H1B Visa Lawyer Blog

U.S. Citizenship and Immigration Services (USCIS) submitted to the Federal Register an interim final rule that will streamline the Employment Eligibility Verification process.

The interim final rule narrows the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. Specifically, the interim final rule eliminates Forms I-688, I-688A, and I-688B from List A because the USCIS no longer issues these cards and all that were in circulation have expired. Additionally, the rule adds to List A foreign passports containing specially- marked machine-readable visas, and the new U.S. passport. The rule also makes other technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, etc.
After publication in the Federal Register, the public will have 45 days to comment on the final rule.

Read the Interim final rule

For Questions and Answers regarding the revised Form I-9, please click here.

Posted by Meetesh V. Patel | Permalink | Email This Post

Posted In: I-9 compliance

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Immigration Customs Enforcement (ICE) officers have increasingly been conducting workplace raids that can have a significant impact on an employer and its workers. In a news release issued by ICE, seven companies have been notified that they will be considered for debarment from federal contracting because each of the companies has been found to be unlawfully employing persons without employment authorization.

Julie Myers, Homeland Security Assistant Security for ICE, indicated that by using debarment in appropriate circumstances, the federal government can avoid working with businesses that employ an illegal workforce. She commented in the news release that “debarment” is yet another tool that they believe will further ensure compliance with U.S. immigration employment laws.

The Federal Acquisition Regulations (FAR) provide that contractors may be considered for debarment if they have been found to have either knowingly hired an unauthorized worker or continue to employ an alien who is or becomes unauthorized.

The effect of debarment on a company is paralyzing. First, each company’s name is entered into the Excluded Parties List System (EPLS), which identifies parties that have been suspended, debarred, proposed for debarment or otherwise excluded from receiving federal contracts, certain subcontracts and certain types of federal financial and non-financial assistance and benefits. Subsequently, the companies on the list are prohibited from competing for new government contracts. Additionally, the proposed debarment and immediate suspension apply government-wide, meaning no federal agency may award a new contract while these companies are on the list. However, the companies have a 30-day period to respond and challenge the decision made by ICE officers.

The MVP Law Group, P.A. strongly recommends that companies maintain accurate and complete I-9 forms for each employee, as maintaining these records is a good faith defense to a charge of hiring unauthorized workers. Employers should also perform I-9 audits annually, if not every six months, to ensure I-9 compliance.

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According to U.S. Citizenship & Immigration Services (USCIS), an additional seventeen (17) month Optional Practical Training (“OPT”) extension is available for current OPT F-1 students who have completed a science, technology, engineering, or mathematics degree and accepted employment with an employer enrolled in the E-verify program. Additionally, this extension will benefit students with pending H-1B petitions and change of status requests, as it will enable them to maintain their employment eligibility for the duration of the H-1B processing period. Without this benefit, foreign students on F-1 nonimmigrant status would only be eligible for the normal twelve (12) months of OPT to work for a U.S. employer in a field directly related to their major area of study. This employment eligibility program essentially provides a benefit for students on F-1 status who seek employment with an employer enrolled in E-Verify.

E-Verify Requirement for Federal Contractors

On June 9, 2008, Executive Order 12989 was issued, which declared E-Verify, the electronic employment eligibility verification system that all federal contractors must use. The Executive Order directs all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use E-Verify to verify the employment eligibility of all persons hired during the contract term, and all persons performing work within the United States on the federal contract. This rule is not final, and is open for public comment at this time. Please refer to the following link for contact information, if you would like to submit a written comment. Written comments must be submitted on or before August 12, 2008.

Posted by Meetesh V. Patel | Permalink | Email This Post

Posted In: E-Verify , Employment Based Immigration , I-9 compliance , Optional Practical Training (OPT)

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EVERY employer needs to complete I-9 forms for every employee hired after November 4, 1986. Under the Immigration Reform and Control Act of 1986 (“IRCA”), all employers must verify that every person that is hired is either: a U.S. citizen, a lawful permanent resident, or a foreign national with authorization to work in the U.S. Within three business days of beginning the job, the employee must furnish identity and employment eligibility documents. It is the responsibility of the employer to examine the documents to determine whether they are genuine and relate to the specific employee. Once the I-9 form is completed, they are to be kept in office for the longer of three years after employment begins or one year after employment is terminated. Most importantly, if an employee has temporary employment authorization, a reverification of employment eligibility must be conducted prior to expiration of the employment authorization. Moreover, officers of the Department of Homeland Security (“DHS”) and Immigration Customs Enforcement (“ICE”) have the right to audit employers’ I-9 forms. DHS/ICE officers conduct an estimated 60,000 I-9 audits a year on employers around the country and have issued fines in excess of $1,000,000. Additionally, each mistake on an I-9 Form counts as a separate violation. All employers are further subject to civil and criminal penalties for knowingly hiring or continuing to employ aliens who are not authorized to work in the U.S. Accurate completion of I-9 forms is a good faith defense to a charge of hiring unauthorized workers.

ICE has increasingly been conducting workplace raids that can have a significant impact on an employer and its workers regardless of status. Results of those raids have been: public relations nightmares, fleeing or arrested workers resulting in loss of work force, loss of productivity, split up families and related humanitarian issues, as well as expensive and protracted litigation. Therefore, the best way for an employer to avoid IRCA problems is to establish a meaningful I-9 audit system.

Such a system should include at least the following elements:

• Education and training of all human resource personnel on the purpose and requirements of IRCA
• Establishment of a scheduling system to automatically remind an employer when reverification of a temporary workers’ employment authorization is warranted
• Conducting a thorough, annual review of all employee I-9 forms (discarding forms and documentation when necessary, noting re-occurring problems for purposes of future staff training; correcting forms with information supplied in employee personnel files, etc)

As always, it is better to be prepared before ICE comes knocking on the door!

Posted by Meetesh V. Patel | Permalink | Email This Post

Posted In: I-9 compliance

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