USCIS Releases New I-9 Form

On Wednesday November 7th, US Citizen and Immigration Services released a revised Employment Eligibility I-9 form to be used by employers. All U.S. employers are mandated by Federal law to have all employees complete an I-9 form within the first three days of work. The use of the newly released form is not yet mandated, but soon will be. Feel free to download a copy of the new form below:

New I-9 Form

State of Illinois Bans Basic Pilot Program

This is pretty drastic. Evidently Illinois governor Rob Blagojevich distrusts the Social Security Administration's and Department of Homeland Security's databases so much that he and other Illinois law-makers have banned the use of the basic pilot program. The basic pilot program allows employers to query these databases to determine if their employees are legal U.S. workers. I understand their concern about the fallibility of these databases. There are definitely some false-positives that come across (tentative non-confirmations that occur due to poor record keeping or data entry by these governmental agencies), but this seems a bit drastic. See the article below.

New State Law Bans Use of Residency Tool

There is a vague provision that allows use of the system after "training" of an organization has occurred. I have been told by those in the know that this legislation is most likely in response to a power play from Illinois' labor unions and that this law will ultimately be deemed unconstitutional.

ICE Immigration Enforcement Foiled Again . . . For Now

Last month Seyfarth Shaw updated us with The Department of Homeland Security’s Immigration and Customs Enforcement agency (ICE) efforts to crack down on employers who received mismatch letters from the Social Security Administration and didn't act upon them. Enforcement was to begin on September 14th, but a federal judge in California issued a temporary ruling which prohibits the Social Security Administration from sending the letters and DHS from acting on them.

Again, Seyfarth has provided us with a full breakdown of these events. See link below. Do you think the government will ever figure this thing out?

Lawsuit Halts DHS Crackdown on Unauthorized Workers

New U.S. Immigration and Customs Enforcement Rule (Ice) Creates Greater Risk for Employers

Check out this update from Seyfarth Shaw concerning a recent rule established by ICE concerning tougher enforcement of Social Security Mismatch Numbers.

Social Security Mismatch Letters: New ICE Rule Increases Risk to Employers

Employers that don't properly follow up on and resolve errors stemming from workers with social security numbers that come back as mismatches now face greater risk. If the government actually follows through on this employers should take note.

There are some affective tools out there for proactively determining an employee's right to work status. One such tool is the Electronic I-9 Process which has developed by experts to allow employers to fill out a "smart" electronic I-9 form and submit it to the Social Security Administration and Department of Homeland Security for instant status. They then can electronically archive the report and the results. It's a great solution to handle the I-9 process, but until the federal government enacts and enforces legislation my experience is that employers aren't going to bite.

Feds set to punish employers for illegal workers

Second on our list of coming trends presented to the 2007 SHRM annual conference in Las Vegas was "verification of right-to-work." In a nutshell, the push is to force employers to utilize DHS' Basic Pilot Program for instant, electronic I-9 verifications. It's great in theory but employers have been slow to embrace the instant electronic confirmation of work eligibility.

Colorado has already mandated this tool for employers, and Arizona is set to enforce stiff penalties beginning in 2008, to include potential revocation of business licenses, for employers that fail to comply, or knowingly employ ineligible workers.

A recent article, "Employers brace for immigration rules", discusses a new tack the federal government is considering. Whether or not any employer nationwide utilizes the basic pilot program, the Social Security Administration has historically flagged SSNs that didn't jibe with identity info on record. "No match" letters have always been sent to workers and employers, but left it up to the employee to resolve the issue, with no culpability on the employer's part.

The proposed new rule will put the onus on the employer to make sure the issue is resolved within 60 days, or they must fire the employee outright. Failure to comply means the employer may be deemed as having knowingly hired illegal workers, and face stiff penalties. This will be an obvious incentive for employers to utilize the electronic instant verification system (basic pilot program), but doesn't appear to specifically mandate it (we can probably assume mandated use of the system won't be far behind).

State of Georgia Mandates Verification of Work Status

Another day, another state passing a law that requires employers to verifiy their employee's work eligibility status. (Okay, this actually took place on June 29th, but I've been busy blogging about other topics) This time, the State of Georgia has enacted Senate Bill 529 that mandates that all businesses the contract with the state and have 500 or more employees must confirm their employees legal right to work status with the Social Security Administration or Department of Homeland Security (DHS)for residents of other countries who are legally permitted to work in this country.

In addition to enforcing federal immigration laws, the state feels that this measure will discourage those doing business with the state from human traffiking and taking state deductions for undocumented workers.

What I find interesting about this measure is that they only require this of those that employ over 500 employees. Why? Do they trust that small employers wouldn't hire illegals and are they just starting somewhere? Also, this should be an interesting test case for the state. What if these contractors now cannot find enough legal workers to complete the jobs the state has contracted for? Do they rescind this measure? Do they look for out-of-state contractors? Can they require out-of-state contractors to do the same? Will they eventually mandate this for all employers in the state of Georgia?

Who knows? We'll keep following this story and update you from time to time.

State of Arizona Set to Mandate Tougher Regs for Employment Eligibility

Some trends take longer than others. Take for instance beanie babies, bell bottom pants, swatch watches, or cabbage patch kids. These things took off like wild fire. For better or worse, it seemed like everyone couldn't wait to participate. Okay so maybe the trend for states to enforce employment eligibility laws isn't setting world records for speed, but Arizona is now set to be the second state to pass a law that puts teeth into the enforcement of only hiring legal U.S. citizens and it is believed that Georgia is close behind. Arizona house bill #2779 threatens to suspend the business license of first time offenders and even includes a "death penalty", permanent revocation of a business license for failing to verify work status on all employees. Of course, so far the state's efforts are only being bolstered with a $100,000 budget, but if these efforts actually do take shape, employers in the state of Arizona better take note, and fast!

I was recently speaking with an employment attorney about states adopting such laws for the enforcement of a federal statute and she questioned whether the state could actually adopt legislation that mandates the enforcement. It's a question I still haven't been able to answer but one that we should most definitely follow up on.

In the meantime, should this trend continue, it puts further onus on the employer to ensure that their employees are working legally in this country. It dictates that they must spend more time making sure that I-9 documentation is filled out correctly, that identification be scrutinized and that the employer confirm the employees eligibility status with the Social Security Administration. With the threat of the aforementioned sanctions, failure to do this could really hurt . . . now.