Compliance and E-Verify Get your files and facts in order!

Linda Rahal

April 14, 2009

COMPLIANCE - 3 TYPES OF FILES

• I-9 Compliance Files

• H-1B Compliance Files – Labor Condition Application (“LCA”) Public Access Files

• PERM Labor Certification – Audit Files

I-9 COMPLIANCE - NEW FORM I-9

• April 3, 2009 – new Form I-9 and new Handbook for Employers http://www.uscis.gov/files/form/i-9.pdf

• Most significant change: can only accept unexpired documents to complete Form I-9

I-9 COMPLIANCE New Form I-9 – Other Changes

• Section 1 – adds a 4th box to check: “noncitizen national of the United States”

• Old work authorization documents (I-688A and I-699B) and old Temporary Resident card (I-688) no longer accepted

• Docs added to List A: U.S. Passport Card and passports from Federal States of Micronesia and the Republic of the Marshall Islands

I-9 Compliance WHO, WHEN, WHAT

• WHO – Employers must complete I-9 forms for all employees (except hired prior to 11/6/86 and true independent contractors)

• WHEN – Section 1 on first day by employee; Section 2 on third day

• WHAT – On 3rd day, employee must present original List A (identity/work auth) or List B (identity) and List C (work auth)

I-9 Compliance FilesWHERE, HOW, HOW LONG

• WHERE – worksite or company’s HQ or other location (must be made available within 3 business days)

• HOW – Paper or electronic (June 2006 electronic storage, but a few more requirements)

• HOW LONG - either (i) 1 year after date of termination; or (ii) 3 years from date of hire, whichever is later;- re-verification – if employee indicated expiration date, requires employer to re-verify (Section 3)

H-1B - Labor Condition Application (LCA) –WHAT?

• WHAT is the LCA? First step in H-1B filed with DOL to show employer is paying prevailing wage or actual wage, whichever is higher

• WHAT is required for Public Access File? Copy of LCA instructions, signed LCA form, LCA posting notices & certification, OES or other salary survey

LCA PUBLIC ACCESS FILESWHERE, HOW LONG, HOW

• WHERE – worksite or principal place of business (available within 1 business day)

• HOW LONG – either (i) 1 year beyond date employee is employed pursuant to LCA; or (ii) 1 year beyond date on the LCA, whichever is later

• HOW – Public Access File with salary information – not by employee name

PERM Labor Certification Application - WHAT ?

• WHAT is PERM? Current Labor Certification Application (Form 9089) filed electronically - - 1st step of green card when employer is required to conduct recruitment to show no qualified or available U.S. workers

• WHAT is PERM Audit File? File DOL requires employer to maintain with required documentation to show that employer conducted good faith recruitment

PERM Audit FileWHAT, WHERE, HOW LONG

• WHAT is required in Audit File? Copy of Form 9089 filed electronically, and all of the documents to show that employer conducted recruitment according to DOL regulations

• WHERE – Not indicated in regulations

• HOW LONG – 5 years

COMPLIANCE FILESTIPS & RECOMMENDATIONS

• CONSISTENT LOCATION: Keep I-9, H-1B Public Access, and PERM audit files in same location, but separate from personnel files

• INTERNAL SYSTEMS FOR:- re-verification of Forms I-9- retention dates of files (and discard after) / tracking hire & termination dates

• AUDIT POLICY – annual internal audits of company’s files (Trow & Rahal offers this service for employers)

• CONSISTENT POLICIES – I-9 and E-VERIFY

E-VERIFY - - WHAT?

• WHAT is E-VERIFY? - Internet-based system operated by partnership between DHS and SSA

- registered employers can electronically verify employment eligibility of new hires

- supplements Form I-9 requirement (doesn’t replace them)

- compares I-9 information to SSA and DHS databases

E-VERIFY - REGISTRATION

• REGISTER www.visdhs.com/Employerregistration - Employer agrees to become familiar with and comply with E-

Verify Manual (over 60 pages)- Designated E-Verify Representative who completes E-Verify

Tutorial (and refresher tutorials)

• MEMORANDUM OF UNDERSTANDING (MOU)- www.uscis.gov/files/nativedocuments/MOU.pdf- agreement of usage between the SSA, DHS, and the employer- Not Safe Harbor

E-VERIFY - PROCEDURES

• Complete Form I-9• Complete Section 2 on 3rd day, then E-Verify• Within seconds, 3 possible responses:

(1) EMPLOYMENT AUTHORIZED - - OK to work(2) SSA TENTATIVE NONCONFIRMATION(3) DHS VERIFICATION IN PROCESS - match referred to DHS for employment eligibility confirmation (24 hrs response in most cases)

E-VERIFY - PROCEDURES FOR TENTATIVE NONCONFIRMATION (TNC)

1. Print notice - give to employee2. Employee – contest or not contest3. If contests - employee returns notice to

employer (both need to sign). 4. Otherwise, referral letter – employer gives to

employee & both sign. Employee has 8 work days

5. E-Verify emails results to employer (10 days)

E-Verify – Voluntary?

• IIRIRA 1996 - made program voluntary and prohibited mandating using E-Verify

• 2008 - 17 month extension for F-1 OPT for students with STEM degrees, only if employer registered for E-Verify

• State Laws – More than 15 states now mandate E-Verify, most in connection with state government contracts

• Federal Contractors – Executive Order and new law, being challenged and stayed until 5/21/2009

E-VERIFY – Federal Contractors

• 6/6/08 – Executive Order• Final Rule – requires E-Verify for Fed

Contractors with projects >$100,000 and subcontractors with projects >$3,000

• 2 sets of employees (i) all hired during contract; (ii) all assigned to contract (requiring reverification)

E-Verify – Law Suit Challenges Federal Contractor Rule

• Final Rule – initially effective 1/15/09 • 12/23/08 law suit challenges Federal

Contractor rule in violation of Federal Law– IIRIRA made E-Verify voluntary– Re-verification not allowed– Overly burdensome to employers

• 1/07/09 – DOJ suspends Rule until 5/21/09

E-VERIFYMost Recent Updates

• Rule for Federal Contractors postponed until May 21, 2009 (at request of U.S. Chamber of Commerce in lawsuit)

• New administration to “rethink” role of E-Verify

• Speculation of what will happen?

E-VERIFY - PROS

• PROs– Takes decision out of hands of employer– Using “best means” to verify – Required in over 15 states (in various forms)– Shut down unlawful emloyers– F-1 OPT 17 month extension for STEM degree

graduates

E-VERIFY - CONS

• CONs– Rate of error – Additional cost and burden to employers– Allows audits of E-verify related documents– Doesn’t provide safe harbor– Error rate is higher among foreign nationals - -

possibly increases potential discrimination?

Linda Rahal  Trow & Rahal, P.C.

5335 Wisconsin Avenue, N.W., #920 Washington, DC  20015       

Phone:  202-537-4830 Fax:  202-355-9360

Email:  lrahal@trowlaw.com Web:  www.TrowLaw.com