|Hot Topics Update: The New I-9, SSN No-Match Rule, FY 2009 H-1Bs
USCIS Reminds Employers to Transition to New
Employment Eligibility Verification Form by Dec. 26, 2007
On November 26, 2007, USCIS published a notice to introduce the newly amended Form I–9, ‘‘Employment Eligibility Verification.’’ Employers are required to use the Form I–9 to verify the identity and employment authorization of newly hired employees. The amended Form I–9 contains an updated list of acceptable identity and employment authorization documents that reflect the current regulations. As of November 7, 2007, the amended Form I–9 is the only valid version of the form. Effective December 26, 2007, employers who fail to use the revised form will be subject to applicable penalties. The latest version should be used for initial I-9 completion and reverification updates.
Employers may access the amended Form I–9 (Rev. 06/05/07) online at www.uscis.gov/i-9. In addition, a newly revised ‘‘Handbook for Employers, Instructions for Completing the Form I–9, (M–274)’’ with an expanded FAQ section is available online at www.uscis.gov/files/nativedocuments/m-274.pdf. To order USCIS forms, call the agency's toll-free number at 1–800–870–3676.
Register Now for Employers Group Webinar:
The I-9 Gets a Make-over and Other Developments in Employment Verification
The Employers Group's Webinar entitled The I-9 Gets a Make-over and Other Developments in Employment Verification will be presented by attorney Josie Gonzalez on December 12, 2007 at 12:15 p.m. The discussion will include the following topics:
* How Has the I-9 Changed and When Does It Take Effect?
* The New Employer Handbook
* A Refresher on I-9 Requirements
* Developments in E-Verify
* E-Verify: Should Employers Use It
* Status of the SSA Mismatch Letter Regulation
* Update on I-9 Enforcement
Registrants will have the opportunity to submit questions in advance of the event and to participate in a live Q&A session. Registration is open to both members and non-members, who may register online (www.employersgroup.com) or call 800.748.8484 (option 3).
DHS Seeks to Revise the Social Security No-Match Rule
Rather Than Appeal Court's Preliminary Injunction
In response to a lawsuit filed by the AFL-CIO and other groups, the U.S. District Court issued a preliminary injunction on October 10, 2007, preventing the Department of Homeland Security (DHS) from implementing and enforcing the August 2007 rule entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” On November 23, 2007, DHS asked the Court to hold proceedings in this matter so that the administration can address the Court's concerns by conducting a Regulatory Flexibility Analysis and issuing an amended rule. The Court is considering whether to stay the proceedings, pending monthly status updates from DHS regarding its proposed rulemaking efforts.
Earlier this month, the Social Security Administration (SSA) announced that it would not be sending out no-match letters to employers this year and would not do so until next spring because of the pending litigation. However, it is still sending to employers a letter with its standard advisal regarding specific individuals who have a mis-match. Employers still need to ensure that effective due diligence compliance policies are in place and are being followed. The criminal prosecutions of employers will continue and the presence of a no-match letter from prior years will continue to be a nail in the coffin that helps make the prosecution's case. An employer who has done nothing to address the receipt of a no-match letter is sitting on a keg of dynamite and may find itself in the same shoes as others that ICE has criminally prosecuted over the last two years.
American Law Institute-American Bar Association (ALI-ABA) Presents Social Security "No-Match" Letters: Developing an Immigration Corporate Compliance Program, a Teleseminar/Webcast with Kathleen Walker, Josie Gonzalez, and Mary Pivec
Is your company prepared for the impact of the Social Security Administration's "no-match" letters? How will the letters impact your business? What steps should you take to increase compliance? Get the critical review from a panel of national experts – attorneys Kathleen Walker, Josie Gonzalez, and Mary Pivec - during this 90 minute edition of ALI-ABA’s Regulations Update series scheduled for Friday, November 30, 2007 at 1:00 p.m. pacific time. The live teleseminar/webcast will address:
• Safe Harbor "No-Match" Regulations
• Constructive Knowledge: When Does it Occur?
• Re-verify Within 60 Days: Identity Theft or Safe Harbor?
• The Union Perspective
• Sarbanes-Oxley Considerations at the Worksite
• The Importance of Corporate Intervention at the Highest Levels
• Corporate Due Diligence in Mergers and Acquisitions
• How to Avoid Subcontractor Liability by Developing an Effective Compliance Program
• Electronic I-9s: Advantages/Disadvantages
• Developments in E-Verify
• Update on I-9 Enforcement
For more information or to register, please call 1-800-CLE-NEWS (253-6397), then press 2 for Customer Service; or go to www.ali-aba.org.
Time to Evaluate Your Organization's H-1B Needs for 2008-2009
Now is the time to evaluate your organization's H-1B needs through September 2009 - yes, 2009. Unless Congress changes course, there is no relief to the H-1B shortage until well after the November 2008 election.
This year, thousands of employers and individuals were left empty-handed when the H-1B cap was reached in April 2007. Several months later, the 20,000 annual cap exemption reserved for U.S. graduate degree holders was also gone. The new fiscal year 2009 cap may be reached within days, if not hours, of the first filings. Thus, employers should begin preparing now so that needed new H-1Bs can be requested on the first available filing day for the new fiscal year --- April 1, 2008.
The types of cases affected by the lack of H-1B numbers include persons who are changing from a different status (such as F-1 student/practical trainee, L-1, TN) to H-1B, or moving from a cap-exempt employer (e.g., university/college, nonprofit or governmental research organization) to one that is not exempt. It is important to determine the prospective employee's nationality, because there are alternatives to the H-1B classification based on nationality.
H-1B extensions and individuals who are being transferred from one H-1B employer to another (unless the prior employer was cap-exempt) do not count toward the cap, or where the petitioner is an H-1B cap "exempt" employer.
Long-term planning for H-1B hires is essential. It is important that all Human Resources Managers, hiring managers, recruiters and other staff involved in the hiring process be aware of these hiring restrictions. A hiring manager or recruiter may extend an offer of employment to a new graduate, incorrectly assuming that a one-year work permit will suffice until an H-1B petition can be approved. For example, a graduate might receive optional practical training (OPT) work authorization from February 2008 to February 2009. Unless a change of status to H-1B is approved before the H-1B numbers (or exemptions) are exhausted, this individual will lack work authorization from February 2009 until October 2009.
Given all needed information and documentation, even a law firm’s best efforts may not succeed in getting a favorable adjudication of a new H-1B prior to the exhaustion of the cap. The fact remains that there are fewer H-1Bs than there will be petitions filed. This year, only about 50% of cap-subject filings were selected in a lottery to receive the coveted H-1B number. The best insurance is to identify potential H-1Bs early, immediately obtain internal approvals, gather the documentation and information needed to process the H-1B, and work closely with a law firm to ensure a prompt filing of the petition on the first available filing day.
For tips on assessing your organization's preparedness and detailed information on the H-1B cap, see our article posted at http://www.josiegonzalez.com/Publications.asp?PTID=2&PID=64.