When Immigration Matters

Department of Justice Sues Vegas Casino for I-9 Problems

Posted by Karen-Lee Pollak on Sat, Jun 02, 2012 @ 10:30 AM

I-9, USCIS, ICEThe Justice Department announced today that it filed a lawsuit against Tuscany Hotel and Casino LLC in Las Vegas, alleging that the company engaged in a pattern or practice of discrimination in the employment eligibility verification and re-verification process. The Immigration and Nationality Act (INA) requires employers to treat all authorized workers equally during the hiring, firing and employment eligibility verification process, regardless of their national origin or citizenship status.

The complaint alleges that Tuscany treated non-citizens differently from U.S. citizens during the employment eligibility verification and reverification process by requesting non-citizen employees to provide more or different documents or information than required during the initial employment eligibility verification process, and demanded specific documents during the reverification process. The complaint further alleges that Tuscany subjected lawful permanent residents to unnecessary reverification based on their citizenship status after requesting and entering into the payroll system the expiration date of their Permanent Resident Cards (green cards) for purposes of reverification." - DOJ, May 31, 2012.

Expert Analysis on the E-Verify Program

Posted by Michael Pollak on Mon, Apr 09, 2012 @ 1:06 PM

Immigration Attorney, Karen-Lee Pollak provides expert analysis on the E-Verify Program publishing, The E-Verify Program: Is It All It’s Cracked Up To Be? in Law360.

Law360 is an American online media company based in New York City that publishes news and analysis on business law for its online subscribers. Current subscribers include each of the top 100 law firms in the U.S., corporate legal departments and major federal and state agencies. All told, the company provides litigation news and analysis to over 100,000 attorneys and 1,400 organizations.

E-VerifyE-Verify is an online, fully electronic federal database used for verifying if an employee is eligible to lawfully work in the United States. According to some reports, currently more than 60,000 businesses use E-Verify with over 1,000 signing up each week. Although E-Verify is mostly voluntary, E-Verify is required by law in some states, is required by federal contractors and federal agencies and subcontractors and some employers.

The strongest argument in favor of the use of the E-Verify program is that it protects employers where new hires present fraudulent identity documents. With E-Verify, even if a new hire passes the I-9 test by presenting the required documents to lawfully work in the U.S., E-Verify can detect if the document belongs to someone else or is fraudulent because it cannot be matched to a proper record in the Social Security or U.S. Department of Homeland Security’s databases.

However, the E-Verify program is not without its flaws. E-Verify is often criticized for high error rates and negatively affecting hiring practices. The sharpest criticism of E-Verify is that, while itverifies a match between a social security number and a name, it still has no way of knowing if the person actually presenting the information is in fact the person they say they are. As a result, the system is subject to an unauthorized worker using borrowed or stolen identity documents. A study conducted by Westat estimated in 2009 that 54 percent of unauthorized workers screened through E-Verify were incorrectly confirmed by the system because they used borrowed or stolen identity data.

Another common criticism is that E-Verify cannot reliably detect whether an employer is using the program consistently. If an employer enrolls in the E-Verify program, they are required to use the program for all new hires. An employer may only be using the program for those workers it suspects to be unauthorized thereby engaging in discriminatory hiring practices. Even worse, an employer may be enabling the hiring of unauthorized workers by not using the program for those workers it suspects do not have proper work authorization.

The program has also been criticized because it erroneously nonconfirms some legal workers and imposes additional time and costs on employers. Because of user and database error, E-Verify does not always successfully confirm the work eligibility of citizens or permanent residents lawfully allowed to work. Sometimes a nonimmigrant who was not lawfully allowed to work has now become a permanent resident and is allowed to work. There also may be false social security mismatches where a person has changed their name as a result of marriage. These status changes may not be properly recorded in the federal databases.

While it is true that these errors may be remedied, often to do so means taking several hours off work to visit various federal offices to correct these errors and that is only if employers advise the new hire of the glitch. Sometimes employers do not notify prospective new hires of these glitches because they have improperly used E-Verify to prescreen job applicants. Therefore, some employers avoid hiring or terminate legal workers because of E-Verify errors. There is also growing concern that E-Verify will expose individuals to greater identity theft as more people and agencies have access to this database.

So what can we do to perfect this system? Both the Bush and Obama administrations have created a photo-matching tool to determine if a photo identification document presented by a worker matches the photograph in the E-Verify system. While this is a step in the right direction, it only applies to those workers who present documents with photo identification that evidence work authorization such as permanent residency cards or U.S. passports. As a result, some employers are unlawfully requesting that employees present certain documents as part of the employment verification process either to bypass the photo-matching tool or to ensure that it is used.

To combat these disadvantages, some lawmakers are suggesting that all workers provide biometrics that can be matched to the E-Verify system. For this to work, E-Verify would have to become mandatory for all employers. There are also constitutional concerns with requiring all workers to be fingerprinted in order to be allowed to work in the U.S. Such a proposition smacks of George Orwell’s “Big Brother is watching,” not to mention the exorbitant cost to fingerprint every worker.

While the E-Verify program is good in theory, we cannot make it mandatory until we iron out its quirks, impose civil and criminal penalties for improper use of the E-Verify system and most importantly create a path to lawful work authorization for those illegal workers in the United States. Making E-Verify mandatory without immigration reform will simply move more illegal workers off the radar, as they will no longer pay taxes and employers will simply take them off the payroll to avoid detection resulting in lower wages and less taxes paid to the government.

USCIS Seeks Comment on Revised I-9 Form

Posted by Karen-Lee Pollak on Tue, Mar 27, 2012 @ 2:47 PM
 I-9, USCISToday, March 27, 2012 U.S. Citizenship and Immigration Services (USCIS) published a notice in the Federal Register inviting public comment on a revised Form I-9, Employment Eligibility Verification. Employers must complete Form I-9 for all newly-hired employees to verify their identity and authorization to work in the United States. The public is invited to comment on the revisions until May 29, 2012.

Key revisions to the form include:

  • Expanded Form I-9 instructions and a revised layout.
  • New, optionaldata fields to collect the employee’s email address and telephone number.
  • New data fields to collect the foreign passport number and country of issuance. Only aliens authorized to work in the U.S. who have also recorded their I-94 admission number on Form I-9 will need to provide the foreign passport number and country of issuance.

The public may comment on the revisions by visiting www.regulations.gov, which provides instructions on how to comment on the proposed revisions to Form I-9. The comment period runs for 60 days, beginning today and ending May 29, 2012.

The current version of Form I-9 is available on USCIS’s online I-9 resource center at www.uscis.gov/I-9central. I-9 Central includes information about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization.

USCIS will post information regarding a new Form I-9 on I-9 Central once the form has been finalized.Until a new version is approved and posted, employers must continue to use the current version of the form.

Immigration Attorney Karen-Lee Pollak Talks I-9 in Texas Lawyer

Posted by Michael Pollak on Fri, Feb 03, 2012 @ 11:58 AM

Karen-Lee PollakImmigration Attorney Karen-Lee Pollak provides nine tips to pass the I-9 ICE test in this week's issue of Texas Lawyer. 

Under President Barack Obama's administration, U.S. Immigration and Customs Enforcement has shifted its enforcement focus away from the worker and toward the employer. This has increased worksite investigations and the levy of substantial fines, penalties and criminal charges. If that weren't enough for the legal department to worry about, shareholders may bring director-and-officer civil suits connected with the company's hiring of undocumented workers or alleging inadequate due diligence of an acquired or merged company's immigration procedures.

Federal law requires employers to verify all new employees' employment eligibility within three business days of hire by completing and retaining Form I-9. Employees must complete the form within 24 hours of hire. While on its face the form appears quite simple, it can be confusing and difficult to complete. Given that, what lessons can in-house counsel learn to help their companies avoid punitive fines for faulty recordkeeping?

Read the rest of the article...

USCIS Launches I-9 Central For Employment Eligibility Verification

Posted by Karen Pollak on Fri, May 13, 2011 @ 12:59 PM

U.S. Citizenship and Immigration Services (USCIS) today launched I-9 Central, a new online resource center dedicated to the most frequently accessed form on USCIS.gov: Form I-9, Employee Eligibility Verification.

This free, easy-to-use website builds on recent employment-related enhancements by providing employers and employees simple one-click access to guidance to properly complete Form I-9 and better understand the Form I-9 process.

The launch of I-9 Central follows the introduction of other important USCIS employment-related resources. These resources include E-Verify Self Check, a service launched in March that allows workers and job seekers in the United States to check their own employment eligibility status online, and an updated “Handbook for Employers: Instructions for Completing Form I-9 (M-274)” published earlier this year.

I-9 Central includes sections about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization. I-9 Central also includes a discussion of common mistakes to avoid when completing the form, guidance on how to correct errors, and answers to employers’ recent questions about the Form I-9 process.

Federal law requires every employer and agricultural recruiter/referrer-for-a-fee hiring an individual for employment in the United States to verify his or her identity and employment authorization through completion of Form I-9, Employment Eligibility Verification.

Click me 

USCIS Releases 2011 Handbook for Employers M-274 | Immigration

Posted by Karen Pollak on Wed, Jan 19, 2011 @ 8:44 AM

New M-274 Handbook For Employers Fills Gaps In Form I-9 Guidance

by Avalyn Langemeier, Susan K. McConn and Kari Konikowski

M-274The United States Citizenship and Immigration Services (USCIS) recently issued new guidance for employers on the Form I-9 process. The Handbook for Employers (Rev. 01/05/2011), also known as the Form M-274, has been updated and revised to provide guidance to employers on how to complete the Form I-9, Employment Eligibility Verification. The Form I-9 must be completed for every worker hired after November 6, 1986, regardless of whether the employee is a U.S. citizen or not. The following is a summary of the changes found in the revised Handbook:

Employees with Temporary Protected Status (TPS), Pages 10 - 11

TPS is a temporary immigration benefit that allows foreign nationals from designated countries to reside and work in the United States for a temporary period of time. The Department of Homeland Security may extend a country's TPS designation and issue a Federal Register notice to automatically extend expiring Employment Authorization Documents for TPS beneficiaries. Thus, a TPS beneficiary may choose to present an Employment Authorization Document that is expired on its face so long as it has been automatically extended. The challenge to employers is how to determine whether a TPS beneficiary's expired Employment Authorization Document is valid as a List A document.

The Handbook now provides guidance on how to identify a TPS Employment Authorization Document, how to determine whether the Department of Homeland Security has issued an automatic extension of expiring Employment Authorization Documents, and how to explain that the TPS status was extended on the Form I-9.

J-1 Exchange Visitors & F-1 Students, including F-1s Changing to H-1B Status ("The Cap Gap"), Pages 11- 16

The Handbook provides a detailed explanation on how to complete Form I-9 for those individuals in J-1 exchange visitor status (pages 11-13) and F-1 and M-1 student status (pages 13-15). Additionally, the Handbook explains how to complete the Form I-9 for F-1 students who are changing status to H-1B and are eligible for a "cap-gap" extension of status and employment authorization. The Handbook confirms that the student's employment authorization will remain valid through September 30 of the calendar year for which the H-1B is filed, so long as the student's H-1B status will begin on October 1. Additionally, the Handbook advises that an employer must re-verify a student's Form I-20. The Form I-20 must show that the cap-gap extension was endorsed by the student's designated school official. Re-verification must be done no later than October 1.

H-1B Employees Changing Employers (Portability), Page 17

The Handbook now states that an employee in valid H-1B status who changes ("ports") to a new employer can begin to work with the new employer upon filing an H-1B petition with USCIS. The prior 2009 version of the Handbook required the porting H-1B employee to obtain a Form I-797 Receipt Notice from U.S. Citizenship and Immigration Services (USCIS) prior to beginning work with the new employer. This approach created considerable delay because it often takes USCIS weeks to issue the official Form I-797 Receipt Notice.

The current version of the Handbook explains that a porting H-1B employee may begin employment by presenting his or her Form I-94/ I-94A issued for employment with the previous employer, along with his or her foreign passport, as a List A document. The employer should write "AC21" on the Form I-9, record the date that the new H-1B petition was submitted to USCIS in the margin next to Section 2 of the Form I-9, and attach documentation as specified in the Handbook.

Extensions of Status, Pages 17 and 18

The Handbook explains that an employee with a petition for extension of status timely filed before the employee's work authorization expires is eligible for continued work authorization for up to 240-days beyond the expiration date of the authorization as long as the extension remains pending. The Handbook provides a detailed explanation on how to complete the Form I-9 and the documentation to be attached for individuals in E-1, E-2, H-1B, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1 and TN status who have timely filed extensions with the same employer.

Where an H-1B extension is timely filed and the extension remains pending, the employer should write "240-Day Ext." and record the date the employer submitted the Form I-129 to USCIS in the margin of Form I-9 next to Section 2. (Page 17)

Additionally, the Handbook expands upon what documentation should be added to the Form I-9. Previously, the employer was advised to attach only the USCIS Form I-797 Receipt Notice. Now, the Handbook adds that the employer should retain the following documents with the Form I-9 in this situation:

1. A copy of the new Form I-129 that was filed for the extension,

2. Proof of payment for the filing of the new I-129, and

3. Evidence that the new Form I-129 was mailed to USCIS.

4. After the extension is filed, USCIS will issue a receipt notice (Form I-797(C)), which should also then be added and retained with the Form I-9.

When the extension of stay is approved, the employer should record in Section 3 the document title, number and expiration date listed. The Handbook also adds that the employer must give to the employee the Form I-94A, which is evidence of the employee's employment authorized nonimmigrant status.

Interruptions in Employment, Page 20

The Handbook now provides guidance to employers that are uncertain about whether a new Form I-9 is required after an employee has experienced a brief interruption in employment. The Handbook provides examples of situations which include "continuing employment," such as maternity or paternity leave, leaves of absence, transfer from one business unit to another business unit of the same employer, the same employer at another location, etc. An employer is not required to complete a new Form I-9 in these situations so long as there is a reasonable expectation of employment at all times.

Electronic Retention of Forms I-9 and Documentation of Electronic Storage Systems, Page 24

The Handbook offers expanded guidance to employers that use paper, electronic systems, or a combination of paper and electronic systems to retain a Form I-9. Employers must follow certain guidelines should they choose to retain Forms I-9 in an electronic generation or storage system, and these guidelines are outlined in the Handbook. One requirement is that an employer must maintain and make available upon request complete descriptions of the electronic generation and storage system and the indexing system that permits the identification and retrieval of documents and records maintained in the system. Employers that are currently using an electronic retention system or contemplating the future use of an electronic retention system should review the information outlined in the Handbook and consult with immigration counsel.

E-Verify and Federal Contractors, Pages 19 and 35

The previous version of the Handbook offered guidance to employers regarding participation in E-Verify and the corresponding Form I-9 responsibilities, such as maintaining a photograph of a List B document. The new version of the Handbook provides additional guidance to Federal contractors about their responsibilities under the amended Federal Acquisition Regulation (FAR) related to employment eligibility verification. The Handbook explains that the regulation requires contractors with a federal contract that contains a FAR E-Verify clause to use E-Verify for their new hires and all employees (existing and new) assigned to the contract. The Handbook also states that where an employee working for a FAR employer undergoes a name change and the employer chooses to verify existing employees by updating existing Forms I-9, then a new Form I-9 must be completed.

Questions and Answers Section, Pages 37 - 49

The Handbook has expanded upon its Questions and Answers (Q&A) section in an effort to provide clarification to employers in a variety of situations related to Forms I-9, including the following helpful information: 

  • A Native American tribal document is acceptable as both a List B and List C document, and no other documents need be presented. For a current list of tribes recognized by the U.S. federal government, employers may visit the website of the Bureau of Indian Affairs at www.bia.gov. A Certificate of Indian Status does not constitute an acceptable Native American tribal document and may not be accepted for Form I-9 purposes, (pages 38-39);
  • An employer may accept a Social Security Card that has not been signed as a valid List C document, (page 39);
  • An employee may present an unexpired Form I-94 card notated with work-authorized status in two situations: 1) as a List A document along with his or her foreign passport; or, 2) as a List C document demonstrating work authorization from USCIS, (page 41);
  • Employers may accept documents bearing a different name than that which the employee has indicated in Section 1 of the Form I-9, so long as the documents reasonably relate to the employee. The employer may want to attach a brief memo to the Form I-9 detailing the employee's reason for the name discrepancy, including copies of any supporting documentation the employee chooses (but is not required) to provide, (pages 41-42);
  • Significantly more information is provided for employers in the Commonwealth of the Northern Mariana Islands (CNMI), including eight additional Q&As and pictures of sample documents that may be acceptable for Form I-9 purposes in the CNMI only (pages 48-49, 59).

Immigration questions?  We have answers.  Free consultation available | 800-969-5529

Posts by category