Update –  NEW BOSTON EVENT DATE: Due to safety concerns surrounding the recent snow storm, Mintz Levin rescheduled the Boston Immigration Seminar to Thursday, March 2. To register, please click here or see below. We hope you can join us!

On February 9th (Boston) and February 16th (New York), our very own Kevin McNamaraSusan Cohen, and Bill Coffman will lead a live seminar designed for in-house counsel, immigration specialists, HR professionals, talent managers, and other internal stakeholders to review changes affecting the hiring and continued employment of foreign nationals. Topics will include:

  • Worksite visit preparation
  • Record-keeping requirements
  • The new Form I-9 and the importance of E-Verify compliance
  • How to prepare for increased scrutiny at a US port of entry
  • New high-skilled worker regulations
  • Strategies and alternatives for H-1B visa cap and prospects for FY 2018

Don’t miss this important event.  For additional details and registration, please contact Cassie Bent at CMBent@mintz.com!

As a result of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, higher immigration fines and penalties will go into effect on August 1, 2016.   The fines and penalties cover Form I-9 paperwork violations, the unlawful employment of immigrant workers, certain temporary work visa programs, and immigration-related discrimination in hiring and employment. While these fines come into effect on August 1, they will be used for violations that occurred after November 2, 2015, the day the bill was signed into law.

Continue Reading Higher Immigration Penalties for I-9 and Other Violations Going Into Effect August 1, 2016

On July 8, 2015, the Office of the Chief Administrative Hearing Officer (OCAHO), issued a decision finding Hartmann Studios, Inc. “liable for 808 violations of 8 U.S.C. § 1324a(a)(1)(B)”, namely hiring workers in the United States without properly examining and documenting the employees’ identity and immigration documents. Immigration and Customs Enforcement (ICE) argued that Hartmann engaged in 818 violations; requesting $812,665.25 in civil penalties.

Many employers don’t realize the importance of the I-9, or Employment Eligibility Verification form, which has been required since 1986 as part of the Immigration Reform and Control Act. Since the I-9 form was revised in 2013, I-9 scrutiny has been on the rise and employers need to prioritize compliance by having a complete understanding of the requirements and following them to the letter of the law. Depending on the type of I-9 violation and the number of offenses, penalties can range from $110 per violation to $16,000 per violation and six months in prison.

In the Hartmann case, Judge Ellen K. Thomas found that “employment verification procedures are sufficiently defective to foreclose a claim of either good faith or substantial compliance”. In a small consolation for the company, Judge Thomas determined some of the violations were not as grievous as argued by ICE,  and downgraded the financial penalty. Hartmann was fined $605,250.

As a follow-up to our Alerts of March 8, 2013 and May 6, 2013, this is a reminder that the revised Form I-9 must now be used by all U.S. employers for new hires. The new form went into effect May 7, 2013. The new Form I-9 may be found at http://www.uscis.gov/I-9Central. Mintz Levin’s most recent alert is at:

http://www.mintz.com/newsletter/2013/Advisories/2982-0513-NAT-IMM/index.html

Please contact an attorney with Mintz Levin’s Immigration Department if you have questions about this form.

Mintz Levin is presenting a webinar on Tuesday, April 9th to discuss the information you need to implement the new Form I-9. US Citizenship and Immigration Services published a new version of Form I-9 on March 8, 2013 along with revisions to its M-274: Handbook for Employers. This new Form I-9 must be used by all US employers starting on May 7, 2013. It is a longer form and includes expanded instructions.

To register, click here.

United States Citizenship and Immigration Services (USCIS) today published a revised Form I-9, Employment Eligibility Verification.  All employers in the U.S. are required to complete Form I-9 on behalf of every employee hired in the U.S. The new Form I-9 may be found at http://www.uscis.gov/I-9Central.

The revised Form I-9 is designed to minimize errors in completion through reformatting, clearer instructions, and the addition of new data fields, including the employee’s foreign passport information (if applicable), telephone number, and email addresses. Regulations concerning acceptable documentation, form retention, and employer sanctions have not changed.

Continue Reading USCIS Revises Form I-9 (Employment Eligibility Verification Form)

In yesterday’s Wall Street Journal, Laura Murphy and Fred Smith of the ACLU and Competitive Enterprise Institute, respectively, warned against the dangers of a mandatory E-Verify system.  They argued that the E-Verify system invades the privacy of the employees whose data is run through the system and that the E-Verify verification process effectively lumps everyone into the category of “illegal” until proven otherwise (“guilty” until proven “innocent”).  They also are fearful that E-Verify could soon be used for a variety of other non-work related purposes.

I disagree with their conclusions.  And I think it is unrealistic to secure comprehensive immigration reform without some type of mandatory employment verification system. Continue Reading Mandatory E-Verify: Not Too High a Price for Necessary Immigration Reform

Until further notice, employers should continue using the Form I-9 currently available on the forms section of the USCIS website. Employers should continue to use the current version of Form I-9 even after the OMB control number expiration date of August 31, 2012 has passed. USCIS will provide updated information about the new version of the Form I-9 as it becomes available. Mintz Levin will also alert you when the new form is released.

It is commendable that the Department of Homeland Security (DHS) is in the process of revising Form I-9 with the stated goal of making the form more user-friendly for employers. There is certainly no question that employers in the United States absolutely will welcome a more user-friendly Form I-9. Yet it is troubling that the proposed Form I-9 continues to make frequent references to Form I-94, when DHS has announced its intention of eliminating the I-94 card in the future. The Form I-94 card is a paper document stamped or endorsed by DHS (either by USCIS or by CBP) with a specific date until which a work-authorized foreign national is authorized to remain in the U.S. Until now, the combination of (a) the I-94 card and (b) the individual’s foreign passport has been considered a “List A” document for purposes of completing a Form I-9.

Employers will welcome a better I-9, but one thing they absolutely won’t welcome is frequent revisions to the form. Every time a new version of the I-9 is published, employers may no longer use old versions of the same form. It is very hard for businesses to keep up to date and ensure they are using the most recent version of the form. So DHS should ensure that all of its agencies are talking with each other and coordinating this round of changes to the I-9. The last thing employers need is an I-9 that tells them they must view a new employee’s I-94 card in order to properly complete an I-9, when I-94s have been phased out of existence.

It is commendable that USCIS is finally revising Form I-9 to make the form and its instructions more user-friendly both to employers and employees.  Despite appearing to be straightforward, the current one-page form is fraught with peril.  In fact it is precisely because the form appears to be so innocuous that employers often do not focus enough attention or resources on understanding the myriad complexities associated with properly completing this form.  Immigration and Customs Enforcement (ICE) has stepped up its audits and investigations of I-9’s in 2011 and 2012 and is aggressively imposing significant fines and penalties, even where the workers associated with the I-9’s are in the U.S. legally with proper authorization to work. 

So it is refreshing that USCIS has put a new Form I-9 out for comment and is soliciting feedback from employers before it finalizes the new form.  It is very helpful that USCIS is expanding the form to two pages and is wording the instructions so that they provide more direct guidance to employers as they complete the I-9.

One aspect of I-9 completion with which US employers constantly struggle is the issue of completing Form I-9 for remote hires.  The USCIS Handbook for Employers (M-274) makes a passing reference to the fact that employers may hire agents to complete Form I-9 on their behalf, but there is very little guidance about how an “agent” appointed for I-9 purposes should complete Section 2 of the I-9.   Hopefully USCIS will expand the draft instructions accompanying the new Form I-9 to provide more specific guidance to employers regarding the use of agents for completion of Form I-9.  Employers throughout the U.S. would warmly welcome such guidance.

To see our recent alert on this topic click here.