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Angel Feng is an Associate in the Boston office. She counsels corporations and their employees on the processing of non-immigrant and immigrant visa petitions, including H-1B, L-1A, L-1B, E-3, TN, P-1, O-1, E-1, E-2, PERM, EB-1, EB-2, and EB-3. She also advises clients on employment eligibility verification, E-verify, and related issues, including suspension and/or termination of employees and litigation prevention measures.

On July 17, 2017, U.S. Citizenship and Immigration Services (USCIS) published another revised version of Form I-9, Employment Eligibility Verification. It will be mandatory for employers to use this new version of the form commencing September 18, 2017. Until September 18, employers may use either the new version I-9 with a revision date of 07/17/17 or the prior edition, which has a revision date of 11/14/16.

Although there are no revisions to the fillable portions of the form, there are changes to the Instructions to Form I-9 and the List of Acceptable Documents on Form I-9, specifically:

  • The I-9 Instructions reflect the name change of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
  • The new form removes “the end of” from the phrase “the end of the first day of employment” in the instructions part for completion of Section 1.
  • The Consular Report of Birth Abroad (Form FS-240) was added as a List C acceptable document. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • In addition, the List of Acceptable Documents combines all of the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C (instead of being listed separately as #2 for Form FS-545 and #3 for Form DS-1350 on the prior version of the list).
  • Due to the above changes, please note that items were renumbered. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7. The SSN card remained the same number as it continues to be the first item on List C.

Moreover, all of these changes were also made in the revised Handbook for Employers: Guidance for Completing Form I-9 (M-274). Thus, a new edition of the Handbook is available and it promises to be easier for users to navigate.

To see USCIS’s news release regarding its Form I-9 update, please visit its website. Mintz Levin’s attorneys stand ready to assist our clients with any questions regarding the new Form I-9

As foreign national employees come back from summer vacations and travel abroad, one of the most overlooked immigration documents and pitfalls is Form I-94.  If Form I-94 is issued for a shorter validity period than the maximum allowed or previously approved in a visa category, the traveler will have to travel out of the country or file an extension of status by the date on the I-94.  Either option may be a burden monetarily and logistically.

Continue Reading Back to Work from Travel Abroad? Check Your Form I-94!

From: Ned Help

To: Carrie Counselor

Subject:    URGENT: Employee Detained at the Airport?

Carrie:

What an afternoon!  When Winston Wild’s manager called me, indicating that he was detained at Pearson International Airport, we did not know what to do, which is why I called you.

Thank you for calling Winston Wild so quickly and explaining that he was only delayed and placed in Secondary Inspection.  This scare made me realize that I have little understanding about what our employees might experience at the airport and what could go wrong.  When you have a moment, please explain what you mean by “secondary inspection” and strategies we can employ internally when something goes awry at the airport. Continue Reading Innocents Abroad: Emergency at the Border—Key Considerations

Mayor Bill de Blasio and the Commissioner and Chair of the New York City Commission on Human Rights Carmelyn P. Malalis announced on February 9, 2016 that the Commission would begin accepting requests for and issue U and T visa certifications.  Continue Reading The New York City Commission On Human Rights Becomes The First And Only Anti-Discrimination Agency In A Major U.S. City To Provide U And T Visa Certifications

A New York federal court recently said that the plaintiff-employees involved in a wage and hour lawsuit are not required to produce their immigration documents and information.  The case is important because it limits an employer’s ability to defend against such claims based on their workers’ potential illegal immigration status.

In Rosas et al. v. Alice’s Tea Cup, the employer-defendants requested that the plaintiff-employees produce evidence of their immigration status, their work authorization documents, tax returns, and their current employers’ identity in connection with their overtime claims under the Fair Labor Standards Act and the New York Labor Law.  They also sought admissions to the workers’ use of false or fictitious Social Security numbers.  The plaintiff-employees told the court this information was irrelevant to whether the defendant-employers failed to pay them correctly.  The defendant-employers argued that the workers’ immigration status and work authorization documents were relevant to a determination of the workers’ ability to recover under the FLSA and NYLL, their credibility, and would explain the absence of some payroll records that should have been kept by the employer.

The Decision
U.S. Magistrate Judge Francis concluded that the risk of injury to the workers and the “danger of intimidation” that such request would have on any worker outweighed the probative value of such evidence in showing the plaintiffs’ credibility and the absence of payroll records.  Most importantly, Judge Francis dismissed the defendant-employers’ argument that the workers’ immigration status and work authorization were germane to workers’ ability to recover under the FLSA and NYLL.  Judge Francis held that “Federal courts have made clear that the protections of the FLSA are available to citizens and undocumented workers alike.”

What This Means for You
This case underscores that all workers are protected by the FLSA and NYLL for work performed, whether the workers are authorized to work or not.  As a result, any information or request for immigration documents will likely be quashed by the courts (especially in California and New York), as irrelevant and/or undiscoverable.

Moreover, the U.S. Department of Labor and its local counterparts have consistently advised that wage and hour laws apply to all workers without regards to their immigration status.  For instance, the respective agencies in New York, California, and the District of Columbia specifically state on their websites that wage and hour laws protect “all workers, even undocumented workers” or “whether or not they are legally authorized to work in the United States.”  Furthermore, the U.S. Department of Labor affirms the above and specifically addresses the inapplicability of the Immigration Reform and Control Act (IRCA) to wage and hour cases under its jurisdiction.

In addition, employers are reminded that IRCA prohibits: (1) the knowing hiring of persons not authorized to work in the United States; (2) the continued employment of persons not authorized to work (though persons previously employed are not subject to these restrictions); and (3) the hiring of an individual without verifying or correctly documenting the person’s identity and eligibility to work legally in the United States (i.e. completing Form I-9).

In sum, a worker’s immigration status is not relevant in wage and hour suits and provides no defense in such suits.  Employers should also be mindful of complying with IRCA and I-9 rules regarding employment eligibility verification obligations.

With Michael Arnold

In a novel case, a New York federal court judge recently denied an employer’s motion to dismiss a Section 1981 alienage discrimination class action lawsuit.  The lawsuit alleges that Northwestern Mutual Life Insurance Company violated that Act by implementing a policy of hiring only U.S. citizens and lawful permanent residents.

Background

In Juarez v. Northwestern Mut. Life Ins. Co., the plaintiff, Ruben Juarez, a Mexican national living in New York City was a Deferred Action for Childhood Arrivals (“DACA”) employment authorized individual.  Through DACA, President Obama in 2012 authorized the Department of Homeland Security to exercise discretion in granting deferred action to qualified immigrant youth and authorize them to remain in the U.S., obtain an employment authorization document (EAD), and obtain a Social Security number.  The EAD authorizes the holder to work for any employer, has a two-year validity period, and is renewable.  In other words, it makes an individual legally authorized to work in the U.S. for a specified period of time, and it can be extended without sponsorship from the employer.  Juarez applied for an internship at Northwestern Mutual, but an HR representative told him that regardless of his DACA status, he could not work for the company because “you have to be a US citizen or have a green card.”

The Decision

A class action lawsuit followed claiming that Northwestern Mutual’s hiring policy is discriminatory on its face and violates 42 U.S.C. §1981 – a federal civil rights statute.  Section 1981 makes it illegal for employers to discriminate on the basis of race or alienage in making and enforcing contracts, including employment contracts.

Northwestern Mutual tried to have the claim thrown out, but Judge Forrest of the Southern District of New York denied its request because Section 1981’s protection against job discrimination “extends to all lawfully present aliens,” not just green-card holders.  Therefore, Juarez’s allegation that Northwestern Mutual’s policy excluded a lawfully present individual (i.e. those with a DACA immigration status) from potential employment was sufficient to state a Section 1981 claim.

Judge Forrest was also not persuaded by the fact that Northwestern Mutual’s policy clearly invited other non-U.S. citizens authorized to work in the U.S. (i.e. legal permanent residents, also referred to as Green Card holders ) to apply for employment.  She cited a Second Circuit in Brown v. Henderson, which held that a plaintiff need not plead discrimination against all members of a protected class in order to state a viable claim under Title VII.  The analysis was no different under Section 1981: “A defendant is not insulated from § 1981 liability for intentional discrimination against some members of a protected class merely because not every member of the class becomes a victim of discrimination.”

What This Means for You

As this case demonstrates, employers should be mindful of hiring policies that could negatively affect those individuals who are legally eligible to work in the U.S., but who are not U.S. citizens or lawful permanent residents. Employers should train Human Resources personnel to recognize the variety of status or work authorizations by which individuals who are not U.S. citizens are legally authorized to work here.  This requirement will take on even more importance in light of President Obama’s Executive Order on Immigration, signed on November 20, 2014, which may potentially authorize additional classes of individuals who will be eligible to work in the U.S.

In general, an employer may make hiring decisions by distinguishing only between lawfully present and unlawfully present individuals (or immigrants).  But even when confronted with certain job applicants with time-limited work authorizations, we do not believe that this decision prohibits employers from asking applicants whether they will require sponsorship from the employer to work for that specific employer and thereafter refusing to hire them on that basis.  Under the anti-discrimination provision of the Immigration and Naturalization Act, nonimmigrant visa holders may not claim a violation of that law for failure to hire based on their need for sponsorship from the hiring employer to be legally allowed to work for that employer.

We do not think they could claim a §1981 violation either.  People without legal authorization to work for the hiring employer would lack standing as a protected class against that employer since the reason for the failure to hire would not be a candidate’s alienage, but rather the fact that the candidate does not possess legal authorization to work for the hiring employer.

The outcome of the Juarez case remains to be seen, but the ultimate decision will have implications for DACA recipients and potentially for future beneficiaries of the President’s November 20, 2014 Executive Order on Immigration.