Revised Form I-9 & new regulations concerning re-verification

Effective January 22, 2017, employers must use the revised Form I-9, Employment Eligibility Verification, to verify the identity and work eligibility of every new employee.  Until January 21, employers may continue using the current Form I-9 last revised on March 3, 2013. U.S. Citizenship and Immigration Services ("USCIS") added several enhancements to the revised Form I-9 including:  

• A "smart" feature in the PDF version to help employers reduce technical errors when completing the form on the computer after downloading it from the USCIS website;
• Certain fields will now give an error message when the entered data does not have the correct number of characters (i.e., social security number or date of birth);
• Drop-down lists and calendars have been added for entering dates; and,
• A quick-response matrix barcode ("QR code") will be generated once the form is printed to assist in streamlining audit processes. 

Employers should also be aware that under new regulations by the Department of Homeland Security ("DHS") that became effective January 17, 2017, if an individual's employment authorization is due to expire, employers must re-verify their Form I-9 no later than the date of expiration of their current employment authorization to reflect the individual is still work-authorized in the U.S. in order to continue his or her employment. For persons presenting employment authorization documents ("EAD") for I-9, reverification applies upon the expiration of the automatically extended validity period for the EAD and not the expiration date indicated on the face of the EAD. We expect DHS to issue further guidance on this issue soon in the form of a revised M-274, Handbook for Employers, Guidance for Completing Form I-9. Also, USCIS is hosting a teleconference on Tuesday, January 31, 2017 from 2:00 to 3:30 p.m. EST to discuss the revised Form I-9.  USCIS will review the form's enhancements, discuss employment eligibility verification best practices, and answer questions about each section of the form.  You may sign up for this teleconference on the USCIS website.

The Form I-9 is a notoriously difficult form to execute properly, and yet errors can result in hefty penalties for employers.  Iandoli Desai & Cronin offers internal I-9 Audits and training sessions to ensure your company is compliant.  If you would like more information and/or have questions concerning I-9 procedures and enforcement actions, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com. 

DHS increases fines for I-9 and other immigration violations

As of August 1, 2016, DHS's new rule increasing fines for I-9 and other immigration violations is now in effect.  DHS, in cooperation with the Department of Justice ("DOJ") and the Department of Labor ("DOL") has increased civil fines against employers who commit immigration-related offenses, such as Form I-9 and E-Verify violations, H-1B visa program violations, unfair immigration employment practices and unlawfully employing foreign nationals. Although the increased penalties are applicable only to penalties assessed after August 1, 2016, they will apply to violations committed by employers going back to November 2, 2015.
 
The penalty increases are substantial because the federal agencies are adjusting fines for inflation from the dates of initial enactment of the I-9 rules in 1986.  For instance, penalties for violating the Form I-9 identity and employment eligibility verification provisions almost doubled from a range of   $110 - $1,100 per violation to a range of $216 - $2,156 per violation.  When violations are coupled with multipliers for each offense, the fines can add up to hundreds of thousands of dollars and even into the millions very quickly.  If you have questions about I-9 compliance or compliance with temporary worker visa programs, please contact one of the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

Tips for H-1B and L-1 FDNS site visit compliance

Since 2009, the Fraud Detection and National Security directorate ("FDNS") of USCIS has conducted site visits at employer worksites to ensure compliance with all terms as stated in the I-129 for approved H-1B and L-1 petitions. FDNS operations are funded with the $500 Fraud Prevention and Detection Fee that accompanies initial H-1B and L-1 petitions by employers. If FDNS conducts a site visit and the officer's Compliance Review Report contains indicators of fraud, USCIS will then assess whether further investigation is warranted and, if necessary, alert Immigration and Customs Enforcement ("ICE").

Compliance with the H-1B and L-1 regulations remains essential for employers who submit petitions on behalf of professional workers in these visa categories, and employers should keep in mind a few important points concerning FDNS site visits. If an officer from FDNS arrives at your worksite, remember that FDNS site visits are voluntary, though employer cooperation is strongly recommended. More importantly, employers and their HR representatives should always contact their immigration attorney ASAP in the event of an FDNS site visit. During these site visits, which are typically unannounced, employers may be requested to provide paystubs and W-2s for H-1B and L-1 employees. These figures will then be matched with the amount stated in the I-129 petition and compared to the beneficiary's 1040 tax return to ensure compliance. Employers who are not able to immediately address all the issues raised by the inspector may request additional time to respond.

To avoid any discrepancies in the event of a site visit, employers should make certain that all information provided in the I-129 petition is 100% accurate and that any significant changes to the conditions of employment are brought to the attention of their immigration counsel who can advise on filing an amended petition.  For more information about FDNS and site visit compliance, visit USCIS's website.  

New Guidance for Employers on Performing Internal I-9 Audits

The Department of Justice's Civil Rights Division and the Department of Homeland Security's U.S. Immigration and Customs Enforcement recently issued a joint guidance memo entitled "Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits." Though not required by law, it is advisable to conduct an internal audit of your company's Form I-9 records periodically to ensure compliance with regulations and anti-discrimination provisions of the Immigration and Nationality Act, as non-compliance can result in significant employer sanctions - both civil and criminal. This new joint guidance provides best practices on how employers should launch an internal audit to avoid discrimination or retaliation claims, communicate about the audit process with employees, correct mistakes, properly request alternative documents when necessary, use a third party to conduct the internal audit, and the effect of enrollment in E-Verify on internal audits. 

Iandoli Desai & Cronin P.C. offers several options for conducting I-9 audits, from reviewing a sample of your Form I-9s with supporting documents and highlighting potential issues, to performing a full on-site audit of all records. If you would like to discuss these options or the assistance our firm can provide to avoid costly sanctions, please contact us at info@iandoli.com.

Visit http://www.justice.gov/crt/file/798276/download to read the new joint guidance in its entirety.