USCIS Releases Lists of Employers Enrolled in E-Verify Program

Posted by Dawn Lurie on April 02, 2012

United States Citizen and Immigration Service (USCIS) is very busy improving general E-Verify Outreach and Customer Service for employees and employees dealing with the intricacies of the Form I-9 process. We applaud them for their continued efforts on I-9 Central and for today's release detailing the 345,000+ employers enrolled in the E-Verify program, a web-based system that compares information from an employee's Form I-9 to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. The lists of enrolled employers, including federal contractors, are now conveniently available on the E-Verify website.

"The E-Verify Employers and Federal Contractors Lists provide the business name, city, state and ZIP code used during registration with E-Verify. They also indicate which businesses are federal contractors and provide other information such as workforce size. Click here to see these lists" stated the USCIS web release.

We were very pleased to see that the USCIS offered caveats to be considering when searching these lists. Such caveats are critical when searching the lists for particular employers. Specifically, we do not recommend using the list to confirm or deny E-Verify participation of a particular employer. 

Caveats for reviewing the E-Verify Employers and Federal Contractors Lists:

  • The lists only includes employers and federal contractors who have self-reported that their company has five or more employees.
  • Not all business locations of an employer enrolled in E-Verify may be found on the lists. The absence of a business location does not mean or imply that the business operating at the unlisted location either is or is not enrolled in E-Verify.
  • Naming conventions used by employers may not be recognizable to the public. When an employer enrolls in E-Verify, the employer uses the legal name of the individual or business entity. In many cases, however, an employer may use a trade name for public business purposes.
  • E-Verify does not collect contract information.
  • The E-Verify Employers and Federal Contractors Lists will be updated on a quarterly basis and the current postings are include employers and federal contractors enrolled in E-Verify through March 15, 2012.

More on I-9 updates including a an analysis of the proposed new Form I-9 and ICE's recent worksite activity will be posted shortly.

Supreme Court's Decision in Kawashima v. Holder and the Hard-Learned Lessons of an Old Tax-Crime Conviction

Posted by Dawn Lurie on March 20, 2012

Small business owners who are green card holders should take note of the U.S. Supreme Court's recent decision in Kawashima v. Holder. The court ruled that making (or assisting in the making of) a false tax return is a crime "involv[ing] fraud or deceit," and is therefore an aggravated felony for purposes of the Immigration and Nationality Act -- making filing a false tax return a deportable offense. Read our recent GT Alert for more information.

From the Office of Special Counsel: Anatomy of an OSC Investigation

Posted by Dawn Lurie on March 15, 2012

The phone rings.

"Hello, this is Attorney Smith with the Office of Special Counsel for Immigration-Related Unfair Employment Practices, may I speak to the Human Resource manager in charge of your Form I-9 process?"

You say to yourself, “This is not good. I have no idea what this government agency is — Office of the Special Counsel for...what?” Your gut confirms: this does not sound good at all.

"This is she. I'm sorry, you are with whom?"

"The Office of Special Counsel for Immigration-Related Unfair Employment Practices...the OSC. I'm calling about a complaint our office received regarding your company re-verifying Permanent Residents, requiring applicants to complete Forms I-9 before you offer them employment and, last but not least, asking certain employees to bring in Social Security cards."

You ask yourself, “Is this as serious as it sounds? What do I do now?”

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act (INA). Investigations by the OSC should be taken very seriously. Our recent GT Alert reviews how the OSC investigates charges - including several examples - and the compliance strategies that companies should consider.

How to Complete the Form I-9 for Employees That Benefit From the Auto-Extension of Temporary Protected Status

Posted by Dawn Lurie on March 14, 2012

In another welcomed measure that clarifies the work eligibility of a class of valued employees, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) announced the launch of an educational video reminding employers that nationals of El Salvador with Temporary Protected Status (TPS) may continue working beyond the March 9, 2012 expiration date on their Employment Authorization Documents (EADs). The video is part of an ongoing educational campaign aimed at employers to ensure that the rights of workers are not violated in the Form I-9 compliance process.

The Department of Homeland Security has automatically extended the EADs for nationals of El Salvador with TPS until September 9, 2012. It is critical that employers know that they may continue to employ workers with TPS from El Salvador until September 9, 2012. OSC anticipates that its guidance will assist employers in avoiding claims of discrimination in the employment eligibility verification process by reminding them that, despite the rule that Employment Eligibility Verification Form I-9 documents must be unexpired, in this case it is permissible to continue to employ a worker with a TPS extension. In the past, employers have not had the benefit of such guidance and often terminated or refused to hire workers that indeed were eligible to work but could not present valid work authorization.

Read our recent GT Alert on this developing issue.

USCIS EB-5 Policy Memorandum Draft Updated

Posted by Dawn Lurie on January 12, 2012

In advance of today’s conversation with Director Mayorkas, the USCIS released the revised draft of the EB-5 policy memorandum, as well as a red-line version of the original memo, released last November, containing proposed changes to the program. As one of the 25 participants in today’s conversation at USCIS headquarters, I will be updating our readers this evening on the ongoing dialog between the government and stakeholders in the EB-5 program.

GT expects that in 2012 the government will continue to increase scrutiny of the program itself, as well as of Regional Centers and individual projects. With the program growing exponentially in 2011 and the press beginning to take a look under the rocks, ensuring compliance will be more critical than ever. Whether you are a developer, project seeking funding, regional center principle or foreign investor, it is crucial that you understand the obligations, implications and responsibilities of all parties involved in this type of foreign investment.

New Webinar Series on Workplace Discrimination

Posted by Dawn Lurie on December 16, 2011

On November 29, the Department of Justice (DOJ) announced the launch of a live webinar series on the topic of workplace discrimination. The webinars’ debut coincided with the 25th anniversary of the Immigration Reform and Control Act (IRCA), which created the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). The OSC is tasked with enforcing the anti-discrimination provision of the Immigration and Nationality Act (INA), which prohibits citizenship status and national origin discrimination in the hiring, firing, recruitment, or referral of authorized employees, as well as unfair documentary practices during the Form I-9 and E-Verify processes and retaliation against employees who engage in IRCA or Title VII protected conduct.

The webinars are free and open to the general public. The first webinar, held on December 6, 2011, discussed the protections available to workers and their advocates. A second webinar, scheduled for 3:00 PM EST on December 15, 2011, will advise employers and human resources professionals on avoiding workplace discrimination.

OSC is hosting the webinar series through InstantPresenter.com and will also post short educational videos on Vimeo.com. To participate in a webinar, online registration at www.justice.gov/crt/about/osc/webinars.php is required. To participate as a large or specialized group, please contact OSC’s Public Affairs Specialist, Terry Scott, at Terence.j.scott@usdoj.gov. For accommodation requests, please contact Lyn Sowdon at Lyn.Sowdon@usdoj.gov with your contact information and a description of the type of accommodation requested.

EB-5 Breaking News: USCIS Issues Draft EB-5 Policy Memorandum

Posted by Dawn Lurie on November 09, 2011

 By: Dawn Lurie and Kate Kalmykov

USCIS Director Alejandro Mayorkas invites stakeholders to review and comment on a draft policy memorandum (EB-5 AdjudicationsPolicy.pdf) on the EB-5 program. Greenberg Traurig, LLP will be submitting comments on behalf of our Regional Center clients and individual investors. GT attorneys attended the Director's teleconference and will be forwarding an Alert assessing the proposed guidance shortly. This memorandum is proof of Director Mayorkas' intensive focus to improve the EB-5 program is bearing fruit. Accordingly with improvements to the program we can expect more scrutiny and compliance monitoring on both the immigration and corporate securities side. Director Mayorkas stated that it is critical that the program ensures integrity and mentioned that any improprieties were already being referred to the Department of Justice and the Securities and Exchange commission.

It is more critical than ever for Regional Centers to ensure broad compliance and establish procedures for vetting proposed investment projects in light of current federal regulations and changing USCIS guidance. It seems to us that many Regional Centers do not understand the importance of correctly preparing a securities offering and structuring EB-5 investment projects. As the program expands we can undoubtedly expect increased scrutiny not just from USCIS but from the SEC as well. Likewise, in our representation of regional centers other common areas where even the most experienced find themselves stumbiling include job-creation or job-preservation projections, TEA designation, investor exit strategy, investment return and reinvestment issues. The proposed memoranda touches on many of these issues and those active in the EB-5 arena should be prepared for changes.

 

The Government Gets Back in the Ring...Employers Around the Country Report a New Round of ICE Audits

Posted by Dawn Lurie on November 04, 2011

The calls from clients who received visits from Department of Homeland Security’s Immigration and Customs Enforcement (ICE) agents started to trickle in last Thursday afternoon. Although nothing has been announced, we have reason to believe that ICE is conducting a new round of audits. While numbers have not been confirmed, we estimate that at least 500 employers nationwide will be receiving Notices of Inspection (NOIs). We understand that the NOIs were issued based on robust “tips and leads” and many of the inspections could lead to criminal indictments.

NOIs will include requests for hiring, payroll and other records to determine compliance with employment eligibility verification laws. Employers will be expected to produce original I-9s within three days from service of the NOI. These audits were driven by ICE headquarters and it’s unlikely that requests for extensions of time will be granted for the I-9 production; however, payroll records, copies of immigration filings, copies of Social Security Administration communications requesting corrections, information on independent contractors, and related information generally can be submitted later than the three day time period. Our February 2011 and June 2011 GT Alerts discuss what employers should do if they receive a NOI from ICE.

If your company was not selected by ICE, consider yourself lucky; be smart, be proactive and consider the following:

  • Review your I-9 related compliance
  • Conduct internal audits and act on the results
  • Do not ignore Social Security and non-traditional no-match notifications and potential identity theft issues
  • Provide ongoing training to those individuals completing Form I-9s
  • Consider E-Verify and other best practices
  • Adopt a basic compliance plan

This administration continues to make it clear that the days when immigration compliance could be ignored and considered the “cost of doing business” are long gone. Administrative audits, which can lead to criminal charges against the company and its officers and directors continue to be the tool of choice of ICE, and employers can expect these surges several times a year.

As ICE ramps up its auditor’s capabilities we can expect the inspections to become more sophisticated. With the USCIS transformation team likely moving towards integration of the Form I-9 and E-Verify, the increased use of electronic I-9s, additional monitoring of the E-Verify system and a better trained and focused core of ICE agents, employers absolutely must consider the importance of proactive compliance planning and training. A large of part of this process should include practices to detect identity theft and fraud issues. Although enforcement mechanisms may change, one thing is for certain: the focus on audits and other worksite enforcement actions will continue.

USCIS Redesigns Employment Authorization Document - I-9 Effect

Posted by Dawn Lurie on October 27, 2011

On October 25, Director of United States Citizenship and Immigration Services (USCIS) Alejandro Mayorkas announced the release of a redesigned Employment Authorization Document (EAD or Form I-766) and a redesigned N-560 Certificate of Citizenship. The new documents will be issued on an ongoing basis beginning, respectively, on October 25 and October 30. Our recent GT Alert discusses what employers and human resources professionals charged with completing the I-9 process for new hires, rehires and re-verification for existing employees need to know.

California Law Prohibits State from Requiring Employers to Use E-Verify

Posted by Dawn Lurie on October 26, 2011

Perhaps in effort to reign in the rapidly growing number of individualized city and local E-Verify laws and simultaneously stimulate the California economy, Governor Jerry Brown signed the “Employment Acceleration Act of 2011” (AB 1236) which will take effect on January 1, 2012. This bill prohibits the state from requiring employers to use E-Verify. In a nutshell, the new law prohibits the state, cities or counties from requiring employers to use E-Verify, an electronic employment verification system that uses employees’ Social Security numbers to determine work eligibility. The bill makes certain exceptions for city or county workers, and also takes into account that E-Verify is a requirement for particular employers under federal or as a condition for employers receiving federal funds.

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