Proposed Immigration Reform Legislation and E-Verify

The discussion about Congress possibly passing immigration reform is a major topic right now. Many expect that in 2013, Congress will pass some version of immigration reform (i.e., providing legal status to individuals who are currently residing in the U.S. without legal authorization). In looking at what is currently in the pipeline, some of the proposed bills and related discussions point to a mandatory requirement that all employers enroll in E-Verify or possibly some other version of E-Verify. Presently, employers may voluntarily enroll in E-Verify, and certain employers, who contract with the government, are required to enroll in the program. 

Although nothing is final, it is important to be prepared to transition into any possible E-Verify requirement.  While we wait for Congress’ decision on immigration reform, employers should continue to comply with the immigration laws that apply to their business. 

Employers are required to comply with all Form I-9 requirements and cannot employ any individual unauthorized to work. If your I-9 compliance is in need of review, you should contact your attorney who specializes in I-9 compliance. Doing so will prepare you and your company to transition into any immigration reform that becomes law.

Daniel N. Ramirez is a named partner at Monty & Ramirez LLP.  He is also board certified in labor and employment law by the Texas Board of Specialization and has been recognized as a Rising Star by Super Lawyers magazine. 

Daniel's Contact Information:
Email: dramirez@montyramirezlaw.com 
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com

The Form I-9 is About to Expire on August 31st. So What Should an Employer Do?

The most updated Form I-9 (“I-9”) expires on August 31, 2012.  As required by the government, employers must use unexpired I-9s when they verify an employee’s authorization to work.  At this time the government has not issued an updated I-9 for use after August 31st.

So what should an employer do?  At this time, employers should continue to use the current I-9 that was most recently issued by the U.S. Citizenship and Immigration Services (“USCIS”).  

USCIS issued a bulletin on August 13, 2012 stating: “until further notice, employers should continue using the Form I-9 currently available on the forms section of http://www.uscis.gov. This form should continue to be used even after the OMB control number expiration date of August 31, 2012 has passed. USCIS will provide updated information about the new version of the Form I-9 as it becomes available.”

So for now, you can continue to use the most recent I-9, but stay tuned to ensure your company begins using an updated I-9, once it is released by USCIS. 

Daniel N. Ramirez is a named partner at Monty & Ramirez LLP.  He is also board certified in labor and employment law by the Texas Board of Specialization and has been recognized as a Rising Star by Super Lawyers magazine.

Daniel's Contact Information:

Email: dramirez@montyramirezlaw.com

Telephone: 281.493.5529

Website: http://www.montyramirezlaw.com

National Restaurant Association Show 2012 - Avoid Being ICE'd: Immigration and I-9 Compliance

I was honored to be a speaker at the National Restaurant Association ("NRA") Show 2012 this weekend (5/5/2012) in Chicago.  I had the the opportunity to present to restaurateurs from throughout the nation during one of the NRA's educational seminars.  My seminar focused on how Immigration Customs and Enforcement (“ICE”) continues to investigate employers and conduct I-9 audits and raids to ensure companies (and owners) are complying with applicable immigration and I-9 requirements.  Additionally, the seminar illustrated how fines can reach into the hundreds of thousands of dollars and criminal penalties can be imposed on owners and managers who knowingly hire undocumented workers. 

In short, the presentation focused on providing employers in the hospitality industry with the necessary information and tools to keep their restaurants from being "ICE'd" by the government. Here is a link to an online article from Nation's Restaurant News relating to my NRA education seminar:  http://nrn.com/article/10-steps-immigration-compliance.

Always remember, if your or your company needs any assistance with an ICE government investigation or any I-9 or Immigration Compliance issues, please do not hesitate to contact our offices.

Daniel N. Ramirez is a named partner at Monty & Ramirez LLP.  He is also board certified in labor and employment law by the Texas Board of Specialization and has been recognized as a Rising Star by Super Lawyers magazine.

Daniel's Contact Information:

Email: dramirez@montyramirezlaw.com

Telephone: 281.493.5529

Website: http://www.montyramirezlaw.com

DHS Expects “IMAGE Certified” Program to Become Industry Standard

United States Immigration and Customs Enforcement announced the introduction of a new business certification program aimed at developing a more secure workforce for employers. The ICE Mutual Agreement Between Government and Employers (IMAGE) offers employers a formal membership certification program that plans to reduce unlawful hiring practices and the use of fraudulent identification documents.

To participate in IMAGE, ICE announced an employer must meet the following requirements:

• Complete the IMAGE Application Form


• Enroll in the E-Verify program within 60 days


• Establish a written hiring and employment eligibility verification policy that includes an internal Form I-9 audits at least once a year


• Submit to a Form I-9 Inspection


• Review and sign an official IMAGE partnership agreement with ICE

Enrolled program participants who maintain the Department of Homeland Security’s best practices for maintaining legal workforces will be “IMAGE Certified,” a standard DHS expects to become an industry standard.
However, employers can also incorporate ICE’s Best Practices without enrolling in IMAGE with the following:

• Use the Social Security Number Verification Service (SSNVS) for wage reporting purposes. Make a good faith effort to correct and verify the names and Social Security numbers of the current workforce and work with employees to resolve any discrepancies. Remember that SSNVS is for tax purposes only and does not verify an immigrant’s employment eligibility.


• Establish a written hiring and employment eligibility verification policy.


• Establish an internal compliance and training program related to the hiring and employment verification process, including completion of Form I-9, how to detect fraudulent use of documents in the verification process, and how to use E-Verify and SSNVS.


• Require the Form I-9 and E-Verify process to be conducted only by individuals who have received appropriate training and include a secondary review as part of each employee's verification to minimize the potential for a single individual to subvert the process.


• Arrange for annual Form I-9 audits by an external auditing firm or a trained employee not otherwise involved in the Form I-9 process.


• Ensure that contractors and/or subcontractors establish procedures to comply with employment eligibility verification requirements.


• Establish a protocol for responding to letters or other information received from federal and state government agencies indicating that there is a discrepancy between the agency's information and the information provided by the employer or employee (for example, "no match" letters received from the Social Security Administration) and provide employees with an opportunity to make a good faith effort to resolve the discrepancy when it is not due to employer error.


• Establish a tip line mechanism (inbox, email, etc.) for employees to report activity relating to the employment of unauthorized workers, and a protocol for responding to credible employee tips.


• Establish and maintain appropriate policies, practices and safeguards to ensure that authorized workers are not treated differently with respect to hiring, firing, or recruitment or referral for a fee or during the Form I-9, E-Verify or SSNVS processes because of citizenship status or national origin.


• Maintain copies of any documents accepted as proof of identity and/or employment authorization for all new hires.

If you have any questions regarding the IMAGE program, ICE’s Best Employment Practices or to schedule an I-9 audit, please contact your Monty & Ramirez Labor & Employment counsel.

Jacob M. Monty is the founding and managing partner of Monty & Ramirez, LLP. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He is a member of the American Law Institute and named to Texas Super Lawyers in 2008, 2009, 2010 and 2011.

Contact Information:
Email: jmonty@montyramirezlaw.com
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com/

Redesign of Employment Authorization Document and Certificate of Citizenship Furthers USCIS’ Goal to Enhance Document Security and Prevent Fraud

Pursuant to the United States Citizenship and Immigration Services' (USCIS) objective to produce more secure documentation that is more difficult for document vendors to replicate, it has announced the launch of an enhanced Employment Authorization Document (EAD) and a redesigned Certificate of Citizenship (Form N-560).

USCIS began issuing state-of-the-art technologically equipped EADs this week to deter counterfeiting, obstruct tampering and facilitate quick and accurate authentication. Workers, employers and law enforcement officials all will be able to recognize the card as definitive proof of authorization to work in the United States. While the card has a new look, the USCIS application process remains the same. Previously issued cards will remain valid until the expiration date printed on the card. USCIS will replace EADs already in circulation as individuals apply for replacement or renewal cards. The EAD is a List A document that employees can submit during the I-9/E-Verify process.

The new Certificate of Citizenship has also been redesigned to deter fraud and tampering. USCIS will begin issuing the new Certificates of Citizenship on October 30. Previously issued Certificates of Citizenship will remain valid indefinitely. The Certificate of Citizenship is not on the Lists of Acceptable Documents and cannot be accepted by employers during the I-9/E-Verify process.

USCIS intends to continue to enhance document security features as technology improves. If you have any questions on how the issuance of new EADs and Certificates of Citizenship will affect your employment practices, please contact us at jmonty@montyramirezlaw.com.

Jacob M. Monty is the founding and managing partner of Monty & Ramirez LLP. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He is a member of the American Law Institute and named to Texas Super Lawyers in 2008, 2009, 2010 and 2011.

Contact Information:
Email: jmonty@montyramirezlaw.com
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com/

More States to Mandate E-Verify Following Recent US Supreme Court Case

With the ruling of the United States Supreme Court in United States Chamber of Commerce v. Whiting, it appears that any state that wants to follow in Arizona’s footsteps and mandate the use of E-Verify will be able to do so so long as there are no direct sanctions for those who do not use E-Verify. Those who choose not to follow the law will simply forfeit the fall-back plan of claiming good faith if they are caught using unauthorized workers. There will be no direct civil or criminal penalties for not using E-Verify if no unauthorized workers are ever found.

Joining Arizona in mandating that all employers (public and private) must use E-Verify are Mississippi, Alabama, South Carolina, Tennessee (except for private employers with less than 7 workers), Georgia (except for private employers with less than 11 workers), Utah (except for private employers with less than 15 workers), and North Carolina (except for private employers with less than 25 workers). In Idaho, Nebraska, Oklahoma, Missouri, Indiana, Virginia, and Florida, all state agencies and state contractors must use E-Verify. In Colorado and Louisiana, all state contractors must use E-Verify.

Jacob M. Monty is the founding and managing partner of Monty & Ramirez, LLP. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He is a member of the American Law Institute and named to Texas Super Lawyers in 2008, 2009, 2010 and 2011.

Contact Information:
Email: jmonty@montyramirezlaw.com
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com/

Applicants can now check if they are "legal" and eligible to work for a company.

On August 15, 2011, the government expanded the availability for individuals to “self-check” their work authorization status with government records.  The United States Citizenship and Immigration Services (“USCIS”) expanded its E-Verify Self-Check Service (“Self-Check”) to residents of 16 additional states (an increase from 6 states) and provides individuals with a choice of completing it in English or Spanish.

In March of 2011, USCIS started the self-check service to residents from Arizona, Colorado, Idaho, Mississippi, Virginia, and the District of Columbia.  This online service enables individuals to check their work authorization status prior to being hired.  One of USCIS’ goals is to provide individuals the opportunity to correct database errors and other irregularities which may exist in government records.  Although USCIS hopes this will decrease the number of E-Verify tentative nonconfirmation (“TNC”) or even a Final Nonconfirmation (“FNC”), I am not sure whether USCIS will achieve its goal with this online tool.

Here is an image from USCIS demonstrating the 22 states where Self-Check is available to individuals. 

• California
• Louisiana
• Maine
• Maryland
• Massachusetts
• Minnesota
• Missouri
• Nebraska
• Nevada
• New Jersey
• New York
• Ohio
• South Carolina
• Texas
• Utah
• Washington state

Interestingly, in the 6 pilot states that launched Self-Check in March 2011, approximately 18,000 individuals have used the system to verify their employment authorization status with government records.

So what do employers do now?  Well, the Self-Check system is for individuals to check their work authorization with E-Verify records.  From an employer’s perspective, this government online tool is set up for employment candidates seeking employment (who are not yet employed), not for employers.  So it is important to not ask your employees who have already been I-9’d to Self-Check their work authorization through this system—that would set your company up for a possible claim of discrimination.  Remember that once an employee I-9 is properly completed, an employer cannot ask that employee to establish, once again, that they are authorized to work in the U.S.  Overall, the Self-Check system is not an online tool for employers and only time will tell if this system will decrease the number of errors associated with E-Verify.

Please remember this blog provides general recommendations regarding an employer’s I-9 compliance. If you have any questions related to your company’s I-9s or related policies, please don’t hesitate to contact Monty & Ramirez for a free consultation to discuss your internet policies to ensure the policies comply with the ever-changing social media and internet issues.

Daniel N. Ramirez is a named partner at Monty & Ramirez LLP. He is board certified in labor and employment law by the Texas Board of Specialization and has been recognized as a Rising Star by Super Lawyers magazine.

Daniel's Contact Information:

Email: dramirez@montyramirezlaw.com

Telephone: 281.493.5529

Website: http://www.montyramirezlaw.com