Immigration Law Blog

I-9 Compliance and H-1B/L-1 Fraud Detection Take Center Stage

The Department of Homeland Security (DHS) has clarified that employers who fail to comply with applicable immigration law will face severe consequences. Just yesterday, on November 19, DHS sent out a notice that it intends to audit 1,000 additional employers. This notice, of course, is in addition to the one sent out in July of this year. In that notice, 654 employers were informed that their I-9 forms would be inspected. Those earlier inspections, thus far, have yielded the following results:

1. ICE agents reviewed more than 85,000 Forms I-9 and identified more than 14,000 suspect documents—approximately 16% of the total number reviewed thus far.

2. To date, ICE has issued 61 Notices of Intent to Fine, resulting in $2,310,255 in fines.

<3. ICE continues to review 267 cases, with the options of fining those companies or even referring egregious violators for criminal prosecution.

4. ICE closed 326 cases after the businesses were found to be in compliance with applicable immigration laws or after they were served with Warning Notices in expectation of future compliance.

Employers who fail to establish and implement effective I-9 compliance programs face substantial civil liability and, increasingly, the possibility of criminal prosecution.

In addition to the dramatic increase in I-9 inspections, DHS has established the Fraud Detection and National Security Division (FDNS). With nearly 600 officers, and with over $90 million dollars in funding (arising from the $500 fraud detection fees for each initial H-1B or L-1 petition), FDNS has announced its plans to inspect over 25,000 employers (up from just over 5,000 in fiscal year 2009). FDNS has already begun to dispatch officers to worksites throughout the United States. In these onsite visits, the officers ask to meet with human resources personnel and employees to evaluate whether the H-1B employees work at the company, receive the wages outlined in the nonimmigrant visa petition and labor condition application, and perform the precise duties outlined in the petition. In the event that discrepancies are discovered, the visiting officer will make a finding of fraud and refer the case for further investigation. Because the consequences for visa fraud are extreme (with a potential of up to 10 years per violation), employers will need to be sure they are taking appropriate steps to comply with all aspects of the visa process for their H-1B and L-1 employees.

Finally, not to be left out, the Department of Labor (DOL) has also begun to increase its investigation of Public Access Files (PAFs). These PAFs are required for each H-1B petition. Employers who fail to maintain their PAFs properly will face the possibility of back pay to H-1B workers (and sometimes similarly employed American workers), civil money penalties of up to $1,000 to $35,000 per violation, disqualification from the immigration benefits process, and, of course, criminal prosecution in extreme cases.

In light of these developments in immigration enforcement, the time has come for employers to establish effective compliance programs. All employers must have effective I-9 verification procedures and compliance programs in place. And the employers who rely upon foreign-born labor, using the H-1B and L-1 visa programs, will need to ensure that they have developed and implemented effective compliance measures to prepare for the likelihood of FDNS onsite visits and DOL audits.

EB-5 Pilot Program and Religious Worker Programs Extended

President Obama has signed into law the FY 2010 appropriations bill for the Department of Homeland Security.  The law (Pub. L. No. 111-83) extends four immigration programs for three years, until September 30, 2012: (1) the EB-5 immigrant investor pilot program (section 548); (2) the non-minister religious worker program (section 568 of the law); (3) the "Conrad 30" program for certain J-1 foreign doctors (section 568); and (4) the E-Verify program for electronic verification of workers' eligibility (section 547).

The law also includes a provision directing USCIS to complete processing of permanent residence applications for surviving spouses and other relatives of immigration sponsors who die during the application process (section 568).

Federal Contractors Required to Use E-Verify Beginning Sept. 8, 2009

Effective Sept. 8, 2009, federal contractors and subcontractors are required to use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify Clause.  E-Verify compares information from the Employment Eligibility Verification Form (I-9) against Social Security Administration databases to verify workers’ employment eligibility

The Federal Acquisition Rule; Case 2007-013; Employment Eligibility Verification extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds.  Applicable federal contracts awarded and solicitations issued after Sept. 8 will include a clause committing government contractors to use E-Verify. 

Companies awarded a contract with the E-Verify clause on or after Sept. 8 will be required to enroll in E-Verify within 30 days of the contract award date.  E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the United States. 

More information on the program is available on the "E-Verify" Web site link:  www.dhs.gov/e-verify

Update on Expiration Date of Employment Eligibility Verification Form I-9

USCIS announced that the Office of Management and Budget has extended its approval of Form I-9 (Employment Eligibility Verification) to Aug. 31, 2012. Consequently, USCIS has amended the form to reflect a new revision date of Aug. 7, 2009.

Employers may use the Form I-9 with the revision date of either Aug. 7, 2009 or Feb. 2, 2009. The revision dates are located on the bottom right-hand portion of the form.

For more information on USCIS and its programs, or to obtain Form I-9 and the Handbook for Employers, see the corresponding link to the right under "Related Links" or by calling the toll-free forms line at (800) 870-3676.

USCIS forms and information on immigration laws, regulations, and procedures can also be requested by calling the National Customer Service Center toll-free at (800) 375-5283.

H-2B Travel and Visa Costs Are the Responsibility of Employers in Some Cases

With new enforcement authority, the U.S. Department of Labor, Wage and Hour Division issued Field Assistance Bulletin No. 2009-2 on August 21, 2009 concluding that in the context of the H-2B temporary non-immigrant visa program, all travel and visa costs are incurred for the primary benefit of the employer. Therefore, the employer must reimburse those costs in the first workweek to the extent that they reduce the employee's wages below the minimum wage.

The Department of Homeland Security delegated to Wage and Hour enforcement authority to ensure that H-2B workers are employed in compliance with the H-2B labor certification requirements. Wage and Hour issued regulations implementing this authority, 29 C.F.R. Part 655, which became effective on January 18,2009.

"No-Match" Rule to be Rescinded

DHS announced that it will be proposing a new regulation rescinding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect.  That rule established procedures that employers could follow if they received SSA No-Match letters or notices from DHS that called into question work eligibility information provided by employees.  The notices often informed an employer many months or even a year later that an employee’s name and Social Security Number provided for a W-2 earnings report did not match SSA records and often the problems were due to typographical errors or unreported name changes.  DHS claims the E-Verify system addresses data inaccuracies in a more timely manner and provides a more robust tool for identifying unauthorized workers.

Form I-9 Remains Valid Beyond Current Expiration Date of June 30, 2009

USCIS announced that the Employment Eligibility Verification Form I-9 (Rev. 02/02/09) will continue to be valid for use beyond June 30, 2009.  USCIS has requested that the Office of Management and Budget approve the continued use of the current version of Form I-9 which indicates in the upper right hand corner "Expires 06/30/09.". While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire.  USCIS will update Form I-9 when the extension is approved.

ICE Priorities for Worksite Enforcement Clarified

DHS Secretary Napolitano issued guidance on April 30, 2009 clarifying that effective immediately, Immigration and Customs Enforcement (ICE) will focus resources in its worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration.

ICE will look for evidence of the mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct.  ICE offices will obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney's Office (USAO) to prosecute the targeted employer before arresting employees for civil immigration violations at a worksite.  

ICE will continue to arrest and process for removal any illegal workers who are found in the course of these worksite enforcement actions in a manner consistent with immigration law and DHS priorities. Humanitarian guidelines will remain in effect, impacting worksite enforcements involving 25 or more illegal workers. This reflects a change from the previous threshold of 150.

In a related matter, the Supreme Court reversed lower courts and held that a conviction of aggravated identity theft requires that an individual know that the identification used belongs to another person. (Flores-Figueroa v. United States, 5/04/09).

Charges of aggravated identity theft were brought against many of the workers arrested in the raid of the Agriprocessors meatpacking plant in Postville, Iowa in May, 2008.  Critics of the tactic believe the government unfairly coerced detainees into accepting plea deals and five month prison sentences on lesser charges with the threat of more lengthy sentences that could have been imposed under the aggravated identity theft charges.

U.S. Department of Labor Activates iCERT Portal

The U.S. Department of Labor has activated its new iCERT system for filing the new Labor Condition Application Form 9035E for the H-1B program. The system is located at http://icert.doleta.gov The current electronic LCA system will continue to be available through May 14, 2009. However, effective May 15, 2009, LCAs will be available for submission only through the iCERT portal system and the current electronic version of the Form ETA 9035E will be deactived.

The PERM application, Form ETA 9089, will become available for application submission on September 1, 2009 on the iCERT portal. To allow for an appropriate transition, both systems will be active during the month of September. However, beginning October 1, 2009, PERM applications will be submitted electronically only through iCERT system accounts. The Department will deactivate the current electronic version of the Form ETA 9089 on October 1, 2009. Employers are encouraged to copy all necessary application information into the new iCERT system prior to these deactivation dates. The status of applications submitted prior to deactivation will continue to be available through current system accounts.

Revised Form I-9 Now Required

Form I-9, Employment Eligibility Verification with revision date of 02/02/09 must now be used by all U.S. employers. Employers may no longer use previous versions of the Form I-9. The revision date is printed on the lower right-hand corner of the form. 

The new form revised the list of documents acceptable for the Employment Eligibility Verification to improve the security and effectiveness of the Form I-9 process. The list specifies that expired documents are no longer acceptable forms of identification or employment authorization.  Allowing for expired documents makes it more difficult for employers to verify an employee’s identity and employment authorization and compromises the Form I-9 process.

USCIS also updated the Handbook for Employers – Instructions for Completing Form I-9 to reflect the requirements of the revised Form I-9.  For more information on USCIS and its programs, or to obtain the revised Form I-9 and handbook, visit www.uscis.gov.or call the toll-free forms line at 1-800-870-3676.