U.S. Department of Homeland Security Rescinds Safe Harbor Regulation for Employers That Receive "No Match" Letters

Posted on August 20, 2009 by Kyle Knapp

On August 19, 2009, the Department of Homeland Security (DHS) announced that it was rescinding its August 2007 and October 2008 regulatory amendments concerning actions employers can take to benefit from "safe harbor" protection after receiving notification from DHS or the Social Security Administration that an employee's reported work authorization or Social Security information does not match government records. In October 2007 a U.S. District Court in California preliminarily enjoined implementation of the regulations. Under the revised regulations, if employers took certain actions within prescribed timeframes, they could shield themselves from liability for allegedly employing individuals who lacked authorization to work in the United States. For additional information on the revised regulation, please review prior blog postings on this topic. 

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.
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Employers Required to Use New I-9 Form As of Today - April 3, 2009

Posted on April 3, 2009 by Robert Cohen

After a two-month delay for the Obama Administration to review the new form and related policies, today (April 3, 2009) marks the introduction of the yet another version of the I-9 form. Employers are required to use the new form to verify the employment eligibility of all newly hired individuals on or after today's date  - April 3, 2009. 

There are two changes from the previous editions of the form. First, the last page of the form, which identifies acceptable documents, has some modified language and adds additional documents that can be accepted to verify employment eligibility in both List A (documents that establish both identity and employment eligibility) and List C (documents that establish employment eligibility). Employers may now accept a passport from the Federated States of Micronesia or the Republic of the Marshall Islands with an I-94A admission document as proof of both identity and employment authorization. This modification is based upon a recent compact between these two territories and the United States. The second modification requires the new employee to identify their status as a citizen, permanent resident, national of the United States, or an alien temporarily authorized to work. Prior versions of the form included citizen or national with the same check mark, but the new form differentiates between the two classifications. Neither of these changes will impact many individuals, but the new form is nevertheless required for all newly hired employees beginning on April 3, 2009. 

 

The new form is available at this link on the USCIS web site.

 

A new version of the employer’s I-9 Handbook is also available on the USCIS web site.

 

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New I-9 Form Implementation Delayed Until April 3, 2009

Posted on February 2, 2009 by Robert Cohen

On Friday, January 30, 2009, USCIS announced that it was delaying the implementation of the new I-9 form and regulations published during the final days of the Bush Administration. On January 20, President Obama issued an executive order requiring review of all new regulations not yet effective.

Implementation of the new I-9 form, which for the first time requires new employees to distinguish between a representation of U.S. citizenship or non-citizen nationality and also reduces the number of acceptable documents, has been delayed for another 60 days. The new effective date for this form and the new requirements is April 3, 2009. The regulations also prohibited the use of some expired documents to demonstrate citizenship or identity. Existing regulations permit the presentation of expired driver’s licenses or passports. The now delayed regulation, however, requires all documents to be valid at the time they are submitted.

Unlike prior changes in the I-9 form, employers cannot use the new form until its effective date, and must use it after the effective date. Prior changes permitted the use of either form until the effective date of the new form, usually announced several months in advance. Thus, employers should continue to use the existing I-9 form until April 3, 2009. It is also possible that the new Administration may change the form or regulations before the new effective date.  Please continue to check our blog for future updates.

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U.S. Citizenship and Immigration Services Announces Revised I-9 Form

Posted on December 17, 2008 by Kyle Knapp

On December 12, 2008, U.S. Citizenship and Immigration Services (CIS) announced an interim final rule to modify the Employment Eligibility Verification Form I-9. The new form will be effective 45 days from the date of the interim final rule. There are two major changes. The first is to limit the number of acceptable documents for verifying a new employee's identity. The second is to prohibit accepting expired identification documents. Employers must complete and maintain the form for all employees hired after November 6, 1986. The new form should be available on the CIS website (http://www.uscis.gov/i-9) toward the end of January 2009.

Reduced Number of "List A" Acceptable Documents
The new I-9 form reduces the number of acceptable documents employees may provide to verify their authorization to work in the United States. The following documents are no longer acceptable as "List A" documents: Temporary Resident Card and older versions of the Employment Authorization Card/Document (Forms I-688, I-688A and I-688B). All of these documents, which no longer are issued, have expired.

New "List A" Documents Now Acceptable
Three new documents now are acceptable for List A:

  • Foreign passport containing a temporary I-551 printed notation on a machine-readable visa.
  • Passports together with a valid Form I-94 or Form I-94A showing admission as a nonimmigrant for citizens of the Federated States of Micronesia and the Republic of the Marshall Islands
  • U.S. Passport Card New Attestation Provision in Section 1 of the Form I-9

New Attestation Provision in Section 1 of the Form I-9
As a minor modification, the new form also will allow the employee to attest to being either a citizen or non-citizen national of the United States. Non-citizen nationals of the United States are persons born in American Samoa, some former citizens of the former Trust Territory of the Pacific Islands and some children of non-citizen nationals born abroad. The U.S. State Department has further information about non-citizen nationals on its web site at www.travel.state.gov.
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