On January 27, 2017, President Trump signed an Executive Order ("EO") entitled "Protecting the Nation from Foreign Terrorist Entry Into the United States."  The EO suspends the entire U.S. refugee admission system for 120 days and the Syrian refugee program indefinitely.  In addition, the EO suspends the entry of immigrants and non-immigrants from certain designated countries of concern for an initial period of 90 days.  It should be noted that after 90 days, travel is not automatically reinstated for foreign nationals from these countries of concern.  Instead, the EO has mandated that the United States Department of Homeland Security (“DHS”) be required to report whether countries have provided information "needed . . . for the adjudication of any . . . benefit under the INA . . . to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat."  If a country refuses to provide the requested information regarding its nationals to enable the United States to adjudicate visas, admissions, or other benefits provided under the INA, the EO states that foreign nationals from that country will be prohibited from entering the United States until compliance has been achieved.  The EO currently applies to individuals from seven designated countries:  Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. There has been significant confusion regarding the scope and implementation of the EO’s travel ban.  Currently, it appears that the travel ban includes and applies to the following groups of individuals:  non-immigrant visa holders, immigrant visa holders, refugees, derivative asylees, Special Immigrant Visas (SIVs), etc.  Moreover, any foreign national holding a passport from one of the seven designated countries is considered to be "from" the designated country.  Accordingly, dual citizens who hold passports issued by both a designated country and non-designated country may also be subject to the travel ban.  Further adding to the confusion regarding the scope of this EO, the DHS Secretary John Kelly issued a clarification statement late yesterday which noted that status as a lawful U.S. permanent resident (a.k.a. “green card holder”) “will be a dispositive factor” used in the case-by-case analysis for determining re-entry and/or admission into the United States. Based on the information set forth in the EO, employers would be well-served to advise employees who are from any of these seven designated countries to refrain from traveling outside of the United States until further notice.  While the EO has specifically identified seven countries of concern, there is speculation that this list may evolve and expand in the future.  Therefore, foreign nationals who hold immigrant and/or non-immigrant visas and who are presently in the United States from other Middle Eastern countries should strongly consider avoiding any international travel, where possible. Legal challenges to this EO have already been filed on constitutional grounds.  We anticipate that more lawsuits by various stakeholders will be initiated in the coming days and weeks.  On Saturday, January 28, 2017, a federal judge in New York granted an emergency stay for citizens of 7 Muslim-majority countries who have already arrived in the United States and those foreign nationals who are already in transit (with valid visas).  The court ruled that these foreign nationals cannot be removed from the United States.  In addition, on January 29, 2017, two district court judges in Massachusetts issued a 7-day restraining order on the enforcement of the EO.  The restraining order permits individuals traveling to Boston from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen who are legally authorized to enter the United States to do so -- at least for the next seven days.  Even though these court decisions do not overrule or invalidate the EO on its face, they do send two messages:  (1) the subject matter contained in the EO will be subject to legal challenges; and (2) given the gravity of the situation, the courts will likely address any such legal challenges in an expeditious manner. As suggested above, until more practical guidance is issued from the courts, the DHS, and/or the White House, employers should advise their foreign national employees who could potentially be impacted by this EO not to travel abroad.

On November 14, 2016, the United States Citizenship and Immigration Services (“USCIS”) released a new Form I-9 (Rev. 11/14/2016 N) to replace the prior form which expired on March 31, 2016.  Beginning January 22, 2017, employers must use this updated form for the initial employment verification of all new hires, as well as any applicable employment re-verifications.  Prior versions of the Form I-9 will no longer be valid.  The new Form I-9 has an expiration date of August 31, 2019. By way of background, the Immigration Reform and Control Act (“IRCA”) requires employers to verify the identity and legal work authorization of all individuals, including U.S. citizens and legal permanent residents, hired after November 6, 1986.  Specifically, the I-9 verification process requires individuals to present facially valid documentation to enable employers to verify an individual’s identity and to further confirm that the individual is authorized to work in the United States.  For record-keeping purposes, an employer must retain completed Form I-9s for either three years after an individual’s date of hire or one year after the employment relationship ends -- whichever is later. According to a press release issued by the USCIS, the new Form I-9 is “designed to reduce errors and enhance form completion using a computer.”  Dubbed a “smart form,” the online version of this updated form now includes various enhancements intended to minimize technical errors commonly made by employers and employees.  For example, some of the new I-9 smart form features include the following:

• Embedded prompts in the online Form I-9 which provide instructions on how to properly complete that particular question.
• Drop down lists for certain questions (e.g., citizenship/immigration status, number of preparers/translators, state, document title, issuing authority, etc.) and calendar entries for requested dates (e.g., date of birth, document expiration dates, etc.).
• The opportunity to list/enter information for more than one preparer and/or translator (if applicable).
• Auto-population of “N/A” in certain blank fields (where applicable).
• Auto-population of the employee’s name and citizenship/immigration status into Section 2 based upon responses provided in Section 1.
• A mechanism which prompts an individual about missing information and/or incomplete fields -- highlighted in red -- before moving from one section to another within the form.
• An “error-checking mechanism” which provides prompts and error messages where there may be potential response inconsistencies between citizenship/immigration status and proffered I-9 supporting documentation.
• A “Start Over” option that enables an individual to clear the Form I-9 and start anew, if necessary.
• A “Print” option that enables an individual to print the Form I-9 once data has been entered.
• An “Instructions” option which automatically links an online user to a separate copy of the Form I-9 instructions.
• Automatic generation of a quick response (QR) code.

Employers are reminded that even if they use the enhanced online version of the Form I-9, they must still print the document, gather the necessary handwritten signatures and store the completed form pursuant to the applicable I-9 recordkeeping requirements. In addition to the electronic enhancements mentioned above, the USCIS has made several other notable revisions to the new Form I-9.  A summary of the main changes within each section of the form appears below. Improved Instructions In this latest round of revisions, the USCIS has separated the instructions from the actual Form I-9.  In addition, the USCIS has amended the instructions to provide more detail and guidance in an effort to reduce errors during the verification process.  The Form I-9 instructions are now 15 pages in length.  Employers should note that they are still required to make either an electronic or hard-copy of these instructions available to employees when they complete the Form I-9. Section 1:  Employee Information and Attestation

• The “Other Names Used” field has been renamed to “Other Last Names Used (if any).”  This field has changed to require only last name changes in an effort to protect the privacy of individuals (transgendered and others) who have changed their first names, as well as to avoid potential discrimination issues.
• Foreign national employees are no longer required to provide both their Form I-94 number and foreign passport information in Section 1.  Instead, the updated form requires foreign national workers to supply one response from the following three options:  (i) an Alien Registration Number; or (ii) a Form I-94 Admission Number; or (iii) a foreign passport number.
• The employer must now affirmatively answer whether he/she has used a preparer/translator for completion of Section 1 of the Form I-9.  If a preparer/translator has been used, the updated form now provides additional spaces to enter multiple preparers/translators.

Section 2:  Employer or Authorized Representative Review and Verification

• Addition of the employee’s “Citizenship/Immigration” status at the beginning of Section 2.  (This information should be consistent with what the employee has listed in Section 1.)
• A new dedicated box/blank section where employer representatives may enter additional information/notes previously written in the margins (e.g., annotations for OPT extensions, receipts, Temporary Protected Status, etc.).

As noted above, the new Form I-9 includes new electronic features to facilitate fewer errors during the completion process.  Reducing the number of technical/paperwork violations on the Form I-9 has become increasingly important since the federal government implemented higher civil fines against employers who commit immigration-related offenses, which includes, among other things, Form I-9 and E-Verify violations.  With respect to I-9 paperwork errors (e.g., errors or omissions on the Form I-9), the federal government raised the civil penalty range from $110-$1,110 (per relevant individual) to $216-$2,156 (per relevant individual) -- an increase of approximately 96%.  The new penalties took effect on August 1, 2016. Given the anticipation of heightened immigration enforcement by the new administration, employers may be well-served to review their I-9 procedures and records to ensure compliance with IRCA.  If you have questions about the new Form I-9 or general I-9 compliance issues, please contact Bond’s Immigration Practice Group.

For the first time since November 2010, the filing fees for many of the petitions and applications filed with the U.S. Citizenship and Immigration Services (USCIS) will increase, effective December 23, 2016.  All applications or petitions mailed, postmarked, or otherwise filed with USCIS on or after that date must include the new fee. Employers who regularly file H-1B visa petitions on behalf of foreign professionals should take special note that the base filing fee for Form I-129, Petition for a Nonimmigrant Worker, is increasing from $325 to $460, an increase of 43%.  This fee is in addition to the $500 Fraud Prevention and Detection Fee paid by employers for initial, change of employer, and concurrent employment H-1B visa petitions, the $1,500/$750 American Competitiveness and Workforce Improvement Act (ACWIA) Fee paid by employers who do not otherwise qualify for an exemption (e.g., institutions of higher education), the $4,000 fee paid by H-1B visa dependent employers (those that employ 50 or more employees in the U.S. and 50% of those employees are in H-1B status), and the $1,225 fee for premium processing service paid by those employers seeking processing of their petitions in 15 calendar days or less. Other commonly used petitions and applications that will see fee increases include, but are not limited to:

• Form I-140, Immigrant Petition for Alien Worker, will increase from $580 to $700;
• Form I-485, Application to Register Permanent Residence or Adjust Status, will increase from $985 to $1,140;
• Form I-539, Application to Extend/Change Nonimmigrant Status, will increase from $290 to $370; and
• Form I-765, Application for Employment Authorization, will increase from $380 to $410.

There is no increase to the Form I-907, Request for Premium Processing fee ($1,225), or the biometrics services fee ($85) that is required for certain petitions.  A complete list of the new fees for all petitions and applications can be found here.

As reported in our November 9, 2015 blog post, the present STEM OPT rule which allows F-1 students with U.S. degrees in science, technology, engineering or mathematics (STEM) to extend their optional practical training (OPT) by 17 months was to expire on February 12, 2016, unless the U.S. Department of Homeland Security (DHS) could publish and promulgate a new rule.  The present STEM OPT extension rule had been vacated by the U.S. District Court for the District of Columbia in August 2015 for procedural deficiencies in its promulgation, but the court’s ruling was stayed until February 12, 2016, so DHS could publish a new rule for public comment and prevent hardship to the thousands of F-1 students employed in the U.S. on STEM OPT and the companies that employ those individuals. Our November 9, 2015 blog post detailed some of the highlights of DHS’ proposed STEM OPT extension rule which was published for comment in the Federal Register on October 19, 2015.  The DHS received an overwhelming 50,000 plus comments to the proposed rule and, a few days before the Christmas holiday, asked the court for a 90-day extension of the existing STEM OPT rule so it could address the comments and begin to train DHS officers on the intended changes to the STEM OPT program.  Following additional pleadings by DHS and Washington Alliance of Technology Workers (WashTech) — the plaintiff in the case that was before the U.S. District Court for the District of Columbia — the court, last Saturday, delayed its order terminating the STEM OPT rule as of February 12, 2016, and granted the DHS an additional 90 days to revise its proposed STEM OPT rule.  The court extended the sunset date of the STEM OPT extension rule to May 10, 2016, and warned DHS that no further extensions would be granted. As a result of this determination, those F-1 student employees with STEM OPT remain authorized to work in the U.S., at least through May 10, 2016.  However, WashTech’s counsel has indicated that an appeal of the decision to extend the sunset date by 90 days would be filed with the D.C. Circuit immediately. We will continue to keep you informed of further developments in this matter so you and your employees can plan accordingly.

On October 19, 2015, the U.S. Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register regarding optional practical training (OPT) extensions for F-1 students with U.S. degrees in science, technology, engineering or mathematics (STEM).  The proposed rule is essentially a response to an August 2015 decision of the U.S. District Court for the District of Columbia to vacate the present STEM OPT extension regulation for procedural deficiencies in its promulgation, effective February 12, 2016.  Under the proposed rule, the length of STEM OPT extension would be increased from 17 months to 24 months.  In addition, the rule requires employers to develop and implement mentoring and training programs to bolster students’ learning through practical experience and provides safeguards for U.S. workers seeking employment in related fields.  DHS is accepting comments on the proposed rule through November 18, 2015 and is making every effort to have the final rule take effect prior to the February 12, 2016 sunset of the present STEM OPT extension regulation. STEM OPT Extensions.  Under the proposed rule, the length of STEM OPT extensions would increase from 17 months to 24 months and F-1 students would be limited to two 24-month STEM OPT extensions (for example, one after earning U.S. master’s STEM degree and another after earning U.S. doctoral STEM degree).  The proposed rule extends the maximum period of unemployment for F-1 students to 150 days – 90 days during the initial 12-month period of post-completion OPT and 60 days during the 24-month STEM OPT extension.  If the DHS rule is implemented as proposed, the STEM OPT extension will be a benefit to F-1 students and U.S. employers alike, as students will be able to work in the U.S. for three full years before additional work authorization (e.g., H-1B, O-1, etc.) would be necessary, and employers will have a generous amount of time in which to assess F-1 employees’ performance before undertaking sponsorship for additional work authorization.  As with the present STEM OPT extension regulation, under the proposed rule, STEM OPT extensions are only available if the employer participates in the U.S. Citizenship and Immigration Services’ E-Verify employment eligibility verification program. New Employer Responsibilities.  The proposed rule establishes a couple of new responsibilities for employers seeking to employ F-1 nonimmigrants on the STEM OPT extension.  First, employers would be required to implement formal mentoring and training programs for STEM OPT students to enhance their practical skills.  The student would be required to prepare a Mentoring and Training Plan – including the training goals and a description of how those goals will be met -- with the employer and to submit the plan to the student’s designated school official (DSO) at his/her institution before the DSO could recommend and authorize a STEM OPT extension for the student.  Second, employers would be required to attest and provide assurances on a number of items including that they will not terminate, layoff or furlough a U.S. worker as a result of hiring an F-1 student on STEM OPT and that the duties, hours and compensation for the F-1 student employee are commensurate with similarly situated U.S. workers.  If an employer fails to comply with the new requirements, DSOs will be prohibited from recommending students for a STEM OPT extension. We will continue to monitor this proposed rule as the February 12, 2016 deadline approaches and provide updates so F-1 student employees and their employers can plan accordingly.

As expected, on Monday, April 7, 2014, the U.S. Citizenship and Immigration Services (“USCIS”) announced that a sufficient number of H-1B petitions had been received from April 1, 2014, through April 7, 2014, to meet the statutory cap for fiscal year 2015.  The statutory cap was reached in both the general Bachelor’s category, as well as the U.S. advanced-degree category.  In short, more H-1B petitions were filed than the USCIS is authorized to approve for fiscal year 2015, which begins on October 1, 2014.  Consequently, for the second year in a row, USCIS will conduct a random selection process (i.e., lottery) to determine which filed H-1B petitions will be selected for processing/adjudication.  The USCIS has not yet announced the date when the lottery will be held. As background, the USCIS is only authorized to issue 85,000 H-1B approvals for each fiscal year, which includes 20,000 visas under the advanced-degree category and another 65,000 visas under the general category.  The 65,000 H-1B visas are available for beneficiaries who possess at least a Bachelor’s degree, with 6,800 of those available visas allocated as H-1B1 visas for qualifying nationals from Chile and Singapore.  An additional 20,000 approvals are available under the U.S. advanced-degree exemption for beneficiaries with a Master’s or higher degree obtained from a U.S. college or university. Consistent with USCIS practice, the USCIS will first utilize the lottery for petitions that qualify for the advanced-degree category under which 20,000 visas are available.  Eligible petitions that are not selected for processing in this category will be submitted for the general lottery under which 65,000 visas are available.  Any petitions not selected in the H-1B lottery will be returned to the employer, together with any applicable filing fees. Although the H-1B season for fiscal year 2015 appears to be complete, certain H-1B petitions are exempt from the numerical statutory cap.  Therefore, employers may continue to file H-1B petitions with the USCIS for new H-1B employment with a college or university, or a nonprofit research or governmental research organization – often referred to as “cap-exempt institutions.”  In addition, employers may continue to submit H-1B petitions for current workers who have previously been counted against the H-1B cap. Finally, employers seeking to employ foreign nationals in the United States should note that there may be other non-immigrant visa categories that could be a viable alternative to the H-1B category, including (but not limited to) the TN (NAFTA Professionals), the L (Intra-Company Transferee), the E (Investor), and the O (Extraordinary Ability) categories.

After a brief hiatus prompted by the Federal Government shutdown, employers regained access to and use of the federal E-Verify system on October 17, 2013.  E-Verify is an Internet-based employment eligibility verification system administered by the U.S. Citizenship and Immigration Services (“USCIS”).  The E-Verify system does not serve as a replacement for the I-9 employment verification process, but rather serves as an additional method by which employers may confirm employee I-9 information against certain government databases (e.g., Department of Homeland Security and the Social Security Administration). Beginning on October 1, 2013, employers were denied access to the E-Verify system for the duration of the government shutdown.  Under normal circumstances, those employers enrolled in the E-Verify program – either voluntarily or involuntarily (e.g., mandatory for those federal contractors with a FAR E-Verify contract clause and employers in certain states such as Arizona and Mississippi) – are required to create a verification case in the E-Verify system for any newly-hired employee by no later than three business days after the employee starts to work for pay.  During the government shutdown, however, the USCIS suspended the “three-day rule” in which enrolled employers are mandated to create a case in the E-Verify system.  Now that E-Verify is once again operational, the USCIS has afforded employers a grace period in which to address E-Verify issues impacted by the government shutdown.  Specifically, the USCIS has issued guidance indicating that employers have until no later than November 5, 2013, to create E-Verify cases that could not be created for those employees due to the unavailability of the system. In its recent guidance, the USCIS also addressed how employers should properly enter a case in E-Verify now that access to the system has been restored.  Generally, when an E-Verify query is made more than three days after the date of hire, the E-Verify system will require the employer to provide an explanation for the delayed entry.  In its October 17 guidance, the USCIS advised that when an employer is prompted to provide a reason for a delayed case creation which was caused by the government shutdown, the employer should select “Other” from the drop-down list and enter the phrase “federal government shutdown" in the field. In addition, the USCIS noted in its October 17 guidance that federal contractors should follow the same instructions.  If a federal contractor was unable to comply with certain E-Verify deadlines due to the government shutdown, the federal contractor should contact its contracting officer and reference the instructions provided by the USCIS in its guidance. Additionally, the USCIS offered the following guidance on other tangential E-Verify issues that may have been impacted as a result of the government shutdown:

• Employees will be given an extension of 12 federal business days in order to contact the DHS or the SSA to resolve any Tentative Non-Confirmation (TNC) notice received or referred between September 17, 2013, and September 30, 2013, that the employee was unable to resolve due to the government shutdown.  Employers may add 12 business days to the date printed on either the Referral Letter or the Referral Date Confirmation.
• Employers are instructed to now initiate referral processing in E-Verify for employees who decide to contest any TNC issued during the unavailability period of E-Verify.
• Employers must close E-Verify cases for those employees who received a Final Nonconfirmation (FNC) or No Show due to the federal government shutdown by selecting one of the following options from the drop-down menu:  (1) “The employee continues to work for the employer after receiving a Final Non-Confirmation result”; or (2) “The employee continues to work for the employer after receiving a No Show result.”  The employer must then create a new E-Verify case for the employee.

Finally, employers should be aware that the USCIS’ suspension of the “three-day rule” during the government shutdown period did not extend or otherwise impact employers’ obligations regarding the timely completion of the Form I-9 or any other Form I-9 requirements.  Employers should also be mindful that the “three-day rule” for E-Verify cases is once again in effect for all newly-hired employees.

Last week, the United States Citizenship and Immigration Services (“USCIS”) published a correction notice in the Federal Register clarifying that the effective date of the newly revised Form I-9 begins on May 7, 2013.  Earlier communications from USCIS had described the Form I-9’s effective date as being after May 7, 2013.

As we reported in our March 20, 2013 blog post, the USCIS provided a 60-day grace period during which employers may continue to use select prior versions of the Form I-9 -- (Rev. 02/02/09)N and (Rev. 08/07/09)Y -- to verify the employment eligibility of new hires.  This recent notice clarifies that the grace period ends on May 6, 2013, and that beginning May 7, 2013, employers may not use any prior versions of the Form I-9 for purposes of employment eligibility verification.

However, employers should note that the grace period does not apply to reverification(s) of existing employees.  As of March 8, 2013, employers are required to use the new Form I-9 (Rev. 03/08/13)N for any reverification of existing employees (if necessary) or for rehires.

If you have questions about the new Form I-9 or I-9 compliance issues, please contact the Bond Immigration Practice Group.

On March 8, 2013, the United States Citizenship and Immigration Services (the “USCIS”) released the long-awaited revisions to the Form I-9 (Rev. 03/08/13)N.  In an August 2012 blog post, we informed employers that they could continue to use the then-current version of the form – despite its August 31, 2012 expiration date.  With the revised Form I-9 now in circulation, the USCIS has strongly encouraged employers to immediately use the updated form, though the agency has provided a 60-day grace period (until May 6, 2013) during which employers may continue to use select versions of the Form I-9 – (Rev. 02/02/09) and (Rev. 08/07/09) – for verifying the employment eligibility of new hires.  As of March 8, 2013, however, employers must use the revised Form I-9 (Rev. 03/08/13)N for conducting reverification(s) of existing employees.  Beginning May 7, 2013, employers will no longer be permitted to use any expired version of the Form I-9.  Employers who fail to adhere to these phase out guidelines may be subject to applicable fines and penalties.

By way of background, the Immigration Reform and Control Act of 1986 (“IRCA”) requires employers to verify the identity and legal authorization of all individuals, including U.S. citizens, hired after November 6, 1986, by requiring the individuals to present facially valid documentation.  In order to complete the I-9 verification process, the employer is required to verify the individual’s identity and to further confirm that the individual is authorized to accept employment in the United States.  For record-keeping purposes, an employer must retain completed Form I-9s for the later of three (3) years after an individual’s date of hire or one (1) year after the employment relationship ends.

One of the USCIS’ primary goals for this revised Form I-9 is to “minimize errors in form completion."  Accordingly, there are several key revisions which aim to accomplish this objective.  First and foremost, employers will notice that the new Form I-9 itself is no longer a one-page document, but now consists of two pages.

Second, the new Form I-9 instructions / List of Acceptable Documents has increased from five (5) pages to nine (9) pages (inclusive of the 2-page form).  The expanded set of directions is designed to provide both employers and employees with additional guidance and examples in an effort to assist the parties to accurately complete the form; detailed guidance has been noticeably absent from prior versions of the Form I-9.  For instance, the new Form I-9 instructions explain that an international address may not be used by the individual to complete the address field, unless the employee is a border commuter from Canada or Mexico.  Furthermore, the new instructions offer the following as a helpful example to address timing/counting issues for completion of the Form I-9:  “[I]f an employee begins employment on Monday, the employer must complete Section 2 by Thursday of that week.”

In addition to improving the instructions, the USCIS has made a number of other key revisions to the new Form I-9.  A summary of the main changes within each section of the form appears below.

Section 1:  Employee Information and Attestation

• A clear reminder has been inserted at the beginning of Section 1 to clarify and remind both employers and employees that this section of the Form I-9 must be completed by the employee no later than the first business day of employment.
• The “Maiden Name” data field has been renamed to “Other Names Used (if any)."
• The Social Security Number data field has been reformatted to specifically require a nine-digit number; however, this data field continues to remains voluntary, unless the employer is enrolled in the E-Verify Program.
• New data fields have been added which permit an individual to voluntarily provide email addresses and telephone numbers; since these data fields remain optional, however, employers are instructed to place “N/A” in the field if the employee does not provide information responsive to the question(s).
• A new data field has been added to clarify that a foreign national authorized for employment may provide the A-Number/USCIS Number OR Form I-94 Admission Number.
• New data fields have been included so that the foreign national may provide information regarding a foreign passport number and country of issuance in those instances where the foreign national provides an Admission Number (I-94), issued by the U.S. Customs and Border Protection, as part of the I-9 process.
• The USCIS has included a placeholder where a 3-D Barcode may eventually be added.  At the present time, however, the 3-D Barcode has no functional purpose.
• Finally, the USCIS has added a stop sign symbol at the end of Section 1 to deter and prevent employees from inadvertently completing Section 2.

Section 2:  Employer or Authorized Representative Review and Verification

• “Authorized representatives” (those individuals who do not necessarily work for the employer, but have been granted limited power to conduct employment eligibility verification on behalf of the employer in certain circumstances) are expressly recognized as having the ability to complete Section 2 (in addition to employer representatives).
• Section 2 now specifically states that this section must be completed and signed within three (3) business days of the employee’s first day of employment.
• Employers are now required to add the employee’s name (first / middle initial / last) in the new data field provided in Section 2.
• The USCIS has clarified that an employer’s employment eligibility verification obligations are triggered the day the employee begins to work for pay (i.e., commencement of employment for wages or other remuneration).  As such, this is reflected on the new Form I-9, which no longer asks for when an employee began employment, but rather the employee’s first day of employment.
• Additional data fields – document number and expiration date – have been added for List A documents.  These additional spaces will enable employers to record employment authorization expiration dates for exchange visitors and SEVIS numbers and program end dates for students.  Prior versions of the Form I-9 did not provide sufficient space for employers to record all of the necessary information.

Section 3:  Reverification and Rehires

The new Form I-9 also includes minor revisions to Section 3.  For instance, the revised form clarifies that only List A and List C documents need to be reverified if the employee’s previous grant of employment authorization has expired; List B documents, which are used to establish identity, are notably omitted from the list of documents that need to be reverified.

Finally, the List of Acceptable Documents has also been revised and updated.  Specifically, List C now makes clear that a Social Security Card is a valid document for purposes of establishing work authorization, unless it contains one of the following 3 notations on the face of the card:

1. "NOT VALID FOR EMPLOYMENT"
2. "VALID FOR WORK ONLY WITH INS AUTHORIZATION"; or
3. "VALID FOR WORK ONLY WITH DHS AUTHORIZATION."

In this age of heightened government enforcement, the release of a newly revised Form I-9 provides employers with the perfect opportunity to review their I-9 procedures to ensure compliance with IRCA.  If you have questions about the new Form I-9 or I-9 compliance issues, please contact the Bond Immigration Practice Group.

With 2012 now behind us and the start of a new year firmly underway, employers should be aware of the heightened possibility of an unexpected visitor showing up in the workplace in 2013.  Under President Obama’s Administration, the U.S. Immigration and Customs Enforcement (“ICE”) has dramatically ramped up I-9 audits and enforcement actions, conducting more than 3,000 audits in fiscal year 2012, as compared to only 250 conducted in fiscal year 2007.  With four more years on the horizon for this Administration, one New Year’s resolution that all employers should make is to ensure that their Form I-9s are in compliance before ICE comes knocking.

ICE serves as the principal investigative arm of the U.S. Department of Homeland Security (“DHS”).  One of ICE’s primary purposes is to police the Immigration Reform and Control Act (“IRCA”).  Under IRCA, employers are prohibited from knowingly hiring or employing unauthorized workers.  Employers are required to complete Form I-9s for all employees, including U.S. citizens, hired after November 6, 1986, to verify an employee’s identity and to confirm that the individual is authorized to accept employment in the United States.  Employers are also prohibited from discriminating against employees on the basis of national origin, citizenship, or immigration status, which includes engaging in “document abuse” (i.e., demanding that certain employees show specific documents because of the individual’s national origin, citizenship, or other protected status) or requiring “indemnity bonds” guaranteeing that the individual is authorized to work in the United States.  For record-keeping purposes, an employer is required to retain completed Form I-9s for the later of three years after an individual’s date of hire or one year after the employment relationship ends.

Along with the steady increase in the number of audits conducted, the dollar value of penalties assessed for IRCA violations has also significantly escalated under the Obama Administration.  Specifically, penalties have increased from $1 million in fiscal year 2009 to $13 million in 2012.  Employers who knowingly hire or continue to employ unauthorized workers can expect monetary penalties to begin at $375 per violation and reach as high as $16,000 for repeat offenders.  Employers may also be fined for errors found on the Form I-9s.  Fines for substantive violations and uncorrected technical violations range from $110 to $1,100 per violation.  In addition, ICE may also subject an employer to debarment, whereby the employer is prevented from participating in future federal contracts or prohibited from receiving other government benefits.  Criminal penalties may also be imposed under certain circumstances.  In the 2012 fiscal year alone, ICE arrested approximately 238 corporate managers and officers.

Taking affirmative steps prior to receiving a government audit notice or an on-site visit from ICE could mean the difference between a verbal warning, a monetary fine, or a criminal penalty, particularly if an employer chooses to contest the issuance of any ICE fines.  Therefore, employers are encouraged to take proactive measures, which may include the following:  (1) implementing a written I-9 policy, which includes anti-discrimination protocols and/or Social Security “no match” letter resolution procedures; (2) utilizing voluntary programs such as E-Verify (mandatory for federal contractors) and Social Security Number Verification Services (“SSNVS”) provided by DHS and the Social Security Administration to confirm employment eligibility; (3) training designated Human Resources personnel on proper I-9 verification procedures; (4) having an outside third-party or properly trained employee (who was not involved in the original I-9 process) conduct self-audits of I-9 records; (5) immediately correcting and documenting mistakes on Form I-9s; (6) instituting a confidential tip line for employees to freely report I-9 and/or work eligibility issues; and (7) avoiding any conduct that could be interpreted by ICE as encouragement of, acquiescence in, or constructive knowledge of, fraudulent I-9 documentation.

As reported on this blog in August 2012, employers should also be aware that a new Form I-9 is in the works.  For now, employers should continue to use the Form I-9 that contains an August 31, 2012 expiration date.  We will continue to monitor the availability and issuance of any updates pertaining to a new Form I-9 and will provide additional details on this blog when further information becomes available.

On September 26, 2012, the Second Department Appellate Division held that an employer who hires undocumented aliens in violation of the Immigration Reform and Control Act of 1986 ("IRCA") is still shielded by the Workers' Compensation Law if those employees are injured on the job.

IRCA was adopted by Congress in an attempt to curtail illegal immigration.  Toward that end, it imposed a duty upon employers to verify a prospective employee's identity and work eligibility by examining the individual's documentation prior to hiring.  Absent the requisite documentation, employment cannot be offered.  Employers who violate IRCA are subject to civil and criminal penalties.

The Workers' Compensation Law insulates employers from personal injury claims brought by their employees, and also precludes third party claims against the employer for contribution and indemnification except in instances of “grave injury” or where the employer contracted to provide such indemnification.

How do these federal and state provisions relate?  In a matter of first impression, the Second Department Appellate Division was asked to decide whether the protection afforded employers under the Workers' Compensation Law was still available in the event that the employer violated IRCA.  Yes, it was, according to the decision in New York Hospital Medical Center of Queens v. Microtech Construction Corp.

In arriving at that conclusion, the Court made several observations.  First, it noted that in adopting IRCA, Congress expressly preempted all state and local laws that imposed civil or criminal sanctions upon employers for similar offenses.  It also observed that the statute was silent as to any further preemptive effect.  Indeed, to the contrary, IRCA’s legislative history demonstrated a lack of intent to diminish existing labor protections.  Consistent with that conclusion, the Court determined that there could be no express preemption of the Workers' Compensation Law, as none of its relevant provisions seek to impose civil or criminal sanctions for employing undocumented aliens.

While the Court acknowledged that stripping away the protections of the Workers' Compensation Law from an IRCA-violating employer may support the federal statute’s ultimate goals, it held nevertheless that retaining such protections despite an IRCA violation did not present such an obstacle to attaining Congress’ objectives that the Workers' Compensation Law could be considered preempted.  Thus, the Court ruled that an IRCA violation did not serve to diminish or remove the protections afforded an employer under the Workers' Compensation Law.

In the coming weeks, many employers may notice that Form I-9 – which employers are required to complete for newly-hired employees – is set to expire on August 31, 2012.  Employers should be aware that the U.S. Citizenship and Immigration Services (“USCIS”) has advised continued use of the current Form I-9 past this looming expiration date.

As for developments on a new Form I-9, the USCIS published notice of the revised Form I-9 on March 27, 2012, followed by a public comment period, which ended on May 29, 2012.  Until further notice from the USCIS, employers should continue to use the current Form I-9.

As background, employers are required to complete the Form I-9 to verify and/or re-verify an employee’s identity to confirm the individual is (or remains) authorized to accept employment in the United States.  For recordkeeping purposes, an employer must retain completed I-9 forms for the later of three (3) years after an individual’s date of hire or one (1) year after the employment relationship ends.

The Bond Immigration Practice Group will continue to monitor the availability and issuance of the new Form I-9 and will provide additional details on this blog when further information becomes available.