The I-9 process continues to be the bane of HR existence. Recent accommodations for remote work environments, closed driver’s license agencies, and USCIS delays in printing work permits and green cards are definitely appreciated and helpful, but they also make the process more confusing. Employers are beginning to worry about how they will catch up on viewing all of the original documents they saw remotely during the pandemic, in the USCIS-designated 3-day time frame once their companies return to the office. Meanwhile, I-9 audits and worksite enforcement actions are continuing apace. While following all of the new guidance, employers must also be sure to stick to the basics. Continue reading USCIS gets flexible on I-9 Process, but Employers must stay Vigilant
The Duane Morris Immigration Team is dedicated to providing the most up to date information and zealous advocacy on behalf of our clients during the COVID-19 emergency. Below we have compiled information from various U.S. agencies on all aspects of travel, USCIS appointments, ICE activities and Removal Proceedings. This post will be updated as changes develop. Duane Morris has developed a COVID-19 Strategy Team which is providing regular updates on all business and employment related matters impacted by the COVID -19 pandemic. A second webinar on Business Continuity Planning for a Pandemic will be held on Wednesday, March 18. To register, click here.
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COVID-19 social distancing directives, State and Federal agency closures and remote work requirements have made it impossible for employers to comply with the normal I-9 and E-Verify regulations on timing and review of employee documents. To address these concerns, USCIS has announced several measures to extend time frames and loosen its normally strict requirements. In this blog, we discuss USCIS suspension of the I-9 requirement to review physical documents, an automatic 60 day extension for all I-9 audit responses, acceptance of expired documents for new hires who are unable to update driver licenses and state IDs, as well as E-verify suspension of the 8 day response time for responding to Tentative Nonconfirmations. Continue reading USCIS Announces I-9 and E-Verify Timing Waivers and Modifications in the wake of COVID-19
By: Valentine Brown
The government has been shut down for 29 days, with no signs go reopening anytime soon. Although USCIS has continued to operate due to being self-funded by application filing fees, E-Verify’s funding was discontinued by the shutdown, so the system has been inoperable since December 22, 2018. For many employers, using E-Verify as part of an immigration compliance scheme is voluntary, however for federal contractors and employers in several states, E-Verify is mandatory. In either case, losing the availability of this valuable double check on employee eligibility to work leaves an employer relying on the I-9 process. Below are a few reminders to get employers through the shutdown and to make sure they are ready when the E-Verify system is back up and running:
Make copies of employee documents used for I-9 completion: To be sure, copying an employee’s identity documents is not required for the I-9 process, however it has increasingly become considered as a best practice for employers, especially in our new age of 6000+ ICE I-9 audits per year. (But remember, for E-Verify employers, photo matching requires employers to make copies of green cards, work permits and U.S. passports when they are presented for verification purposes.) Keeping copies of documents with the I-9 form has several benefits in the shutdown context. At some point the government will reopen and the employee’s information will have to be inputted to the E-Verify system. Having copies of the employee’s documents will serve to ensure that the employer has the correct employee information, for submission and as a double check on the information entered on the I-9 form. Having copies will reduce the likelihood that the employer will have to go back to the employee for additional information once E-Verify is back up and running. Reducing the number of employee contacts during the I-9/E-Verify process reduces the opportunities for unwitting I-9 discrimination to occur, including document abuse and citizenship status discrimination.
Conduct careful review of all documents presented for I-9 purposes: Without the E-Verify check available, employers will be relying on their own judgment as to the validity and veracity of immigration-related documents presented during the shutdown. While it is not necessary for employers to be a fake document expert, it is required that they review the presented documents to make sure they appear valid and relate to the person who is presenting them. Immigration documents, such as work permits and green cards have changed over the years, so determining what is a valid document is not always as easy as it seems it should be. In the M-274 Handbook for Employers, there are many samples of what the various immigration documents look like as well as descriptions of their security features. Employers should use information in the handbook to compare to documents presented if they have questions.
Store shutdown period I-9s together: Best practice is to store I-9s separately from employee files in order to ensure that information on the I-9 forms remains private and is not inadvertently, or purposely used to make employment decisions. I recommend three I-9 files: (1) active employees with no reverification required (2) active employees with reverification required (3) terminated employees stored in order by termination date. I would add another temporary category of I-9s prepared during the shutdown. This will allow employers to easily identify those I-9s that will have to be entered into E-Verify once it is back up and running. After the shutdown is over, the I-9s can be folded back into the three standing files as described above.
With no signs of stopping, the shutdown maybe with us for a while. Taking extra care now with your I-9 forms will ease the burden of catching up on E-Verify entries, once the system is back up and running.
In recent years the Department of Justice Office of Special Counsel for Unfair Immigration Related Employment Practices (OSC) has stepped up enforcement against employers who commit violations during the hiring process. The primary source of information for the commencement of investigations against employers is a Department of Justice Hotline for workers who believe they have been mistreated by potential employers during the hiring process. Attorneys at the OSC follow up on every hotline call, often contacting employers directly to educate them and obtain additional information. From its experience on the hotline, the OSC has compiled a list of the most common hiring violations it encounters. While many seem obvious, they are worth reviewing with human resources staff, as they continue to reoccur and cost employers significant civil fines and pack pay awards.
Refusing to hire workers who sound or appear foreign: Employers have been fined and required to pay back wages to non-U.S. citizen workers who were rejected on the basis of employer blanket policies of rejecting applicants who sounded or appeared to be foreign. There are many non-U.S. citizen workers who are authorized to work for any employer in the United States, include Legal Permanent Residents, Asylees, and Refugees.
Preferring to hire U.S. citizens is also an unfair employment practice, unless a law, regulation, government contract, or executive order requires that the position be filled by a U.S. citizen. Employers have been prosecuted by the OSC for including “citizen only” type language in employment advertising or application materials, as well as for communicating this preference to applicants during the hiring process. Fines for this violation have ranged as high as $100,000 in prior years.
Hiring non-immigrant visas holders while rejecting qualified U.S. citizens and lawful permanent residents who apply for the same jobs. Employers have been subject to investigation and fines during the H-2B application process after they did not hire U.S. citizens and green card holders who applied for the H-2B advertised jobs. This type of investigation is even more troublesome as it arises out of an information sharing agreement between the Department of Labor and the Department of Justice. Significant back pay awards to the affected workers are common in this type of case.
Hiring undocumented workers instead of employment-authorized individuals. The OSC is vigilant about investigating this type of complaint, which is often presented when a terminated worker complains about being replaced by an undocumented worker. The typical remedy is reinstatement and back pay for the affected worker.
No Duty to Sponsor: In spite of all of these admonishments, it is important to remember that employers have no obligation to “sponsor” any worker for immigration status under any circumstances. This means that, there is no obligation to file an H-1B petition or green card application on behalf of any employee. Foreign nationals who do not have unlimited work authorization to work for any employer in the United States are not protected by anti-discrimination provisions in the Immigration and Nationality Act. However, employers should still beware of treating various classes of foreign national employees differently. Having sponsorship policies in place, which include a time frame for the decision to sponsor as well as specific criteria and manager recommendations, is a best practice that allows employers to have defined criteria and time frames to review each individual employee for sponsorship consideration.
The Department of Justice Office of Special Counsel for Unfair Immigration Related Employment Practices has been actively investigating and prosecuting employers for large and small violations. While fines can be minimal, the intrusion into a company’s day-to-day operations as well as the strong likelihood of a follow-on I-9 Audit and multiple years of re-auditing by both the DOJ and the USCIS should be deterrent enough to encourage employers to get their policies and practices in order. Continue reading Avoiding Immigration-Related Employment Discrimination: Best Practices from the DOJ
E-Verify is an electronic employment eligibility verification system administered by the federal government. It is voluntary for most employers, but is required to be used by federal contractors and is mandated by several states. In spite of its voluntary nature, many employers choose to use the system in addition to the required I-9 process in order to verify the work authorization of their employees. The E-Verify system has continually been improved since its inception with new capabilities regularly being added. Three recent add-ons are discussed below: Continue reading E-Verify Capabilities Continue to Expand