Immigration Compliance & Enforcement - At the Crossroads of Politics & Practicalities

The U.S. Citizenship and Immigration Services (USCIS) has confirmed that the effective date for mandatory use of the new Form I-9 (Form I-9 (Rev. 03/08/13)N) is May 7, 2013. The USCIS’ announcement resolves apparent discrepancies in previously issued guidance that led some employers to question if the effective date for implementing the new Form I-9 was May 7, 2013 or May 8, 2013. The corrected guidance was issued in the Federal Register on April 9, 2013.

The U.S. Citizenship and Immigration Services (USCIS) has announced the release of the revised Form I-9, Employment Eligibility Verification Form, available for use beginning March 8, 2013. The updated version of the form “(Rev. 03/08/13) N” replaces prior versions ((Rev. 02/02/09) N and (Rev. 08/07/09) Y), which may no longer be used by the public as of May 7, 2013. Employers must use the Form I-9 to verify the identity and employment eligibility of all new employees hired after November 6, 1986.

The newly revised Form I-9 features additional data requests, including fields for foreign passport information, telephone numbers and email addresses, updated instructions and, most importantly, an expanded format from one page to two. The new two-page layout does not include the List of Acceptable Documents and form instructions. According to the new format, employees will be required to complete Page 1 of the form while employers will complete Page 2.

According to the USCIS, employers should begin using the new version of the Form I-9 immediately but will be granted a 60-day grace period to implement the change. After May 7, 2013, employers who fail to use the revised Form I-9 may be subject to penalties under Section 274(A) of the Immigration and Nationality Act (INA), as enforced by U.S. Immigration and Customs Enforcement (ICE) and the U.S. Department of Justice (DOJ). Employers should follow the instructions found on the new Form I-9 until the release of the revised M-274, Handbook for Employers, which is being updated to conform to the new form.

To download a copy of the new Form I-9 and corresponding instructions, please click here. For additional information about Form I-9 compliance, please contact your GT Attorney.

UPDATE: The USCIS has released a new version of the M-274, Handbook for Employers. This coincides with last week’s announcement that employers should begin using the updated version of the Form I-9, Employment Eligibility Verification, which was revised on March 8, 2013. To access the new M-274, please click here.

Responding to corporate concerns about the introduction of the federal government’s Deferred Action for Childhood Arrivals Program (DACA), the USCIS has released updated guidance to assist employers with implementing compliant Form I-9 and E-Verify procedures for DACA-eligible employees.

According to the new rules, the Form I-9 process for newly hired employees with DACA status is substantively similar to non-DACA scenarios. However, the steps advised for bringing existing employees into Form I-9 and E-Verify compliance are notably different from previously issued guidance, including the choice of completing a new Form I-9 for employees whose Section 1 identity information has changed and re-processing these individuals in E-Verify despite the lack of a rehire.

This apparent shift in guidance underscores the challenge DACA poses to employers and the federal government alike, as adapting immigration compliance standards may run the risk of creating DACA-specific rules that trigger business concern about possible claims of discrimination. For a complete version of USCIS’ new guidance about Form I-9 and E-Verify procedures under DACA, please click here.

On September 10, USCIS issued a correction to its August 22 notice regarding a 30-day public comment period in connection with revisions to the Form I-9 (Employment Eligibility Verification Form). The correction is re-printed below:

In the [original] 30-day notice, USCIS inadvertently did not indicate that comments in connection with that notice should be directed to the OMB USCIS Desk Officer. USCIS is now correcting this error. Written comments and/or suggestions regarding the item(s) contained in the 30-day notice published in the Federal Register on August 22, 2012 at 77 FR 50710, especially regarding the estimated public burden and associated response time, should be directed to DHS, and to the Office of Information and Regulatory Affairs, OMB, USCIS Desk Officer. Comments may be submitted to: DHS, USCIS, Office of Policy and Strategy, Chief, Regulatory Coordination Division, 20 Massachusetts Avenue NW., Washington, DC 20529-2020. Comments may also be submitted to DHS via email at uscisfrcomment@dhs.gov, to the OMB USCIS Desk Officer via facsimile at 202-395-5806 or via email at oira_submission@omb.eop.gov, and via the Federal eRulemaking Portal Web site at http://www.Regulations.gov under e-Docket ID number USCIS-2006-2008.

When submitting comments by email, please make sure to add OMB Control Number 1615-0047 in the subject box.

with Laura Foote Reiff

On August 1, 2012, Immigration and Customs Enforcement (ICE) released a fact sheet -- “Fact Sheet: Form I-9 Inspection Overview” -- detailing the Form I-9 audit process and employer penalties for violations of federal immigration law in the worksite enforcement arena.

Federal immigration laws require employers to verify the identity and work eligibility of their new hires by completing what is known as a Form I-9, Employment Eligibility Verification, for every employee. Forms I-9 must be completed for every new hire within his/her first three days of employment. During the I-9 process, employees must present to the individual completing the I-9 (such as human resources personnel) documents to verify their identity and to prove that they have authorization to work in the United States.

The Form I-9 provides three categories of documents that must be presented in order to complete the verification. The new hire must submit either:

• One “List A” document which establishes BOTH their identity and work authorization in the U.S. List A documents can include a U.S. passport, green card or Employment Authorization Document (EAD) issued by the USCIS
• One "List B" document that establishes the new hire's identity such as a driver’s license or a military ID card AND one "List C" document which establishes work authorization in the U.S. such as a Social Security Number card or a U.S. birth certificate

Employers charged with verifying employees' status in the U.S. for I-9 purposes are only required to determine whether the documents presented to them reasonably appear to be valid and belong to the individual who submits them. If the employer believes that the documentation presented to them is acceptable, then they do not have to take other measures to verify the employee’s work eligibility and identity. In fact, the Department of Justice (DOJ) has repeatedly cautioned employers against “pre-screening” applicants or over-documenting on the Form I-9, as it is considered to be discriminatory.

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On June 19, the Department of Justice (DOJ) announced the filing of a lawsuit against Rose Acre Farms, Inc., an Indiana-based egg producer with more than 40 locations in six states, alleging that the company engaged in discriminatory practices against work-authorized non-citizens during the employment eligibility verification process by requiring newly hired non-U.S. citizens to present additional, specific, and/or different documents to verify their employment eligibility. The anti-discrimination provision of the Immigration and Nationality Act (INA) prohibits employers from committing document abuse during the employment eligibility verification process based on employees’ citizenship status or national origin. Instead, employees must be permitted to present a choice of documents from the approved list of acceptable documents found with the Form I-9.

The complaint alleges that the company purchased nowHIRE, an electronic Form I-9 employment eligibility verification system, that may have caused human resources personnel to request specific documents from non-U.S. citizens. The complaint seeks a court order to prevent future discrimination by the company, as well as changes in the company’s employment eligibility verification policies, monetary damages for affected employees, and civil penalties.

On February 17, ICE issued 1,000 Notices of Inspection (NOI) across the country in a firm demonstration of the Obama administration’s ongoing commitment to a worksite enforcement strategy that focuses on employer compliance and much higher administrative fines. We were contacted by employers across the country to help prepare their responses. We were even contacted by an employer who handed their I-9s to the Agents who came to serve the NOI -- no 3 days, no advice by counsel, no waiver explained, no copies, no time, no receipt. What were you thinking, Mr. ICE agent? Not to worry, we worked it out with like adults. 

Seriously those fortunate companies who did not receive a NOI should take advantage of their good fortune and ensure that they are in compliance now. The coast is not clear. One or two additional rounds of audits are expected during this calendar year. This administration has continued to make it clear that the days when immigration compliance could be ignored and considered the “cost of doing business” are long gone. 

ICE is assertively pursuing companies where tips and leads come in,  These administrative reviews have been quite lucrative. It will be very interesting to track this latest round of audits in terms of timing and outcome.

Feel free to write in and share your own experiences.