652 Businesses Receive I-9 Audit Notices Today

The Obama Administration has made good on its April promise to crack down on employers who employ undocumented individuals. Today, U.S. Immigration and Customs Enforcement issued Notices of Inspection to 652 businesses. These businesses will now have only three days to present all of their I-9 forms for inspection. This is a dramatic action by ICE who issued only 503 NOIs in all of 2008. The story was picked up by the Associated Press; see their article here.

In their press release, ICE notes that “Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This new initiative illustrates ICE’s increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.” These 652 businesses were targeted based on ICE’s investigations and tips. Businesses found in violation will undoubtedly face stiff civil and criminal penalties.

GoffWilson provides audit representation for businesses going through an ICE I-9 audit. If your business, or any business you know has received an NOI please do not hesitate to contact us.

Expiring form still valid!

U.S. Citizenship and Immigration Services (USCIS) announced today that the current version of the Form I-9 (with the revision date of 02/02/09 in the bottom right-hand corner) will be valid for use beyond June 30, 2009. USCIS has requested an offical extension of the validity date of the form; while they wait for this extension to be granted, employers should continue to use the 02/02/09 version. When the validity is extended, and the form updated, we will be sure to let you know.

I-9 Set to Expire on June 30th

If you take a close look at the upper right-hand corner of the I-9 you will note that it reads, “Expires 06/30/09”. That’s right – the form is scheduled to expire next week. We do not expect there will be any changes to Sections 1, 2 or 3 or to the rules. But we do expect to receive guidance of some sort from the United States Citizenship and Immigration Services (USCIS) as to whether and when the form dates and validity will be updated. While we wait, here is a short list of do’s and don’ts related to the expiring form:

Do monitor your e-mail. We’ll be sure to inform you when we receive any news related to the I-9.
Do take this opportunity to make sure you’re using the correct version of the form. As of 6/24/09, the correct version has the date “Rev. 02/02/09” at the bottom of the page and “Expires 06/30/09” at the top of the page.
Don’t worry if you don’t hear from us until next week. USCIS often waits until the last minute to announce updates.
Do continue to complete I-9s. In the chance that the USCIS does not make any announcements or changes by June 30th, please continue to use this form.

Briefly… In other immigration news, H-1B visas are still available and premium processing for I-140 petitions has returned. For more information on this and on more general immigration-related matters, please subscribe to our Flash News by sending an e-mail to info@goffwilson.com with the word “Subscribe” in the subject line.

New E-Verify Rule DELAYED… Again

The federal regulation making enrollment and participation in E-Verify mandatory for certain federal contractors has been postponed… again. No, this alert has not inadvertently popped into your inbox a fourth time. The regulation was originally scheduled to take effect on January 15, 2009, but the effective date has been pushed back four times. The effective date is currently September 8, 2009. We will be sure to notify you if additional changes to the effective date are made.

The delays have occurred for a variety of reasons, including the change in administration and ongoing litigation. Yesterday, the litigants agreed to the extension of the applicability date and requested a stay in the proceedings to allow the Obama administration additional time to review the rule and the effects the rule will have.

The delay in implementation of this rule provides a valuable opportunity for employers to make sure they are fully compliant with I-9 rules and procedures before enrolling in E-Verify. Given the multiple delays and the ongoing litigation, it is not certain when or if the rule will become effective. Additional announcements regarding this rule will be announced through our blog.

New Monitoring & Compliance Branch Added to the USCIS to Monitor E-Verify Use

E-Verify is a voluntary system that allows employers to verify the employment authorization of newly hired employees.  Enrolling in E-Verify does not replace the I-9 form, but rather adds additional responsibilities for employers enrolled in the program.   As outlined in the E-Verify Memorandum of Understanding, employers are liable for inappropriate use of the system. 

In order to ensure that the E-Verify operational requirements mandated by Congress are being met, the Monitoring and Compliance (M&C) Branch of the Verification Division has been created.   The proposed rule increases the Department of Homeland Security’s ability to monitor private employers through the E-Verify system and share information necessary for investigations.  As stated in the notice, the M&C Branch may identify potential non-compliant behaviors from media reports, affected individuals, or tips from law enforcement agencies.  

Some of the non-compliant behaviors to be monitored include:

1. Fraudulent use of alien number and social security number by E-Verify users;
2. Verification of existing employees (as opposed to new hires);
3. Verification of job applicants, rather than new employees;
4. Selectively using E-Verify for verifications based on foreign appearance, race/ethnicity, or citizenship status;
5. Failure to use E-Verify, consistently or at all, once registered; and
6. Unauthorized use of E-Verify information.

The creation of the new M&C Branch highlights, yet again, the need for employers who enroll in E-Verify to dedicate sufficient resources to ensure that the program is used correctly.  The Department of Homeland Security’s Privacy Impact Assessment for the Compliance Tracking and Management System can be accessed here for additional information. 

The new system will be effective June 22, 2009.

Policy Shift!

Today the field offices of Immigration and Customs Enforcement (ICE) will receive user guidelines to implement the Obama administration’s new worksite enforcement strategy.  The new policy instructs agents to target employers and supervisors for prosecution “through the use of carefully planned criminal investigations.”  While the administration intends to continue to arrest undocumented workers in worksite raids, the arrests of these workers will be in efforts to build the case against the employers. 

Under the previous administration, ICE focused on arresting employees, but failed to develop the evidence necessary to show that the business was knowingly hiring undocumented workers except in the most egregious cases.  The new guidelines instruct ICE agents to pursue evidence against the employer before prosecuting the workers.  The goal of this policy shift is to decrease the supply of jobs thereby decreasing the demand for workers.  The belief is that this will eventually lead to a reduction in the number of undocumented individuals living and working in this country.  If implemented as planned, the arrests of employers and others in the supervisory chain of command will dramatically increase from the previous administration. 

Additional information can be found here.

ICE ahead…

Yesterday a Senate Confirmation Hearing was held for John Morton, the former federal prosecutor tapped by President Obama to head Immigration and Customs Enforcement (ICE).  His testimony further confirmed the current shift in ICE policy.  Morton said the administration plans to eventually make E-Verify mandatory for all employers.  The agency also plans to focus its efforts on targeting employers of undocumented workers with Morton stating, “We need to place renewed focus on employers to ensure that they are playing by the rules.”  Morton also declared the agency’s intent to pursue hefty civil fines for employers who violate immigration laws.  It is expected that Mr. Morton will be confirmed by the Senate next week.  For further reports of his confirmation hearing, please view the linked articles from the Associated Press and Houston Chronicle.

Dear Federal Contractors: New E-Verify Rule DELAYED

The federal regulation making enrollment and participation in E-Verify mandatory for certain federal contractors has been postponed… again.  No, this alert has not inadvertently popped into your inbox a third time.  The regulation was originally scheduled to take effect on January 15, 2009, but the effective date has been pushed back three times.  The effective date is currently June 30, 2009.  We will be sure to notify you if additional changes to the effective date are made. 

Although this rule has not been published yet, the American Immigration Lawyer’s Association (AILA) received an advanced copy of the rule, which has allowed us to alert bLAWg readers early.   Notification of this change is scheduled to appear in the Federal Register on April 17, 2009. 

The delay in implementation of this rule provides a valuable opportunity for employers to make sure they are fully compliant with I-9 rules and procedures before enrolling in E-Verify. 

The Changing Tide of Immigration – What’s Next?

 

As the tides change, what’s next for immigration?

On April 13, 2009, the former Human Resource Manager of Agriprocessors entered a guilty plea in federal court.  Elizabeth Billmeyer plead guilty to one count of conspiracy to harbor undocumented aliens for profit, and one count of knowingly accepting false resident alien cards.  Billmeyer is free on bond while awaiting sentencing, and faces a possible maximum sentence of 20 years in prison, a $500,000 fine, a $200 special assessment and six years of supervised release following any prison time.  The company and other top managers were charged after Agriprocessors was raided by Immigration and Customs Enforcement (ICE) in May 2008 under the direction of the previous administration.

In March 2009, Janet Napolitano, the Secretary of the Department of Homeland Security under the Obama administration, delayed a series of proposed immigration raids and other enforcement actions at U.S. worksites.  These recent actions and Napolitano’s testimony before the House Committee on Homeland Security signal a shift away from the Bush Administration’s worksite raid policy.  In an interview with NPR, Napolitano stated that she intends to focus on prosecuting criminal cases of wrongdoing by companies for violating the law.  How this administration intends to investigate and prosecute employers has not been publically disclosed. 

Regardless of the method used, employers will continue to be held responsible for their hiring decisions, and for ensuring that their workforce is authorized for employment in the U.S.  Verifying that your I-9 practices and procedures are compliant with the current law will make the transition easier as new polices are announced.   

Ready? Set? Go!

Starting today, April 3, 2009, employers must start using the new I-9 Form. Here’s a checklist to help remind you what needs to be done in light of this change.

 Checklist for 4/3/09:

 

 

 Open file drawer, pull out blank I-9s, throw them away (preferably, recycle).

 Visit our bLAWg or the USCIS website and print copies of the newest version of the form.  Make sure the form has a revision date of 2/2/09 on the bottom right-hand corner.

Read the updated I-9 instructions and review the updated Lists of Acceptable Documents.  Note that all documents used to complete the I-9 now must be valid and unexpired on the day the form is completed.

 Print and review a copy of the newly revised “Handbook for Employers” (M-274).  The Handbook provides detailed I-9 instructions and goes into much greater detail than the short directions that are part of the I-9 form.  The Handbook can be found on our blog and the USCIS website.

 Avoid hand cramps and stop wasting ink.  According to the updated Handbook, “You may use abbreviations for commonly used documents, e.g. DL for driver’s license and SS for Social Security.”

 Pat yourself on the back for staying up-to-date with the latest changes.  Having good I-9 policies and practices in place helps to protect you and your company.  For more information regarding the I-9 services offered by GoffWilson, please e-mail jwilson@goffwilson.com.

 

In addition to this checklist, please check out these other bLAWg posts (if you have not done so already) for more detailed information on the new I-9 Form:

·         3.23.09  bLAWg Post, “Hand cramps be gone! On April 3, 2009 “SSA” is okay!”

·         12.15.08  bLAWg Post, “New Form I-9 Coming Soon!”