E-Verify & I-9 News

[Editor’s Note: today’s post is brought to you by guest blogger John Manley, U.S. Immigration Attorney and Co-Liaison to U.S. Customs and Border Protection.]

Several states began requiring various employers to use the E-Verify system as of January 1, 2012.

Here is a list of these states and their E-Verify laws that go into effect in varying stages:

1. Louisiana: Act 376 will apply to private employers who bid on public entity projects or enter into contracts with a public entity on or after Jan. 1, 2012. The law requires that private employers who bid on a public entity project or enter into a contract agreement with a public entity for the physical performance of services, confirm in a sworn affidavit that the company uses the E-Verify® system to validate the legal citizenship or legal alien status for all employees within the United States. If the employer is awarded a contract, he is required to E-Verify all new employees in Louisiana hired through the duration of the contract. The requirement applies to both general contractors and their subcontractors. SOURCE

2. Alabama: Effective January 1, 2012, state contractors must use E-Verify. Effective April 1, 2012, every business entity or employer in this state shall enroll in E-Verify and thereafter, according to the federal statutes and regulations governing E-Verify, shall verify the employment eligibility of the employee through E-Verify. A business entity or employer that uses E-Verify to verify the work authorization of an employee shall not be deemed to have violated this section with respect to the employment of that employee.   SOURCE

3. Tennessee: under the Tennessee Lawful Employment Act of 2011,the employment verification provisions will be phased in as follows [SOURCE]:

• All state and local government agencies must enroll and participate in E-Verify or request and maintain an identity/employment authorization document from a newly hired employee no later than January 1, 2012

• All private employers with 500 or more employees must enroll and participate in E-Verify or request and maintain an identity / employment authorization document from a newly hired employee no later than January 1, 2012

• All private employers with 200 to 499 employees must enroll and participate in E-Verify or request and maintain an identity / employment authorization document from a newly hired employee no later than July 1, 2012

• All private employers with 6 to 199 employees must register and utilize E-Verify or request and maintain an identity / employment authorization document from a newly hired employee no later than July 1, 2013

4. South Carolina: the South Carolina Illegal Immigration and Reform Act requires all employers to enroll in the U.S. Department of Homeland Security’s E-Verify system beginning January 1, 2012 and to verify the legal status of all new employees through E-Verify within three business days. Employers may no longer confirm a new employee’s employment authorization with a driver’s license or state identification card. SOURCE

5. Georgia: The E-Verify Provision in Georgia’s H.B. 87 will require Georgia businesses with 500 employees or more to check their employees using E-Verify. Workers must be U.S. citizens or otherwise authorized to work in the country in order to be hired. The requirement takes place in phases. Starting July 1, businesses of 100 or more must use E-Verify. By January 2013, all businesses with more than 10 employees will be required to use the system. Those with 10 or fewer employees are exempt. SOURCE

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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On December 14, the first step was taken towards bringing manditory E-Verify to a Kentucky employer near you.

Yesterday, Kentucky Representative Stan Lee (R-Lexington, 45th District) announced he is pre-filing E-Verify legislation for the 2012 Legislative session. Read the press release here. If passed, this legislation would require companies doing business in Kentucky to E-Verify all employees working in Kentucky (on projects funded by either public or private funds), to make sure they are authorized to work in the United States. Businesses that fail to comply with this mandate risk the loss of their business licenses and permits.

According to the press release, if the bill passes the Kentucky legislature and is eventually signed into state law companies employing unauthorized workers in Kentucky would have their state, county or city issued license or permit revoked for six months for each offense. Each additional illegal worker identified would be considered a separate charge under this proposal.

Re. Lee’s proposed legislation is similar to Arizona’s Legal Arizona Workers Act, passed in 2007. Recently, a U.S. Supreme Court decision (Chamber of Commerce v. Whiting, 2011 U.S. LEXIS 4018) upheld the Arizona law, stating that a state may require employers to use E-Verify to confirm an employee’s eligibility to work in the United States or face loss of license penalties.

Besides Arizona, the states of Alabama, Tennessee, North Carolina, Utah, South Carolina, Louisiana and Mississippi require public and private employers to use E-verify to confirm a worker’s status, and Georgia, Indiana, Virginia, Florida, Idaho, Missouri, Nebraska, Oklahoma, Minnesota, and Colorado mandate public employers, state agencies and/or state contractors use E-verify.

The bill is pre-filed as BR 53 for the 2012 Regular Session.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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On November 4, U.S. Immigration and Customs Enforcement (ICE) announced that seven major employers in the U.S. joined IMAGE, the agency’s voluntary employment compliance program. These newly joined employers include Best Western International, Chick-fil-A, Inc., Hyatt, Kelly Services, Lexmark, Smoothie King and Toyota Motor Engineering and Manufacturing North America.

Here is a complete list of IMAGE partners.

IMAGE stands for “ICE Mutual Agreement between Government and Employers,” created to promote voluntary compliance and help companies ensure they are maintaining a lawful workforce.

To participate in IMAGE, companies volunteer to enroll in E-Verify, to follow written hiring policies that enforce I-9 compliance, and to engage in annual self-audits.  Furthermore, IMAGE companies agree to submit to an ICE audit of their I-9 employment eligibility forms. In return, ICE agrees to:

• Waive potential fines if substantive violations are discovered on fewer than 50 percent of the required Forms I-9.
• In instances where more than 50 percent of the Forms I-9 contain substantive violations, ICE will mitigate fines or issue fines at the statutory minimum of $110 per violation.
• ICE will not conduct another Form I-9 inspection of the company for a two-year period.
• ICE will provide information and training before, during and after inspection.

According to the ICE website, the idea behind the IMAGE program is for employers “to place an emphasis on self-policing in a company’s hiring practices. By following the prescribed steps of IMAGE, a company could lessen the likelihood of being found in violation of employment laws. IMAGE participation may be considered a mitigating factor in the determination of civil penalty (fine) amounts should they be levied. In addition, IMAGE membership can enhance your corporate image by associating your company with sound hiring practices, and helps to secure the homeland by reducing opportunities to inadvertently hire unauthorized workers.”

Clearly, participating in the IMAGE program is a significant commitment that carries real ongoing costs (annual internal audits, training) and potential costs (Form I-9 fines). While ICE has made an effort to “soften” the risk of being fined based on the Form I-9 inspection result, the fact that IMAGE is not offered as a safe harbor is one of the primary reasons employers are reluctant to participate in the program. For all of these reason, employers should consult with legal counsel before making a decision to enroll.

In light of some of the most recent ICE worksite enforcement statistics announced in October (see below), now more than ever employers should  consider strengthening their corporate employment eligibility verification compliance program.

In FY 2011, ICE:

• Conducted 2,496 I-9 audits, up from 503 in FY 2008
• Initiated 3,291 worksite enforcement cases, up from 1,191 in FY 2008
• Criminally arrested 221 employers, up from 135 in FY 2008
• Issued 385 Final Orders for $10,463,987 in fines, up from 18 Final Orders for $675,209 in fines in FY 2008
• Debarred 115 individuals and 97 businesses, compared to zero debarments in FY 2008

For more information on the IMAGE program, please visit: http://www.ice.gov/image/faqs.htm.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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[Editor’s Note: today’s post is brought to you by guest blogger John Manley, U.S. Immigration Attorney and Co-Liaison to U.S. Customs and Border Patrol.]

Taps for E-Verify in CA?

On October 9, 2011, Governor Jerry Brown signed into law A.B. 1236. A.B. 1236 prohibits local governments from making E-Verify mandatory for employers within their borders.

Here is the full text of the bill: A.B. 1236

As part of the bill, the Legislature made a number of interesting findings:

1) A 2007 independent evaluation commissioned by the federal Department of Homeland Security found that the electronic employment verification database was still not sufficiently up to date to meet requirements for accurate verification. This has led to employers being unable to hire employees in a timely manner and kept workers from earning wages.

2) Mandatory use of an electronic employment verification program would increase the costs of doing business in a difficult economic climate. The United States Chamber of Commerce estimates that the net societal cost of all federal contractors using the E-Verify Program would amount to $10 billion a year, federally.

(3) California businesses would face considerable odds in implementing such a program. Employers using the program report that staff must receive additional training that disrupts normal business operations. If E-Verify had been made mandatory for all [California] employers in 2010, it would have cost businesses $2.7 billion, $2.6 billion of which would have been borne by the small businesses, which drive our economy.

Cities such as Temecula, Lancaster, Murrieta, and Lake Elsinore did have existing E-Verify ordinances requiring private employers to use E-Verify. After A.B. 1236, these ordinances are now null and void.

Under A.B. 1236, therefore,except as required by federal law, or as a condition of receiving federal funds, neither the state nor a city, county, city and county, or special district shall require an employer to use an electronic employment verification system, including under the following circumstances:

(a) As a condition of receiving a government contract.

(b) As a condition of applying for or maintaining a business license.

(c) As a penalty for violating licensing or other similar laws.

“Employer” means an employer other than the state, or a city, county, city and county, or special district. Local government entities may still require other government entities to use E-Verify under A.B. 1236, and as required by federal law, or as a condition of receiving federal funds.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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Previously available only in five test states (AZ, CO, ID, MS and VA) and the District of Columbia, the E-Verify Self-Check on­­line system that allows job-seekers to check their own work eligibility has now been expanded to 16 additional states, CA, LA, ME, MD, MA, MN, MO, NE, NV, NJ, NY, OH, SC, TX, UT and WA.

The Self Check service is a free, Internet-based application that can be used by a U.S. worker over the age of 16 to confirm his or her employment eligibility. It is currently available in only these 21 states while it is evaluated and improved. Self Check is now available in Spanish and is expected to be available nationwide by March 2012.

Developed in response to a request by Congress to create a service through which U.S. workers could check their own employment eligibility status outside of the employer focused E-Verify process, Self Check can help take the mystery out of the employment eligibility confirmation process. After the user enters a small amount of information, the Self Check service will check that information against various government databases to determine the user’s eligibility to work in the United States.  Self Check will then return one of three results: Work Authorization Confirmed, Possible Mismatch with SSA, or Possible Mismatch with Immigration Information. If any mismatches are found between the information provided to Self-Check and the governments records, the system provides instructions on what steps to take to try to resolve the issue.

Employers are warned not to use Self-Check to pre-screen the employment eligibility of new hires. If an employer or potential employer asks to see a Self-Check query to prove work authorization, individuals are instructed to notify the Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices at 800-255-7688. Also, a positive Self-Check result does not guarantee that individuals will pass through E-Verify without issue at a later date. Self Check has the potential to benefit employees and employers by reducing the number of data mismatches during the E-Verify process  and thereby decrease the amount of time spent resolving those mismatches.  The Self-Check tool is available at www.uscis.gov/selfcheck.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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[Editor’s Note: today’s post is brought to you by guest blogger John Manley, U.S. Immigration Attorney and Co-Liaison to U.S. Customs and Border Patrol.]

On Wednesday, October 26, DHS Secretary Janet Napolitano testified before the United States House of Representatives Committee on the Judiciary. E-Verify was one of several topics in Secretary Napolitano’s testimony.

Here is the link to the entire DHS testimony:  NAPOLITANO

Highlights of Secretary Napolitano’s testimony include the assertion that USCIS has continued to improve E-Verify’s accuracy and efficiency, enhance customer service, and reduce fraud and misuse in a number of additional ways.  In addition, the Secretary points out that in March of this year, USCIS launched the new E-Verify Self-Check feature, an innovative service that allows individuals in the United States to check their own employment eligibility status before formally seeking employment.  Here is the portion of the testimony where Secretary Napolitano directly discusses E-Verify and Worksite Enforcement:

Worksite Enforcement and E-Verify

“DHS has implemented a smart and effective approach to worksite enforcement. By focusing on employers who knowingly and repeatedly hire illegal labor, we are targeting the root cause of illegal immigration, utilizing robust Form I-9 inspections, civil fines, and debarment, and enhancing compliance tools like E-Verify. Since Fiscal Year 2009, ICE has audited more than 6,000 employers suspected of hiring illegal labor, debarred 441 companies and individuals, and imposed more than $76 million in financial sanctions—more than the total amount of audits and debarments during the entire previous administration. In Fiscal Year 2011, ICE also criminally arrested 221 employers accused of violations related to employment, an agency record. In short, our approach to worksite enforcement has been working, and has been successful at bringing employers into compliance with the law.

As a corollary, we have strengthened the efficiency and accuracy of E-Verify – our web-based employment verification system managed by U.S. Citizenship and Immigration Services (USCIS) and designed to assist employers in complying with the law. As of Fiscal Year 2011, more than 292,000 employers have enrolled in E-Verify, representing more than 898,000 locations. More than 1,000 new employers enroll each week and the number of employers enrolled in E-Verify has more than doubled each fiscal year since 2007. In Fiscal Year 2011 alone, E-Verify processed 17.4 million employment queries.

In March of this year, USCIS launched the new E-Verify Self-Check feature, an innovative service that allows individuals in the United States to check their own employment eligibility status before formally seeking employment. This voluntary, free, fast, and secure service gives users the opportunity to submit corrections of any inaccuracies in their DHS and Social Security Administration records before applying for jobs, thereby making the process more efficient for employees and employers. The Self Check service is currently available in both English and Spanish to users who maintain an address in 21 states and the District of Columbia. Self Check will be available nationwide by March 2012.

USCIS has continued to improve E-Verify’s accuracy and efficiency, enhance customer service, and reduce fraud and misuse in a number of additional ways. To improve E-Verify’s accuracy, USCIS reduced mismatches for naturalized and derivative U.S. citizens by adding naturalization data and U.S. passport data to E-Verify. Because of this enhancement, in Fiscal Year 2011, more than 80,000 queries that previously would have received an initial mismatch requiring correction at the secondary verification stage were automatically verified as employment authorized. In June 2010, E-Verify launched improved navigational tools to enhance ease-of-use, minimize errors, and bolster compliance with clear terms of use. USCIS also has increased its staff dedicated to E-Verify monitoring and compliance, adding 80 staff positions to support monitoring and compliance since the beginning of Fiscal Year 2010. Finally, to more effectively address identity theft, USCIS now allows for the verification of passport photos through the E-Verify system.”

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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[Editor’s Note: today’s post is brought to you by guest blogger Bruce Buchanan, partner-in-charge of immigration practice, King & Ballow, LLP.]

Tennessee is one of 18 states that have passed legislation or have an executive order implementing E-Verify. However, the Tennessee Lawful Employment Act, which will become effective on January 1, 2012, is unique in that the use of E-Verify is not mandatory. Under the new law, an employer may enroll and use E-Verify for newly-hired employees, or it may accept, copy and maintain a state-issued driver’s license or identification, unexpired U.S. passport, permanent resident card, work authorization, birth certificate, certificate of naturalization, or a few other forms of identification from newly-hired employees.

You will note the documents above are redundant of documentation needed for I-9 verification. The only real difference is the requirement to maintain a copy of the identification document. Under the Immigration Reform and Control Act (IRCA), an employer is not required to maintain a copy of the presented documents from List A or Lists B and C.

A second provision in the law involves a “non-employee” providing labor or services to an employer. A “non-employee” is defined as “any individual, other than an employee, paid directly by the employer in exchange for the individual’s services.” If an employer contracts with an individual/non-employee, it must request and maintain a copy of one of the specified documents, such as state-issued driver’s license or identification. However, a subcontractor, who is not an individual, is not covered by this provision under the definition of non-employee.

An employer violates the law by failing to receive E-Verify confirmation or to request and maintain a copy of one of the specified identification documents. An employer has a “safe harbor” and cannot be found to have violated the law by employing an employee without work authorization if the employer utilized E-Verify and received a confirmation or the employee appealed the tentative non-confirmation and the appeal has not been resolved. This “safe harbor” is not available for employers who copy and maintain an employee’s driver’s license or identification if the employee is found to be working without employment authorization.

The Tennessee Lawful Employment Act will be phased in as follows: Employers with 500 or more employees and governmental entities must comply by January 1, 2012; employers with 200 to 499 employees by July 1, 2012; and employers with six to 199 employees by January 1, 2013. Employers with five or fewer employees are exempt from the law.

Any lawful resident of Tennessee or a federal agency employee may file a complaint with the Tennessee Department of Labor and Workforce Development, which will investigate such complaints. This provision is an extension of the current law which only allows state or local officials to file a complaint alleging an employer’s employment of an unauthorized worker.

The penalties for the new law are: First offense – $500 penalty + $500 per employee or non-employee not verified or copy of documentation maintained; second offense – $1,000 penalty + $1,000 per employee or non-employee not verified or copy of documentation maintained; and third offense – $2,500 penalty + $2,500 per employee or non-employee not verified or copy of documentation maintained

Most states that have passed E-Verify require it for all employers. Why is Tennessee different? In my opinion, two primary factors are the strength and the diversity of the Chamber of Commerce and the level of tourism in Tennessee. The Chamber of Commerce has opposed mandatory E-Verify. Further, Tennessee’s Chamber includes a lot of foreign-based employers, such as Nissan’s North American headquarters in the Nashville area, Volkswagen’s new manufacturing facility near Chattanooga and Wacker Chemie AG in east Tennessee.

The second apparent factor is tourism. Again, Tennessee strives to be a friendly state toward domestic and foreign tourists, and E-Verify can be viewed as unfriendly to an immigrant population. Interestingly, the only other state which just passed non-mandatory E-Verify is Louisiana, a state heavily reliant upon tourism.

After passage of this law in 2011 without mandatory use of E-Verify, the Tea Party supporters in Tennessee felt like the Republicans had abandoned them in favor of the Chamber of Commerce. The Tea Party supporters vowed to seek mandatory E-Verify in 2012. Only time will tell if they will be successful.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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Following the recent U.S. Supreme Court ruling that allows state and local governments to mandate the use of E-Verify and penalize violators, counties in Washington and Utah unanimously passed E-Verify ordinances yesterday.

Cowlitz County, WA now requires current contractors (and any employer vying for a county contract) to use E-Verify to prove that their workers are legal. This E-Verify requirement applies to any contractor employee who will work on the project, no matter how long they’ve been employed.

Commissioner James Misner called the decision a “no brainer,” saying that the federal E-Verify system is more accurate than simply taking a copy of a worker’s Social Security card and filing it with employment paperwork. Nearby counties of Clark and Lewis and the city of Woodland already require E-Verify, and backers of the new ordinance say that without the requirement, illegal immigrants would flock to Cowlitz.

Meanwhile in Utah, county commissioners enacted their own E-Verify ordinance. Beginning in mid-December, all places of business in the unincorporated areas of Washington County will be required to confirm the employment eligibility of new hires through the E-Verify system. While Utah currently has statewide E-Verify requirements (here and here), there are no penalties for non-compliance (other than ineligibility to enter state contracts) and it only applies to businesses with 15 or more employees.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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Ruling on the recently-enacted Alabama immigration law, (“H.B. 56″), Chief Judge Sharon Blackburn of the United States District Court for the Northern District of Alabama ordered that Alabama employers must begin complying with the E-Verify provisions of H.B. 56.

Effective on April 1, 2012, Alabama businesses must still confirm the work authorized status of all newly-hired workers using the federal E-Verify system, and face penalties for hiring unauthorized aliens (see our previous post for more details about H.B. 56)

Furthermore, as of January 1, 2012, a business must enroll in the E-Verify program, not knowingly employ, hire or continue to employ an unauthorized alien, and attest to both of those requirements by sworn affidavit in order to receive government contracts, grants or other incentives from the State.

Judge Blackburn did ease some burden on employers by eliminating several provisions of the Alabama law. First, the federal court enjoined Section 16 of H.B. 56, which prohibits taking a state tax deduction for wages paid to an unauthorized alien employee. Next, Section 17 was eliminated, which would have created an opportunity for a “discrimination” claim when an employer retained or hired an unauthorized alien over a documented worker.

Lastly, the federal court blocked the State of Alabama from enforcing Sections 11 (f) and (g) of H.B. 56, which make it illegal for an occupant of a motor vehicle stopped on the street to attempt to hire someone to work at a different location if it impedes traffic and for an individual to enter into a motor vehicle for such purpose if it impedes traffic. This section’s elimination makes compliance easier for small employers and contractors who often use roadside hiring to find laborers.

The fifth state to enact immigration laws since Arizona’s SB 1070 took effect, Alabama is the first to have these key provisions upheld. Although none of these rulings are final, Judge Blackburn’s final decision is likely to reflect these orders. Employers who violate these provisions face extremely costly fines and the risk their right to do business in Alabama.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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The growing patchwork of E-Verify laws at the state level continues. Beginning immediately, the state of Minnesota is again requiring E-Verify for its large contractors. After Gov. Mark Dayton dropped the previous E-Verify requirement in April, the mandatory work eligibility check quietly came back as a provision of the state’s final budget deal, approved last month. Please visit the Minnesota Public Radio website to read the full story.

Already in effect, this new law applies only to private businesses providing more than $50,000 worth of services to the state. These companies must enroll in E-Verify and check the work status of new hires.

The E-Verify mandate does not extend to new state employees, which is curious since under the previous E-Verify law state agencies were required to E-Verify all new hires.

In December 2009, the state directed all of its agencies to stop using a Texas I-9 software vendor, Lookout Services, which state officials had hired for the purpose of submitting data to E-Verify. The state notified approximately 500 employees that their personal data, including names, dates of birth and social security numbers, may have been accessible on the Lookout Services’ website [Full article].

The security issue came to light when Minnesota Public Radio was able to access state employee data on the software vendor’s web site without using a password or any encryption software. Allegedly, employee names, birth dates, social security numbers and hire dates were visible on the web site for every state agency using the service as well as a long list of private companies.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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