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In its August 19, 2009 announcement, DHS now explains that it intends to pursue employment authorization enforcement actions through programs such as E-Verify and IMAGE. E-Verify is DHS' free online system employers can use to verify the employment authorization of newly-hired employees. Employers still must follow the I-9 requirements for reviewing and recording information from the documents new employees present to evidence their work authorization. The employer then enters certain information from the I-9 into the E-Verify system. In most cases, the employer should receive an instant response concerning the validity of the employee's work authorization status. In other cases, the employer must follow additional steps to verify the employee's work authorization status.
 

IMAGE refers to ICE [Immigration and Customs Enforcement] Mutual Agreement Between Government and Employer. IMAGE allows employers to enroll in the DHS-sponsored program to receive training in hiring practices, document examination and verification and anti-discrimination. It also involves enrolling in the E-Verify system and agreeing to DHS audits of I-9 records.  See our prior posts on E-verify.
 

Both E-Verify and IMAGE present advantages and disadvantages. The advantages include ensuring that an organization's employees have proper work authorization and limiting exposure in the event of a government investigation. The primary disadvantages include the additional administrative cost to implement the programs and opening up an employer's I-9 records to provide unfettered access to government officials in their quest to locate unauthorized workers and punish employers in the process. Therefore, in addition to evaluating the costs of implementation, enrolling in either program requires careful consideration of the employer's workforce, record keeping practices and potential exposure in the event of an investigation.
 

Regardless of whether employers choose to enroll in E-Verify or IMAGE, DHS's rescission of the No-Match regulation does not mean employers can ignore no-match letters. Under existing regulations, there still is an argument that receiving such a letter puts the employer on sufficient notice of a potential problem with the documents it accepted to verify employment eligibility. Prior cases have held that this notice requires further inquiry. Employers need to exercise caution in this area and work closely with counsel to ensure compliance with both work authorization verification procedures and anti-discrimination laws. Based upon statements of DHS Secretary Janet Napolitano, it appears enforcement actions will continue. The no-match letter often is the jumping off point for ICE investigations. And, as the DHS announced in rescinding the regulation, enforcement actions against employers will continue. Therefore, employers need to continue to exercise due caution in this area and promptly address allegations or notices concerning the work authorization status of their employees.

Canadian visitors, diplomats (A, G and NATO status), children under 14 and individuals over 79 are not required to register. All other nonimmigrants (visitors, students and temporary workers) and permanent residents will be required to register with US-VISIT upon arrival. Registration at departure is also required, but has not yet been implemented in all airports, seaports and land borders. 

We anticipate that the implementation of this regulation will permit the Department of Homeland Security to closely monitor the dates of arrival, departure, and periods of absence for permanent residents. Applications for naturalization require proof that the permanent resident was physically present in the United States for at least 50% of the qualifying period (5 years as a permanent resident, reduced to 3 years for spouses of U.S. citizens). Absences for more than 6 months constitute a break in the period of residence. Moreover, an absence of 180 days or longer triggers a different legal standard for returning residents, and requires the resident to demonstrate that he or she did not intend to abandon the permanent resident status. Residents therefore should keep records of their departure and return travel dates, properly plan for lengthy absences and consult immigration counsel if they have questions concerning the potential impact of such absences upon their lawful permanent resident status.