New Form I-9 is now in effect

As of September 18, 2017, all employers must ensure they are using the most up-to-date version of Form I-9, Employment Eligibility Verification to verify the identity and work eligibility of new employees, or for reverification of expiring employment authorization of current employees (if applicable).  The updated version of the form notes a revision date of 07/17/17 in the lower left corner of the form. Failure to use the proper Form I-9 opens the employer up to all applicable penalties in the event of an audit by the U.S. Immigration and Customs Enforcement ("ICE"), a division of the U.S. Department of Homeland Security.

Many employers are unaware of the changes to the Form I-9 and the risk for penalties for non-compliance. If you have questions about I-9 compliance or about conducting an internal audit in order to ensure your company engages in best practices for I-9, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com for more details. 

Revised Form I-9 now available

On July 17, 2017, USCIS released a revised version of Form I-9, Employment Eligibility Verification. Employers may continue to use the previous version (the one with a revision date of 11/14/16) until September 17, 2017, but must ensure they begin using the revised form with a revision date of 07/17/17 on September 18, 2017. Employers must also continue following existing storage and retention rules for any previously completed Form I-9. The latest revisions to Form I-9 primarily impact the form instructions and the List of Acceptable Documents, which now includes Consular Report of Birth Abroad in List C, improvements to the drop-down list of documents reporting birth issued by the Department of State, and renumbering List C documents.  These changes are also reflected in the M-274 Handbook for Employers: Guidance for Completing Form I-9, which USCIS describes as "easier for users to navigate." 

Employers should be aware that under Department of Homeland Security ("DHS") rules, if non immigrant'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.  Form I-9 is notoriously a difficult form to execute correctly yet can result in hefty penalties when completed improperly.  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.

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. 

New Form I-9 update

In late November, USCIS finally released its updated Form I-9, which will be mandatory for all employers to begin using as of January 22, 2017. Until January 21, employers may continue using the current Form I-9 last revised on March 3, 2013. As they view a revised form in printed format, employers may not notice many differences. The vast majority of the revisions to this recent Form I-9 involve added "smart" features to the PDF version to help employers reduce technical errors when completing the form on the computer after downloading it from the USCIS website. Among a few of the changes employers may see when using the newer, electronic version of the form: certain fields will now give an error message when the entered data does not have the correct number of characters (such as a 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.

 To view the new Form I-9 and see the updated features, please visit the USCIS I-9 Central website. If you have questions concerning I-9 procedures, enforcement actions or preparing to conduct an internal audit of your firm's I-9s, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

Tips for I-9 compliance and new form I-9 update

In a recent Fifth Circuit Court of Appeals case, the Court unanimously held that an employer is permitted to sign Section 2 of Form I-9 based on "corporate knowledge." In the case in question, a recruiter viewed original documentation presented by new hires at a remote worksite in Texas, scanned copies to the corporate headquarters in Minnesota, where a representative completed Section 2, and proceeded to sign and date the document. We note this as a case of interest to many companies, but we caution employers that this decision DOES NOT comport with current U.S. Citizenship and Immigration Services ("USCIS") guidance which affirms that only the individual who has personally reviewed the original documents is permitted to sign Section 2 on Form I-9.

Current I-9 instructions (which were not as clear at the time of the employer action in this case that was before the Fifth Circuit) state "The person who examines the documents must be the same person who signs Section 2." Because the prior version of the instructions did not include this clear wording, the court held the employer did not have "Fair notice" of the agency's interpretation of the regulation.  Employers, particularly those with multiple worksites and remote employees, should continue to adhere to current USCIS guidance. It is important for employers to have a protocol in place for examining original documents with the Section 2 signatory present for I-9 compliance, even in the case of remote employees who work from home or employees who report to locations or company worksites separate from the company's principal place of business.

In other I-9 news, USCIS announced that the current Form I-9 will remain valid until January 21, 2017. Starting January 22, 2017, it will be mandatory for all employers to use the new version of the Form I-9 as they undergo proper employment procedures. In the meantime, employers can continue to use the current version which was last revised on March 3, 2013. We continue to await official publication of the new I-9 and expect to be able to bring you a link to the new form in next month's newsletter. 

Form I-9: Change is coming

The August/September edition of E-Verify Connection, an electronic newsletter published by the Department of Homeland Security ("DHS"), provides a schedule for the new Form I-9's roll out. DHS states "On Aug. 25, the Office of Management and Budget (OMB) approved a revised Form I-9, Employment Eligibility Verification. USCIS must publish a revised form by Nov. 22, 2016. Employers may continue using the current version of Form I-9 with a revision date of 03/08/2013 N until Jan. 21, 2017. After Jan. 21, 2017, all previous versions of Form I-9 will be invalid."

Since 1986 U.S. law has required employers to verify worker eligibility and maintain records through the use of Form I-9. In the event of an I-9 audit, employer errors and violations for identity and employment eligibility verification can result in significant fines. When the new form is published, employers will have 60 days to study and develop best practice for use with the new form.  If you have questions about I-9 compliance or how to prepare for an I-9 audit, please contact one of the attorneys at Iandoli Desai & Cronin P.C. 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.

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.

Begin Your Company's Planning for April's H-1B Lottery Now

With the U.S. economy booming again, employers should begin thinking about their hiring plans for next year and the upcoming Fiscal Year 2017 H-1B visa filing deadlines. Given the high demand for H-1B visas, USCIS is likely to accept H-1B petitions subject to the annual cap only during the first five business days in April: Friday, April 1, 2017 through Thursday, April 7, 2017. This filing deadline means late winter and early spring are often the busiest times of year for immigration practitioners, and we urge employers to contact us in December and January to review the requirements of the H-1B program, discuss the timing for drafting the FY2017 H-1B petitions, and to strategize about other options for employment-based visas for recent graduates and professionals. Please email us at info@iandoli.com or call us at 617-482-1010 with questions about H-1B visas and the application process.

USCIS opens draft Policy Memorandum addressing Immigrant Visa Portability pursuant to I.N.A. Sec. 204(j), 8 U.S.C. 1154(j) for public comment.

On November 20, 2015, USCIS released for public comment a Draft Policy Memorandum (DPM) regarding the employment-based Immigrant Visa Portability provisions of the Immigration and Nationality Act (INA). The Immigrant Visa Portability provisions were first enacted by Congress in October 2000 and allow certain employment-based green card applicants to change jobs or employers provided the applicant continues to work in the same or similar occupation as the originally sponsored petition. The DPM instructs USCIS adjudicators to use the federal government's Standard Occupational Classification (SOC) system to assess whether the two positions are in the same or similar occupation. The SOC system divides all jobs in the U.S. economy into 23 Major Groupings, 97 Minor Groupings, 461 Broad Occupations, and 840 Detailed Occupations. The DPM requires applicants seeking to invoke the Immigrant Visa Portability provisions to demonstrate by a preponderance of the evidence that the new job is in the same or similar occupation, including evidence from the intending employer describing the new position's duties, requirements and rate of pay. Comments on this proposed Draft Policy Memorandum are due January 4, 2016. For more information, visit: http://www.uscis.gov/outreach/feedback-opportunities/draft-memoranda-comment/draft-memorandum-comment

USCIS seeks public comments on proposed revisions to Form I-9

USCIS issued a Notice in the November 24, 2015 edition of the Federal Register seeking public comment on its proposed revisions to the Form I-9, Employment Eligibility Verification. USCIS has proposed extensive revisions to the form's instructions, providing more detailed examples and explanations. For example, the proposed revisions provide far greater detail and guidance to employees in completing Section 1 of Form I-9. Comments are due January 25, 2016. For more information or to submit comments on these proposed revisions, visit: http://www.uscis.gov/laws/uscis-federal-register-announcements

Deadline for H-1B Amendments in the wake of Matter of Simeio Solutions, LLC is approaching

In July, 2015, USCIS published official guidance after the recent Matter of Simeio Solutions, LLC precedent decision by the Administrative Appeals Office. According to USCIS's official guidance, employers must now file an amended or new H-1B petition for any H-1B employee whose place of employment changes to a new geographical area that requires filing of a new Labor Condition Application ("LCA") with the Department of Labor. As part of its official guidance, USCIS announced a safe harbor period through January 15, 2016 in which employers may file new or amended petitions that will be considered timely for purposes of employers maintaining compliance and employees maintaining their non-immigrant status. The risks of non-compliance are substantial - a random site visit could result in revocation of the employer's petition and the employee may be found to not be maintaining his or her H-1B status. If you have questions about H-1B amendments and compliance in the wake of Matter of Simeio Solutions, LLC, please contact us at info@iandoli.com

The Syrian refugee crisis and H.R. 4038

Since 1975 the U.S. has accepted over three million refugees from all over the world seeking protection from violence and persecution in their homelands. In FY2016, the U.S. has committed to accepting 85,000 refugees, including at least 10,000 from Syria. Refugees undergo the most rigorous security screen process of all persons seeking admission to the U.S., but in response to the terror attacks in Paris, Rep Michael McCaul (R-TX) introduced H.R. 4038: American Security Against Foreign Enemies Act of 2015. This bill, which passed the House by a vote of 289 - 137, adds even more layers of certifications and background investigations to the process, including the requirement for each refugee be individually certified as not posing a threat to the security of the U.S. by both the Director of the FBI and the Director of National Intelligence. The Senate has yet to take up the bill. Look for additional updates in our newsletter in the coming months on this and other immigration-related legislation.