Tag Archives: I-9

2017 Compliance Check Up

Contributed by Sara Zorich, January 19, 2017

We are now almost three weeks into the New Year and while it might be tempting to ease into 2017, the time is now to ensure that the required compliance updates have been made to your payroll and Form I-9 procedure to comply with the 2017 changes.

Minimum Wage

The following 21 states have updates to their minimum wage that affect your payroll for 2017:

  1. Alaska (Effective 1/1/17) – minimum wage increases from $9.75 to $9.80.
  2. Arizona (Effective 1/1/17) – minimum wage increases from $8.05 to $10.00.
  3. Arkansas (Effective 1/1/17) – minimum wage increases from $8.00 to $8.50.
  4. California (Effective 1/1/17) – minimum wage increases from $10.00 to $10.50.
  5. Colorado (Effective 1/1/17) – minimum wage increases from $8.31 to $9.30.
  6. Connecticut (Effective 1/1/17) – minimum wage increases from $9.60 to $10.10.
  7. Florida (Effective 1/1/17) – minimum wage increases from $8.05 to $8.10.
  8. Hawaii (Effective 1/1/17) – minimum wage increases from $8.50 to $9.25.
  9. Maine (Effective 1/1/17) – minimum wage increases from $7.50 to $9.00.
  10. Massachusetts (Effective 1/1/17) – minimum wage increases from $10.00 to $11.00.
  11. Maryland (Effective July 1, 2017) – minimum wage increases from $8.75 to $9.25.
  12. Michigan (Effective 1/1/17) – minimum wage increases from $8.50 to $8.90.
  13. Missouri (Effective 1/1/17) – minimum wage increases from $7.65 to $7.70.
  14. Montana (Effective 1/1/17) – minimum wage increases from $8.05 to $8.15.
  15. New Jersey (Effective 1/1/17) – minimum wage increases from $8.38 to $8.44.
  16. New York (Effective 12/31/16) –minimum wage increases from $9 to $9.70.
  17. Ohio (Effective 1/1/17) – minimum wage increases from $8.10 to $8.15.
  18. Oregon (Effective July 1, 2017) – statewide minimum wage increases from $9.75 to $10.25 (Portland Metro minimum wage increase from $9.75 to $11.25).
  19. South Dakota (Effective 1/1/17) – minimum wage increases from $8.55 to $8.65.
  20. Vermont (Effective 1/1/17) – minimum wage increases from $9.60 to $10.00.
  21. Washington (Effective 1/1/17) –minimum wage increase from $9.47 to $11.00.

Employers should ensure that these required changes have been conveyed to your payroll manager and payroll provider and perform an audit to ensure that the change was made effective in your payroll system.

Form I-9

As we reported on November 17, 2016, U.S. Citizenship and Immigration Services (USCIS) released the new version of the Form I-9 on November 14, 2016. NO LATER THAN January 22, 2017, employers MUST use the revised form (dated 11/14/2016 N) for all new hires and any employee that requires reverification of employment eligibility.

Employers should review their Form I-9 practices, ensure they are complying by using the new form by the deadline, and train employees responsible for completing the form regarding the new form requirements.

USCIS Proposes New Form I-9

Contributed by Sara Zorich

The current version of the Form I-9 is set to expire on 3/31/16. In advance of the expiration, USCIS has issued proposed changes to the Form I-9 for public comment. The new version would allow employers to complete the form on their computer with some imbedded prompts assisting them in the completion of the form. This is an attempt to reduce technical errors commonly made on the Form I-9. Employers would still be able to complete the form by hand if they choose to do so.

Some of the proposed changes included are:

  • Electronic checks on certain fields to ensure accuracy
  • Drop down lists for documents and calendars
  • Additional instructions to assist in completing fields
  • Streamlining the certification for foreign nationals
  • Separating the instructions from the form itself

Note, this new proposed Form I-9 is NOT an electronic I-9 as defined by the regulations. Thus, if a company uses this new form on their computer, they would still need to print the form, have the employee sign Section 1 and the employer would sign Section 2 and retain the original form.

The public comment period for the proposed changes ends on January 25, 2016. The proposed regulation and comment link can be found at http://www.regulations.gov/#!docketDetail;D=USCIS-2006-0068.

Employers should continue to use Form I-9 version 03/18/13N with expiration date 3/31/16 until a new version of the form is approved. The current version of the form may be found at http://www.uscis.gov/sites/default/files/files/form/i-9.pdf.

OSC TAL on Pre-Population of the Electronic Form I-9: Making Life Easier or a Headache?

Contributed by Jacqueline Lentini McCullough

In a Technical Assistance Letter (TAL) dated August 20, 2013 from the Department of Justice’s (“DOJ”) Office of Special Counsel, Deputy Special Counsel Seema Nanda, discourages pre-population of employee information in Section 1 of the I-9 Form by electronic I-9 programs due to potential discrimination concerns. Similarly, the Immigration and Customs Enforcement (“ICE”) has indicated that pre-population of Section 1 is impermissible.

Pursuant to federal law, a person or entity that hires, recruits or refers an individual for employment must verify the identity and employment authorization of each person hired, recruited or referred. The form designated for that purpose is the form I-9. The form I-9 specifies that Section 1 be completed by the employee. If an individual is unable to complete the form I-9 or needs it translated, someone may assist him or her in the preparation. A preparer or translator must read the form I-9 to the individual, assist him/her in completing Section 1 and have the individual sign or mark the form I-9 by a handwritten or an electronic signature attached at the time of the transaction.

The Office of Special Counsel (“OSC”) oversees Immigration Related Unfair Employment Practices. As such, the OSC discourages the practice of an employer pre-populating Section 1 with previously obtained employee information. This practice increases the likelihood of including inaccurate or outdated information in Section 1. Inaccurate or outdated information in Section 1 may lead an employer to reject documents presented or demand specific documents for Section 2 purposes. Furthermore, if an employer uses outdated or inaccurate information to submit an E-Verify query, a mismatch may result because the status or name in government databases conflicts with the employer’s outdated information.

Moreover, from the perspective of the anti-discrimination provision, employers relying on previously gathered employee information may be more likely to overlook that a particular employee has limited English proficiency (“LEP”) because Section 1 has been pre-populated by the employer. As a result, the employer may fail to provide the employee with translation or interpretation assistance in order to ensure the accuracy of Section 1, thereby assisting the employee’s understanding of the request for documents relating to Section 2.

The OSC is now the second governmental agency after ICE to notify the public to avoid pre-population of Section 1 of Form I-9.

New Requirements for E-Verify Employers Pertaining to Employee Email Addresses

Contributed by Sara Zorich

On July 1, 2013, USCIS announced that a new field had been developed in E-Verify to document the email address for any employee who voluntarily provided it on the Form I-9.  The new Form I-9 issued by USCIS in March 2013 contains a new field in which employees can voluntarily provide their email address on the form.  Employers utilizing E-Verify must be aware that as of July 1, 2013 if an employee voluntarily provides his/her email address on the Form I-9, the employer MUST document that email address in the provided field in the E-Verify system when the employer creates an E-Verify case for that employee.

USCIS has indicated that employers are not required to go back and update the E-Verify program for E-Verify cases run prior to July 1, 2013, thus the new rule is only applicable going forward.  Note, employers may not require an employee to provide his/her email address on the Form I-9 as it is completely voluntary for the employee nor can the Employer dictate which email address is used on the form.  It is at the discretion of the employee to provide their email address or not and what address is provided.

USCIS will be using the email addresses entered into E-Verify to notify employees of Tentative Non-Confirmation (TNC) Notices.  In the event a TNC is issued for an employee whose email address is in the system, USCIS will send an automatic email notifying the employee of the TNC.  USCIS may also email the employee regarding a reminder of the pending TNC or the need to visit the Social Security Administration to prevent future TNCs if they have been confirmed as work authorized.

USCIS’s new initiative to email employees regarding TNC’s DOES NOT alter an Employer’s requirements pursuant to the E-Verify manual in addressing an employee designated with a TNC.  Thus, USCIS’s new initiative is solely an additional notification to the employee of the TNC designation and employers should continue to follow the required steps in handling and addressing an employee’s TNC designation pursuant to the E-Verify Manual.

The New Form I-9 Has Arrived!

Contributed by Sara Zorich

Employers have been hearing “buzz” about the new Form I-9 for about a year now.  After two rounds of revisions, U.S. Citizenship and Immigration Services (USCIS) announced it has released the new Form I-9.  Employers should take note that the new Form I-9 will look vastly different then prior versions of the Form I-9.  Most importantly, the new Form I-9 that employers and employees must complete is a 2-page form with seven additional informational pages.

Employers may begin using the new Form I-9 as of March 8, 2013.  The revision date on the new form is ‘‘(Rev. 03/08/13) N’.”  USCIS is allowing employers a 60 day grace period in which to start implementing use of the form with their new employees in order for employers to update their business processes.  USCIS has indicated that employers should not wait the 60 days in order to begin utilizing the form if they have updated their business practices.  Employers must be aware that after May 7, 2013, all prior versions ((Rev. 08/07/09) Y and (Rev. 02/02/09) N) can no longer be utilized for employment verification.  After May 7, 2013, employers who fail to use Form I–9 (Rev. 03/08/13)N may be subject to all applicable penalties under section 274A of the INA, 8 U.S.C. 1324a.

According to the USCIS notice in the Federal Registrar, the key revisions to the Form I–9 include: (1) adding data fields, including the employee’s foreign passport information (if applicable) and telephone and email, (2) improving the form’s instructions and (3) revising the layout of the form and expanding the form employees and employers must complete from one page to two pages.

Any employers utilizing electronic Form I-9 systems should contact their software vendor to discuss updating their system to comply with the new form and requirements.  Those employers who have developed their own electronic I-9 software must review their systems, update accordingly and ensure they are complying with the requirements for completing and maintaining electronic I-9’s.

Copies of the Form I-9 for download can be found at http://www.uscis.gov/i-9.  Additionally, copies of the Handbook for Employers (M-274) guide to using the Form I-9 has been updated and can be found at http://www.uscis.gov/files/form/m-274.pdf.

After the posting of this blog, USCIS revised and amended its prior instructions for the new I-9 form indicating that employers MUST begin utilizing the new I-9 form as of May 7, 2013 and not as of May 8, 2013.  Thus employers MUST begin using the new I-9 form for all new employees NO LATER than May 7, 2013.

USCIS Extends Expiration Date of Current I-9 Form

Contributed by Sara Zorich

On August 13, 2012, U.S. Citizenship and Immigration Services (USCIS) announced that employers should continue to use the current Form I-9 available until further notice.  Employers can find the current I-9 Form at http://www.uscis.gov/files/form/i-9.pdf.  USCIS has indicated that this current form should continue to be used even though there is an expiration date of August 31, 2012 on the form.

In March 2012, USCIS published a proposed revision to the Form I-9 and accepted comments from the public on the proposed revisions through May 2012.  However, USCIS has not accepted the new form and is instructing all employers to continue using the current I-9 form until further notice.

Revised “How To” Handbook For Completing I-9s

Contributed by Sara Zorich

On January 5, 2011, the U.S. Citizenship & Immigration Services (USCIS) issued a revised version of the Handbook for Employers (M-274). This handbook is a useful tool to assist employers in the I-9 verification process for employees. We encourage employers to review the handbook.

Here is a link to a copy of the updated handbook: http://www.uscis.gov/files/form/m-274.pdf.


New DHS and DOL Memorandum of Understanding Confirms Information Sharing Between Departments

Contributed by Sara Zorich

On March 31, 2011, the US Department of Labor (DOL) and the Department of Homeland Security (DHS) entered into a Memorandum of Understanding (MOU) concerning enforcement activities at worksites. The purpose of the MOU is to clarify the ways in which the departments will work together to advance their directives of enforcement and to avoid conflict. The DOL is tasked with enforcement and assurance of proper wages and working conditions while the DHS enforces immigration laws including ensuring workers are authorized to work in the United States. Through the MOU, ICE has agreed to refrain from engaging in civil worksite enforcement at a worksite with an existing DOL investigation of a labor dispute, however, there are exceptions where both agencies can investigate at the same time if it is determined necessary by the Director of ICE, Secretary of Homeland Security or by an officer of the DOL. The purpose of this MOU is to reduce duplication of efforts between the departments. However, the MOU specifically states that ICE and DOL agree to create a means in which to exchange information from their respective investigations.

Though we will need to see how this is implemented, MOU appears to say that in most circumstances in which an employer is subject to a DOL investigation regarding minimum wage, FMLA, work related injuries, discrimination and/or retaliation, that the employer will not also be subject to an ICE civil audit at the same time. However, this MOU makes it clear that the DOL and ICE will be sharing information from their respective investigations and does not restrict ICE from investigating after a DOL investigation is complete. Therefore, if an employer is subject to an audit by one of the departments the information gathered during that audit may be shared with other government enforcement units.

The government’s actions make it clear that enforcement is still a key strategy of the administration and there are no signs of slowing. This is the time for employers to review their wage and hour policies and practices as well as their immigration polices and practices, including their I-9’s, to ensure compliance before ICE or DOL come knocking.