New I-9 Forms Must Now Be Used, Starting Today, According to USCIS

By Glen M. Krebs

The U.S. Citizenship and Immigration Services (USCIS) is reminding all employers that beginning today, May 7, 2013, they must start using the revised Form I-9, Employment Eligibility Verification (Revision 03/08/13)N for all new hires and reverifications.

All employers are required to complete and retain a Form I-9 for each employee hired to work in the United States.

Note: the revision date for the new Form I-9 is printed on the lower left corner of the form. Also, employers need not and should not complete a new Form I-9 for existing employees if a properly completed Form I-9 is on file.

USCIS advises that a Spanish version of Form I-9 (revision 03/08/13)N is available on its website for use in Puerto Rico only.  Spanish-speaking employers and employees in the 50 states, Washington, D.C., and other U.S. territories may use the Spanish version for reference, but must complete and retain the English version of the I-9 form.

The revised forms are available at www.uscis.gov/I-9. And for more information, you may call 888-464-4218. Government representatives are available Monday through Friday, from 8 a.m. to 5 p.m.  USCIS also maintains a website, I-9 Central, to support Form I-9 users.

To order forms, you can contact USCIS at 1-800-870-3676. For free downloadable forms and information on USCIS programs, immigration laws, regulations, and procedures, you can visit www.uscis.gov.

 

Inspections of I-9 Forms Are Increasing Nationwide

By Glen Krebs

Several lawyers have indicated that clients have received I-9 audit letters.  It is  estimated that at least 500 employers nationwide will be receiving Notices of Inspection (NOIs) in the coming weeks.  The inspections could lead to civil penalties and even criminal indictments.

NOIs will include requests for hiring, payroll and other records to determine compliance with employment eligibility verification laws. Employers will be expected to produce original I-9s within three days from service of the NOI.  We have previously provided instructions for dealing with Immigration audits.  If you would like additional information, please feel free to contact Glen Krebs at gkrebs@wyattfirm.com or 859-288-7409.

We are also happy to assist you to conduct an internal I-9 audit and develop a basic immigration compliance plan.

NLRB Rules For Employer Finding No Obligation To Reinstate Or Pay Backpay to Illegal Aliens

By Edwin S. Hopson

On August 09, 2011, the National Labor Relations Board issued its decision in Mezonos Maven Bakery, 357 NLRB No. 47 (2011), in which it held that the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137(2002) was binding upon the Board in deciding that it lacked the authority to award backpay to undocumented immigrant workers whose rights under the National Labor Relations Act had been violated.  This was found to be so even if the employer knew at the time the undocumented workers were hired that they lacked employability with the meaning of the Immigration Reform and Control Act of 1986 (IRCA).

On February 12, 2003, seven employees who worked for Mezonos Maven Bakery were discharged after complaining about treatment they were receiving from a supervisor.  Charges were filed alleging a violation of the Act over this retaliation for engaging in protected concerted activity.  The case was settled but the employer later refused to offer reinstatement or backpay citing the fact that the seven employees were undocumented workers.  An NLRB Administrative Law Judge ruled against Mezonos Maven Bakery and it appealed to the Board, which ruled for the Bakery.

However, two of the NLRB’s three member panel, Chairman Liebman and Member Gaston, criticized the Supreme Court’s 2002 ruling, stating “in addition to the obvious failure to make employee-victims whole the Act’s enforcement is undermined, employees are chilled in the exercise of their Section 7 rights, the workforce is fragmented, and a vital check on workplace abuses is removed.”  Member Hayes refused to join in that criticism stating “it is the Board’s role to enforce this controlling precedent in adjudicatory proceedings without critical comment.  It is the role of Congress to determine whether to alter the law in response to the Court’s decision.”

Liebman and Gaston also postulated that they “would be willing to consider in a future case any remedy within our statutory powers that would prevent an employer that discriminates against undocumented workers because of their protected activity from being unjustly enriched by its unlawful conduct.”  Hayes also refused to speculate about future other possible remedies.

I-9 Central

By Glen M. Krebs

If you have questions about completing or storing I-9 forms you can now go to a USCIS website to find answers.  On May 13, 2011 the USCIS launched ‘I-9 Central,’ at http://www.uscis.gov/i-9central.  I-9 Central includes sections 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.  It also includes a discussion of common mistakes to avoid when completing the form, guidance on how to correct errors and answers to employers’ questions about the I-9 process.  For anything not covered on I-9 Central you may contact Glen Krebs with I-9 questions at 859-288-7409 or gkrebs@wyattfirm.com.

 

H-2B Temporary Worker Visa Changes

by Glen Krebs

Last January the Department of Homeland Security and the Department of Labor made many changes in the H-2B visa application and enforcement process.  Those changes are without the scope of this article, but interested readers may review the author’s article in the July 2009 issue of the Federal Lawyer magazine.  This this short commentary will discuss a couple of other items relating to the H-2B visa.  Before discussing these items, it is important to note that one of the major changes made in January is that the DOL’s Wage and Hour Division is now responsible for enforcement of the H-2B regulations.  Other changes include:

 

DHS No-Match Safe Harbor Rule Crashes in the Bay

By Glen Krebs

In October 2007 Judge Charles Breyer of the Northern District of California enjoined the implementation of a Department of Homeland Security (DHS) rule regarding safe harbor procedures for employers who receive a No-Match letter from the Social Security Administration (SSA).  On August 19, 2009, DHS issued a notice in the Federal Register caving in to Judge Breyer and rescinding the safe harbor rule.  DHS has decided to focus its worksite enforcement efforts on increased compliance through improved employment verification, via participation in E-Verify, ICE’s Mutual Agreement Between Government and Employers (IMAGE) and other programs.  This is a further indication that Janet Napolitano and DHS plan to expand the scope of E-Verify and other in-house enforcement programs rather than relying on the SSA to ferret out undocumented workers.  Persons interested in commenting on the DHS plan to rescind the Rule must do so before September 18, 2009.

E-Verify Required For Federal Contractors In September. Is There More To Come?

By Kim Koratsky 

            Starting September 8, 2009, federal contractors will be required to use E-Verify to confirm that both current and newly hired employees working on federal contracts are authorized to work in the United States.  The E-Verify system allows employers to check Social Security and visa numbers against government databases via the Internet.  So, federal contractors (and subcontractors) must be prepared to implement this system in September, but is this where the requirement stops?  Yes, for now. 

             Many in Congress would like to require E-Verify for all employers.