employer does not need to wait until the first day of employment to I-9 the individual. However, the I-9 form should be done no later than the third day of hire.

2. Make sure the I-9 is completely and accurately filled out by both the new hire and your company. Take the time to carefully review the answer for each field of the form.

3. Suggest also stapling copies of the original documents to the I-9 as further evidence that the original documents were actually examined and proof that the documents appeared legitimate.

4. Never pay cash to an individual who is not work authorized as a means of circumventing the I-9 regulations. Never classify an individual as an independent contractor in an attempt to circumvent the I-9 regulations.

5. Never accept expired documents from new hires. The only exception is a 90 day grace period for new hires that are U.S. Citizens or green card holders that have already applied for a replacement document -- i.e. a replacement of a U.S. passport, state driver's license etc.

6. The I-9 form divides up the workforce into 4 categories -- U.S. Citizens, U.S. Nationals (Samoa and Swain Island), permanent residents, and aliens authorized to work for a limited duration. Once verified, it is this latter category that must very carefully tracked since their work authorization will expire -- i.e. work permits, H-1B petitions, TN workers, etc. Employers should not reverify the I-9 of an existing U.S. Citizen, U.S. national or permanent resident employee merely because their documents have expired. Once hired, foreign national workers on temporary employment authorization must be carefully tracked.

7. Maintain the I-9 records for employees for 3 years from the date of termination. Keep all your I-9's in binders -- separate current employees from terminated employees. In the event of an I-9 audit by Immigration & Customs Enforcement (ICE), this will make it much easier to produce them within the 3 days requested by the agency. Scanning and making digital copies at the time of hire is also a good practice. Do not keep the I-9 in the employee's HR file.

8. ICE recognizes a good faith exception to occasional I-9 errors that are de minimus and inadvertent. When conducting an I-9 audit within your company, if you find errors or incomplete forms, we suggest you take a red pen and make any corrections. Do not destroy any evidence or alter any evidence. You may also annotate in the margin of the I-9 why you made a particular correction and date it, or you can attach an explanatory memo. In some cases, it is easier to fill out a brand new I-9 instead and staple it on top of the old one.

9. In tricky situations, do not rely on the employee for advice as to whether they are work authorized. When in doubt, consult with experienced counsel.

10. Take the I-9 seriously. They are here to stay and the government is turning up the heat. The consequences of not complying are great -- monetary fines, jail time, and asset forfeiture of the entire business.

Carothers, DiSante, & Freudenberger LLP has an experienced immigration practice group ready to assist your company with any I-9 issues as well as the full gamut of employment visas. For assistance, contact Attorney Greg Berk at gberk@cdflaborlaw.com.

Best Practices for Handling Social Security Mis-Match Letters

The Department of Homeland Security (DHS) recently rescinded their proposal to impose a 90-day safe harbor for employers who receive a notice from the Social Security Administration that a social security number being used by their employee does not match the name on file with the Social Security Administration. Large unions and various business groups feared that work-authorized individuals would accidentally get caught up in the fray and be erroneously terminated. After protracted litigation, DHS backed down and rescinded the proposed rule.

Many social security mis-match letters are created as a result of women being married and changingtheir name to something different than what is on file at the Social Security Administration. Other reasons include typographical errors at the time of hire, individuals who naturalize and change their name, or individuals using a false name that does not match the social security number.

The rule would have given employers 90 days to resolve the matter without incurring any liability for employing an individual who may lack work authorization. The rule would have also required that if you and the employee cannot resolve the discrepancy, then it would have required that you fill out a new I-9 for the employee using documents other than a "List C" social security card. If you failed to do so, you and your company could have been held liable for civil and criminal penalties. Now that the proposed rule has been rescinded, the key question is where does that leave you, the Employer?

The Social Security Administration is quick to point out that their agency's authorization to send out a mis-match letter was never dependent on the outcome of the DHS safe harbor proposal.

This area of the law is in flux and there are few "mile markers" on the employment trail. Nonetheless, one long-standing bright-line rule is that if you receive a letter from social security or otherwise become aware that an employee's social security number may not be valid, then the law still requires that you take affirmative steps to try to resolve the discrepancy.This duty existed before the proposed safe harbor rule and still exists today.

Under these facts, if you receive a social security mis-match letter today, you will still be deemed to have "constructive knowledge" that the employee may possibly not be work authorized. Once you have constructive knowledge, U.S. Immigration & Customs Enforcement (ICE) will expect you to take remedial steps to resolve the discrepancy.

Although the proposed 90-day safe harbor has been rescinded, it is the opinion of this author that using a self imposed "90 day clock" to resolve these issues is still a good benchmark to utilize for existing employees in the absence of any other government bench mark.Accordingly, you should make every effort to resolve the discrepancy within 90 days by advising the existing employee to go to social security and obtain proof of having a valid social security number. If there is no resolution, you should I-9 the individual again using documents other than their social security card. If they cannot produce valid I-9 documentation, then termination is likely in order. However, you should first contact counsel to discuss the issues.

It is interesting to note that employers who use E-Verify only have 10 days to resolve

a discrepancy for a new hire that receives a tentative non-confirmation (TNC) through the E-Verify system. One may ask why "new hires" only receive a few days to resolve the matter while it was proposed that "existing employees" receive up to 90 days. The answer probably lies in the fact that DHS feels that existing employees have a quasi-pre-existing property right (their job) and therefore are entitled to more procedural "due process" before they would be terminated due to discrepancies in their social security number. New hires on the other hand arguably have a diminished expectation since they just began employment with the employer.

This area of the law is clearly in flux. For example, federal contractors must now use E-Verify for all new hires, as well as for existing employees working on a covered contract. As such, in this case, the 90-day benchmark would not even be applicable to existing employees since the E-Verify system only gives the employer 10 days to resolve a tentative non confirmation of work authorization.

In conclusion, Employers should continue to take social security mis-match letters seriously, whether they are issued from the Social Security Administration, Internal Revenue Service, or any other federal agency. Although the proposed "90 day safe harbor" is gone, the underlying duty to act and resolve the discrepancy remains. Ignoring these letters or any other evidence which raise questions about an employee's authorization to work in the U.S. can create civil and criminal liability to you and your company.

While some I-9 and social security number issues can be easily resolved, some are quite complex and require consultation with counsel. For case specific questions, please contact attorney Greg Berk, Chair of the firm's Immigration Practice Group, at 949-387-6999 or gberk@cdflaborlaw.com.

Does My Employee Need a Visa for Travel?

Some employees frequently need to travel abroad. Managing that process can be important, particularly for those who are working for your company pursuant to visa sponsorship and require a valid visa to re-enter the United States. Failure to follow proper protocols can result in the employee being refused a new visa or being denied admission at the U.S. port of entry.

For visa purposes, your workforce can be divided up into four categories: U.S. Citizens, lawful permanent residents (also known as green card holders), foreign nationals who are working for you pursuant to company sponsorship, and foreign nationals that have work authorization independent from your company.

U.S. Citizens do not need a visa to travel temporarily abroad for business or pleasure to many countries -- including most of Western Europe, Canada, Mexico, and many other countries. However, it is very important to check before sending that U.S. Citizen employee abroad.

Lawful permanent residents (green card holders) would need a visa to visit most countries, but would not need one to return to the U.S.

Foreign nationals that are employed pursuant to sponsorship by your company will frequently need a visa to visit countries abroad other than their home country. And in most instances, they would require a visa to return to the U.S. The most common visa categories your foreign national employees may need to obtain at a U.S. Consulate abroad include H-1B professionals, L-1 managers, L-1 specialized knowledge workers, F-1 university graduates working on optional practical training (OPT), and E investors.

Whether your employee will require a visa to travel abroad or to re-enter the U.S. can be a complex question. And if they do need a visa from a U.S. Consulate abroad, strict documentation requirements apply as well.

We therefore suggest that prior to any overseas travel by potentially impacted employees, you contact the CDF Immigration Practice Group to make sure "all the ducks are in a row." For more information, contact attorney Greg Berk,Chair of the Practice Group, at gberk@cdflaborlaw.com or(949) 387-6999.

E-Verify Requirement for Federal Contractors Takes Effect September 8

A recent federal district court decision regarding the mandatory use of E-Verify for federal government contractors clears the way for the government to fully implement this requirement on Sept 8, 2009. Chamber of Commerce v Napolitano, No AW-08-3444, U.S. Dist Ct., So. Dist. Maryland, 8/25/09

E-Verify is the internet-based I-9 employment verification system run by the Department of Homeland Security (DHS). The Court held that being a federal government contractor is optional and therefore the issue of whether DHS can legally mandate use of E-Verify is moot.

As a result, on September 8, 2009, all new contracts awarded by the federal government that exceed $100,000 will require that those contractors use E-Verify verification as part ofthe I-9 hiring process. In addition, those contractors will be required to include mandatory E-Verify provisions in all sub-contracts exceeding $3,000.

Federal contractors and subcontractors will be required to use E-Verify for new hires as well as for those existing employees that are working on a "covered" contract.

Contracts signed prior to September 8, 2009 will not be affected.This is a prospective requirement that will be triggered through the award of a new federal contract.

Editor
Cal Labor Law

Robin E. Largent is a Partner in CDF’s Sacramento office and may be reached at 916.361.0991 or rlargent@cdflaborlaw.com BIO »

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