USCIS Introduces New U.S. Passport Photo Matching For E-Verify

On October 4, the U.S. Citizenship and Immigration Services ("USCIS") hosted a webinar for employers to introduce the latest improvement to the E-Verify system, the addition of U.S. Passports and Passport Cards (collectively, "Passports," and individually, a "Passport") to the photo-matching process.

 

Photo matching is a feature of E-Verify that allows an employer to compare a newly hired employee's Employer Authorization Document ("EAD") or Permanent Resident Card ("Green Card") to the image of the card stored in the database of the U.S. Department of Homeland Security ("DHS"). However, this feature may be used only after: (i) the employee has attested to being a lawful permanent resident and/or authorized to work in the United States; (ii) the employee presents a newer version of a Green Card or EAD at his or her own initiative; (iii) E-Verify has confirmed the employee's employment eligibility; and (iv) any Tentative Nonconfirmations ("TNC") from the Social Security Administration or USCIS have been resolved. The present photo-matching process does not currently have the capability to verify the authenticity of older green cards, older EAD cards, or any of the other identification documents that an employee may present when completing the I-9 process.

 

Although part of E-Verify's overall photo-matching process, the photo-matching process for Passports has some key differences compared to the photo-matching process used for Forms I-751 (Green Cards) and I-766 (EADs). For example, one difference involves when to display a TNC case result. With the photo-matching process for Passports, if the employee presenting a Passport receives a TNC before the photo-matching step and then resolves the TNC, E-Verify will require the employer to complete the photo-matching step before displaying a case result. In the photo-matching process for Green Cards or EADs, if the employee presenting a Passport receives a TNC before the photo-matching step and then resolves it, the employer must display the case result immediately before moving forward with the photo-matching step. Additionally, it is very possible that E-Verify may not be able to access the employee's photo during the photo-matching process. If this occurs during the Green Card or EAD photo-matching process, the system will simply bypass the photo-matching screen altogether. However, during the Passport photo-matching process, the system will provide a "No Photo on this Document" message and employers must proceed with the process.

 

Another interesting difference is that, when photo matching Green Cards or EADs, E-Verify will display a thumbnail photo when viewing the case details. This, however, is not the case for Passports because the USCIS is not able to store Passport photos. Yet, E-Verify will display a thumbnail photo that an employer may attach and submit when referring a photo mismatch TNC to DHS. E-Verify will display this thumbnail photo whether the document is a Green Card, an EAD, or a Passport.

 

As of April 3, 2009, for employment verification (Form I-9) purposes, employees must present an unexpired Passport. E-Verify will now enforce this rule by looking to determine if the "hire date" is on or after April 3, 2009. If the hire date is before April 3, 2009, the system will accept an expired Passport (good news for federal contractors needing to submit older I-9 forms showing valid passports at the time). If the hire date, however, is on or after April 3, 2009, an error message will appear and the case will be automatically discontinued. The employer's only option is to create a new E-Verify case.

Two-Part Series Seminar: Employment Verification Issues for Employers:

 
 

 
Two-Part Series SeminarForm I-9 and E-Verify Training
Employment Verification Issues for Employers:

Presented by
Hector A. Chichoni, Esq., EpsteinBeckerGreen
  
 

Since its inception more than two decades ago, employers have failed to fully comply with the Immigration Reform and Control Act (IRCA) of 1986. As a result, Form I-9 compliance levels among employers are of great concern. With the government cracking down on compliance, employers need to take immediate steps to get their I-9 “houses” in order.

Moreover, on September 14, 2009, Alejandro Mayorkas, head of U.S. Department of Homeland Security, Citizenship and Immigration Services, told reporters that the agency is “taking steps to prepare for the possibility that E-Verify may become mandatory for all employers” adding that “it is our responsibility to be ready should E-Verify ever be required of all employers.”

 

We are conducting a two-part interactive Form I-9 and E-Verify training program to offer hands-on training to ensure the attendees are confident, knowledgeable and capable of managing I-9 and E-Verify compliance.
 
 
WHERE
The Miami City Club
 
200 South Biscayne Boulevard
55th Floor
Miami, Florida 33131
 
 
Part  I
Form I-9 Training
 
Form I-9 training is the first part of the two-part series which includes copyrighted training materials with practical examples along with useful documentation and resource materials. The components of part one, Form I-9 Training, includes:
  • In-depth look at I-9 Completion, Documentation and Receipt Rules.
  • Forensic training for questionable documents.
  • Review internal process for re-verification and notification tracking.
  • Establish an I-9 correction process.
  • Provide self-evaluation and team-based testing.
  • Help you learn how to process the I-9 form correctly;
  • Raise your comfort level in working with the documents and policies involved;
  • Enable your company to ensure the employees are authorized to work and are compliant with I-9 standards;
  • Serve as a quick and easy job aid and reference whenever needed.
  •  
E-Verify training, the second part of the two-part series, will help you get the information you need to properly weigh the pros and cons of the E-Verify system, you will learn what every employer should know about the electronic employment verification system:
  • How federal contractors are troubleshooting E-Verify issues
  • What chances have been made, what problems have been solved, and what problems remain.
  • How the government is increasing its worksite enforcement activity
  • Best practices for avoiding worksite enforcement actions
  • How to find out if your organization is being targeted from an audit, and what agents look for in an audit
  • Your legal recourse if ICE agents arrive on site
  • The potential civil and criminal consequences for employers from an audit
  • Recent government actions to fine employers for immigration violations
  • Your legal recourse if fines are levied against your organization
  • What happens to workers who can't prove they're authorized to work in the U.S.
  • How the government's new audit strategy impacts the current debate on making E-Verify mandatory for all employers              
Part II
 E-Verify Training
Date and Time: Thursday, October 21, 2010, 8:30 am - 10:30 am
Date and Time: Thursday, September 30, 2010, 8:30 am - 10:30 am
 

REGISTRATION FEE
The fee for this event is $25 for each session, or you can purchase both sessions in advance for $35.  This fee includes breakfast, parking and training materials. 
 


 
To register, please .click here

If you have any questions about this briefing, please contact 

Anneliese Garcia, (305) 579-3200, or agarcia@ebglaw.com
 
About EBG: Founded in 1973, EpsteinBeckerGreen is a law firm with approximately 350 lawyers practicing in offices in Atlanta, Boston, Chicago, Houston, Los Angeles, Miami, New York, Newark, San Francisco, Stamford and Washington D.C. The Firm’s size, diversity, and as a founding member of the International Lawyers Network (ILN), allow its attorneys to address the needs of both small entrepreneurial ventures and large multinational corporations on a worldwide basis. EpsteinBeckerGreen continues to build and expand its capabilities as a law firm focused on five core practices: Business Law, Health Care and Life Sciences, Labor and Employment, Litigation and Real Estate. For more information on EpsteinBeckerGreen, please visit www.ebglaw.com. For more than three decades, the EpsteinBeckerGreen seminar series has introduced senior executives, general counsel and human resources professionals to cutting-edge issues in nearly every area of business touched by law.
 

 

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Hilton In Naples, FL Signs Up For The IMAGE Program

 

On May 26, 2010, the Hilton Naples signed an agreement with U.S. Immigration and Customs Enforcement (ICE) to participate in the voluntary IMAGE program. This is the first company in the city of Naples, Florida to sign up for the IMAGE program. IMAGE, or ICE Mutual Agreement between Government and Employers, is a government initiative designed to improve employer self-compliance. Employers participating in IMAGE must submit first to a Form I-9 audit by ICE and verify all of their employees' social security numbers through the Social Security Number Verification System (SSNVS). Employers are also obligated to  sign up for E-Verify, conduct I-9 audits semiannually using a neutral party, ensure that only trained employees complete Form I-9 and use E-Verify, set protocols for responding to no-match letters, and much more. Employers using E-Verify must sign a Memorandum of Understanding or MOU which requires them to allow ICE (DHS) and SSA or their authorized agents or designees to "make periodic visits" to the employer.

IMAGE is NOT a “safe harbor” for employers. ICE has not indicated that IMAGE “partners” will not be subject to enforcement actions. Moreover, E-Verify participants have been subject to worksite enforcement actions. Given ICE’s inspection powers under IMAGE an employer should seriously consider the consequences of implementing these practices.

ICE Expands Worksite Enforcement Activities in the Southeast

On Tuesday, March 2, 2010, the U.S. Department of Homeland Security (“DHS”) announced that it was expanding its worksite enforcement strategy in the Southeastern United States. As part of this strategy, the U.S. Immigration and Customs Enforcement (“ICE”), the agency within DHS directly responsible for worksite enforcement, indicated that it is issuing Notices of Inspections (“NOIs”) to 180 businesses in Tennessee, Alabama, Arkansas, Louisiana and Mississippi.

These NOIs alert the businesses that ICE will be inspecting their Form I-9s and seeking to review voluminous other business records, including a list of current and terminated employees with hire and termination dates; the names, social security numbers and dates of birth of all active employees; quarterly wage and hour reports and/or payroll data on all employees covering the period of inspection; quarterly tax statements; all correspondence with the Social Security Administration (including “No-Match” letters); and more! All of this is an effort by ICE to determine whether the businesses are complying with federal employment eligibility verification laws and regulations. This DHS announcement is the latest in a series of expanding worksite enforcement efforts by the Obama administration. Instead of raids, the Obama administration has focused its efforts on auditing and investigating employers to determine if they are satisfying the Form I-9 requirements and are knowingly or unwittingly employing illegal workers.

Hector Chichoni, the Chair of EBG’s Southeastern Immigration Practice, notes: “this action by ICE underscores what the Immigration Law Group at EBG has been advising clients since the Obama administration took office. Businesses need comprehensive employment verification and related compliance plans in place because the civil and potentially criminal consequences of this enforcement strategy can be severe. Businesses that ignore this important aspect of their operations can face substantial fines that make compliance now not only good corporate citizenship, but also good risk management.”

These ICE inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. The fines for simple Form I-9 violations range from $110 to $1,100 per violation, with the higher range applicable to employers with a higher percentage of mistakes. Employers with large workforces that fail to properly manage the Form I-9 process can face fines of hundreds, or even millions, of dollars. Employers and their managers also can face criminal prosecution if they deliberately neglect their legal responsibilities in this area. This latest ICE action in the Southeast underscores the need for all businesses to review this important aspect of their operations, develop compliance plans that will protect them from this potential liability and have in place crisis management procedures, including access to outside counsel that specializes in this area, in the event that the “ICEman” cometh!

 

USCIS Announces Extension of Form I-9

The U.S. Citizenship and Immigration Services ("USCIS") announced on August 27, 2009, that the federal Office of Management and Budget has approved an extension of the current Form I-9 to August 31, 2012.  As a result, the USCIS has amended the Form I-9 to reflect an updated revision date of August 7, 2009.  This revision date appears in the lower right hand corner of the form. The USCIS has indicated that employers may use the Form I-9 with a revision date of either February 2, 2009 (the prior revision date) or August 7, 2009 (the current revision date).  The Form I-9 is available at the following web site: www.uscis.gov/i-9

Webinar: Employers Targeted in Immigration Crackdown: How to Audit Policies Before ICE Does

On September 3, Hector A. Chichoni will be teaching the webinar Employers Targeted in Immigration Crackdown: How to Audit Policies Before ICE Does

Hector has counseled employers on the proper use of the new I-9, work site enforcement, "no-match" problems, and compliance with state and federal immigration laws

Thursday, September 3, 2009
11:00 a.m. to 12:30 p.m. Eastern
10:00 to 11:30 a.m. Central
9:00 to 10:30 a.m. Mountain
8:00 to 9:30 a.m. Pacific

On July 1, 2009, U.S. Immigration and Customs Enforcement informed hundreds of U.S. businesses that agents would be auditing their I-9s and other hiring records. And just this April, the Obama administration issued new guidelines for ICE agents to change the enforcement focus to employers.

Learn what action you can take NOW to keep ICE from targeting your organization and your first course of action if your company is audited by participating in the all-new HR Hero audio conference, Employers Targeted in Immigration Crackdown: How to Audit Policies Before ICE Does.

Hector A. Chichoni will show you the specific red flags agents are looking for in ICE audits, as well as:

The tell-tale signs ICE may be targeting your organization
Your first recourse if enforcement agents arrive on site
The potential consequences when ICE agents audit your records
Typical fines and other actions immigration enforcement agents are taking against violators
Your legal options if fines are levied against your organization
Your first course of action if you have workers who can’t prove they’re authorized to work in the United States
How ICE's new audit strategy could impact whether E-Verify becomes mandatory for all employers
What employers can expect from future immigration compliance and enforcement initiatives
What every employer needs to know about immigration reform efforts

All receiving this information will be entitled to a 20% discount on the audio conference. To receive the discounted rate, you will need to call HR Hero customer service department at 800-274-6774 and mention code M899.

Krispy Kreme Doughnuts, Inc. Fined For Hiring Foreign Workers Not Authorized For Employment

Tuesday ICE stated that last Friday Krispy Kreme reached a $40,000 fine settlement with the government for violating U.S. immigration laws by hiring illegal worker. ICE stated that an inspection at a Krispy Kreme factory in Cincinnati  revealed that the company employed many foreign workers who were not authorized for employment. The inspection also showed that the company did not have the required paperwork for all workers at the factory. As part of the settlement, Krispy Kreme has taken measures to revise its immigration compliance program, and has agreed to begin implementing new procedures to prevent future violations of federal immigration laws, ICE said.

Alert: ICE Serves 652 Businesses Nationwide With Notices of Inspection

On July 2, 2009, the U.S. Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) launched a new and bold initiative to audit companies by issuing Notices of Inspection (“NOIs”) to 652 businesses nationwide.

ICE has stated these “audits are not random” and that the businesses were identified based on “leads and information obtained through other investigative means.” These notices are the government’s first step in what could be the beginning of a very lengthy investigation. ICE officers plan to review the I-9 forms and identification documents of all 652 companies. ICE has also stated that those with significant numbers of undocumented workers may be fined. And, if agents believe the businesses “knowingly hired” illegal immigrants or find “a pattern of egregious violations” criminal investigations could be launched. Pat Reilly, ICE’s spokesperson, said that ICE would not “release the names or locations of the businesses that are being audited because of the ongoing investigations” and that the targeted businesses “represent a broad range of industries.”

However, it has been reported that ICE notified 80 companies in California, including three in Los Angeles, which ICE plans to fine because they employ large numbers of people who do not appear to be authorized to work in the U.S. ICE agents had conducted audits on these companies’ records earlier, and in many cases determined that the Social Security numbers listed for employees either did not exist or did not belong to the employees specified.Targeted companies also include businesses in New York, San Antonio, Seattle, and San Diego. ICE has also sent audit notices to 32 companies in Arizona. For a long time the government has been seeking new ways to impose E-Verify on all US employers. I believe the strategy behind these notices is to paint a picture of rampant immigration violations so, come September 2009, Congress will make E-Verify mandatory for every employer. For as much as the government loves E-Verify, it will never be a substitute for immigration reform or stop illegal immigration.


 

USCIS Issues Guidance on Employment Eligibility Verification Form: Form I-9 Remains Valid Beyond Current Expiration Date of June 30, 2009

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. 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. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.

Reductions in Force and Employees in H-1B Status--What HR Needs to Know

By Hector A. Chichoni, Copyright Society of Human Resource Management ("SHRM"). Printed with Permission.

Due to present hard economic conditions U.S. employers are carrying out reductions in force (RIF) at a higher rate of frequency than at any other time in the last 30 years. RIFs, however, are not uncommon; they also take place during good times through mergers, company restructurings, buyouts, sellouts and more.

This article will show HR personnel what they need to know to keep their employers compliant when going through a RIF affecting foreign workers in H-1B status and to identify a few available strategies that may ameliorate their employers’ potential liability.

Reductions in Force and H-1B Status Holders

The general rule is that once the foreign national worker’s employment is terminated, so is his/her H-1B visa status. As a direct consequence of the principal visa holder’s termination, family member dependents holding derivative H-4 visas will also lose their status. Regardless of the fact that their Form I-94, Arrival/Departure Record may not yet be expired, the H-1B holder and his/her dependents will be out of status as of the last day of the principal visa holder’s employment.

Many foreign employees in H-1B status think there is a “grace period” after the expiration of their status or stay. A large number of foreign workers also believe that if they are part of a RIF, layoff, get fired for cause, terminated[1] or even resign[2] that there is a “grace period” that would allow them to find a new H-1B sponsoring employer. Contrary to their belief, there is no such thing as a grace period. Further, the U.S. Citizenship and Immigration Services (USCIS) has stated that an H-1B nonimmigrant status holder present in the U.S. even during the “severance period,” will not be considered to be maintaining status. To maintain status, the employer and the foreign national employee must maintain a “bona fide” employer-employee relationship.

As a matter of practice, however, if the period between the time in which the foreign national employee fell out of H-1B status and the time in which the new employer filed an H-1B petition is brief,[3] the USCIS may, upon its discretion, overlook the employee’s failure to maintain status and approve an H-1B extension and change of employer.

Given the serious consequences that RIFs have on H-1B nonimmigrant status holders, it is imperative that employers consider these effects prior to initiating a RIF. The employer may wish to consider providing advance notice of the termination to the employee in H-1B status to allow him/her a reasonable period of time to find another sponsor and advise him/her to seek the counsel of an experienced immigration attorney to minimize the impact of the termination.

Moreover, for purposes of termination, RIFs can be so final for H-1B status holders that, only with few rare exceptions, and even when the employer has already paid into the state unemployment system, the foreign national employee cannot file or qualify for unemployment benefits due to the lack of work authorization resulting from the termination.[4]

Once the principal H-1B visa holder is out of status, nothing can prevent the government from detaining, instituting removal proceedings, and even removing them from the United States. Therefore, terminated foreign national employees in H-1B status should seriously consider quickly finding an employer who would be willing to sponsor them for H-1B status, changing to another nonimmigrant status that will allow them to continue staying in the U.S., or leaving the country immediately.

Employers also should consider that when an H-1B holder’s employment is terminated while the company is pursuing a “green card” application before he/she is granted permanent resident status, for all practical purposes, the permanent residence case ends without the employee being able to obtain the green card. Only if the foreign national employee is at the “third stage” of his/her green card application, with an unadjudicated I-485 Adjustment of Status application pending with USCIS for 180 days or more may the employee still be able to secure a green card. The employee may be able to secure the green card by either changing jobs or employers to preserve the green card process, or continue the process with the same employer-sponsored green card case, in spite of the employment termination, if the sponsoring employer does not withdraw the unadjudicated underlying immigrant worker petition and still intends to hire the individual upon adjudication of the I-485.

U.S. employers must walk a very fine line in the context of structuring RIF because it is considered an unfair immigration-related employment practice for a person or entity to discriminate against any individual because of his/her national origin or citizenship.

RIFs also bring a significant increase not only in the number of claims against employers, but in the number of complaints filed with the U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security’s Immigration and Customs Enforcement (ICE) by RIFed employees. Complaints filed against employers with DOL and ICE can trigger not only audits but also investigations which can culminate in fines and penalties, and even criminal charges for the egregious violators.

Employers, and thus HR, will typically have very little advance notice of DOL or ICE investigations and audits. Therefore, it becomes more important for employers to properly maintain and keep accurate corporate immigration records. As the saying goes, an ounce of prevention is worth a pound of cure. Nothing could be truer in the area of immigration corporate compliance. Employers should implement clear and effective immigration policies in their employer handbooks. Employers should maintain and retain all pertinent records as well as conduct periodic internal audits along with the implementation of corrective actions to ensure that they are in full compliance with all applicable immigration laws, rules and regulations, which in the end, will defend itself in the event of a government audit or investigation.

In general, ameliorating the impact of a RIF on a foreign national employee may not be mandatory for employers,[5] but it always makes sense from a business perspective to avoid potential claims against them. Claims made by H-1B nonimmigrant status holders, depending on the claim, can also be protected by “whistle-blower” and Fair Labor Standards Act laws.

Given the harsh consequences, RIFs can have a large impact not only on employees holding H-1B status, but also on employers. U.S. employers will be well served by working with HR during the planning phase of the RIF.

Immigration Obligations for Employers of Employees in H-1B Status

Employers of H-1B visa status holders must comply with certain specific obligations acquired through the filing of an H-1B visa petition with the government.[6] DOL laws, rules and regulations make clear that in order for an employer to have carried out a “bona fide” termination, and thus, disclaim potential liability, the employer must notify the USCIS of that termination, provide the foreign national employee in H-1B status with a “reasonable costs of return transportation,” and notify the H-1B status holder employee, in a clear and effective way, about his/her termination. In addition, employers must also comply with other basic obligations directly related to employing foreign workers in H-1B status.

Notify U.S. Government About H-1B Status Holder’s Termination

Under U.S. immigration law employers are required to notify the U.S. government of “any material change” to the terms and conditions of an approved H-1B petition that may affect the eligibility of the beneficiary to that visa category. Termination is considered a material change. Notifying the government is not only a requirement under the law but also a good idea. Notifying the government immediately is also effective for purposes of limiting a claim for unpaid wages for a period covering after the individual is terminated. Thus, in order to prevent or stop the back wage obligation for such H-1B workers, it is necessary to terminate the employee and send a withdrawal notification to the USCIS. The DOL considers the H-1B worker’s wages to be a responsibility of the employer until the date that the USCIS receives a written request to withdraw the relevant H-1B petition.

Similarly, employers must notify DOL about the termination (withdraw) of the Labor Condition Application (LCA) filed with the H-1B visa petition.

A typical notification sent by the employer can be a letter on company letterhead, or the attorney’s letterhead if represented by an attorney, clearly referencing the petition number, employer’s contact information, and beneficiary’s name and date of birth via U.S. certified mail. Employers can include with the letter a clear color copy of the individual’s Form I-94; Form I-797, Approval Notice; and, even when not required, a copy of the H-1B visa.

Although there is no requirement per se to inform the U.S. consulate that issued the H-1B visa about the individual’s termination, some immigration practitioners consider it a good idea to send a copy of the above packet, either via U.S. mail, or as a PDF attachment via e-mail, directed to the U.S. consulate’s nonimmigrant visa unit or the fraud prevention unit. This practice could assist employers in disclaiming any potential liability for any future wrongdoing involving the use of the visa.

Provide H-1B Status Holder Employee with Reasonable Costs of Return Transportation

Employers of H-1B status holders have an obligation under the immigration statute to provide the foreign national employee with “reasonable costs of return transportation” if the “involuntary” termination of the H-1B status holder was effective before the expiration date, as shown on Form I-94, of the period of authorized stay. This obligation falls upon the present employer of the foreign national employee or the last employer before the termination. Paying the cost of transportation neither extends to the foreign national employee’s dependents living with him/her in H-4 status, nor to paying for the transportation of his/her household belongings.

A word of caution, the employer’s mere offer to pay the foreign national employee’s “cost of transportation” may not be enough. Providing the actual airfare, one-way nonrefundable ticket to the home country or last place of residence, should meet the requirement. It is a good practice to obtain either a signed acknowledgment of receipt from the beneficiary that he/she indeed received the return cost of transportation, or that the beneficiary, upon being presented with return costs of transportation, declined the employer’s offer. The employer cannot force the individual to exit the United States and has no obligation to report the individual to ICE if the individual, of his/her own volition, decides to stay beyond the date of termination. Thus, it is imperative that the employer effectively document and create an evidentiary trail that it has complied with its obligation of paying the return costs of transportation. Again, employers should develop and implement corporate immigration policies that define their obligations. These policies should be part of their employee handbook.

Continue to Pay H-1B Status Holder Employees Required Wages Until Termination

An employer’s obligation to continue paying the required wage to the employee in H-1B status ends upon effective and clear or “bona fide” termination of the employer-employee relationship. Therefore, it follows that an employer must not only provide the H-1B status holder employee with clear and effective notice of his/her termination, but also must carefully document the termination with clear and accurate records to protect itself.

The payment of the required wage must be in accordance to what the employer promised when it filed the LCA for certification with the DOL.[7] The LCA requires by attestation that the employer will pay the H-1B workers the higher of either the prevailing or actual wage[8] during their employment.[9] The LCA also prohibits “benching”[10] the employee if the employer does not have a sufficient amount of work.

DOL has authority to enforce the H-1B wage obligations and may impose fines and penalties on employers that fail to comply with this requirement.

Employers’ Employment Verification Compliance Obligation

The employer’s termination of the employer-employee relationship through a RIF does not end its obligation to continue maintaining and retaining its Form I-9, employment eligibility verification records. The employer must retain Form I-9 for each employee for either three years from the date employment begins, or one year after the date employment is terminated, whichever is later.

Employers must consider that a RIF often breeds not only lawsuits from disgruntled former employees, which can include former foreign national employees, but also potential complaints to various governmental organizations such as DOL and ICE, which may lead to an audit or investigation of the employer’s records. It is therefore, a good practice to purge all I-9 forms that are not required to be kept under the law.

The DOL has some discretion, once it has conducted an investigation, as to the types and levels of penalties that can be assessed. There may be less harsh consequences for past violations, if there is evidence of current compliance. Employers must show good faith to avoid harsher penalties.

Employers are also responsible for, and must ensure, adequate training of human resources professionals to ensure compliance with corporate policy and immigration law. A thoughtful I-9 compliance policy and careful management of I-9 records will put employers in a better position should DOL or ICE decide to audit or investigate them.[11]

Employer’s Public Access File Compliance Obligation

Employers of H-1B employees are required by DOL regulations to make a certified (filed) LCA, along with all necessary supporting documentation, available for public examination at the employer’s principal place of business in the United States, or at the place of employment within one working day after the date in which the LCA is filed with the DOL.

Employers must retain this documentation (in tandem also known as the “Public Access File” (PAF) or “Public Inspection File” (PIF) for a period of one year beyond the last date on which any H-1B nonimmigrant is employed under the LCA or, if no H-1B nonimmigrants were employed under the LCA, one year from the date the LCA expired or was withdrawn. Ensuring proper document retention is particularly important in an economic downturn. With limited exceptions, government investigations of immigration compliance are often initiated by the DOL or by ICE as a result of a complaint made by a former employee.[12]

Compliance Issues Relating to Receipt of Stimulus Plan Funds

The law states that businesses receiving money under the stimulus package’s Troubled Assets Relief Program (TARP) will be subject to the rules that currently govern H-1B-“dependent” U.S. employers.

DOL requires that H-1B dependent U.S. employers take additional steps when hiring new H-1B foreign workers. These steps require U.S. employers to attest that, in addition to the normal attestation requirements found in the LCA, they have, among other requirements:

(1) Taken good faith steps to recruit for the position in the U.S. using industrywide standard practices.

(2) Offered, at minimum, the prevailing wage during recruitment efforts.

(3) Offered the job to any U.S. worker who applies that is equally or better qualified than the H-1B worker.

(4) Not displaced U.S. workers employed within a period beginning 90 days before and ending 90 days after the date of the filing of the H-1B petition.

Since this is a new area of compliance, it would be advisable for U.S. employers receiving TARP funds to keep constantly informed and updated.

RIFs, Government Audits and Investigations

Government agencies usually initiate audits or investigations in connection with an immigration compliance issue when there is a complaint made by a disgruntled employee or a tip. A significant number of audits and investigations are triggered by complaints made by RIFed U.S. citizens, green card holders and even nonimmigrant visa holders. Agencies can also initiate investigations on their own and with less than probable cause.

For purposes of LCA issues, the appropriate agency will be the DOL, Wage and Hour Division. As far as I-9 issues, ICE will be the agency responsible for conducting audits and investigations. Both agencies are responsible for conducting the initial review of the merits of respective complaint in order to determine if an investigation is warranted.

If the agency decides to proceed with the audit or investigation, the U.S. employer generally will be notified by letter or phone call by an investigator or officer that he/she would like to come to the employer’s offices to review the immigration-related documentation that the employer is required to maintain. Often, investigators do allow employers to send the documents the agency wishes to review to the agency’s office. In addition to reviewing the I-9 forms or the LCA PAFs, the investigator might also ask to review payroll records to ensure, among other things, an accurate account of employees, their names, Social Security numbers and that the required wage is being paid to foreign national employees. As stated, investigators usually will give employers very little time to either produce or permit inspection of the records.

A new technique ICE has been using, and will continue to use in the upcoming years, to audit and investigate U.S. employers is the so called “inspection.” Employers that have entered into Memorandums of Understanding (MOU) with a government agency to participate in some sort of electronic immigration compliance program (e.g., E-Verify) need to be aware that these MOUs grant permission for the agency to come unannounced to the premises and conduct an inspection. The work inspection is not defined, and therefore has no limit. It can include employment eligibility verification through the use of the agency’s own electronic systems and devices (without even touching the employer’s I-9s), criminal and customs searches, and much more. The inspection team can even include members of other agencies also under the U.S. Department of Homeland Security’s umbrella such as the Transportation Security Administration.

Since Sept. 11, 2001, the government has exponentially increased security measures and electronic initiatives to address national security concerns. The increase in the government’s immigration policies and electronic systems has manifested itself in a resurgence of government audits, inspections, raids and criminal investigations of U.S. employers. Government search warrants, worksite raids and audits have become standard investigative tools to assist in the enforcement of immigration laws. These systems make it easier for the government to detect not only wrongdoing, but also simple failure to comply with the law.

Under Secretary Janet Napolitano, possibly in association with other governmental agencies (e.g., the Internal Revenue Service, DOL, and the Social Security Administration), the number of government audits and inspections will continue, and probably, increase. Technology based programs such as E-Verify could become mandatory for all U.S. employers.

In conclusion, it will be important to caution that while it is often appropriate to take remedial actions such as filing H-1B petition amendments and new LCA, paying back wages, and organizing documentation, including I-9 forms to fix future problems, employers should never attempt to cover up the problems. Therefore, it will be important for employers to be in compliance at all times, especially, when going through a RIF.

Hector A. Chichoni is an attorney at Epstein Becker & Green PC in Miami. Chichoni (hchichoni@ebglaw.com) is South Region chairperson of the firm’s Immigration Law Group.

[1]The U.S. Citizenship and Immigration Services (USCIS) makes a very important distinction between layoff and termination. Layoff for USCIS is more closely related to “benching,” a period of nonproductive status for which the employer is completely responsible as opposed to a period of nonproductivity for which the H-1B beneficiary is responsible, i.e. medical leave, vacation, etc. Termination refers to a clean and effective severance of the employer-employee relationship, therefore resulting in the loss of the principal’s H-1B status. Because USCIS may consider laid-off H-1B visa holders as still maintaining status with the same employer (i.e. during the economic or work slowdown), a beneficiary may continue to reside in the U.S. and maintain lawful nonimmigrant status in spite of being laid off provided that the employer continues paying the beneficiary the required wage during such nonproductive periods. HR professionals, however, are encouraged to find sound legal advice when dealing with this complex area of the law.

[2] Under the American Competitiveness and Workforce Improvement Act of 1998, if the employee in H-1B status resigns, the U.S. employer cannot require him/her “to pay a penalty for ceasing employment with the employer prior to date agreed to by the nonimmigrant and the employer.”

[3] Some offices and officers have allowed up to 30 days between the individual’s falling out of H-1B status and the filing of the new employer’s H-1B petition; others up to 60 days and even longer periods of time. This practice has created a great deal of confusion among practitioners and HR. Further, the Jan. 21, 2009, USCIS—Vermont Service Center (VSC) liaison minutes (AILA Doc. No. 09012768), stated that “VSC discussed the impact of a revocation of an H-1B petition on H-1B portability. VSC indicated that in order to be eligible to ‘port’ to a new H-1B employer, the new petition must be filed before the old petition is revoked or withdrawn by the old employer. VSC did not state that the H-1B nonimmigrant had to be currently maintaining status with the old employer to be eligible for portability, nor did VSC indicate that it would not exercise discretion allowed under 8 C.F.R. § 214.1(c)(4) in favor of an extension of status.”

[4] The discussion of H-1B status holders qualifying for unemployment often, although not related, brings up the question from HR as to whether once a terminated H-1B status has fallen out of status, he/she is able to qualify for workers’ compensation benefits. The answer seems to be that they are. Out-of-status individuals are eligible for workers’ compensation in 30 states and probably covered in 19 other states.

[5] Under California law employers may have an obligation to ameliorate the impact of a terminated H-1B status holder where there is a reasonable alternative. Employers should consult labor and employment and immigration lawyers on this issue.

[6] Employers acquire certain specific obligations under U.S. immigration law when filing an H-1B petition on behalf of a foreign national. However, additional responsibilities may be acquired under the laws of the state in which the employer operates or where the foreign national employee works, as a flurry of states have enacted immigration laws and state courts, under certain conditions, have deemed H-1B petitions to be employment contracts.

[7] One important issue is that the employer must pay the required wage as of the first day of the beneficiary’s employment. Paying the correct required wage as stated in the LCA from the beginning of beneficiary’s employment could avoid future problems in terms of possible back wage complaints against the employer. DOL follows the 30/60-day rule. That is, the employee in H-1B status must be put on the employer’s payroll and be paid the required wage stated on the LCA by or on the 30th day from the moment the employee entered the United States. However, if the employee in H-1B status has been in the U.S. since the H-1B petition was approved, he/she must be paid the full required wage stated on the LCA by or on the 60th day after the date when the employee became eligible to work for the U.S. employer.

[8] Employers are required to pay the higher of either the actual or prevailing wage. The actual wage is the wage paid to other co-workers in similar positions. The prevailing wage is the average salary paid to workers in the area of intended employment.

[9] Any reduced salary or wage during the validity of the LCA is considered a violation of DOL regulations and can lead to an assessment of back wages and possible fines. The DOL could also seek back wages covering the period from when an H-1B worker was last paid to when USCIS receives a written withdrawal request for the H-1B petition. If the employer waits several months to send the withdrawal request, and does not have other clear proof of the termination of employment, there can be an assessment of back wages.

[10] “Benching” is the term used for “temporarily” laying off an employee or putting the employee in nonproductive status without pay or at a “reduced” pay during the period he/she is not working. The employer, however, is not required to pay if the nonproductive period is due to “conditions unrelated to employment” at the employee’s “voluntary request and convenience” (i.e. caring for a sick relative, maternity leave, etc.) which renders the H-1B status holder employee unable to work. A word of caution, employers should not try to use this provision as a disguise for benching, since it could amount to fraud or misrepresentation.

[11] Penalties for I-9 employment eligibility verification violations can range from $250 to $3,000 just for improper completion of the form. Penalties for technical and substantive, retention, and for not making timely available for inspection the I-9s can range from $100 to $1,100 for each violation. Penalties for knowingly hiring or continuing to employ unauthorized workers fines range from $250 up to $11,000 per violation. If a company shows a pattern of hiring unauthorized foreign workers, the company could also be liable for criminal charges and penalties of as much as $3,000 per worker or employee and/or six months of imprisonment. In this area of the law, ICE has considerable discretion assessing fines. When assessing fines, ICE looks at the size of the company, the seriousness of the violations, good faith efforts, and to past violations, if any.

[12] If the employer does not comply with LCA regulations, DOL will issue a finding that the employer has violated LCA requirements. Examples of such a finding can include “willful” failure to pay the required wage rate or “substantial” failure to post a notice of the LCA filing. For filing an LCA which is found to misrepresent a material fact, civil money penalties can be imposed up to US$1,000 per violation, and debarment from the H-1B program. DOL can impose additional fines up to US $35,000 and five years imprisonment for criminal violations related to LCA practices.

Today the U.S. economy employs a large number of professional foreign workers, perhaps more than at any other time in its history. Given this large number of foreign workers in the U.S., RIFs are more likely to involve the termination of workers holding H-1B nonimmigrant visa status.
 

Obama Administration's Immigration Approach with Napolitano will Point to Employers

President Obama made it clear that his immigration plan was to “bring people out of the shadows, improve our immigration system, create secure borders, remove incentives to enter illegally and honor our immigrant troops.” However, the Obama administration has not provided any details as to how it is going to accomplish this plan. This has not only created a good amount of speculation, but also a good deal of frustration among U.S. employers. Yet, in spite of lacking details, the Obama has sent out “immigration signals” and employers should be prepared to feel the effects.

The most important of these immigration signals was Secretary Napolitano’s appointment as head of the U.S. Department of Homeland Security (DHS). The appointment reveals some of the most basic immigration strategies of the administration’s plan. This is not only part of a well calculated move, but the foundational step necessary to set President Obama’s immigration plan in motion.

Secretary Napolitano is considered a smart and demanding attorney with an intense work habit and a quick grasp for bureaucratic detail. A twice elected Governor of Arizona and a former Attorney General and U.S. attorney, she is not only a pragmatist who signed the toughest state immigration law in the nation, but also a politician with strong enforcement views. She is one of the most experienced state executives in the nation with immigration and one of the very few qualified to handle a massive immigration reform loaded with compliance and enforcement requirements.

She has repeatedly called for a “technology-driven border control” and the penalizing of employers hiring undocumented workers.

Secretary Napolitano indicated that her approach, in terms of immigration raids, will be to closely watch the design of the operations and that the focus will be on “unscrupulous employers” rather than on undocumented workers. She also stated that raids will continue where undocumented workers are present and that she expects to increase the focus on ensuring that employers “of unlawful workers are prosecuted for their violations.” Moreover, Napolitano pledged to increase the focus on criminal punishment for employer violators and to encourage them to work with federal immigration agents to “establish sound compliance programs that prevent unlawful hiring.” She also aims to continue boosting manpower on the borders and focusing on technology, such as ground sensors. At the same time, it is her full intention to enforce these methods in a fair manner across borders, ensuring that the law is applied.

This represents a 180 degree shift from the Bush administration’s approach to immigration enforcement, which sought to penalize undocumented workers, rather than prosecuting employers under the theory that actual convictions were hard to get.

In short, immigration reform, whether in piece-meal or in one whole swap, will be enacted in 2009 or 2010. Employers will continue to be raided, but enforcement actions are likely to conform to those prescribed under immigration law rather than the “hyper-criminalized” actions conducted under the Bush administration with their inefficiencies and social negative effects.

Under Secretary Napolitano, DHS, the Immigration and Customs Enforcement, and possibly in association with other governmental agencies (i.e. IRS, USDOL, SSA, etc.), the number of government audits and the so called “inspections” will escalate. Technology based programs such as E-verify will rule and could become mandatory for every employer in the U.S. Wise employers will be served well by putting their immigration compliance (i.e. I-9, public access and audit files, etc.) houses in order.
 

USCIS Delays Implementation of Interim Final Rule on Documents Acceptable for Employment Verification

On January 30, 2009, U.S. Citizenship and Immigration Services ("USCIS")announced that the effective date of the new Form I-9 (Employment Verification Form) has been delayed for 60 days, until April 3, 2009.

The new Form I-9 was scheduled to take effect on February 2, 2009. The comment period on the new form now runs until March 4, 2009. The temporary extension is designed to provide the DHS with an opportunity to further consider the interim final rule: “Documents Acceptable for Employment Verification” which was published by the USCIS on December 17, 2008. The USCIS has also announced that the old Form I-9 should continue to be used until at least March 4, 2009.

All employers and HR personnel should take note.  Once in effect, old versions of the form cannot be used.

ICE Enlists Companies to Stem Illegal Hirings - Firms Sign On for Self-policing; Critics Wonder If It Could Be a Trap

I am reproducing in its entirety the following article, I think you should read it:

"ICE Enlists Companies to Stem Illegal Hirings - Firms Sign On for Self-policing; Critics Wonder If It Could Be a Trap By SUSAN CARROLL Copyright 2008 Houston Chronicle, Sept. 9, 2008, 10:52PM

With high-profile workplace immigration raids making news across the country, many employers might not seem eager to sit face-to-face with an Immigration and Customs Enforcement agent and open up their books for scrutiny. But Betsy Kippenhan, an executive with a Houston-based staffing firm, seemed downright excited about it, speaking fondly of the "ICE advocate" who will be helping the company, Talent Tree, verify its worker eligibility through an ICE program called "IMAGE."

"We wanted to make sure they were going to look at us and give us the stamp of approval, which is what they've done," said Kippenhan on Tuesday after formally signing up for ICE's self-policing program for employers. But some immigration attorneys and labor advocates warned that IMAGE could be a legal trap for employers who haven't been vigilant examining workers I-9 forms, which establish eligibility to work in the U.S. In exchange for free education and training, companies participating in IMAGE (Mutual Agreement between Government and Employers) agree to meet certain requirements, including using the federal government's Internet-based employment verification system and checking workers' Social Security numbers. Employers also must agree to an ICE audit of workers' employment paperwork and promise to self-report any violations of hiring law.

Membership growing
ICE spokeswoman Pat Reilly said the program started small in January 2007 with only nine members. On Tuesday it added 26 members and 11 associate members, a category created in June to give employers two years to get their paperwork in order before submitting to an ICE audit or producing an annual report. The membership rolls range from small businesses like the Bellaire-based construction company All American Brothers, to big names in government contracting, like General Dynamics. Smithfield Foods Inc., which employs more than 57,000 people worldwide, also is an associate member. Reilly said some employers expressed an interest in the program after "someone else in their industry was the subject of a worksite enforcement" raid. ICE has stepped up its worksite enforcement in recent months, reporting 3,900 arrests for immigration violations and more than 1,000 criminal arrests from worksite enforcement investigations in the past 10 months. According to ICE, 116 owners, managers, supervisors or human resources employees, were facing criminal charges in connection with on-the-job raids, including harboring or knowingly hiring undocumented workers.

'A poor image'
For some companies, Reilly said, the program is "brand protection, and an insurance against 'headline risk'. You don't want your brand bandied about as somebody who doesn't comply with the law because then you lose clients' confidence." Kathleen Walker, an El Paso attorney and executive committee member with the American Immigration Lawyers Association, said IMAGE "has a poor image" and has attracted few participants. "I think it's a mirage," Walker said. "Employers can put themselves into a trap signing up for IMAGE." Charles Foster, a Houston immigration attorney with Tindall & Foster, urged employers to use caution before signing up for the program, particularly if "their house is not in order." "On the surface, there is nothing wrong with it," he said. "But there are concerns that employers should be aware of. You're effectively inviting the government to review all of your employment verification forms. That could produce significant civil and criminal liability."

'Not a trap'
Foster and Walker pointed to a raid of the Swift & Co. meatpacking plants in December 2006 in Texas as an example of what can go wrong with private partnerships with ICE. Swift had voluntarily participated in the government's electronic employment verification system for more than a decade before the raids, which resulted in more than 1,200 arrests at six meatpacking plants. Reilly said E-Verify is a "free, easy-to-use tool," but is not a stand-alone solution to detecting undocumented workers. She said hiring practices at Swift plants showed a pattern of blatant illegal behavior. Reilly said IMAGE is "not a trap," pledging that ICE will work with businesses that participate in the program. "When we look at their records ... and patterns that might indicate an illegal workforce, we're not going to say, 'You have to come into compliance by tomorrow.' " Reilly said. "But what we are going to look for is if there is any illegal activity going on in their workplace, we're going to ask them to take care of that first, like stolen identities and flagrant fraudulent documents." Hector Diaz, the president of All American Brothers Company based in Bellaire, called the program "the wave of the future." He signed up as an associate member on Tuesday, and completed his first day of IMAGE training in Arlington, Va., saying the program has become an necessity for his roughly 20-employee construction company, which works exclusively on government contracts. "I think it's going to be a requirement for federal contract work," said Diaz, whose recent projects included work at Ellington Field and NASA. "You can't be working on a government contract and have an illegal alien."

Reassuring clients
Ruth McCurdy, vice president for corporate connections for Talent Tree, which employs 35,000 temporary associates and about 250 staff members nationwide, said one of the main goals is to reassure clients that workers placed with their companies by the staffing firm are eligible to work in the U.S. "There are companies out there that employ illegal aliens and put them in companies, and that puts a lot of people at risk," McCurdy said. "When you are working with a third party for your workforce, you need to know you have a partner that has people who have passed the eligibility requirements."

 

USCIS INFORMS THE PUBLIC THAT NEW PASSPORT CARD IS ACCEPTABLE FOR EMPLOYMENT ELIGIBILITY VERIFICATION

On August 8, 2008, USCIS issued a statement informing the public that the new U.S. Passport Card may be used in the Employment Eligibility Verification form (I-9) process. USCIS also stated that "...last month, the Departments of State and Homeland Security announced that the new passport card was in full production. The new card provides a less expensive and more portable alternative to the traditional passport book, and will expedite document processing at United States land and sea ports-of-entry for U.S. citizens traveling to Canada, Mexico, the Caribbean, and Bermuda. While the new card is more limited in its uses for international travel (e.g., it may not be used for international air travel), it is a valid passport that attests to the U.S. citizenship and identity of the bearer. Accordingly, the card may be used for the Form I-9 process and can also be accepted by employers participating in the E-Verify program." USCIS states that the passport card is considered a “List A” document that may be presented by newly hired employees during the employment eligibility verification process to show work authorized status. “List A” documents are those used by employees to prove both identity and work authorization when completing the Form I-9.

Missouri Latest State To Enact E-Verify Requirement

On July 7, 2008, Missouri Governor Matt Blunt signed a bill, effective January 1, 2009, requiring employers contracting or receiving grants from the state in excess of $5,000  to use E-Verify.  Missouri joins a growing number of states that, in the absence of a federal comprehensive immigration reform act, have chosen to regulate the employment of illegal workers. The Missouri bill shares similarities to other bills enacted in states such as: Colorado, Georgia, Minnesota, Oklahoma, Rhode Island, and Utah. However, this bill goes further by requiring employers with state-administered tax credits, tax abatement, or state-administered loans to also use E-verify. The bill also gives Missouri's Attorney General the authority to enforce the act.  Missouri's Attorney General may now demand: 1) employers to provide identification information on their employees; 2) employers to provide identification documents within 15 business days of receiving such a request.  Failing to abide by the request could result in the suspension of a company's applicable local licenses, permits, and exemptions until the documents are supplied, 3) employers to classify its employees correctly (i.e. knowingly classifying an employee as an independent contractor when he/she is not carries fines ranging from $50 to $50,000.)  A contractor will not be liable for the unauthorized employment of an illegal alien if a subcontractor employing the individual provides a sworn affidavit that the employee is authorized to work in the US. Missouri's law does not substitute the federal requirement to complete Form I-9 Employment Eligibility Verification.

U.S. Nebraska Service Center Will Assist with Employment Authorization Documents Errors

Members of AILA (American Immigration Lawyers Association) are reporting errors in EADs (Employment Authorization Documents) cards, including the following: 1) Incorrect country of birth, date of birth, gender or spelling of name. 2) Clearly incorrect validity dates. Please note that EADs approved at the NSC USCIS Nebraska Service Center) under the "express" adjudication system are approved as of the date of adjudication, whether it is an initial EAD or an extension. An example of a clearly incorrect validity date is an EAD approved on 07/09/2008 bearing validity dates from 01/01/2008 to 01/01/2009. 3) Approval for one year of validity, when the applicant clearly qualifies for two years (please review USCIS (U.S. Citizenship and Immigration Services) updates and AILA postings to make sure the applicant qualifies). 4) Switched photos, i.e. husband's card has wife's photo and vice versa or a completely different person. If any of the above situations apply, please follow the instructions to submit an inquiry for individual case liaison assistance. You may ignore the instruction to first call the 1-800 customer service line at NCSC (National Customer Service Center) when submitting requests for EAD correction. To minimize delays, please describe the nature of the error as clearly as possible when submitting your request. Your liaison request will be forwarded to an NSC liaison committee member, who will review it and respond to you with instructions for obtaining the corrected EAD. IMPORTANT NOTE: individuals will be required to submit the incorrect EAD card in the original to the NSC in order to receive a corrected EAD card. Merely requesting a corrected card either by telephone or in writing will not be effective. Therefore, where necessary please ensure that the applicant provides the EAD to his or her employer for I-9 purposes prior to sending it in for correction. No new photos should be required, except in the circumstance of switched photos.

New Employment Verification I-9 Form

Today we received the new employment verification From I-9, edition date 06/16/08. Be aware that no previous edition of the same form will be accepted. Please, also note there are several important changes made to the Form I-9 process:

  • Five documents have been removed from List A of the List of Acceptable Documents: Certificate of U.S. Citizenship (Form N-560 or N-561), Certificate of Naturalization (Form N-550 or N-570), Alien Registration Receipt Card (I-151), Unexpired Reentry Permit (Form I-327), Unexpired Refugee Travel Document (Form I-571);
  • One document was added to List A of the List of Acceptable Documents: Unexpired Employment Authorization Document (I-766);
  • All Employment Authorization Documents with photographs have been consolidated as one item on List A: I-688, I-688A, I-688B, I-766;
  • Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number in Section 1 of the Form I-9, unless he or she is employed by an employer who participates in E-Verify;
  • Employers may now sign and retain Forms I-9 electronically. See instructions on page 2 of the Form I-9.

All employers in Florida should switch to the new form ASAP and used moving forward regardless of any time line provided by the government.  This Will avoid any confusion later on.  The new Form I-9 can be downloaded by clicking here.