On January 10, 2018, 98 7-Eleven stores nationwide were raided by ICE resulting in 21 arrests of alleged undocumented workers. Needless to say, it is suspected that more raids are to come, probably in industries known to have immigration issues like food service and construction. Allow me to go ahead and answer some of the questions in your head...
For all my HR professionals out there, you know that the first rule of filling out a Form I-9 is to make sure all verification documents are UNEXPIRED. You are also well aware that you should always use the most recent version of the Form I-9 (a.k.a. one that is unexpired). If you have hired a new employee lately you may have noticed this:
It looks like the only Form I-9 currently available is in fact a few days expired. But before you panic, you should know the USCIS has also noticed this and has plans to launch a new "Smart" Form I-9 in the near future. In the meantime, you are permitted to use the newly expired Form I-9 which you can find here.
For those curious about the future "Smart" Form I-9, it is supposedly going to be Millennial-friendly, meaning it will have drop-down menus, embedded instructions, and validations so people can stop "accidentally" entering 20-digit social security numbers. Welcome to the 21st century... in 2016.
If you are currently enrolled in E-Verify, you should know that the system is set to purge 10-year-old records from the massive E-Verify database on December 31, 2015. If you have been enrolled in E-Verify since 2005, you will want to download an archive so that you have the purged data at your office in case of a dreaded audit.
How do you know if your company is enrolled in E-Verify?
For starters, if you are doing business in North Carolina and you have 25 or more employees, you should be enrolled in E-Verify and using the system for all new hires. If you have less than 25 employees, your company may still be enrolled in E-Verify either on a voluntary basis or due to the company's involvement in a government or state contract. If you have 25 or more employees and you are not currently enrolled in E-Verify, you can do so here.
My company is enrolled in E-Verify, now what?
Some of you may be overachievers and be longtime users of E-Verify. If this is you and you have used the system since '05, you need to download the archive data no later than December 31, 2015. The purpose of keeping these archived records is to assist you during an audit, such as an immigration audit or Form I-9 audit. If you have never been through one of these audits, I sincerely hope you never do because I have heard they are horrible. This is why its better to be prepared with as much data as possible. You can download archive data here.
If you have not been enrolled since 2005, you are in luck and will not need to download the archived data... yet.... E-Verify is probably going to do this purge every year so HR professionals should make note of their company's "start date" with E-Verify and download the archived data before it is set to disappear at the end of each year.
Wait, what is E-Verify?
Remember last week when protesters chained themselves together in front of the Governor's Mansion? It turns out this new law was about more than identification documents as it also included a new E-Verify requirement for all state construction contracts. Because life wasn't complicated enough already.
The new §143-133.3 & E-Verify Compliance
A new section is added to Chapter 143 of the North Carolina General Statutes that says the State (which is inclusive of all governing bodies, political subdivisions, or institutions) may not enter into a contract UNLESS the contractor and all subcontractors comply with North Carolina E-Verify requirements. If money is paid to a contractor or subcontractor in violation of this section, the state officer or employee that approved payment AND the sureties on the official bond will be liable to the amount disbursed.
The Commissioner of Labor (a.k.a. the face that graces every elevator a.k.a. Cherie Berry) is charged with handling complaints related to state contract-related E-Verify problems. It looks like the usual fun stuff applies like a good faith reporting requirement and an investigation process that may end in a hearing.
If I were drafting state construction contracts, I would make sure the contract has a term that states all parties within the contractual chain will comply with North Carolina E-Verify laws. Why you may ask? Because the presence of such a contract provisions means you are, by statute, in compliance with the new law. (See how this may be handy). If I were a contractor or subcontractor in the contractual chain with the State. I would also include this provision so that I too will be deemed in compliance with this requirement. #FreeAdviceMondays
North Carolina's E-Verify Law
This is the part of the blog where I remind you that employers in North Carolina with 25 or more employees must E-Verify all new hires. This is a lot of you so make sure you are doing it. The penalties for violating this law can be up to $10,000 per violation which can add up really fast if you have a lot of unverified new hires. Also, you don't have to have 25 or more employees to participate in E-Verify. In fact, I recommend all employers voluntarily participate.
SIDE NOTE: Make sure you are retaining records of verification while the employee is employed AND for one year thereafter. This isn't me being OCD, this is the law in North Carolina.
SIDE NOTE 2.0: E-Verify results can be used as a defense if you are ever audited by DHS, USCIS, or ICE and an employee turns out to be in the U.S. unlawfully. In other words, E-Verify is a great supplement to your I-9s.
SIDE NOTE 3.0: If you ever E-Verify a new hire and you get a Tentative Non-confirmation alert ("TNC"), talk to an HR specialist or your attorney. There is a very particular procedure you must follow (depending on which agency documents are at issue) and it can be very tricky, particularly if you have an HR Department of one.
SIDE NOTE 4.0: E-Verify rules are different for Federal Contracts. HINT: Federal requirements are more strict with more severe penalties.
The EB-5 Visa is set to expire September 30th but a new bipartisan bill in the Senate is set to renew it... with some fairly significant changes. For those of you who are not aware, the EB-5 program is a special visa for foreign investors who bring some major cash investments to the States (looking at you, China). Although these changes may give the U.S. even higher investments, the revisions are also confusing and have left a lot of foreign investors scratching their heads and asking "why?"
The Current Law:
Under the current EB-5 requirements, foreign investors will qualify for the special visa if they (1) invest in a new commercial enterprise that (2) creates or preserves at least 10 full-time jobs and (3) includes an investment of $500,000 to $1 million (depending on whether or not the enterprise is located in a "Targeted Employment Area"). This visa is extended to the immediate family of the EB-5 recipient making coming to America much easier. The U.S. limits EB-5 visas to 10,000 per year and the desire for these visas is growing rapidly. In 2008, the U.S. received a little over 1,200 applications; in 2013 the U.S. received about 6,300 applications. In 2014, the U.S. received over 10,000 applications which is the first year the maximum allocation was granted. NBD.
The Proposed Revisions:
The proposed revisions currently resting in Congress would increase the investment range from to $800,000 to $1.2 million. The new law would also have a mechanism for adjusting this range every five years based on the U.S. Consumer Index.
The proposed new law also specifies that in a "Targeted Employment Area," at least 50% of the job creation must be within the statistical area or county where the Targeted Employment Area is located. Speaking of the job growth factor, this part of the revised law is quite confusing and unclear when the commercial enterprise is part of a regional center and when other factors are contributing to job growth. There is also new provisions written into the bill such as oversight and review requirements, new USCIS enforcement authority, and new requirements regarding Securities laws. Fun stuff.
With increased interest in the EB-5 visa, it can be assumed that the program will be renewed. However, it may become more difficult to obtain and understand if this proposed bill becomes law. For those of you interested in the EB-5 program, we'll be watching as the renewal bill develops.
If hearing the term "E-Verify" made you cringe last week, I can only imagine how you will be feeling after reading this post. The United States Citizenship and Immigration Services (USCIS) has proposed changes to the E-Verify program that would place on employers additional burdens. Before I get into the details, lets recap a few (important) facts about E-Verify:
- All Federal Contractors are required to participate in the E-Verify program, regardless of what state(s) they work in. If you are unsure whether you are a Federal Contractor, go here.
- In North Carolina, all employers with 25 or more employees must participate in E-Verify for all new hires. This law went into effect in 2013 so is (hopefully) not news.
- When required, employers must E-Verify employees within 3 days of being hired. This should sound familiar because its the same for completing the Form I-9.
- Using E-Verify is always in addition to filling out a Form I-9. THEY ARE NOT THE SAME THING.
- Surprise! The USCIS made you a guide! You can find it here for employers and here for federal contractors.
The two biggest proposed changes to E-Verify involve a reverification process and a challenge process for a final non confirmation notice (FNC). Let's discuss these two proposals:
Reverification (Not to be confused with Section 3 of the Form I-9)
Under the proposed change, employers would be required to reverify employees whose work eligibility expires during the course of employment. Sound familiar? Currently, this is required under Form I-9 regulations in certain circumstances (such as a temporary work visa expiring during employment). By essentially making the I-9 reverification required for E-Verify, employers would have to open up a new case and input new data on the employee. Not only is it an additional step for employers but it may be problematic since other documents used for the I-9 may be expired- which could lead to a tentative nonconfirmation (TNC)- and since many document renewals take months to receive.
Challenges to FNCs
Under the current rules, once a final nonconfirmation (FNC) is received, the employer must terminate the employee at issue (or face the wrath of ICE and similar agency audits like this one). The proposed rule change would put in place a system in which employees could challenge the FNC result. (Currently there exists an appeals process for tentative nonconfirmations only). Employers would then be faced with a massive gray area regarding whether or not they can keep the employee during the FNC challenge and if not, what its obligations may be if the FNC is found to be incorrect. Once again, a huge burden on employers.
If these changes go into effect, employers will want to consider re-training their staff on E-Verify or at least offer training on the changes. This is all assuming, of course, that E-Verify gets reauthorized by Congress in the next month. Based on the current program legislation, E-Verify is only funded through September 30th.
We'll keep you updated as we learn more. In the meantime, if you have questions or concerns about I-9s or E-Verify, you know where to find us.
In July of this year, the Office of the Chief Administrative Hearing found Hartmann Studios guilty of over 800 counts of I-9 violations, all of which were paperwork violations. What did these 800+ counts cost Hartmann Studios? A $605,250.00 fine.
Whoa. What happened?
An I-9 audit is what happened. It turns out the Immigration and Customs Enforcement (a.k.a "ICE") showed up and demanded an audit of all Form I-9s. As it would later be revealed, Hartmann was not properly administering its employees' I-9s, resulting in a very large monetary fine. Keep in mind these audits are often random, meaning any company at any time.
What was Incorrect?
It was more about what was missing. ICE found 797 I-9s missing Section 2 or otherwise showing an incomplete Section 2. Section 2 is the part where the Employer verifies documents provided by the Employee and inputs the data into the appropriate columns. There is also a signature block for the Employer's representative certifying that the documents reviewed appear legitimate and are correctly described. If this section is left blank, the presumption is that no documents were ever verified by the employer which is frowned upon by the Feds and against USCIS regulations. There were also 4 employees with no I-9s on record, 8 I-9s missing from Hartmann's database, and a variety of missing signature lines.
How do I Prevent this?
1- Make sure all your employees (and certain past employees) have an I-9 on record.
2- If you notice a missing I-9, get it filled out right away. Put the revised date on the form (do not backdate) and attach a signed note stating the noticed error and your subsequent correction, as well as the date the new form was filled out. Similarly, if you notice a section missing, you should do the same. Always keep the old I-9 and the new I-9.
3- Keep good, secure records. I-9s should be housed in a secure database held separate from employment files. It can be digital or it can be paper. It just needs to be secure (a.k.a confidential) and organized.
4- Make sure your employees properly fill out the Form I-9 AND make sure your supervisors are well-versed on how to administer the Form I-9 properly.
5- When in doubt, call your attorney. Let us help you on the front-end, instead of the back-end. It is much easier to pay an attorney a little bit now than to pay ICE $600K later.