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Florida’s New Mandatory E-Verify Law Will Require Changes To Hiring Practices In the New Year

December 21 - Posted at 10:00 AM Tagged: , , , , ,

Beginning on January 1, 2021, Florida’s new “Verification of Employment Eligibility” statute will require many employers to use the federal E-Verify system before hiring any new employees. This new law could force significant changes to your hiring practices. What do Florida employers need to know about this significant development?

Legislative Background And Campaign Promises

E-Verify was introduced by the U.S. Department of Homeland Security in partnership with the Social Security Administration as a voluntary program. However, many employers in Florida will soon be faced with mandatory implementation of the web-based system to confirm employment eligibility for new hires.

Under preexisting federal law, all employers are required to complete an I-9 Employment Eligibility Verification form for each new employee to verify the identity and eligibility of that employee to work in the United States. Since its inception in 1996, most states have also encouraged voluntary participation in the federal government’s E-Verify program, which compares information supplied by an employer from its Form I-9 to information available to the federal government from various databases. Only nine states require E-Verify for all employers.

Since 2011, E-Verify has been required on all state projects in Florida. However, following a nationwide trend of growing support for the federal employment verification system, Governor Ron DeSantis signed Florida Senate Bill 664 on June 30, requiring all public employers – as well certain private employers – to use E-Verify beginning January 1, 2021.

As a gubernatorial candidate in 2018, DeSantis vowed to mandate the use of E-Verify among all employers in the state. This was controversial and opposed not only by some immigrant advocacy groups, but also by business groups — especially those in agriculture, construction, and hospitality. Following Governor DeSantis’ signing of the bill, a spokesperson explained, “Given the high unemployment rate due to COVID-19, it is more important than ever to ensure that the state’s legal residents benefit from jobs that become available as Florida continue to reopen in a safe and smart manner.” While the measure expands the use of E-Verify, Florida does not join the states that require use of the system in hiring practices for all employers. 

What Does the New Law Require?

There are varying obligations for employers depending on whether they are public or private, and whether they contract with the state or receive certain state incentives.

Public Employers And Private Employers Who Contract With The State Or Receive State Incentives

Once in effect, every Florida public employer, along with their private contractors and subcontractors, must enroll in and use the E-Verify system to confirm the eligibility of all employees hired after January 1, 2021. No public contract can be entered into without an E-Verify certificate.

Any contractor who hires a sub must require an affidavit stating that they don’t employ, contract with, or subcontract with any unauthorized immigrants. Importantly, this affidavit provides for all newly hired employees, not just those working on government contracts. This affidavit must be kept by the general contractor for the duration of the contract and all contractors will need to go through this process for each public project.

If a public employer has a good faith belief that these requirements have been knowingly violated, it can terminate the contract, without liability for breach of contract, or demand that its contractor terminate any noncompliant subcontractors. Terminations for purported violations of these requirements may be challenged in court within 20 days of the date of termination. However, if the contractor is in fact found guilty, the contractor will be barred from public contracting for at least a year after termination and may be held liable for any additional costs associated with the termination.

In addition to private employers who contract with public entities, these new E-Verify employment eligibility requirements will also apply to employers who receive taxpayer-funded incentives through the state Department of Economic Opportunity. Beginning on January 1, 2021, the DEO will not approve an economic development incentive application unless the application includes proof that the applicant business is registered with and uses the E-Verify system in the eligibility verification process for all newly hired employees. Should the DEO make a final determination that an awardee has failed to be compliant, the employer will be forced to repay all moneys received by the DEO as an economic incentive.

E-Verify For All Other Private Employers

For private employers who do not contract with the state or receive state incentives, Florida law will now require these private employers to use E-Verify, or alternatively use the Form I-9 and maintain copies of the documents used to complete the Form for three years (which is optional under federal law). If the E-Verify certificate or Form I-9 documentation is requested by certain parties (such as the State Attorney, Attorney General, Department of Law Enforcement, etc.), the employer must provide them with proof of the employee’s eligibility.

Private employers accused of non-compliance will be provided notice from the DEO and the employer must terminate any unauthorized employees, begin complying with the legal procedures, and respond with an affidavit of compliance within 30 days. Failure to do so risks potential suspension of existing licenses until the employer provides such an affidavit. If an employer fails to properly respond to a DEO notice three times in any 36-month period, it could permanently lose its business licenses and may be liable for additional civil or criminal liabilities.

The E-Verify requirements will also go into effect for the private sector on January 1, 2021. This new law will not apply to any employees that were hired before then. However, any existing employment contracts that need to be renewed or extended after that date will be required to go through the verification process without going through the E-Verify process.

Ensuring Compliance Readiness Is The Next Step for Employers

Public employers in Florida and those who bid on contracts with the state should be ready to comply with the new law by updating their onboarding and new hire practices. Private employers who choose not to use E-Verify should continue to complete and maintain Form I-9 verification records, including copies of the documents that were reviewed. The enforcement procedures under the new E-Verify mandate are significant, and failure to comply can seriously impact your ability to do business within the state.

Notably, government scrutiny of employment verification records at both the state and federal level has the potential to increase when the COVID-19 pandemic subsides. You can prepare for government reviews by periodically auditing your employment verification records to ensure you have been completed fully and properly.

FAQs For Employers Navigating Relaxed I-9 Verification Requirements

April 28 - Posted at 10:00 AM Tagged: , , , , ,

Although the Department of Homeland Security (DHS) recently relaxed I-9 requirements for employers operating remotely as a result of the COVID-19 crisis, employers are still left with some questions on how to meet their obligations in this uncertain time. 

The Basics: What Are The New Rules?

Under federal guidance, employers are temporarily no longer be required to review an employee’s identity and work authorization documents in the employee’s physical presence.  Instead, inspection of these documents can be conducted remotely (e.g., by video, fax, or email).  

According to the U.S. Citizenship and Immigration Services (USCIS), “if employers are performing inspections remotely (e.g., over video link, fax or email, etc.) they must obtain, inspect, and retain copies of the Section 2 documents within three business day of hire. In addition to completing Section 2, Employers also should enter ‘COVID-19’ in the Additional Information field.”

Then, when “normal operations resume,” all employees whose documents were presented via remote verification must, within three business days, undergo the required “in-person” examination of documents. The person conducting the physical examination should write the words “documents physically examined” in the Additional Information box in Section 2, and should include their name and the date of inspection.  

It is important to keep in mind that the DHS’s relaxed requirements apply only to employers who are operating remotely. According to the guidance, if there are employees physically present at a work location, then you must follow the normal in-person physical inspection rules. However, if newly hired employees or existing employees of an employer who still has employees present at a work location are subject to COVID-19 quarantine or lockdown protocols, “DHS will evaluate this on a case-by-case basis.”

Frequently Asked Questions About The New I-9 Guidance

While employers appreciate the DHS’s temporary relaxation of the in-person document inspection rules, some questions are not addressed by either DHS or USCIS. Here are the most common questions we have seen and the best practices to follow.

  1. How is an employee expected to fill out Section 1?
    The announcement makes clear that employees are still required to fill out their section (Section 1) of the I-9 no later than the first day of employment. But DHS’s announcement is silent on how employees will complete Section 1 of the I-9 if they are operating remotely.

    You can presumably email the Form I-9 to the employee, have the employee complete Section 1, sign, date, scan and email the completed Section 1 back to you. For employees without a home printer and/or scanner, you should consider having them provide Section 1 in the same way they provided their documents (by video, smart phone photo, fax or other electronic method).

    Once operations resume, the employee should bring the original signed Section 1 to your worksite.

  2. If we have a policy of not keeping copies of documents presented as part of the I-9 process, what should we do with our copies of the remotely provided documents after the in-person inspection occurs?
    As noted, the announcement clearly requires employers conducting remote document reviews to keep copies of the documents provided to them (for example, by taking screen shots, pictures of the documents by camera phone, and other methods). But the announcement is silent as to what you should do with those electronic copies of documents after the in-person document review, in the event you do not, as a policy, keep copies of documents submitted as part of the I-9 process.

    The safest course of action is to print out the electronic copies of documents received remotely. But instead of keeping them with the employee’s I-9, keep them in a separate file until DHS clarifies what should be done with them.

  3. Is the employee required to bring in hard copies of the same documents they provided remotely?
    The government has made it clear that you are not supposed to request or even suggest that employees provide any specific document or documents when filling out a Form I-9. Here, the announcement seems to assume employees will bring in for inspection the same document or documents they provided remotely, but does not specifically say so. 

    Because the employee has already made their choice of documents when they provided them remotely, DHS may find it reasonable for you to ask to see hard copies of the same document(s). If the employee refuses or has lost one or more of those document(s), you may consider filling out a new Section 2 and attaching it to the original Section 2, with a brief explanation in the Additional Information field.

  4. What triggers the determination that “normal operations” have resumed?
    The announcement states that within three business days after you resume “normal operations,” the in-person document review must occur. But what if you implement a partial resumption of operations, scaled back operations, or even just start a test run of operations?  What if you call some of your employees in to your worksite in preparation for returning to normal operations? 

    The recommended approach is to determine if the employee is going to be required to physically come into the office as part of the resumption of operations, whether to attend orientation, pre-employment training, or other reason. If the employee is scheduled to come in to the workplace for only a day or two, or even for only a few hours, you should instruct them to bring their original I-9 document(s) with them, and you should conduct the in-person inspection at that time. 

    In short, rather than bank on an argument that Section 2 was not filled out late because “normal operations” had not yet commenced, you should err on the side of doing the document inspection as early in the process as possible (on a case-by case basis), rather than later.

New I-9 for 2020

February 03 - Posted at 2:23 PM Tagged: ,

On Jan. 31, 2020, USCIS published the Form I-9 Federal Register notice announcing a new version of Form I-9, Employment Eligibility Verification, that the Office of Management and Budget approved on Oct. 21, 2019. This new version contains minor changes to the form and its instructions. Employers should begin using this updated form as of Jan. 31, 2020.

The notice provides employers additional time to make necessary updates and adjust their business processes. Employers may continue using the prior version of the form (Rev. 07/17/2017 N) until April 30, 2020. After that date, they can only use the new form with the 10/21/2019 version date. The version date is located in the lower left corner of the form.

USCIS made the following changes to the form and its instructions:

Form:

Revised the Country of Issuance field in Section 1 and the Issuing Authority field (when selecting a foreign passport) in Section 2 to add Eswatini and Macedonia, North per those countries’ recent name changes. (Note: This change is only visible when completing the fillable Form I-9 on a computer.)

Instructions:

  • Clarified who can act as an authorized representative on behalf of an employer
  • Updated USCIS website addresses
  • Provided clarifications on acceptable documents for Form I-9
  • Updated the process for requesting paper Forms I-9
  • Updated the DHS Privacy Notice

A revised Spanish version of Form I-9 with a version date of 10/21/2019 is available for use in Puerto Rico only.

 

Form I-9 Expires August 31st

August 27 - Posted at 9:57 PM Tagged: ,

The federal government’s Form I-9, used by HR departments across the country to verify workers’ employment eligibility, is expiring at the end of this month.

The Department of Homeland Security (DHS) is expected to extend the current version of the form (marked 8/31/2019) without changes, although minor clarifications will be made to the form’s instructions. The agency has directed employers to continue using the current version of the form despite the expiration date until a revised version is available.

Here are three of the proposed revisions:

  • Employers may designate anyone to be an authorized representative to complete Section 2 of the form. The employer is still liable for any violations committed by the designated person. Employers face difficulties in completing I-9s for remotely hired workers and need more-specific instructions to clarify who may serve as an authorized representative to complete the form.
  • Writing “N/A,” or not applicable, in the identity-document columns is no longer necessary. When entering document information in the List A column (or, alternatively, in the List B and List C columns), you will not need to enter “N/A” in the columns that are not used. “The requirement to enter ‘N/A’ in certain portions of the form could be burdensome and unclear,” Fay said. “Now, for example, if you have an employee present a U.S. passport, which is recorded in the List A column, you do not need to write ‘N/A’ in all of the fields in the List B and List C columns.”
  • The form’s List C documents that establish employment authorization do not include a worker’s Employment Authorization Document (EAD). The List C documents include a Social Security card and birth certificate, while the EAD (Form I-766) providing temporary employment authorization to work in the United States is a List A document.

ICE Turns Up The Heat On Employers This Summer

July 23 - Posted at 11:01 PM Tagged: , , , ,

In the past week, Immigration and Customs Enforcement (ICE) has significantly increased the number of Notices of Inspection issued to employers nationwide, leading to a dramatic spike in I-9 audits. Unlike the enforcement initiative rolled out by federal authorities in February of this year, the latest sweep is no longer concentrated in Southern California but appears to be nationwide in scope.

There appears to be somewhat of a pattern with regard to which employers are targeted by this effort. ICE seems to be focusing on businesses operating in states, counties, and cities that have designated “sanctuary” status, and has also ramped up efforts to follow up with employers who have been subject to an I-9 audit in the past. 

Regardless of whether you fall into either of these two categories, you are at increased risk of a visit from federal immigration authorities. What should you do today to prepare for a possible knock on the door from federal officials tomorrow? 

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E-Verify to Go Dark This Weekend

March 20 - Posted at 6:30 PM Tagged: , , , , , ,

The federal government’s electronic employment verification system will be unavailable this weekend due to system upgrades.

U.S. Citizenship and Immigration Services (USCIS) announced that E-Verify will be shut down from midnight March 23 to 8 a.m. March 26 Eastern Time. E-Verify users are encouraged to complete and close any open cases prior to the system shutdown.

The Department of Homeland Security and the Social Security Administration will not be able to assist employees with case resolution issues during the outage. myE-Verify, the system’s resource portal for workers, will also be unavailable.

“During the suspension, employers will not be able to access their E-Verify accounts and employees will be unable to resolve E-Verify tentative nonconfirmations,” said Michael H. Neifach, an attorney in the Wahington, D.C., regional office of Jackson Lewis. “The E-Verify outage does not change any Form I-9 requirements,” he added. “Form I-9s must be completed no later than three business days after employment.”

To minimize the shutdown’s impact, the agency stipulated:

  • The three-day rule for creating E-Verify cases is suspended for cases affected by the outage. If an employee’s first day occurs between March 20 and March 26, employers will have until March 29 to create an E-Verify case.
  • Workers will have two additional federal working days to resolve tentative nonconfirmations.
  • Workers will have an additional two federal working days from the date listed on their referral date confirmation to contact the agencies.
  • Employers may not take adverse action against an employee because the E-Verify case is in interim case status or during the extended interim case status due to the suspension. Federal contractors with E-Verify clauses should contact their contracting officer to inquire about extending contractor deadlines.

USCIS is prepping for a move to an upgraded user interface later this month. Enhanced features are expected to include a streamlined process for creating and managing cases, modernized data-matching to reduce tentative nonconfirmations, and improved data integrity.

USCIS Releases New I-9 Form

July 18 - Posted at 9:39 AM Tagged: , , ,
On July 17, 2017, the USCIS announced the release of a revised version of Form I-9, Employment Eligibility Verification.

Key information:
  • The revised version may be used immediately, but it must be used no later than September 18, 2017.
  • Employers can continue using Form I-9 with a revision date of 11/14/16 N through September 17, 2017, however we recommend that you destroy any existing versions and begin using the new version immediately.
  • Employers must continue following existing storage and retention rules for any previously completed Form I-9.

The changes below also can be found in the newly revised Handbook for Employers: Guidance for Completing Form I-9 (M-274).

Revisions to the Form I-9 instructions:
  • The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been changed. Its new name is Immigrant and Employee Rights Section (IER).
  • The instructions on Section 2 have been slightly changed to read: “Employers or their authorized representative must complete and sign Section 2 within 3 business days of the employee’s first day of employment.”
Revisions related to the List of Acceptable Documents on Form I-9:
  • The Consular Report of Birth Abroad (Form FS-240) was added as a List C document and all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined.
  • The List C documents have been renumbered, except for the Social Security card, which remains #1 on the list.

If you have any questions about the new form or would like us to send you a copy of the new I-9 form and instructions, please contact our office.

New  Version of I-9 Form Released

November 18 - Posted at 8:43 PM Tagged: , , ,

U.S. Citizenship and Immigration Services (USCIS) has released an updated version of the Form I-9, Employment Eligibility Verification. The new Form I-9, dated 11/14/2016N, will become mandatory on Jan. 22, 2017, replacing the version dated 03/08/2013 N, which may continue to be used until Jan. 21, 2017.  


The new Form I-9, which must be used for all newly hired employees and those who require the re-verification of their U.S. employment eligibility, contains a number of new features, including but not limited to:


1) Clarification of the “other names used” field in Section to request only “other last names used” and the numbering of immigration status categories in Section 1;


2) Additional details regarding the preparer/translator category, including the ability to select multiple preparers/translators;


3) A designated area to enter additional information that previously needed to be entered as a margin note, such as the auto-extension of an individual’s work-authorized status, where applicable;


4) A separate page (Page 3) for Section 3 of the Form I-9;


5) Additional prompts and electronic enhancements, such as drop-down lists and calendars, to facilitate the proper entry of required information.

Expired Form I-9 Still in Effect

April 04 - Posted at 1:35 PM Tagged: , , ,

The current version of the Form I-9, the most fundamental tool used to determine if applicants are eligible to work in the U.S., expired on March 31. Until further notice, though, employers should keep using the expired form until the recently proposed “smart” I-9 is in effect, according to U.S. Citizenship and Immigration Services (USCIS).


Dave Basham, a senior analyst in the verification division at USCIS, has been answering the following question a lot recently: “What will happen on March 31, 2016, when the Form I-9 expires?” Basham says: “Employers should continue to use the current version of the form as it continues to be effective even after the OMB [Office of Management and Budget] control number expiration date March 31, 2016, has passed.”


On March 28, 2016, USCIS published a second round of proposed changes to the form in the Federal Register, giving the public 30 days to comment. Once the comment period ends April 27 and comments are considered, USCIS may make further changes before sending the proposal to OMB, which will need to review and approve it. The form will be available for download at www.uscis.gov upon being approved.


“Employers must continue to use the current version of Form I-9 until the proposed version is approved and posted on the USCIS website,” said Amy Peck, an immigration attorney in the Omaha, Neb., office of Jackson Lewis.


The proposed, revised form is designed to address frequent points of confusion that arise for both employees and employers.


The proposed changes specifically aim to help employers reduce technical errors for which they may be fined, and include:

  • Validations on certain fields to ensure information is entered correctly. The form will validate the correct number of digits for a Social Security number or an expiration date on an identity document, for example, Fay said.
  • Additional spaces to enter multiple preparers and translators.
  • Drop-down lists and calendars.
  • Embedded instructions for completing each field.
  • Buttons that will allow users to access the instructions electronically, print the form and clear the form to start over.
  • A dedicated area to enter additional information that employers are currently required to notate in the margins of the form.
  • A quick-response matrix barcode, or QR code, that generates once the form is printed that can be used to streamline audit processes.
  • The requirement that workers provide only other last names used in Section 1, rather than all other names used.
  • The removal of the requirement that immigrants authorized to work provide both their Form I-94 number and foreign passport information in Section 1.
  • Separating instructions from the form. Employers are still required to present the instructions to the employee completing the form, however.
  • The addition of a supplement in cases where more than one preparer or translator is used to complete Section 1.


The proposed changes will have far-reaching impact because all employers are required to complete and maintain the Form I-9 for each employee hired to verify their identity and authorization to work in the United States.

Case Study: Company Hit with Largest I-9 Penalties to Date

August 10 - Posted at 3:02 PM Tagged: , , , , , , ,

Failure to thoroughly complete I-9 paperwork has left an event-planning company with a fine of $605,250 (the largest amount ever ordered) serving as a reminder that employers need to be taking I-9 compliance very seriously.


On July 8, 2015, the Office of the Chief Administrative Hearing Officer (OCAHO), which has jurisdiction to review civil penalties for I-9 violations, ordered Hartmann Studios to pay the fine for more than 800 I-9 paperwork violations.


Immigration and Customs Enforcement (ICE) audited the company in March 2011.


The bulk of the violations charged against Hartmann were due to a repeated failure to sign section 2 of the I-9 form. Employers are required to complete and sign section 2 within three business days of a hire, attesting under penalty of perjury that the appropriate verification and employment authorization documents have been reviewed.

ICE found 797 I-9s where section 2 was incomplete. About half of these incomplete forms related to individuals from the International Alliance of Theatrical Stage Employees Union Local 16A, who worked for Hartmann on a project-by-project basis during the term of a collective bargaining agreement. Even though the union workers worked on a project-by-project basis, they were not terminated upon completion of a project and remained “on-call.” The union created a “three-in-one” form that combined a portion of a W-4 form, parts of sections 1 and 2 of an I-9 form, and a withholding authorization for union dues. No separate I-9 form was completed for these workers nor did Hartmann sign section 2 of the union form.


Hartmann could have been charged with the more-substantive offense of having failed to prepare any I-9 form at all for the 399 union members, because the union’s form is not compliant, but OCAHO declined to do so.


Hartmann told OCAHO it believed that the union form was sufficient to confirm that the workers had proper employment authorization, and that nothing further needed to be done to confirm their eligibility for employment. The company also said that it did not know signing section 2 of the form was a legal requirement. 


In addition to failing to sign section 2, Hartmann was also cited for:

  • Failure to fill out any I-9 form at all for four individuals.
  • Failure to locate the I-9 forms for eight individuals at the time of the     inspection.
  • Failure to ensure that three workers checked a box in section 1 indicating immigration status.
  • Failure to ensure that two workers signed section 1.
  • Failure to ensure that two workers entered their alien numbers on the form.
  • Missing List A, B and C documents.


This case demonstrates the need for employers to conduct routine self-audits of their I-9 inventories to ensure that the forms have been properly completed and retained and are ready for inspection.


Employers should also ensure that acceptable proof of audits and training is kept so that it may be used as evidence of good faith in court proceedings.

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