E-Verify & I-9 News

[Editor’s Note: today’s post is brought to you by guest blogger Katie Nokes Minervino, Associate Attorney in the Immigration Group at Pierce Atwood LLP. Katie assists employers and employees in employment authorization needs and provides clients with support and guidance on employment verification requirements, best practices, and audit response.]

So you’ve taken the plunge and enrolled in E-Verify. Here are best practice tips to avoid the less-obvious pitfalls of E-Verify use.

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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Recently, USCIS added an important update to their E-Verify website that attempts to clarify the definition of a “hire date” and the timing requirements for when employers are expected to complete Section 2 of the Form I-9 and when to E-Verify.  In what can only be described as a sweeping change with widespread implications, USCIS states that employers are to complete the I-9 and run the E-verify case no later than three business days after an employee starts work for pay. Here’s the key passage (check out the full webpage here):

If the employee starts work for pay on Monday, the third business day after the employee started work for pay is Thursday (assuming all days were business days for the employer).  The first day the employee starts work for pay is not included in the three business day calculation. (emphasis added)

This issue of when to start counting the number of days an employer has to complete Section 2 and run the E-verify case has been a grey area subject to debate, especially since the Form I-9 and E-Verify literature use slightly different language to define the requirement,  sometimes even within the same document as with the M-274, Handbook for Employers (see pages 5 and 6). Given these murky waters, many employers have taken the conservative approach and begin the count with the employee’s start date as day one for determining the third day of work. By comparison, under these new guidelines, USCIS has effectively extended the Section 2 and E-Verify deadline by a full business day.

While it’s generally good news to receive more leeway from regulators for meeting compliance deadlines, before making any changes to I-9 policies or procedures, such as allowing for an additional day to complete Section 2, employers are strongly encouraged to seek legal advice from informed counsel. Furthermore, there are still several unanswered questions that require DHS clarification, so it’s unlikely that this will be the last that we will hear on this important topic. For example, will Immigration and Customs Enforcement (ICE) issue concurring guidance? After all, ICE is the DHS agency charged with conducting I-9 audits that can result in significant penalties. According to unconfirmed sources, ICE has agreed to respect USCIS’ “Thursday Rule.” If this is true, we hope USCIS and ICE move quickly to harmonize their documentation and field training in a transparent and consistent manner, including updates to the M-274.

The USCIS update also provides instructions to employers for how to create an E-Verify case for a new employee once they have accepted an offer and completed Form I-9. Be warned that these directions are confusing. USCIS instructs employer to enter the current date in E-Verify if the Form I-9 contains a hire date that is forthcoming, since the E-Verify system won’t accept a future hire date. If the employee’s hire date is today or a previous date, enter the hire date on the Form I-9 in E-Verify. To summarize, USCIS published the following chart and admission on its website:

We realize the term “hire date” in E-Verify is confusing because its meaning can vary depending on:

• When the employee starts work for pay
• The date the case is created in E-Verify

Regardless of which approach an employer takes, it’s always a best practice to be consistent and create a procedure for your company’s I-9/E-Verify policy and training materials.

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.

In December 2009, the government of Puerto Rico passed new sweeping legislation that, effective July 1, 2010, invalidates all Puerto Rican birth certificates issued before July 1, 2010. A common reaction to this news is to ask the obvious. Why the drastic change?  For an answer, we looked to the Puerto Rico Federal Affairs Administration (PRFAA) fact sheet, which provides an overview of the rationale behind the new legislation. In brief, it appears that the goal of this mandate is to reduce fraud and identity theft.

So how does the new statute impact the I-9 process? At the time of this post, the Department of Homeland Security (DHS) has yet to officially release published instructions to employers concerning this matter. However, Tracker has learned on good authority that according to the U.S. Citizen and Immigration Service – Verification Branch the following guidance is expected to be included in the next revision of the DHS I-9 Handbook for Employers (M-274):

Beginning July 1, 2010, all certified Puerto Rico birth certificates issued before July 1, 2010 will be invalid. The statute also prohibits, as of January 1, 2010, public or private entities from retaining [original Puerto Rican] birth certificates.

After July 1, 2010, the Vital Statistics Office of Puerto Rico will begin issuing a new type of certified birth certificate to citizens from Puerto Rico. The new certificates will be acceptable List C documents for Form I-9 purposes.

The prohibition on retaining Puerto Rico birth certificates does not prevent employers from retaining photocopies or electronic copies of these certificates during the Form I-9 process, if they choose to do so. The statute only prohibits retention of actual certified birth certificates. Employers who choose to retain copies of employee documentation must do so for all employees, regardless of national origin or citizenship status, to avoid discriminatory practices.

For further information about E-Verify or Form I-9 employers may call the E-Verify Customer Support at 1-888-464-4218 or send an email to: e-verify@dhs.gov.

Tracker spoke with a DHS E-Verify Customer Support Representative who confirmed these guidelines, with the caveat that the exact language is subject to change pending approval by the DHS policy review board. The DHS Representative also verified that a receipt showing that the employee has applied for, but not yet received, a new Puerto Rican birth certificate is acceptable for completing Section 2 of a Form I-9 under the “receipt rule.” As a reminder, in certain circumstances, receipts for application of a replacement document can be accepted in lieu of original documents in the I-9 process, in which case an employee must present the replacement document to complete Form I-9 within 90 days from date of hire or, for reverification, the date employment authorization expires.  You can find more information on the “receipt rule” in the M-274 Handbook.

Additional information on the new Birth Certificate law is available on the PRFAA website. In order to obtain a new birth certificate, individuals born in Puerto Rico will need to submit a completed Birth Certificate Application Form and remit any applicable fees to the Puerto Rico Vital Statistics Record after the new law takes effect.

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.

As of April 3, 2009, all U.S. employers must use a new version of the Form I-9 (dated 2-2-09), to verify the work eligibility of new hires. Here’s what you need to know about the new form:

Employers can no longer accept expired documents

Previously, the U.S. passport and all List B documents were acceptable, even if expired.

This latest version of the I-9 form includes a revised “List A” set of documents

List A documents are those that establish both a worker’s identity and employment authorization. The following documents have been added: Foreign passports containing the I-551 permanent residence notation printed on a machine-readable immigrant visa; the new U.S. Passport Card; passports and certain other documents for citizens of the Federated States of Micronesia and the Republic of the Marshall Islands.

Certain documents have been removed from List A

The following documents have been eliminated from List A: Forms I-688 (temporary resident card) and the I-688A and I-688B (Employment Authorization Cards) which are no longer issued.

Several changes were also made to Section 1 of the I-9 form

Section 1 is where the employee provides biographic information and attests to his or her employment status. In particular, the form has been revised to include a separate section for non-citizen nationals of the U.S., such as persons born in American Samoa; certain former citizens of the former Trust Territory of the Pacific Islands; and certain children of noncitizen nationals born abroad.

The new form is available on the USCIS web site here: http://www.uscis.gov/i-9.

As before, the new I-9 form can be completed electronically

Employers should consider switching over to an electronic I-9 solution, such as Tracker I-9 , which offers built-in compliance rules and peace of mind in knowing that you’re always using the latest version of the I-9. More information on Tracker I-9′s lastest release was published on Friday.

Another I-9 rule is scheduled to be published on Monday, February 23, 2009, which concerns verifying employment authorization for foreign nationals enlisted in the U.S. Armed Forces (Army, Navy, Air Force, Marines, Coast Guard). In essence, the rule provides for employer-specific employment authorization for those foreign nationals who do not otherwise have work authorization that would permit enlistment (e.g., those in nonimmigrant status) who are deemed to be “vital to the national interest.” For example, one of these Armed Forces could determine that a foreign national nurse be enlisted because they have a shortage of medical personnel. Although US law has provided for this scenario, the actual regulations and Form I-9 have not. The rule now closes this gap.
 
The rule also adds the military identification card to list A (documents acceptable for establishing employment eligibility and identity) to the I-9 form, but only for use by the Armed Forces to verify employment eligibility of aliens lawfully enlisted in the Armed Forces.
 
Note – this final rule does not change or modify the Form I-9 document list for private or public employers other than the Armed Forces; private or public employers other than the Armed Forces may not accept a military identification card as a List A document to satisfy documentation requirements of the Form I-9. For other employers, a military identification card may continue to be accepted only as a List B identification document.
 
The rule is scheduled for publication on 2/23/09. It’s unclear whether the 2-2-09 form I-9 (currently scheduled to go into effect on April 3, 2009) will be revised again to reflect the change to List A.

An advance copy of the rule is available through the Office of the Federal Register.

U.S. Citizenship and Immigration Services (USCIS) announced today that it is extending the effective date of its interim final rule “Documents Acceptable for Employment Eligibility Verification” for 60 days until April 3, 2009. The rule which was originally published in the Federal Register on December 17, 2008 was slated to go into effect on Monday, February 2, 2009.

As previously reported , the new I-9 rule makes minor changes to the Form I-9, revises the list of acceptable documents and stipulates that employers can no longer accept expired documents. USCIS posted the new I-9 form to its web site on January 18th, but as a result of today’s announcement, they are now advising employers to only use the new form on or after April 3, 2009. Until that time, employers should continue using the 06/05/2007 version, which is also available online .

The delay of the I-9 rule (along with the E-Verify Federal Contractor Rule delay) comes as a result of a memo issued by the Obama Administration last week, which directed all federal agencies and departments to consider extending the effective date of any regulations which have not yet taken effect so that the new administration can review them. USCIS also is extending the comment period for this rule for an additional 30 days.

Yesterday, the Obama administration sent a memo to federal agencies and departments, directing them to freeze any pending rules until they’ve had time to conduct a “legal and policy review” of each one. Apparently, this type of directive is normal for incoming presidents, but it does raise an interesting question as to whether the effective dates of the E-Verify federal contractor rule or even the new I-9 rule will be extended.

Although both rules have already been published, the memo from Chief of Staff Rahm Emanuel directs the agencies to “consider extending for 60 days the effective date of regulations that have been published in the Federal Register but have not yet taken effect…for the purpose of reviewing questions of law and policy raised by those regulations.”

Since the E-Verify rule in particular raises substantial questions of law and policy, it seems likely that it may be delayed again…note though, that most insiders still consider its implementation to be inevitable.

A final version of the new Form I-9 has been posted to the USCIS web site to be used by employers on or after February 2, 2009. USCIS revised the form based upon a new interim final rule which alters the list of acceptable documents and also prohibits employers from accepting expired documents as part of the I-9 employment verification process. A summary of the new I-9 rules can be found in our earlier post on the subject.

USCIS will also be publishing a new I-9 employer handbook, which will include updated instructions and sample identity and work authorization documents.

Despite this new form’s availability, employers should continue using the 6/5/2007 version of the Form I-9 until February 2, 2009.