In this edition
- West Virginia Amends State Rule Verifying Legal Employment Status of Workers
- Proposed Expansion of E-Verify Services and Obligations Could Add New Burdens for Employers
- U.S. Embassy in London to Be Temporarily Closed August 7 and 10
- Retailers Should Review I-9 Processes in Light of Recent DOJ Settlement
- Welcome New Immigration Attorneys: Austin and Greenville
West Virginia Amends State Rule Verifying Legal Employment Status of Workers
By Caroline Tang
On July 1, 2015, a new legislative rule amending the procedures required for West Virginia employers to verify the legal employment status of their workers went into effect in West Virginia. Pursuant to section 21-1B-4 of the West Virginia Code, all employers are required to keep “records of proof of the legal status or authorization to work of all employees.” However, the state of West Virginia has now amended this rule in a number of ways that may conflict with federal Form I-9 employment eligibility verification requirements.
All U.S. employers are required by federal law to verify each employee’s eligibility to work in the United States by certifying the employee’s documentation and completing Form I-9 within three business days of the employee’s start date. In contrast, the amended West Virginia rule requires employers to verify legal employment status prior to the employee’s first day of employment or prior to entering into an employment contract with any individual. This directly conflicts with the federal government’s three-day period. As such, an employer that complies with the new West Virginia rule could open itself up to a discrimination claim under the federal unfair immigration-related employment practices provisions of the Immigration and Nationality Act (INA).
The West Virginia rule also specifies a list of documents that “shall” be accepted as proof of an employee’s legal employment status, but this list does not align with the list of documents acceptable under federal requirements for completion of Form I-9. Furthermore, the West Virginia rule includes several ambiguous document descriptions (e.g., “a valid immigration or non-immigration visa including photo identification” and “a valid permit issued by the United States Department of Justice”), does not specify the origin of certain documents (e.g., “a valid birth certificate” or “a valid passport”), and includes an ambiguous “catch-all” provision that accepts “any other valid document providing evidence of legal employment status in the United States.” Each of these aspects of the new law could lead to potential discrimination claims against employers.
Finally, the West Virginia rule requires employers to maintain each employee’s records for “a period of at least 2 years after the employee has separated from employment.” This provision potentially conflicts with the federal requirement that an employer must retain a completed Form I-9 for either three years from the employee’s date of hire or one year after the date the employee is terminated, whichever is later. A West Virginia employer that complies with the state rule may in turn fail to comply with the federal requirement, which could result in hefty penalties issued by U.S. Immigration and Customs Enforcement.
Until conflicts between federal requirements and the new West Virginia rule are reconciled, employers should seek to comply with the federal Form I-9 requirements and ensure compliance with Form I-9 retention guidelines to avoid potential penalties issued by U.S. Immigration and Customs Enforcement.
Caroline Tang is an associate in the Austin office of Ogletree Deakins.
Proposed Expansion of E-Verify Services and Obligations Could Add New Burdens for Employers
By Sara E. Herbek
U.S. Citizenship and Immigration Services (USCIS) recently announced its intention to expand not only its E-Verify communication services but also implement new obligations for employers that participate in the E-Verify program (either voluntarily as a federal contractor or as required by state law). E-Verify is a USCIS sponsored, Internet-based system that compares information from an employee’s Form I-9 to data on file at the U.S. Department of Homeland Security and the Social Security Administration (SSA) to confirm employment eligibility. Several of these changes could create complications or increase potential burdens for employers that use the program. USCIS announced its intention to amend aspects of the program by publishing 80 Fed. Reg. 32408, 32408 (June 8, 2015) (amending 48 C.F.R. § 52.222-54) and providing the following summary:
- Three proposed enhancements:
- Final Nonconfirmation (FNC)-Allows employees to contest FNCs that they feel have been issued in error. A new process that allows the employees to request a review of their FNCs will replace the current manual review process.
- Reverification-Requires employers to use E-Verify to reverify employees whose work authorization has expired. These include employees who were hired before the employer signed the E-Verify Memorandum of Understanding (MOU).
- Updated MOUs-Revisions have been made to the E-Verify MOUs to support the proposed business processes.
- Streamlined Tentative Nonconfirmation (TNC) Processes
To provide employees with greater access to E-Verify information, USCIS has simplified the TNC process to streamline the notice that an employer provides to the employee. USCIS has also designed new email messages to communicate directly with the employee regarding Social Security Administration and Department of Homeland Security TNC notices.
This overview will start with the most straightforward changes and end with the most burdensome.
- Updated MOUs
If the proposed changes occur, employers that participate in E-Verify would not need to take any action regarding the previously signed MOUs. However, employers would need to carefully review the procedural updates and, ultimately, ensure compliance with them. If implemented, the burden would be for the company to align its new E-Verify procedures with the effective date of any change.
- Streamlined TNC Process
The proposed changes to the TNC process would keep the employee and the employer apprised of the TNC review and status. For the employee to participate in this new, streamlined communication service, the employee’s email must be included when the employer completes E-Verify. The E-Verify email communication would not only advise the employee of the existence of a TNC and the underlying issue from either USCIS or SSA, but would also provide an eight-day reminder. By providing employees with direct communication concerning a TNC, this proposed change would fundamentally alter the current dynamic, in which the employer serves as the conduit of such information. While this change reduces the burden for employers of conveying any information about a TNC, it also results in a situation where the employer could, ironically, find itself playing catch-up after being approached by an employee before the employer has had time to study the situation on their own.
- Final Nonconfirmation (FNC)
The proposed changes to the FNC would make a formal review process available to an employee who disagrees with a FNC finding. This proposed review process would include notifying the employer and employee of the FNC finding. The employer must provide the employee’s email address when completing E-Verify for the employee to receive notifications. It would also allow the SSA to update the E-Verify system with its findings, an option that is currently unavailable. This change introduces some new burdens and potentially sensitive issues for employers. Under the new review process, the administrative burdens borne by employers may not end at the conclusion of a TNC or even at the issuance of the FNC, continuing instead through the duration of the new FNC review. As with current processes, if a FNC is issued that finds an employee is not authorized to work in the United States, the employer has the choice to continue employment or separate from the employee. However, if the employee disagrees with the FNC, it is unclear if the employer may take adverse employment action while the FNC review process is pending.
The most significant proposed change would be to require employers to reverify employees in the E-Verify system (e.g., nonimmigrant foreign nationals with H-1B work authorization). Currently, employers are only required to reverify employees on the Form I-9. This proposal would apply the Form I-9 reverification requirements to E-Verify. Taking it one step further, employers would also be required to add employees who were not originally E-Verified by the company. This is an entirely new step for E-Verify as employers currently only include new employees who are hired after the employer has joined the program, but do not include employees who were employed prior to the employer’s participation in E-Verify. This new process would require employers to add the reverified employee to its E-Verify system, significantly increasing employers’ administrative burdens and underscoring the importance of having an accurate and comprehensive tracking system.
The proposed procedure would require employers to reverify the necessary employees within three days of work authorization expiration. Further, the employer is not allowed to reverify until the work authorization has expired. Absent from this proposed process is whether the E-Verify system would issue any notification after three days for employees who are entered into the system. If this proposed process is implemented, employers would need to update their current processes upon the effective date. The importance of following this process is paramount as the federal government will now have real-time data regarding whether reverification has been completed.
Another important factor in reviewing these proposed changes remains: any changes to the E-Verify program would not impact or relieve an employer of its I-9 obligations. In addition, these proposed changes could be indicative of a step toward transitioning from Form I-9s to E-Verify as the primary method and process of verifying an employee’s identity and work authorization.
According to the USCIS notice, the public will have 60 days to submit comments on the proposed changes to the E-Verify program. Instructions for submitting comments are included in the Federal Register notice.
In the end, if these changes are implemented, employers will have new obligations in complying with E-Verify. Employers will need to implement new processes to align with these changes, including ensuring that the company’s reverification notices are accurate. Along with these new processes, employers will be required to notify and train its employees who are responsible for completing Form I-9s and E-Verify.
Sara E. Herbek is of counsel in the Raleigh office of Ogletree Deakins.
U.S. Embassy in London to Be Temporarily Closed August 7 and 10
By Lowell Sachs
The Bureau of Consular Affairs of the United States Department of State has announced that the Embassy of the United States of America in London will be closed from Friday, August 7, 2015 through Monday, August 10, 2015. Specific reasons for the closure have not yet been made public. As a result of the closure, all consular appointments during that Friday and Monday are being rescheduled. Visa applicants who currently have appointments on those two days are being advised to confirm their new appointment dates and times by logging into their accounts at usvisa-info.com. Before logging into an account, the Visa applicant should be sure to have on hand his or her email address and the passport created at the time he or she scheduled his or her original appointment.
Applicants who are unable to attend the rescheduled appointment will be permitted to choose a new appointment date and time once logged into their accounts by selecting “Reschedule Appointment.” Before attending the rescheduled interview, Visa applicants should be sure to print the instructions page with the new appointment date.
Currently the next available appointment date in London is Tuesday, September 15, 2015. Earlier dates may have been assigned to Visa applicants when the Embassy made the automatically rescheduled appointments. Visa applicants who currently have a rescheduled date that is earlier than September 15, 2015 should retain that date unless they are prepared to wait beyond September 15, 2015 for another rescheduled appointment. We will continue to monitor the situation and will report on any significant updates.
Lowell Sachs is a Practice Support Manager and is based in the Raleigh office of Ogletree Deakins.
Retailers Should Review I-9 Processes in Light of Recent DOJ Settlement
By Rebecca L. Sigmund
The U.S. Department of Justice (DOJ) recently reached a settlement agreement with a large clothing retailer to resolve claims that the company discriminated against a non-U.S. citizen in violation of the federal immigration laws. The agreement requires the payment of substantial back pay and close DOJ monitoring of the retailer’s immigration employment verification practices for a two-year period of time.
Specifically, the DOJ indicated that the company had required an individual to present a green card, which is prohibited under the Immigration and Nationality Act’s anti-discrimination provision. The law prohibits discrimination based on citizenship status and national origin in hiring, firing, and recruitment or referral for a fee; unfair documentary practices; and retaliation and intimidation for reporting such discrimination.
In light of the DOJ’s focus on these issues and the expansive terms of this settlement, retailers should reevaluate and monitor their I-9 verification and re-verification processes and practices. Employers should not ask for specific, additional, or different documents during the I-9 employment verification processes (verification and re-verification). Employers should provide the I-9 Lists of Acceptable Documents to the hire/employee and let him or her choose the document(s) he or she would like to present to the employer when completing the employment verification process.
Rebecca L. Sigmund is a shareholder in the Greenville office of Ogletree Deakins.
Welcome New Immigration Attorneys: Austin and Greenville
Ogletree Deakins is pleased to announce the addition of the following business immigration attorneys:
- Chad Li joined the Austin office as an associate. His practice focuses on employment-based immigration matters, including assisting companies in managing non-immigrant visa matters, such as H-1B, E, L, and TN employees, and immigrant visa matters covering all aspects of the permanent residency process. He has spent his career representing multinational corporations sponsoring foreign national employees, with a focus in the software, technology, and engineering industries. Mr. Li earned a Bachelor of Arts degree from the University of Texas at Austin and completed his juris doctorate at the University of Arkansas.
- Ann Louise Brown joined the Greenville office as an associate. Her practice is focused on employment-based immigration and worksite compliance matters. Ms. Brown earned a Bachelor of Arts degree in History, cum laude, from College of Charleston and completed her juris doctorate at the University of Alabama School of Law where she served as the Junior Editor of Alabama Law Review and earned the Dean’s Community Service Award. She is admitted to practice in North Carolina and South Carolina and also speaks, reads, and writes Spanish fluently.
The information above has been redistributed by Emigra Worldwide with permission from Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Emigra Ogletree Worldwide combines world class global immigration expertise with outstanding U.S. business immigration legal services in one, client-friendly package. The result – a proven and seamless approach to your business immigration needs. The services and advice you need, where you need them. That is opening your world of immigration. That is Emigra Ogletree Worldwide. Your world is waiting.
The information herein is for general purposes only and not intended as advice for a particular matter. If you have any questions, please do not hesitate to contact the global immigration professional with whom you work.
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