Bloggings on Immigration Update

by Carl Shusterman

Employers Beware: The I-9 Dragon Grows a Second Head!

On March 8, the USCIS published the 7th edition of a two-page Employment Eligibility (I-9) form.  The passage of the Immigration Reform and Control Act of 1986 made the form mandatory for all new hires.  The new form may be used by employers now and becomes mandatory on May 8, 2013.   Until now, the I-9 has always been a one-page form.  However, it is probably the most complex and misunderstood one-page form ever issued by the Federal Government.   Employers should take care to avoid mistakes when completing the form since even simple paperwork fines can range from $110 to $1,100 per violation and several companies have had to pay multimillion dollar fines.  Some employers have been subject to criminal penalties including jail time for knowingly hiring undocumented workers and keeping them on the payroll.   The aim of the new I-9 form is laudable, to clear up many of the ambiguities that have existed in the past:  How should persons with temporary visas complete Section One?  What should employers do in Section Two if they are presented with a receipt instead of a listed document?  How does one perform the reverification process in Section Three?   Besides, its new two-page format (three including a page entitled “Lists of Acceptable Documents”), the instructions are now 5-6 pages in length.  In addition, the USCIS has updated its Handbook for Employers.  The new Handbook is 70 pages long.   Changes in the Form   On the new form, page one must be completed by the new hire while page two is solely the employer’s responsibility.   Section One now gives new hires the option of providing their telephone numbers and e-mail addresses. The Department of Homeland Security (DHS) plans to use this information to contact an employee whose information on the I-9 does not match DHS or Social Security records.   If workers choose not to complete these fields, they should write “N/A”.   Certain foreign nationals who are not lawful permanent residents of the U.S. may be required to list the country of issuance of their passports and their passport numbers on the I-9.  The rules regarding this subject are complicated, and employers will want to read both the instructions and the handbook carefully, and consult with their attorneys where necessary.  In general, the passport information is required if the person’s I-94 Arrival-Departure document was issued by the Customs and Border Protection (CBP) agency when they arrived in the U.S.  However, if they extended or changed their status or their employer and their I-94 was issued by the USCIS, they should write “N/A” in these fields.   It’s Complicated   Since these are new requirements, it is not yet clear how the government will classify errors.  Errors which are classified as “procedural” means the government will not impose fines on the employer.  The government will, however, fine the employer if they classify the error as “substantive”.   When completing I-9 forms, both the old and the new, employers are faced with a formidable task.  Many of the fields on the forms are far more complex than they appear.  Below are a few examples:   In Section One, how many employers or new hires know what a “noncitizen national” is?  Almost zero.  The instructions to the new form define this term as follows: “Noncitizen nationals of the United States are persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands and certain children of noncitizen nationals born abroad.”  Unlike the old instructions, the USCIS has, at last, defined the term.  However, this definition is about as clear as mud.  The use of the words “certain” and “former” make this definition ambiguous.  Are new hires and employers expected to know the definition of “former Trust Territory or the Pacific Islands”?  They can always look this up on Wikipedia and learn about “Chuuk, Yap, Kosrae and Pohnpei”.  Seriously!   Few employers know that new hires need not list their Social Security numbers in Section One.  Unless, of course, the employer is part of the E-Verify system, in which case the listing of the Social Security number is mandatory.  The new instructions make this clear.   Because the penalties for noncompliance are so severe, many employers lean over backwards in attempting to comply with these complex rules.  Ironically, these efforts are often to the employer’s detriment.   The Justice Department’s Office of Special Counsel has fined numerous employers, some over $100,000, for demanding too many documents from new hires and for discrimination.   In the world of I-9s, things that may seem obvious often are not.  For example, if a new hire is a Conditional Permanent Resident, his permanent residence expires after two years.  Shouldn’t the employer reverify his employment authorization before it expires?   Simple logic says “yes”, but the instructions say “no”.   If the employer does so, it is violating the law.   And once the discussion shifts to temporary working status, there is little in the law or the regulations to guide employers.  So, in its “Handbook for Employers: Guidance for Completing Form I-9”, the USCIS must simply resort to making things up.   Virtually every time the agency issues new policy guidance regarding employment authorization, it is forced to invent a method for employers to incorporate this guidance into their I-9 compliance procedures.  For example, consider the “cap-gap”.  F-1 students, upon graduation, can apply to work using “Optional Practical Training” (OPT), usually for one year.  However, students typically graduate and obtain their OPT in June.  If an employer wants to sponsor them for an H-1B temporary professional working visas, this must be done in April, yet their H-1B employment authorization does not begin until October 1st.  So, what are students supposed to do between the time that their OPT expires in June and when their H-1B starts in October?  Quit their jobs and return to their country?  This is impractical both for the student and for the employer.  So a few years back, the government issued a “cap-gap” memo that permits students employed using OPT to continue to work throughout the summer as long as their employers had submitted H-1B petitions and applications for a change of status on their behalf, and they were either pending or approved.  Great idea on the USCIS’ part, but how is an employer supposed update a student’s I-9 in such circumstances?  Obviously, the employer cannot rely on either the law or the regulations as a guide since the “cap-gap” rule is solely a creature of an agency memo.   So, as usual, the USCIS simply made something up, and employers can find the answer on page 21 of the Handbook.   This is so true with regard to some programs which provide work permits like Temporary Protected Status (TPS). The USCIS often waits until the last minute and simply publishes an item in the Federal Register, automatically extending TPS and work permits.  I often wonder how many Human Resource Directors start each day with a cup of coffee and a copy of the Federal Register with its wide array of new and fascinating Federal regulations.  Virtually zero, I suppose. Yet, when it comes to sponsoring employees for work visas and green cards, the Federal Government is very exacting in requiring employers to place advertisements in newspapers “of general circulation” and posting job notices for a certain number of business days in specified locations.  When comparing how immigration rules impact Federal agencies and private employers, what is good for the goose is not necessarily good for the gander.   Conclusion   If you are an employer with hundreds or thousands of employees, you probably have an experienced Human Resources Manager.  You send him or her to I-9 seminars and make sure that he/she carefully reads the new I-9 form, instructions, the USCIS Handbook, etc.  Also, you probably have an attorney who is well-versed in I-9 issues, and you consult him/her on a regular basis.  You perform regular internal audits to make sure that you are fully compliant with I-9 rules.   It is also a good idea to bookmark USCIS’ I-9 Central and our Employer Compliance Guide, both of which are free online resources.   However, if you are a small business and you have neither the time nor the personnel to do any of this, it’s probably time for you to say a little prayer or sign up for E-Verify, or perhaps, both.

About The Author Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California. He was a former U.S. Immigration & Naturalization Service Attorney and worked for the Board of Governors, and the American Immigration Lawyers Association.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.