E-Verify had experienced a serious technical glitch on October 22, 2013, and the online system used to verify workers’ identity and employment authorization erroneously gave employers Tentative Nonconfirmations for all employees who provided U.S. Passports or U.S. Passport Cards. For some employers, that meant a nearly 40-percent TNC rate.

U.S. Citizenship and Immigration Services has provided the following guidance to employers: “If you created a case for an employee who provided a U.S. Passport or Passport Card and received a Tentative Nonconfirmation, close the case as ‘Invalid because the data entered is incorrect.’”
Next, the employer should create a new case for the employee using the same U.S. Passport or Passport Card information provided for Form I-9, USCIS advised. This will trigger an escalation query as well for most employers because the subsequent transmission may occur outside the mandated three days after hire. When prompted to explain the delay in transmission, employers then should select: “Other—October 22, 2013 E-Verify technical defect.”
USCIS further instructs, “[I]f you were unable to create a case, you should now create a new case for the employee using the same U.S. Passport or Passport Card information provided for Form I-9.”
Employers are reminded that they are prohibited by law from asking employees to provide a different document if the document(s) they provided, including the U.S. Passport or Passport Card, appear to be genuine and relate to the individual presenting it. The technical problem with E-Verify does not indemnify employers from allegations of immigration-related employment discrimination. Requiring an employee to present new or different documentation could be considered document abuse and is prohibited under the Immigration and Nationality Act.
Please contact your Jackson Lewis immigration counsel with any questions or concerns.

Applicants for B-1 Business Visitor/B-2 Tourist Visa Waivers should be aware that U.S. Customs and Border Protection (CBP) strongly objects to an assistant, rather than the actual traveler, completing the Electronic System for Travel Authorization (ESTA) on-line registration for her boss.

Recently, an assistant completed ESTA registrations for two of her bosses using her own e-mail address rather than the e-mail addresses of the two travelers.  Upon arrival in the United States, both travelers were referred to secondary inspection, held for a couple of hours, and informed that while they were being paroled into the United States, in the future, they would be ineligible for the Visa Waiver Program.  One of the travelers returned to the United States a week later, after obtaining an actual B-1/B-2 visa stamp at the U.S. Embassy.  CBP again placed him in secondary inspection and advised him that he would have to go through secondary inspection whenever he enters the United States because of the erroneous ESTA registration.  Takeaway:  Complete the ESTA registration in person.

In the wake of Janet Napolitano’s September departure from the top spot at the Department of Homeland Security, who President Obama would nominate as her replacement has been the subject of much anticipation.  With immigration reform legislation discussions somewhat sidelined in Congress due to the government shutdown and debt ceiling debates, the President’s tapping of Jeh C. Johnson, a former top Pentagon attorney who focused mainly on military and anti-terrorism issues, may come as something of a disappointment to immigration reform advocates.

With passage of the bi-partisan S. 744 Border Security, Economic Opportunity, and Immigration Modernization Act in June, many employers, advocacy groups and professional organizations, including the U.S. Chamber of Commerce and the American Immigration Lawyers Association expressed optimism that at long last the country’s immigration system may receive the full scale overhaul that it clearly needs.  Designed to appeal to both Republican and Democrat agendas, including border security, a significant increase in specialized work visas for foreign nationals so critical to maintaining American innovation and competitiveness in the global market (see H-1B Visas and the STEM Shortage), a guest worker program, and the reintroduction of a penalty-based mechanism for undocumented aliens to legalize in the U.S. as prominent components of the legislation, many felt immigration reform to some degree will be realized.  While House Representatives quickly doused hopes for passage of the senate bill in its comprehensive form with calls for a more compartmentalized approach (see Comprehensive Immigration Reform Bill under Fire), proponents of reform held out hope for continued debate and movement towards reform this year.

Based on his expertise and deep experience overseeing military and anti-terrorism initiatives prior to leaving the government for private practice last year, should nominee Johnson succeed Napolitano, his strengths likely could lead to the elevation of issues of national security on DHS’s agenda over reform considerations.  Employers are encouraged to continue dialoguing with elected representatives on the importance of hammering out much needed changes to our immigration system.

As furloughed workers returned to their government posts on October 17, following the end of the government shutdown, access to the Department of Homeland Security’s E-Verify database also resumed.  Although users were reporting slower-than-usual performance, all features and services are operational and available to registered users.  The E-Verify home page offers guidance for working through E-Verify issues for employees hired during the government shutdown.  Following are some of the more notable pointers:

-Creating Cases for Employees Hired During the Shutdown – Employers must create a case for employees hired or otherwise affected by the shutdown by November 5, 2013.  Therefore, employers have a little over two weeks to enter information for employees hired between about September 27 and October 16 into E-Verify.   If the employer is prompted to provide a reason for entering the information late (i.e., beyond the third day after the employee’s first day of employment), the user should do the following:
  1. Select “other” from the drop-down list of reasons; and
  2. Enter:  “Federal Government Shutdown.”
-TNC Issues for Employers and Employees – Employees who received a notice of Tentative Nonconfirmation (“TNC”) between September 17 and September 30 and were not able to resolve the issue due to the government shutdown should add 12 federal business days to the date printed on the “Referral Letter” or “Referral Date Confirmation” notice.  Federal business days are Monday – Friday, and do not include federal holidays, such as October 14, 2013, Columbus Day.
-FNC Issues for Employers and Employees – Employees who received a notice of Final Nonconfirmation (“FNC”)or DHS No-Show as a result of the shutdown (either because they were unable to contact or visit with the appropriate government agency during the shutdown or within 10 federal working days after the shutdown) must contact their employer to request that the employer create a new record in E-Verify.  Employers in this situation should do the following:
  1. Close the initial E-Verify FNC by selecting either “Employee continues to Work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a Now Show result”; and
  2. Enter a new case in E-Verify for that employee.
-Federal Contractors – New federal contractors required to enroll in E-Verify during the shutdown should notify the contracting officer that the reason for missing the deadline was because of the government shutdown. Once registered, contractors are asked to follow the above guidelines, subject to their selections in E-Verify, to enter employee data and note the shutdown as a reason for delay when necessary.
-No Effect on I-9 Requirements – The guidance reiterates that the Form I-9 requirements were not affected by the government shutdown and that employers must complete and retain a Form I-9 for every person hired to work for pay in the U.S. during the shutdown.
Please contact the Jackson Lewis Immigration team if you have any questions about E-Verify or the impact of the shutdown on your workforce.

I tend look on the bright side of things.  Although the government shutdown has halted our ability to file PERMs, LCAs and prevailing wages (to name a few) and tested our faith in the political system, I see a silver lining.  This shutdown allows a little “me” time.  It is a time to review lately unvisited compliance files and address other small annoyances that plague the immigration process.

LCA PUBLIC ACCESS FILE
The Labor Condition Application (LCA) is required for every H1B and E3 petition and is submitted to USCIS as part of the submission.  But responsibility for the LCA does not end there.   The DOL has retention requirements related to the LCA!  Fun! This is all housed in a Public Access File.   Within one business day of filing the LCA, the employer must have established a public access file which must be made available upon request to any member of the public.  The file must be maintained at either the employer’s principal place of business in the U.S. or at the place of employment.
The public access file must include the following:
  1. Copy of the pending LCA.  Replace with the certified LCA containing original signature (once LCA is certified) and cover pages.
  2. Prevailing wage information/salary survey.
  3. Actual wage memorandum and wage statement.
  4. Posting Memorandum to confirm compliance.
  5. Summary of Benefits.

Some attorneys provide many of these documents to their clients (Jackson Lewis included), which may include a cover sheet/checklist that can be used as the cover page for the LCA public access file for each employee.  The public access file is retained for a period of one year beyond the last date on which any H-1B nonimmigrant is employed under the LCA or, if no non-immigrants were employed under the LCA, one year from the date the LCA expired or was withdrawn.

You should have a record of each LCA file and how long they must be maintained.  This is also a good way to keep track of your H-1B employees.
PERM RECRUITMENT 
As part of the Permit Electronic Review Management (PERM) program, the applications for permanent employment certification (ETA 9089) filed with the DOL and all supporting documentation must be retained by the employer for five years from the date of filing the PERM.
If you maintain your own recruitment files, take this time to determine which applications were filed five years or more ago and dispose of the documentation, with all the care and ceremony the task requires.  If you find employees without the required recruitment documentation, contact your legal counsel (they probably have it), or determine where it may be within your department.
I-9 FILES
Every current employee must have a valid I-9.  Take a few minutes to review your payroll records and confirm that every current employee has a valid I-9 on file.  If an employee is missing an I-9, determine if one is required and if so, complete one immediately.
I-9s for terminated employees must be retained for three years from the date of hire or one year from the date of termination, whichever is longer.    It is easier than it sounds: Take the date of hire and add three years, then take the date of termination and add one year.  Whichever date is later is the date when you can dispose of the I-9.
You can also use this review to make sure all employees have valid work authorization.  Permanent residents and US Citizens should never be re-verified.  But, if you have any employees working pursuant to USCIS authorization, confirm that these are still valid.  Review the expiration dates of their work documentation (EAD, H1B, TN, etc) in Sections 1 and 2.
CONCLUSION
If you are like me, reviewing retention requirements and poring over compliance files are NOT a recipe for a good time.  But they sure beat the prospect of investigations and sanctions when Government employees return to work.  The furlough-induced respite from immediate federal supervision is as good a time as any to attend to overlooked compliance issues.   Jackson Lewis is available to discuss your retention procedures and how we can help you comply with reasonable effort.

In the midst of the government shutdown, House Democrats have just released their own comprehensive immigration reform bill.  Their likely aim is to keep immigration reform, which had been front and center since the 2012 elections, a hot topic as other issues occupy the national debate and relations between party leaders continue to deteriorate.

Recall that earlier this year, the Senate passed a comprehensive immigration reform bill that included the support of all Senate Democrats and 14 Republicans.  The Senate’s bill has White House backing but  is yet to be taken up by the House.  The bill introduced by House Democrats largely mirrors the Senate bill that passed that Chamber, with the exception of its approach to border security measures.  Unlike the Senate bill, which would vastly increase spending on border security and double the number of federal border agents, House Democrats have adopted the approach approved by the House Homeland Security Committee which creates a detailed plan for the apprehension of illegal border-crosses in high-traffic areas over the course of several years.
The House Democrats’ bill’s other major components – granting legal status to many of the nation’s unauthorized immigrants and a conditional pathway to citizenship, increasing the number of employment-based and family-based legal immigrants allowed in the United States within the next five years, and making employers’ use of E-Verify mandatory – substantially track what the Senate previously passed.
The House Republican leadership has stated  it is adopting a narrower  approach to immigration reform rather than the comprehensive approach reflected in the bill passed by the Senate and introduced by House Democrats.  While it is unlikely that the House Democrats’ bill will get a vote in the House, their effort appears intended to keep pressure on House leaders and maintain, or re-establish, immigration reform as an issue of utmost importance in the immediate term.

October 1 marks the beginning of the fiscal year 2014 and the date when approved new cap H-1B petitions become effective.  Employers are reminded that October 1 is the last day to reverify Forms I-9 for employees who switched their status from F-1 (Academic Student) to H-1B (Person in Specialty Occupation) and who have been working pursuant to a “cap-gap” extension.  A cap-gap extension allows F-1 students with pending timely-filed H-1B petitions to continue working through September 30 until the H-1B status is activated.  On October 1, employers must reverify employment authorization of such employees by completing section 3 of Form I-9.  Employers can review Handbook for Employers for additional guidance for completing Form I-9.  The most recent Form I-9 version is available online on the USCIS website.

The failure of Congress to agree on a new budget for the Fiscal Year (beginning October 1) is resulting in a furlough of more than 800,000 federal workers and government agencies temporarily closing or cutting back the operations of numerous federal facilities and the suspension of many services. This is the first government shutdown in 17 years.

Employers participating in E-Verify may be the first to notice the effects of the government shutdown.  Those attempting to login to their administrative account will find the following message:
While E-Verify is unavailable, you will not be able to access your E-Verify account. As a result, you will be unable to:
  • Enroll any company in E-Verify
  • Verify employment eligibility
  • View or take action on any case
  • Add, delete or edit any User ID
  • Reset passwords
  • Edit your company information
  • Terminate an account
  • Run reports
  • View ‘Essential Resources.’ Please note that all essential resources may be found by visiting www.dhs.gov/e-verify.”
During the shutdown, employers will be unable to participate in the initial verification process, and, more importantly, employees who recently received Tentative Nonconfirmations (TNCs) will be unable to resolve them. The time during which employees may resolve TNCs (by going to the Social Security Administration or contacting DHS) will be extended by the days the federal government is closed.
The government shutdown does NOT affect employers’ obligation to complete the Form I-9 no later than the third business day after an employee starts work for pay.
Those with business with the government, including federal contractors complying with the federal contractor rule, should check with legal counsel or the particular government entity with whom they work for information about their specific case.

U.S. Citizenship and Immigration Services (USCIS) is requiring customers to verify their identities at USCIS field offices to obtain   interviews or “to receive evidence of an immigration benefit.”  Customers must submit biometric data in the form of fingerprints and photographs at USCIS offices.

When customers arrive at a USCIS field office, they must clear security before being called to the counter.  Once they are at the counter, USCIS requires that customers electronically scan two fingerprints and take a picture to verify their identity.  After USCIS verifies the customers’ identity, they can attend their interviews or receive their documents.
Individuals who are going to a USCIS field office for InfoPass appointments or simply to accompanying a customer are not subject to the identity verification process.  Also, the new initiative does not change current USCIS practices, such as the requirement that applicants and petitioners who are requesting immigration or naturalization benefits provide biometric data and a government-issued document at USCIS’s Application Support Centers.

AUTHOR:  Rebecca Massiatte.

As of September 8, 2013, Iowa joins Mississippi, Florida and Idaho as participant states in the Records and Information from DMV’s for E-Verify (RIDE) program. 
 
The RIDE program allows the federal government’s E-Verify system to verify information from employees who submit a state driver’s license or state identification document in the course of the I-9 Employment Verification Process. Touted as a mechanism to fight identity fraud, RIDE seeks to boost the accuracy of the E-verify employment eligibility verification process. While RIDE does not incorporate photos from the individual state database, it does provide all information provided in connection with the issuance of the driver’s license and state identification document. 
 
A state-issued driver’s license or state identification document are two of the items from a list of choices that an employee can present to an employer as a “List B” document (to verify identity) in connection with  Form I-9 verification.  In 2011, E-Verify expanded its information sources to include driver’s licenses. 
 
RIDE allows employers to verify the information associated with a state issued driver’s license or identification card.  This can help prevent unauthorized persons from using a fraudulently obtained document to obtain a job.  Unfortunately, without the inclusion of photo identification, RIDE does not eliminate issues associated with identity theft. Additional states are expected to sign on to the RIDE Program.