New Form I-9 – be aware of changes to the new form!

December 5, 2016 at 6:36 pm | Posted in discrimination, E-Verify, Employee, Employer, Employment Law, harassment, Harvesting, I9, Immigration, Legal, New employment laws/amendments, retaliation | Leave a comment

A new Form I-9 has been released by U.S. Citizenship and Immigration Services, commonly known as USCIS.  The Form I-9 has two goals: to ensure that employers are only hiring individuals who may legally work in the United States–either U.S. citizens or foreign citizens who have the necessary authorization; and, to confirm identity.

The new Form I-9 is dated November 14, 2016 and has an expiration date of August 31, 2019. USCIS has a practice of extending the expiration dates as they work on new forms.  Employers must start using the new version of the Form I-9 on January 22, 2017, but there is no reason not to start using the new Form I-9 now.

There has been change to the storage and retention rules for your previously completed Forms I-9.

The new Form I-9 still has the helpful stop signs to signify when an employee should stop in putting information.  The request for phone number and email is a voluntary one.  One of the big changes is that the full 9 pages of the Form I-9 and instructions is now just the Form I-9 and the list of acceptable documents from List A, or List B and C.

This two page document could result in over $16,000 of fines if completed incorrectly so pay attention, read every line, sign where you need to, and consider reading the M-274 Form I-9 Handbook to better understand what documents are appropriate for providing by employees.

From Hultman Sensenig + Joshi:  If you have not conducted an internal audit of your Form I-9’s, now is a good time to consider doing so as engaging in such proactive measures and making corrections where you can in the legally acceptable way shows a commitment to compliance in case of an ICE audit.  Let us know if we can be of assistance to you for an internal audit.  You will want to be sure you are not engaging in any discrimination at the initial completion of the Form I-9, or in any audit.

 

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Proposed Changes to Form I-9

January 19, 2016 at 2:35 pm | Posted in E-Verify, Employee, Employer, Employment Law, I9, Immigration, Legal, New employment laws/amendments | Leave a comment

Directly from the USCIS.GOV website:

USCIS Seeks Comments on Proposed Changes to Form I-9

USCIS published a notice in the Federal Register on Nov. 24, 2015, to inform the public of proposed changes to Form I-9, Employment Eligibility Verification. The public may provide comments on the proposed changes for 60 days, until Jan. 25, 2016.

Many of the proposed changes to Form I-9 are intended to help reduce technical errors and help customers complete the form on their computer after they have downloaded it from uscis.gov. For instance, the form:

Checks certain fields to ensure information is entered correctly;
Provides additional spaces to enter multiple preparers and translators;
Includes drop-down lists and calendars;
Provides instructions on the screen that users can access to complete each field;
Includes buttons that will allow users to access the instructions electronically, print the form and clear the form to start over;
Provides a dedicated area to enter additional information that employers are currently required to notate in the margins of the form; and
Will generate a quick-response matrix barcode, or QR code, once the form is printed and can be used to streamline audit processes.
Other proposed changes include:

Requiring employees to provide only other last names used in Section 1, rather than all other names used;
Streamlining the certification in Section 1 for certain foreign nationals; and
Separating the instructions from the form to bring the form in line with USCIS’ practices.
Submit a Comment
To view the proposed form and instructions, go to the Form I-9 notice at http://www.regulations.gov. To submit a comment, enter USCIS-2006-0068 in the search box and click the “Comment Now!” button. After completing all the necessary fields, click “Submit Comment.”

After the 60-day period
After the 60-day period ends, USCIS may make changes to the form based on comments received and will publish a second notice in the Federal Register. The public will have an additional 30 days to provide comments on proposed changes. USCIS will notify the public about these comment periods on I-9 Central.

Which Form Should I Use?
Employers must complete Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The current version of Form I-9 is available on USCIS’ online I-9 resource center at http://www.uscis.gov/I-9central. Employers must continue to use the current version of Form I-9 until the Office of Management and Budget approves the proposed version and USCIS posts it on I-9 Central.

I-9 Central includes information about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization. Subscribe to I-9 Central to receive updates and alerts.

Hultman Sensenig + Joshi thoughts to share:  After years of waiting for changes and finally having a revised Form I-9 in March of 2013, the tweaking to the revised Form I-9 continues.  Considering the fines are substantial for failure to accurately complete a Form I-9, paying attention to what USICS wants to change gives employers insight into where the Agency sees problems.  Remember, employers MUST fill out a Form I-9 for employees so this two page form is significant.  

By reading this blog, there is no legal advice being given and no attorney client relationship is being established.  

 

The new Form I-9 is here – along with newly revised M-274 Handbook!

March 13, 2013 at 4:21 pm | Posted in E-Verify, Employee, Employer, Employment Law, H2-A, I9, Immigration, Legal, New employment laws/amendments | Leave a comment
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It is hard to believe but the U.S. government actually issued a new Form I-9 without ten years of committee meetings to discuss those revisions.  The new Form I-9 is here, effective March 8, 2013, for all employers to begin using.  The questions will continue to roll in about the new format, about what documents to accept, about what pages to keep, and how the new Form I-9 affects internal Form I-9 audits.

The newly revised Form I-9 can be found at:

http://www.uscis.gov/files/form/i-9.pdf

Another surprise is that the Form I-9 Handbook, the M-274, was revised as well – the revised version was released yesterday.  Please print the new M-274 and review it carefully.  This revised version of the M-274 has color photos and better examples of the documents usually provided to employers by non-citizens.

http://www.uscis.gov/files/form/m-274.pdf

Follow the instructions carefully and be sure that the form I-9’s you keep have the list of documents on the back of the actual completed portion.

There will be confusion as to how to address concerns.  E-verify will also be affected by the new Form I-9.  Stay posted for updates!

The above is not legal advice nor is this posting the creation of an attorney client relationship between the Sensenig Law Firm and the reader.

The current Form I-9 expires August 31, 2012 – but an extension of the Form has been granted!

August 22, 2012 at 1:22 am | Posted in agriculture, E-Verify, Employee, Employer, Employment Law, H2-A, I9, Immigration, New employment laws/amendments | Leave a comment

Until further notice, employers should continue using the Form I-9 currently available on the forms section of http://www.uscis.gov.  This particular I-9 Form should continue to be used even after the OMB control number expiration date of August 31, 2012 has passed. The Immigration Service will provide updated information about the new version of the Form I-9 as it becomes available.  We waited well over ten years for the last revision so I am not particularly optimistic that a new version will be issued anytime soon.

Employers must complete Form I-9 for all newly-hired employees within 72 hours of commencement of employment to verify the employee’s identity and authorization to work in the United States.

Agricultural Employer Alert: Department of Labor statement on withdrawal of proposed rule dealing with children who work in agricultural vocations

April 27, 2012 at 3:01 am | Posted in agriculture, Employee, Employer, Employment Law, Harvesting, I9, Immigration, New employment laws/amendments | Leave a comment
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The U.S. Department of Labor today – April 26, 2012 – issued the following statement regarding the withdrawal of a proposed rule dealing with children who work in agricultural vocations:

“The Obama administration is firmly committed to promoting family farmers and respecting the rural way of life, especially the role that parents and other family members play in passing those traditions down through the generations. The Obama administration is also deeply committed to listening and responding to what Americans across the country have to say about proposed rules and regulations.

“As a result, the Department of Labor is announcing today the withdrawal of the proposed rule dealing with children under the age of 16 who work in agricultural vocations.

“The decision to withdraw this rule – including provisions to define the ‘parental exemption’ – was made in response to thousands of comments expressing concerns about the effect of the proposed rules on small family-owned farms. To be clear, this regulation will not be pursued for the duration of the Obama administration.

“Instead, the Departments of Labor and Agriculture will work with rural stakeholders – such as the American Farm Bureau Federation, the National Farmers Union, the Future Farmers of America, and 4-H – to develop an educational program to reduce accidents to young workers and promote safer agricultural working practices.”

This clearly has an impact not on the family farms that would have been affected by the rule change.  It is also interesting that the Administration has backed away from this issue while continuing to address immigration enforcement issues via Form I-9 audits, and the fines and criminal penalties associated with those audits.

U.S. Immigration and Customs Enforcement “ICE” and the Department of Labor’s Wage and Hour Division “DOL” have a new Memorandum of Understanding DOL

April 2, 2011 at 8:55 pm | Posted in Employee, Employer, Employment Law, FLSA, I9, Immigration, New employment laws/amendments, wage & hour | Leave a comment

On March 31, 2011, DOL and ICE entered into an updated Memorandum of Understanding, commonly called an MOU, regarding what information each will share with the other when conducting an investigation at an employer’s workplace.  The MOU revision clarifies that while both Agencies are encouraged to share pertinent work site information, simultaneous/dual investigations by both DOL and ICE at a workplace are not favored.  The MOU gives the two signing agencies flexibility on this issue and identifies “some” of the ways in which dual investigations can occur.

DOL specifically agrees in the MOU “to assist ICE’s efforts … by providing ICE with timely and accurate information to allow for identification of overlapping enforcement activity.”ICE and DOL agree in the MOU “to create a means to exchange information to foster enforcement against abusive employment practices directed against workers regardless of status. ICE agrees to develop a means to refer to DOL information concerning violations of DOL’s civil work site authorities described in section III of this MOU.”  In other words, the Agencies will continue to share information as they have done in the past BUT now the Agencies are seeking ways in which to make the information sharing easier.  To review the MOU, go to http://www.dol.gov/_sec/media/reports/HispanicLaborForce/DHS-DOL-MOU.pdf.

The type of the information shared between ICE and DOL pursuant to the MOU is also the type of information easily shared with the new “fusion centers” being set up around the country to allow for monitoring of issues relevant to national security, which almost always impacts immigration related issues.  Without endorsing the site in any way, consider a visit to http://www.aclu.org/whos-spying-your-neighborhood-map for a listing of the fusion center in your neck of the woods.

The revised MOU shows a renewed interest by DOL and ICE in working together when auditing employers to enforce the laws currently on the books.  The political will does not appear to be for proposing new legislation to address immigration and employed related issues but instead is focused on getting the maximum mileage out of the laws currently in place.  In light of the hefty fines asserted against employers for technical violations of the Form I-9 and the Fair Labor Standards Act record keeping requirements (Abercrombie & Fitch was fined one million dollars late last year), self-audits and compliance efforts are in order.  Based upon this renewed interest by DOL and ICE in formalizing how the two Agencies will work together, and based upon the hiring of new agents by both ICE and DOL throughout the country, particularly here in Florida, I would hazard an educated guess that once an employer is visited by DOL, ICE will come knocking soon after.

Employers, your mail this holiday season may include more than holiday greeting cards – DOJ just issued Social Security Mismatch Number FAQ’s and Guidance

November 30, 2010 at 2:34 pm | Posted in Employee, Employer, Employment Law, I9, Immigration, Social Media/Social Networking | 1 Comment
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The Department of Justice decided that the holiday season, a time of hiring seasonal help, was just the right time to issue new Frequently Asked Questions and Guidance regarding an issue that’s been dormant for some time – the issue of what to do when an employer is notified that there appears to be a mismatch for a reported social security number of an employee.  The DOJ asks employers to recognize that:

  • Name/SSN no-matches can result because of simple administrative errors.
  • Employers should check the reported no-match information against the employer’s personnel records.
  • The employer must inform the employee of the no-match notice.
  • The employer should ask the employee to confirm the name and social security number reflected in the employer’s personnel records.
  • The employer should advise the employee to contact the Social Security Administration (SSA) to correct and/or update his or her SSA records.
  • The employer should give the employee a reasonable period of time to address a reported no-match with the local SSA office.  It appears that the DOJ is borrowing the 120 day period from the E-Verify program as a “reasonable” period of time in which to allow for the mystery to be solved.

Employers need to have a policy in place regarding how mismatches are addressed as failure to apply the same procedures for all employees regardless of citizenship status or national origin could result in discrimination claims under both Title VII, state anti-discrimination laws, local ordinances, and the Immigration Nationality Act.

Once the employee has been advised as to the mismatch, the employer should periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.  If there are any corrections, the employer or employee should submit corrections to the Social Security Administration.

The DOJ states in its Guidance that employers should NOT:

  • Assume the no-match conveys information regarding the employee’s immigration status or actual work authority.
  • Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.
  • Attempt to immediately reverify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.  Engage in this reverification at your peril.
  • Follow different procedures for different classes of employees based on national origin or citizenship status.
  • Require the employee to produce specific documents to address the no-match.
  • Ask the employee to provide a written report of Social Security Administration verification – or written proof of having visited any governmental agency.

The Office of Special Counsel is available to provide employers and employees with more information on the social security mismatch issue, and on anti-discrimination provisions of the Immigration and Nationality Act.  The Office of Special Counsel can be reached at 1-800-255-7688/1-800-237-2525 (Hearing Impaired/TDD) or visit the website: http://www.justice.gov/crt/osc.  It is always a good idea to review the information provided by the various government agencies to learn how it is the agencies will interpret certain acts.  Having standard policies in place prior to receiving the next round of mismatch letters to be issued is a good proactive plan.

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

When ICE comes knocking, it may be snowing fines for lack of Form I9 compliance in Florida

August 15, 2010 at 7:47 pm | Posted in Employee, Employer, Employment Law, I9, Immigration | 1 Comment
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Immigration is a hot topic – again.  Arizona’s stringent new immigration law was challenged by the Obama administration, suggesting, among other arguments, pre-emption of federal immigration laws.  Judge Susan Bolton of the Federal District Court in Phoenix issued a preliminary injunction against some of the more controversial sections of Arizona’s law.  Under Judge Bolton’s ruling Arizona state police cannot make it a state crime to fail to carry immigration documents.  Judge Bolton further held that Arizona state police officers who have not been trained under Section 287(g) of the Immigration and Nationality Act may not check a person’s immigration status while enforcing other laws.

Florida gubernatorial candidate Bill McCollum and House Representative William Snyder from Stuart recently filed their own proposed Florida immigration reform bill, suggesting that “Arizona is going to want this law,” McCollum said. “We’re better, we’re stronger, we’re tougher and we’re fairer.”  For a copy of the actual bill text, see the link at the bottom of this posting.  Protests and commentary abound about this controversial proposal.

With the focus on illegal immigration spurring the federal government to take action, Immigration Control and Enforcement, known as ICE, has stepped up their auditing of employers.  Form I-9 audits are becoming quite common, and resulting in heavy fines being assessed against employers.  In the “good old days” the Department of Labor conducted the Form I-9 audits in conjunction with payroll audits.  Most Form I-9 audits took a few hours and ended with promises of better compliance in the future.  Now, ICE arrives with a subpoena asking for information that will keep your entire HR staff hopping for days to compile the information.  Some of the items ICE is commonly requesting includes:

  • Original I-9 forms and copies of supporting documents
  • Employee roster or payroll
  • Monthly payroll reports
  • Copies of State Wage Detail Reports and Unemployment Insurance Quarterly Tax Reports
  • Copies of Quarterly Tax Statements
  • Independent Contractor Rosters including dates of hire and termination
  • Copies of Tax Form 1099 for all independent contractors
  • Lists of all individuals employed on a sporadic, irregular or intermittent basis and not deemed to be an employee
  • Copies of Social Security Administration Employer Correction Requests
  • Copies of petitions filed with the Immigration Service on behalf of employees
  • Copies of the business’s articles of incorporation, business license and annual reports
  • Employer Identification Number (EIC) and Taxpayer Identification Number (TIN) documentation, and
  • Copies of all company procedures and/or policies regarding Form I-9 preparation

The list above is not complete; employers are being presented with subpoenas of five to seven pages.  Employers are also being asked to provide information about the employer’s use of temporary staffing agencies, including requesting all contracts between the employer and the vendor and a copy of ALL applications filed out by the vendor’s employees who have been assigned to the employer’s workplace.  If the employer participates in E-Verify, all documents regarding initial application, compliance and training will also be requested.  If the employer has had prior Form I-9 inspections by the Department of Labor, all DOL audit information will also be require to be provided.  Here’s the kicker, employers typically have less than a week to gather, prepare and present all of these items.  Be sure to train your front line employees to notify you immediately of ICE being on premises.  It is likely that you will need counsel to assist you in the audit process as significant fines and multipliers can result from these audits.

This topic will continue to gain publicity as election season continues and the Arizona law continues to evolve.  In the interim, Florida’s hospitality and farming industries can expect to see ICE come knocking.  Be sure to have policies and procedures in place for that possibility – and your attorney’s number handy!

For the actual bill text, visit: http://floridaindependent.com/5814/mccollum-state-rep-william-snyder-announce-details-of-arizona-style-immigration-law-they-want-in-florida

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

The world of employment law is continually evolving and changing – but aren’t we all?

January 18, 2010 at 8:06 pm | Posted in ADA, discrimination, Employee, Employer, Employment Law, FLSA, harassment, I9, Immigration, Legal, New employment laws/amendments, retaliation, Unemployment, union, wage & hour, Workers' Compensation | Leave a comment
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COBRA Subsidy Update:  On Dec. 19, 2009, President Barack Obama signed into law an extension of the original COBRA subsidy enacted in February 2009. Under the new extension, individuals are eligible for the subsidy if the involuntary termination occurred during the period that began Sept. 1, 2008 and ends on Feb. 28, 2010 (the loss of coverage does not have to occur by that date). Eligible individuals pay only 35 percent of their COBRA premiums (the employer must pay the rest) but the remaining 65 percent is reimbursed to the coverage provider – usually the employer – through a tax credit.

The U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) recently posted updated materials at http://www.dol.gov/ebsa/cobra.html to help employers, employees and benefits plan administrators to understand the eligibility requirements of the recent extension.

The above is not legal advice nor is this posting the creation of an attorney client relationship between the Sensenig Law Firm and the reader.

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