QuickCounsel

Immigration Update (U.S.)

Overview I-9 Form for Employment Eligibility Verification E-Verify and the Social Security “No-Match” Rule Nonimmigrant Visas Employer Measures to Avoid Problems with ICE Additional Resources Rate this QuickCounsel

Overview

Employers face potential sanctions or penalties for inadequate or improper employee recordkeeping that can apply whether or not they have foreign workers on their payrolls. When immigration issues come into play, employers need to address additional concerns. Penalties can range from substantial fines for recordkeeping errors to jail time for employers who willingly hire undocumented workers. While the former administration’s aggressive immigration enforcement initiative may have ended, employers should be prepared for continued scrutiny under the Obama Administration.

Some recent actions taken by the new administration in the immigration context are addressed below.

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I-9 Form for Employment Eligibility Verification

The Form I-9 for Employment Eligibility Verification must be completed for new employees to confirm they are eligible for employment in the United States. U.S. Citizenship and Immigration Services (“USCIS”) announced that the version of Form I-9 set to expire June 30, 2009 can be used until a new version of the form is issued. Employers are instructed to continue using the prior version of the form with the annotation “Form I-9 (Rev. 06/05/07) N” on the bottom right-hand corner and the expiration date of June 30, 2009. No substantive changes are expected to be made when the updated form is released, and employees may continue to present any document listed on this Form I-9’s List of Acceptable Documents.

In July 2009, over 650 employers throughout the country received I-9 Notice of Inspections (“NOIs”) from the Department of Homeland Security’s Immigration and Customs Enforcement (“ICE”) unit. ICE is the federal agency responsible for investigating employers for immigration worksite violations. The NOIs require employers to provide copies to ICE of all of their employee Form I-9s and supporting documents by a specified date. In most instances, however, employers are given only three business days to present their records to the local ICE office. Missing, incomplete, and/or erroneous I-9s can expose the employer to civil fines or even criminal charges.

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E-Verify and the Social Security “No-Match” Rule

After months of deliberation on two controversial worksite immigration enforcement regulations, the Department of Homeland Security (“DHS”) announced on July 8, 2009 that it will implement the Federal Contractor E-Verify regulation, but will withdraw the Social Security No-Match regulation. Both regulations were originally conceived by the Bush Administration as part of an immigration crackdown on U.S. employers and were intended to increase employer responsibilities in verifying the employment authorization of U.S. workers. With the DHS’s announcement, the Federal Contractor E-Verify rule can take effect as early as September 8, 2009. DHS will propose a new regulation rescinding the No-Match rule.

E-Verify is DHS’s voluntary electronic system that permits employers to verify new hires against DHS and Social Security Administration databases. Under the Federal Contractor E-Verify, federal contractors and awardees will be required to conduct immigration verification of all new employees through the E-Verify system. DHS has said that the new E-Verify rule will require an estimated 168,000 additional federal contractors to register and begin using E-Verify.

The Social Security No-Match rule was created in 2007, but was enjoined by federal court order shortly after being promulgated and never actually took effect. Prior to the injunction, the Social Security Administration issued “No-Match” letters to employers on an annual basis, listing employees who had discrepancies pertaining to the social security numbers they presented to employers. The No-Match rule would have required employers to take steps to address their employees’ social security discrepancies or risk being charged with “constructive knowledge” that their employees were undocumented. It remains to be seen whether the Social Security Administration will continue to issue these letters to employers, what actions employers may take with respect to future No-Match letters if it does, and whether DHS Special Agents will continue to view No-Match letters and non-action on these letters as a basis to sanction employers. The new regulation rescinding the rule may provide guidance on these key points.

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Nonimmigrant Visas

Employers have numerous non-immigrant visa options for employing foreign workers. These options include: H-1B visas for specialty (professional) occupations, H-2s for seasonal or temporary skilled workers, H-3s for trainees, J-1s for trainees and interns, and L-1s for multinational transfers. The most common, however, is the H-1B, which has had important recent developments.

The American Recovery and Reinvestment Act of 2009 mandates that all Troubled Assets Relief Program (“TARP”) or other “Covered Funds” recipients be treated as “Dependent Employers” for H-1B purposes. When submitting a Labor Condition Application as part of an H-1B application, employers who are Covered Funds recipients must attest that: (1) the placement of the H-1B worker did not and will not displace a U.S. worker in an essentially equivalent job from 90 days before until 90 days after the date of filing of the visa petition; (2) the Employer has taken good faith steps to recruit U.S. workers at a compensation level and under procedures consistent with industry-wide standards; and (3) the Employer has offered the job to any U.S. worker who is qualified.

Another interesting point of note for the H-1B visa is the fact that they are still available for the fiscal year starting October 1, 2009. With a number of exceptions, there is a base cap of 65,000 H-1Bs that can be issued each year. The first day a cap-subject H-1B can be filed for the next fiscal year is April 1, and USCIS has historically received twice as many applications as there are visas available on that date. As of July 7, 2009, USCIS had only received 45,000 applications for the upcoming fiscal year.

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Employer Measures to Avoid Problems with ICE

On April 8, 2009, the Obama Administration stated that it plans to address comprehensive immigration reform legislation this year. In anticipation of continued scrutiny, employers should take affirmative steps to best position their companies for ICE audits and investigations, including:

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ADDITIONAL RESOURCES

Government Forms and Information

Sponsor Resources

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