Revised I-9 Form Required April 3, 2009
Effective April 3, 2009, employers must use the 02/02/2009 edition of Form I-9 when verifying and reverifying the employment eligibility of their employees. The current edition of Form I-9, dated 06/05/2007, must continue to be used through April 2, 2009, but will no longer be valid for use on or after April 3, 2009.
The revised Form I-9 reflects changes made to the list of documents acceptable for Form I-9 in an effort to increase the security of the employment authorization verification process. Employers will find that the revised I-9
- requires all documents presented during the verification process to be unexpired;
- eliminates List A identity and employment authorization documentation Forms I-688, I-688A, and I-688B (Temporary Resident Card and outdated Employment Authorization Cards);
- adds foreign passports containing certain machine-readable immigrant visas to List A; and
- adds to List A as evidence of identity and employment authorization valid passports for citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI).
The new I-9 form can be located at USCIS’ website – www.uscis.gov. Click on “Immigration Forms” and scroll all the way down to the link to the “I-9” form. Clicking on I-9 takes you to USCIS’ “Employment Eligibility Verification” page. Among the “Related Links” menu bar on the right of the page is a link to the new M-274 – Handbook for Employers that is effective April 3, 2009.
Passport Data for Foreign-Born Citizens Is Now In E-Verify
One of the primary complaints about the E-Verify program is the significant number of mismatches regarding foreign-born U.S. citizens. An evaluation of the E-Verify program conducted in September 2007 indicated that foreign-born U.S. citizens were more likely to receive tentative nonconfirmations ("TNC") than native-born U.S. citizens. A TNC occurs when the E-Verify system cannot confirm the individual is authorized to work and that secondary verification by the government is required.
To increase the accuracy of the E-Verify program, U.S. Citizenship and Immigration Services (USCIS) incorporated passport data from the Department of State (DOS) in February 2008. By adding this data, USCIS is able to access DOS records to determine if the citizenship information provided on the Form I-9 (Employment Eligibility Verification form) matches DOS records. USCIS has indicated that approximately 300 TNCs have been prevented since February 2009 due to the enhancement.
Additionally, foreign born U.S. citizens who receive TNCs are now able to call USCIS directly as opposed to having to visit a Social Security Administration office to resolve their cases. Of those who have contacted USCIS directly, USCIS reports that 90 percent have led to a final determination of "work authorized" over the phone.
Employers Permitted to Participate in E-Verify in Illinois
The U.S. District Court for the Central District of Illinois recently struck down the Illinois state law that prohibited employers from enrolling in the E-Verify program in Illinois. E-Verify is an Internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees.
The Illinois law prohibited employers from enrolling in E-Verify until the program was able to make a determination within 3 business days on 99% with respect to tentative nonconfirmation notices. (A tentative nonconfirmation notice indicates that the E-Verify system cannot confirm the employee is authorized to work and that secondary verification is required.) In striking down the law, the Court stated that the Illinois law "frustrates Congress' purpose by prohibiting Illinois employers from participating in the Federal Program unless the Federal Program meets Illinois' standard for accuracy and speed….This clearly frustrates the Congressional purpose of making the Federal Program available to all employers."
The Court determined that under the U.S. Constitution's supremacy clause, only Congress is entitled to set the terms and the length of the testing of the program. The Court further commented that "Illinois cannot say no, or require the federal government to meet Illinois standards." While the lawsuit was ongoing, Illinois agreed not to enforce the law. Based on the Court's decision, Illinois employers will be able to continue using the E-Verify program, if they wish.
Effect of Layoffs and Benching on H-1B Employees
Employers have downsized and reorganized their workforce to weather the current economic downturn. For those employers who employ H-1B nonimmigrants, it is important to understand what the law requires in the event of a change in employment terms or conditions.
Layoffs
If an employer lays off an H-1B employee, the employer must effect a bona fide termination to halt its obligation to pay the H-1B employee the wages listed in the Labor Condition Application filed with the Department of Labor (DOL). A bona fide termination has three elements: 1) notify the employee, 2) provide notice to U.S. Citizenship and Immigration Services, and 3) offer to pay the employee’s transportation cost to return to his or her home country. Until there has been a bona fide termination, the employer is required to continue paying the H-1B employee his or her wages.
Employers should note that there is no grace period once H-1B status ends. Strictly speaking an H-1B employee falls "out of status" as soon as the employment relationship ends. Because H-1B employees may have the option of "porting" to another employer willing to sponsor them, employers might wish to consider giving H-1B employees advance notice of the termination to minimize the impact on their immigration status.
Benching
Benching is a period of time that an H-1B employee spends in non-productive status due to a decision by the employer. For example, annual plant shuts down for holidays or retooling; summer recess or semester breaks; pre-employment training; mandatory vacation; or disciplinary action are considered benching. However, a period of non-productive status due to a choice by the employee is not considered benching (e.g., extended leave to care for an ill family member, absence from work to travel). When an employer benches an employee, the employer is required to continue to pay its H-1B employee pursuant to the Labor Condition Application that the employer filed with the DOL.
Penalties
If the DOL finds that an employer has failed to pay wages to an H-1B employee as required prior to a bona fide termination or during certain periods of non-productive status, the employer may be subject to the following penalties:
- payment of back wages to any H-1B worker who was not paid in accordance with the LCA attestations;
- civil money penalties;
- disqualification from approval of nonimmigrant petitions filed by the employer for a period of time; and
- other administrative remedies as appropriate.
TARP Employers Filing H-1B Petitions for Fiscal Year 2010
Additional H-1B petition pre-filing requirements apply to employers that receive funding under the Troubled Asset Relief Program (TARP). Such employers are precluded from hiring H-1B workers unless they have first offered such positions to equally- or better-qualified U.S. workers U.S. Such employers are also precluded from hiring new H-1B workers in occupations in which they had laid off U.S. workers. Please see the February issue of Immigration Insights for more information about TARP funding and which employers are subject.
U.S. Citizenship and Immigration Services (USCIS) has now revised its Form I-129 Petition for a Nonimmigrant Worker to include a question asking whether the employer has received TARP funding. While the new form is not required for FY10 H-1B filings, USCIS is encouraging petitioners to complete the page in the revised version of the Form I-129 which has the new question with regards to TARP funding and to file this single page with the prepared package. The single page referenced is the first page on the H-1B Data Collection and Filing Fee Exemption Supplement. If employers do not follow this recommendation, they will be subject to delays in the adjudication of their petitions and can expect to receive Requests for Evidence from USCIS.
Significant EB-3 Retrogression in April Visa Bulletin
In the April 2009 Visa Bulletin, the Employment Third Preference Worldwide and Philippines cut-off dates will retrogress to March 1, 2003 from May 1, 2005. What is unusual about this retrogression is that it became effective immediately upon the U.S. government’s release of the April Visa Bulletin in early March. Generally, the Visa Bulletin becomes effective on the first day of the month for which it was issued, but in this case the retrogressions became effective on March 9, 2009.
The Department of State indicated that "the amount of demand being received from Citizenship and Immigration Services (CIS) Offices for adjustment of status cases remains extremely high. Therefore, it has been necessary to retrogress the April cut-off dates in an attempt to hold demand within the FY-2009 annual limit. … This cut-off date will be applied immediately." The DOS also stated that further retrogression or "unavailability" at anytime cannot be ruled out. It is unlikely that the Third Preference category will remain available in the near future.
On a more positive note, the Third Preference cut-off date for China advanced from October 22, 2002 to March 1, 2003 and the Third Preference cut-off date for India advanced from October 15, 2001 to November 1, 2001.
Eliminating the FBI Name Check Backlog
In March U.S. Citizenship and Immigration Services (USCIS) announced that as of mid-February USCIS and the FBI had completed all name checks that had been pending for more than six months. USCIS and the FBI confirmed that they are on track to meet the May 31 milestone of completing name check requests pending longer than 90 days. By the end of June, the FBI will complete 98 percent of USCIS’ name check requests within 30 days and process the remaining two percent within 90 days.
At the beginning of November 2007, there were nearly 350,000 pending name check requests of which 54,000 had been pending for more than two years. Another 55,000 had been pending for at least a year. USCIS stated that a total of 6,756 pending name check requests remain. See http://www.dhs.gov/journal/leadership for more information.