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Washington Labor & Employment Wire » Immigration and Homeland Security

USCIS Announces Final Rule on I-9 Proof of Identity and Employment Authorization


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On April 14, 2011, in an effort to improve the integrity of the verification process, the United States Citizenship and Immigration Services (”USCIS”) announced a final rule that changes the types of documents an employer can accept as proof of identity and employment authorization during the Employment Eligibility Verification process. The rule takes effect May 16, 2011.

Employers are required to verify the identity and employment authorization of their employees by completing a Form I-9, or an Employment Eligibility Verification form. The government provides lists of approved documents that an employer can accept from the employee to prove their identity and eligibility to work. 

By this final rule, USCIS added some documents and removed others.  For example, the new rule now prohibits employers from accepting “Temporary Resident Cards” or “Employment Authorization Cards” because USCIS no longer issues them.  It also adds the new U.S. passport card to the list of documents acceptable to prove both identity and employment authorization.  The rule also prohibits employers from accepting expired documents even if they are on the approved documents lists.


Social Security Administration To Resume Sending No-Match Letters to Employers


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The Social Security Administration (”SSA”) has announced that it will resume sending “no-match letters” to employers this month.  The SSA issues no-match letters when certain information on wage statements provided by the employer does not match the information maintained by the SSA.  The new no-match letters, officially referred to as decentralized correspondence (DECOR) notices, will be sent to employers for the 2010 tax year.

An employer is required to provide the SSA with a W-2 for each of its employees annually.  The SSA uses the earnings information on the W-2 to determine the employee’s Social Security benefit amount.  The SSA compares each employee’s name and social security number on the W-2 with the same information in its records.  If the information does not match, the SSA will not post the employee’s earnings and will issue a no-match letter. 

Since no-match letters may be used as evidence of an employer’s constructive knowledge that specific employees may be unauthorized workers, employers should not simply ignore the letters.   The Department of Justice (”DOJ”) has issued general guidance for employer’s who receive a no-match letter.  For example, the DOJ warns against assuming that a no-match letter conveys information regarding the employee’s immigration status or authority to work, since no-matches can result from simple administrative errors, such as input errors by SSA staff or a reporting error by the employee or employer. 

The SSA started sending no-match letters in 1979 but stopped in 2008 when a federal court enjoined the Department of Homeland Security (”DHS”) and the SSA from implementing a proposed DHS regulation called “Safe Harbor Procedures for Employers Who Receive a No-Match Letter.”  The DHS has since rescinded the proposed regulation.  The SSA will not send no-match letters to employers for the 2007 through 2009 tax years.


DHS Announces Semi-Annual Regulatory Agenda


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On December 7, 2009, the Department of Homeland Security published its semi-annual regulatory agenda for regulations selected to be reviewed or developed over the next twelve months. Included in the agenda are the following significant regulatory items, as well as their expected dates of completion.

First, in February 2010, U.S. Immigration and Custom Enforcement (ICE) plans to issue a final rule on the electronic signature and storage of Form I-9. The final rule will respond to comments and make minor changes to the interim final rule published June 15, 2006. The rule permits employers to complete, sign and store Forms I-9 electronically and also allows employers to scan and store existing Forms I-9 if certain standards are met.

Second, in March 2010, U.S. Citizenship and Immigration Services (USCIS) plans to issue a notice of proposed rulemaking to amend the regulations regarding the processing of nonimmigrant visa petitions subject to numerical limitations. Initially, the program would be used solely for H-1B visa petitions.

Currently, USCIS uses a random selection process to select employers for a limited number of H-1B visa slots. Employers must prepare and file complete H-1B visa petitions before knowing whether they fall within the numerical cap for the visa slots. Under the proposed rule, employers  electronically register for consideration of available H-1B slots and find out whether they’ve been selected to participate in the H-1B program before preparing and filing H-1B petitions. The proposed registration process would thus alleviate administrative burdens on USCIS in processing excessive applications, and it would also alleviate the cost and burden to employers in preparing and submitting H-1B petitions before knowing whether they are within the numerical cap.


DHS Announces “I E-Verify” Campaign, Issuance of 1,000 Notices of Inspection and Extension of E-Verify Program


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On November 19, the Department of Homeland Security (DHS) announced its new “I E-Verify” campaign, which provides recognition to businesses that use E-Verify to maintain a legal workforce. E-Verify is a free internet-based system administered by U.S. Citizenship and Immigration Services (USCIS), in partnership with the Social Security Administration (SSA), that compares information from an employee’s I-9 Form against federal government databases to verify employment eligibility.

To be recognized under the “I E-Verify” program “[m]ember companies must enroll in E-Verify, undergo an I-9 audit, adhere to IMAGE best hiring practices and sign an official IMAGE partnership agreement with [Immigrations and Customs Enforcement (ICE)].” IMAGE, or “ICE Mutual Agreement Between Government and Employers,” assists employers in developing more secure and stable workforces through education and training on proper hiring procedures and techniques for identify fraudulent immigration documentation.

According to Secretary Napolitano, “[t]he ‘I E-Verify’ program will let consumers know which businesses are working hard to follow the law and are committed to protecting employment opportunities.” DHS stated that nearly 170,000 employers currently participate in E-Verify and almost eight million queries have been processed since January 2009. In a separate announcement, U.S. Citizenship and Immigration Services (USCIS) reported that almost 97 percent of all E-Verify queries are now automatically confirmed without the need for employee action or follow up.

Additionally, on November 19 Assistant Secretary for ICE John Morton announced the issuance of 1,000 notices of inspection. These notices informed employers across the country of ICE’s intention to audit their hiring records and examine their compliance with employment eligibility verification laws. Such audits include comprehensive reviews of employers’ I-9 forms. This most recent en masse issuance of inspection notices is the largest in history, and comes just months after ICE issued over 650 notices of inspection this past July, which at the time was the largest such issuance of inspection notices.

ICE explained that “protecting employment opportunities for the nation’s lawful workforce and targeting employers who knowingly employ an illegal workforce are major ICE priorities.” Previously, on April 30, 2009, DHS issued updated enforcement guidelines to its ICE agents. Under these updated guidelines, ICE stated its intent to focus worksite enforcement program resources on the criminal prosecution of employers who knowingly hire illegal workers. DHS announced that by prioritizing criminal prosecution of employers who knowingly “cultivate illegal workplaces,” ICE will “target the root cause of illegal immigration.”

On November 23, 2009, USCIS also announced that with the October 28 signing of the DHS Appropriations Act of 2010 by President Obama, E-Verify, among other USCIS programs, would be extended until September 30, 2012.


DHS Issues Final Rule Rescinding No-Match


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On October 7, 2009, the Department of Homeland Security (DHS)’s final rule to rescind the No-Match regulation was published in the Federal Register. DHS had published its proposed rule to rescind No-Match in the August 19 Federal Register. After considering public comments on the proposed rule, DHS finalized the rule without making any changes. The final rule reinstates the language of 8 CFR 274.1(l) as it existed prior to issuance of the No-Match Rule. The rule is scheduled to take effect 30 days after its publication in the Federal Register.

The No-Match Rule, initially issued by the Bush Administration in August 2007 (72 FR 45611) and supplemented in October 2008 (73 FR 63843), required the Social Security Administration (SSA) to detail the legal obligations of employers when they received a no-match letter from the SSA and outlined “safe-harbor” procedures for such employers. The No-Match Rule was never put in effect because it was blocked by court order shortly after its issuance. (See AFL-CIO, et al. v. Chertoff, et al., No. 07-4472-CRB (N.D. Cal.)

After completing a review of the Rule, DHS announced its intent to focus immigration enforcement efforts and community outreach on increased compliance through enhanced employment verification programs, such as E-Verify, and ICE Mutual Agreement Between Government and Employers (IMAGE), among other programs. The IMAGE program assists employers through education and training on enhanced techniques to identify fraudulent immigration documentation and proper hiring procedures.

On July 8, 2009, DHS announced its intention to propose a new regulation to rescind the Rule. A day later, the Senate approved by unanimous consent an amendment to the 2010 homeland security appropriations bill (H.R. 2892) prohibiting the use of 2010 funds to rescind the No-Match program. Although the proposed rule was published prior to the close of the fiscal year, the final rule was not.


DOL Extends Comment Period for Proposed Revisions to H-2A Program


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On September 30, 2009, the Department of Labor’s Employment and Training Administration (ETA) filed an extension of the comment period for a proposed rule to amend the H-2A visa program. The H-2A program allows U.S. agricultural businesses to employ foreign workers in temporary or seasonal agricultural jobs. Employers must apply to DOL for H-2A labor certification before they can petition the federal Department of Homeland Security, U.S Citizenship and Immigration Services for the admission of H-2A workers to the United States.

The proposed rule was published in the Federal Register by ETA on September 4. The comment period was originally scheduled to close on October 5; however, ETA has extended this period to October 20. Notice of the extension is scheduled to be published in the Federal Register on October 2.

The final rule on the current regulations appeared in the Federal Register on December 18, 2008 and became effective on January 17, 2009. The final rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations and the enforcement of contractual obligations of the employers of such workers.

Under the December 2008 regulations, employers have to complete a general attestation stating that they will abide by the H-2A process and must take four positive recruitment steps, including: (1) submission of a job order to the State Workforce Agencies (SWAs) serving the area of intended employment; (2) running two print advertisements; (3) contacting former U.S. employees who were employed within the last year; and (4) recruiting in all states currently designated as a state of traditional or expected labor supply with respect to each area of intended employment.

Under the proposed revised rule, an employer must provide DOL with documentation that it has complied with the prerequisites for employing foreign workers under the H-2A program, rather than simply attesting to compliance. The proposed rule also reinstates the use of the Department of Agriculture’s quarterly farm labor survey as the basis for determining the adverse effect wage rate, rather than the Bureau of Labor Statistics’ occupational employment survey data used under the 2008 rule. The rule also proposes the use of a national registry to assist agricultural employers in finding workers across the nation.

The new rule also requires employers to provide copies of job orders submitted to DOL to its workers and post notices outlining employee rights. The rule also provides protections to U.S. workers employed by H-2A employers to ensure the U.S. workers in similar jobs do not receive less wages or benefits than their H-2A counterparts. Finally, the proposed rule strengthens penalties for companies who do not comply with the program requirements and increases DOL authority for conducting audits and monetary penalties.

In May 2008, DOL issued a nine-month suspension of the new regulations in order to afford the new administration an opportunity to review the rule. However, the Department lifted the suspension one month later in response to a preliminary injunction blocking the suspension issued from the U.S. District Court for the Middle District of North Carolina. After completing its review of the rule, DOL proposed the revised regulations on September 4 to ensure the U.S. agricultural economy employs U.S. workers to the fullest extent possible.


Federal Contractors Required to Use E-Verify Effective September 8


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Beginning on September 8, 2009, all federal contractors will be required to use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify Clause (73 FR 67704). In July, the Department of Homeland Security (DHS) announced the Administration’s support for the E-Verify program, stating that it will only award federal contracts to employers who use E-Verify to check employee work eligibility.

E-Verify is a free internet-based system administered by U.S. Citizenship and Immigration Services (USCIS), in partnership with the Social Security Administration (SSA), that compares information from an employee’s I-9 Form against federal government databases to verify employment eligibility. Under the final rule, all federal contractors holding a contract with a performance period over 120 days and a value over $100,000, as well subcontractors providing services or construction with a value above $3,000, must verify the employment eligibility of new hires and re-verify the employment eligibility of employees hired after November 6, 1985. Agencies must also amend, on a bilateral basis, any existing indefinite delivery/indefinite quantity contracts to include the clause for future orders if the remaining period of performance extends beyond March 8, 2010.

All affected federal contracts and subcontracts awarded, or solicitations issued, after September 8 will include a clause committing government contractors to use E-Verify. Companies awarded contracts with an E-Verify clause will be required to enroll in the program within 30 days from the award date. Contractors will then have 90 days after enrollment to initiate employee verification. E-Verify must be used to verify that all new hires, regardless of whether they work on federal contracts, and existing employees who work directly on these federal contracts are legally authorized to work in the U.S.

All employers, including non-federal contractors, may enroll in E-Verify at any time without waiting for the applicability date. Employers can register for E-Verify online at: https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES. USCIS provides further guidance on its website. Directions on how to use E-Verify are available in the USCIS E-Verify Quick Reference Guide.

The final rule, arising out of Executive Order 12989, was originally scheduled to take effect on January 15, 2009. The rule was initially postponed in January in response to a lawsuit filed by the U.S. Chamber of Commerce (Chamber of Commerce of the United States of America v. Chertoff, D. Md. No. 8:08-cv-3444) in the U.S. District Court for the District of Maryland challenging the legality of the rule. The federal government announced a fourth delay in implementing the E-Verify rule on June 2, 2009, postponing the expected rollout date to September 8, 2009. On August 25, 2009 the Maryland district court upheld the final rule requiring federal contractors to use E-Verify. U.S. Chamber of Commerce filed a notice of appeal on August 31. On September 1, the group filed a motion for emergency injunction to block implementation of the final rule on September 8 pending the appeal. The district court denied plaintiffs’ motion for emergency injunction on September 4.


USCIS Announces OMB Approval of Form I-9 Through 2012


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On August 27, 2009, U.S. Citizenship and Immigration Services (USCIS) announced that the Office of Management and Budget approved the use of Employment Eligibility Verification Form I-9 (Rev. 02/02/09) through August 31, 2012. USCIS has amended the form to reflect a new revision date of August 7, 2009.

Employers can either continue to use Form I-9 (Rev. 02/02/09) or use the newly revised Form I-9 (Rev. 08/07/09). Both versions reflect changes made to employment verification documentation requirements outlined in the interim final rule, published Dec. 17, 2008 in the Federal Register. The final rule took effect on April 3, 2009. Most significantly, the final rule precludes the use of expired employment verification documentation and other documents no longer issued by USCIS.


DHS Issues Proposed Rule to Rescind No-Match


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On August 19, 2009, the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), published a proposed rule in the Federal Register to rescind the No-Match Rule. DHS invites all public comments on the proposed rule to be submitted by September 18, 2009.

Currently, the Social Security Administration sends a letter to alert employers when an employee’s Social Security number does not match government records. Under the controversial No-Match Rule, employers who receive such letters are required to resolve discrepancies or face liability. The rule also provides “safe harbor” provisions for employers that follow the proper procedures.

While the No-Match rule was issued by the Bush Administration in August 2007 and supplemented in October 2008, it was never put into  effect because it was blocked by a Northern District of California court order shortly after its issuance. See AFL-CIO v. Chertoff, No. 07-4472-CRB (N.D. Cal.). In the proposed rule, DHS explained that it decided to rescind the No-Match rule in favor of focusing immigration enforcement efforts and community outreach on increased compliance through enhanced employment verification programs, such as E-Verify, and voluntary programs, such as ICE Mutual Agreement Between Government and Employers (IMAGE).

Previously, on July 8, 2009, DHS announced its intention to propose a new regulation to rescind the No-Match Rule. In response to that announcement, on July 9, the Senate approved by unanimous consent an amendment to the 2010 homeland security appropriations bill (H.R. 2892) prohibiting the use of 2010 funds to rescind the No-Match program. If a final rule rescinding No-Match issues on or before September 30, no 2010 funds will have been used in the rescission.


USCIS Reopens H-2B Filing Period for FY 2009


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On August 6, 2009, U.S. Citizenship and Immigration Services (USCIS) announced that it was reopening the filing period for fiscal year 2009 H-2B visa petitions. USCIS stated that, despite its January 7 announcement that the department had received and approved a sufficient number of H-2B petitions to fulfill the 2009 annual cap, the Department of State has received far fewer applications than expected. To date, only 40,640 visas have been issued for FY 2009 of the 66,000 allotted by Congress.

All FY 2009 H-2B visa petitions must be received, processed and adjudicated by the close of the fiscal year, September 30, 2009.  Because it generally takes 60 days to process a non-premium H-2B petition, USCIS cannot guarantee that any applications filed during this newly reopened period will issue prior to the September 30 deadline. Therefore, USCIS is encouraging employers to request premium processing by submitting a Form I-907 and a $1000 premium processing fee to expedite adjudication.

To qualify for an H-2B visa, an employer must submit a Form I-129 Petition for a Nonimmigrant Worker with all required documents, including an Alien Employment Certification from the Department of Labor.  The employment start date must be before October 1, 2009. Petitions received, or requesting an employment start date, on or after October 1 will be considered towards the FY 2010 H-2B cap.

The H-2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence.