Massive Workforce Compliance Inspections Coming

Immigration & Customs Enforcement (ICE) has ordered the Homeland Security Investigations (HSI) unit to “quadruple to quintuple” the current number of routine workplace investigations of U.S. employers in the coming year.  While the Trump administration’s immigration enforcement efforts have thus far mostly focused on undocumented individuals, the goal of ICE’s new strategy is to target employers.  In particular, these workplace investigations will focus on audits of employers Employment Eligibility Verification, Forms I-9 and other employment records to determine whether employees (be they U.S. citizens or foreign nationals) are lawfully work authorized.  

ICE’s plan to ramp up worksite investigations increases the risk of significant civil penalties and possible criminal prosecution for employers who fail to comply with U.S. employment laws.  Additionally, business owners, executives, and Human Resources staff may personally face increased risk for simple Form I-9 “paperwork” errors.  

All U.S. employers must complete a Form I-9 for all of their employees in order to verify their identity and work authorization.  An employer who fails to properly complete and retain a Form I-9 for each and every employee, faces fines and penalties ranging from $539 to $2,156 for each paperwork violation.  Therefore, employers should take this opportunity to evaluate their current I-9 policies and procedures to ensure they are in compliance with the latest I-9 and E-Verify rules. In particular, employers should:

  • Review current I-9 policies and practices with qualified counsel.  This includes careful analysis of all workforce compliance practices to mitigate errors and mistakes on the form;
  • Develop formal I-9 and E-Verify protocols for detecting, preventing, and improving against I-9 violations.  For example, store an employee’s Form I-9 separate from other personnel records and separate current from terminated employees;
  • Mitigate historical I-9s with qualified counsel to help avoid against fines and penalties for certain technical or procedural errors on the forms.  Only certain I-9 deficiencies can be mitigated, but must be done accurately so as not to make deficiency worse;
  • Develop, implement, and maintain compliance policies for worksite raids and for managing CE Fraud Detection & National Security (FDNS) visits for nonimmigrant visa employees.

For any questions on employment eligibility or workforce compliance issues, please feel free to contact us.

New Employment Eligibility Verification, Form I-9

U.S. Citizenship & Immigration Services (USCIS) has annouced the release of a new version of the Employment Eligibility Verification, Form I-9, which is used to verify the identity and employment authorization of individuals hired to work in the United States. Employers and Human Resources staff may begin using this new Form I-9 or continue to use the current version of the Form I-9 (dated 11/14/16 N) through September 17, 2017.  Beginning September 18, 2017, employers must use the new form.  

The revised form includes some cosmetic changes, along with changes related to acceptable I-9 verification documentation, including Consular Reports of Birth Abroad.  USCIS plans to update its M-274 “Handbook for Employers: Guidance for Completing Form I-9” in the near future.

This change, in addition to the recent increase in penalties for employment verification errors, are of significant importance to employers and Human Resources departments, as all U.S. employers must ensure proper completion of Form I-9 for each individual they hire.  More importantly, as the workforce compliance landscape continues to evolve, employers should take this opportunity to evaluate their current I-9 policies and procedures to ensure they are in compliance with the latest I-9 and E-Verify rules.  As part of this process, employers should:

  • Review current I-9 policies and practices with qualified counsel.  This includes careful analysis of all workforce compliance practices to mitigate errors and mistakes on the form;
  • Develop formal I-9 and E-Verify protocols for detecting, preventing, and improving against I-9 violations;
  • Mitigate historical I-9s with qualified counsel to help avoid against fines and penalties for certain technical or procedural errors on the forms;
  • Develop, implement, and maintain compliance policies for worksite raids.

For any questions on employment eligibility or workforce compliance issues, please feel free to contact us.

Department of Labor Announces Increase in Investigations of Employment-Based Immigration Programs

The Labor Department has announced plans to more aggressively enforce employment-based nonimmigrant visa programs and crack down on abuses of worker visa programs through increased investigations.  The statement, made two months after U.S. Citizenship & Immigration Services announced it would begin targeting certain H-1B visa employers, calls for:

  • Use of all tools (including audits and site visits) to enforce labor protections provided by visa programs, including H-1B and E-3 visas;
  • Development of changes to the Labor Condition Application, which is used by employers in all H-1B filings, to identify violations and fraud;
  • Coordination between departments to strictly enforce visa program rules and make criminal referrals.

While more specific enforcement details have yet to be outlined, employers should be prepared for increased scrutiny of all visa applications and more site visits.  These proposed enforcement activities are in line with President Trump’s “Buy American and Hire American” executive order and employers should be actively working to ensure they are in compliance with all Department of Labor visa regulations.

New Form I-9 to Verify Employment Eligibility

The Department of Homeland Security (DHS) has released a new Form I-9, Employment Eligibility Verification form.  The new Form I-9 takes employment eligibility verification out of the realm of paper documentation and provides new electronic enhancements, such as:

  • Drop-down functionality for filling in lists and selecting dates;
  • Prompts on certain fields to ensure information is entered correctly;
  • Additional room to allow for multiple preparers and translators;
  • Embedded instructions for completing each field;
  • Buttons that will allow users to access the instructions electronically, print the form, and clear the form to start over;
  • A dedicated area to enter additional information that employers currently have to jot in the margins of the form;
  • A barcode unique to each form to identify it for audit purposes.

Employers may continue to use the current version of the Form I-9 (the one with a revision date of 3/8/2013N) until January 21, 2017.  After January 21, 2017, all previous version of the Form I-9 will no longer be valid.

These changes, in addition to the recent increase in penalties for employment verification errors, are of significant importance to employers and Human Resources professionals. 

Immigration & Employment Verification Fines Drastically Increasing

The U.S. Department of Justice has announced that beginning August 1, 2016 they will increase the penalties for unlawfully employing immigrants, unfair employment practices tied to immigration, and for so-called “paperwork violations” on Forms I-9.

The new rule will enhance Form I-9 paperwork violations from a maximum of $1,100 to $2,156 per violation, and a minimum from $110 to $216.  The minimum penalty for employing undocumented individuals will increase from $375 to $539, while the maximum will go from $3,200 to $4,313.  Employers with multiple violations will face a new maximum penalty of $21,563 for unlawfully employing immigrants.  For unfair immigration-related employment practices, a first fine could cost as much as $3,563 per person discriminated against.

These new penalties will take effect on August 1st and apply to all violations that took place after November 2, 2015.

Texas State Hires Must Now Be E-Verified to Prove Employment Eligibility

As of September 1, 2015, all potential hires for any state agency or public college in Texas must have their employment eligibility information run through the E-Verify employment verification system managed by U.S. Citizenship and Immigration Services (USCIS), but employees of businesses contracting with the state will no longer be required to use E-Verify.  E-Verify compares information applicants submit on their Form I-9 to Social Security and Homeland Security records to help determine the employment eligibility of an applicant.  The Texas Workforce Commission will be charged with enforcing this new rule.

Texas is one of 22 states with that uses some version of the E-Verify system, however, other states like Alabama, Arizona, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee and Utah require all employers use E-Verify.  Though this new rule only applies to state agencies and public universities, tens of thousands of private businesses in Texas have been using E-Verify for several years. The USCIS has a database of all the companies that use the system. It shows whether the business has a contract with the federal government, where it is located and its size.