USCIS Issues Final Rule on Employment Eligibility Verification Form I-9
On April 15, 2011, USCIS announced a final rule adopting changes made under an earlier interim rule for the Form I-9 that include: prohibiting employers from accepting expired documents; revising the list of acceptable documents by removing outdated documents and making technical amendments; and adding documentation applicable to certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands. The rule, in its entirety, can be found on the online version of the Federal Register at: www.aila.org
Forms I-9 are the documents completed by employers to confirm an employee’s ability to work legally in the U.S. Section 1 of the Form I-9 must be completed at the time of hire, when the employee begins work. Section 2 of the Form I-9 must be completed within 3 business days of the date of hire. While employers can be penalized for incorrectly completing the Form I-9, they should also be aware that liability can be incurred for discriminating by requiring individuals to provide additional documents beyond those required by the Form I-9. Also, employers may encounter problems if they require all employees to produce the same specific document or documents, such as requiring a driver’s license and social security card from all employees. Instead of asking for specific documents, the appropriate approach is to give the list of acceptable documents to the employee and to ask them to provide one item from List A, or an item from Lists B and C.
Employers may use either of the two most recent versions of the form (Rev. 08/07/2009 or the previous version Rev. 02/02/2009), but may not use older versions of the form. Why? Older versions of the forms contain incorrect and out of date instructions, such as incorrectly permitting the use of certain expired documents. The Form I-9 is one of the most complicated one page forms ever produced by an executive agency bureaucracy, and comes with 69 pages of instructions that need to be read carefully. Fortunately, the instructions, in the form of the M-274 handbook, are well written, and provide FAQs with useful examples. The handbook is also indexed for ease of reference. The handbook is free and can be downloaded from the USCIS website, under a link found on the Form I-9 page here.
The Department of Labor (the DOL) released its internal performance report for FY2010 in March of 2011. This report, at page 49, includes findings from the DOL’s Office of Foreign Labor Certification (OFLC), which administers the PERM labor certification process. PERM is a web-based system through which employers can sponsor foreign workers for lawful permanent residence status based on the unavailability of qualified, willing, or able U.S. workers. The process is attestation based, and most case decisions are made based on the representations the employer makes through the application document filed with the DOL. The employer is required to maintain an audit file for at least 5 years after the date the application was filed with the DOL. The DOL can audit the case prior to adjudicating the case or even after it is approved.
In its performance review, the DOL concluded that only a little more than half of the PERM applications selected for audit in the last fiscal year were found to be in compliance. Cases not found in compliance may include clear errors, or even fraud, as well as cases denied for debatable technical reasons. Based on its conclusions, the DOL stated that in the future it will revise the PERM application form, which expires in June 2011, to strengthen its integrity by clarifying program requirements and to seek more detailed justifications in key parts of the form.
The DOL also plans to increase and enhance audit investigations. In order to obtain funding for this additional work, it plans to propose legislation to establish an employer-paid user fee. The increased focus on audits may include cases filed but not yet adjudicated as well as audits of cases already approved. Specifically, the report states that the DOL will select a sample of already approved cases for quality review. This may even include cases for which the sponsored foreign worker has already immigrated and obtained lawful permanent residence.
The report can be found at: www.dol.gov
The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals. USCIS announced that as of April 8, 2011 it had received approximately 4,500 master’s cap filings as well as approximately 5,900 filings for the other cap for Fiscal Year 2012, which will begin on October 1, 2011. While it is impossible to know how long the H-1B visas numbers will continue to be available, there is a high likelihood that visas will continue to be available at least through the end of the summer and possibly after that. Visa status obtained through the FY2012 cap numbers will provide lawful work authorization status from October 1, 2011 forward. The cap limitations do not affect extension petitions or employees who receive sponsorship to transfer the H-1B status to a new employer.
The U.S. immigration system provides for a wide range of temporary visa categories that cover most of the alphabet. A client once commented that he had finally figured out the U.S. immigration system – the E-visa is for executives, the L-visa is for lower level managers, and the H-visa is for the employees who do all of the hard work. Actually, that is not quite correct. The letter designation for the various visa categories does not carry any special meaning. The letter designation simply notes the order in which the visa category is listed in the Immigration and Nationality Act at Section 101(a)(15). The A-visa is the first visa on the list, the B-visa comes next, etc. The immigration alphabet can be summarized as follows:
- A – diplomats and foreign government officials
- B – business visitors and tourists
- C – travelers transiting the U.S. on the way to another country
- D – ship crew members
- E – traders and investors with treaty rights. . . and Australian professionals
- F – students
- G – employees of designated international organizations, including NATO
- H – professional workers, seasonal workers, agricultural workers, a narrowly defined kind of trainee, and fashion models . . . and special subsets for persons from Singapore and Chile
- I – journalists and media representatives
- J – international exchange program visitors – can cover anything from cutting edge scientific research at the NIH to summer camp counselors and au pairs
- K – fiancé visa
- L – intracompany transferee executives, managers, and specialized knowledge workers
- M – vocational program students
- N – parent of a child accorded special immigrant juvenile status and related children
- O – persons of extraordinary ability
- P – performers
- Q – international cultural exchange visitors
- R – religious workers
- S – criminal organization informants
- T – victims of severe human trafficking
- U – crime victims suffering substantial physical or mental abuse
- V – spouses and children of lawful permanent residents who petitioned on or before December 21, 2000
In addition to Section 101(a)(15), other parts of the Act provide for the TN visa pursuant to the terms of the NAFTA treaty, and the Visa Waiver Program for business visitors and tourists from certain countries with low overstay rates. Some of the above listed categories are considered non-controversial and useful. Others are so narrowly defined as to be useless. Like provisions of the tax code, many of the visa categories were the result of skilled lobbying. The L-visa came into being in 1970 to facilitate the movement of personnel between multinational companies operating in the U.S. and abroad. The Q visa came into being to help Disney staff Epcot Center pavilions and also to provide for visas for participants in the Irish peace process. The seeds for many of these categories are derived from structure put in place by the 1952 McCarran Walter Act, which was passed over Harry Truman’s veto. A lot has changed in the world in the last 59 years. With more than 10 million persons in the U.S. who cannot or will not obtain visas, many commentators feel that there is now a great need for comprehensive changes to the U.S. system of visas. Some also believe that Congress is more likely to revise the tax code, develop a system for regulating carbon emissions, and reform both Social Security and Medicare, before any positive changes are made to the U.S. visa system. Others are not quite that pessimistic.