U.S. Immigration and Customs Enforcement (ICE) has unofficially confirmed that 500 to 700 I-9 Notices of Inspection (NOIs) will be issued to businesses throughout the U.S. over the coming months. The agency began issuing the NOIs on September 15, 2010. The notices alert business owners that ICE will be inspecting the hiring records of these employers to determine whether or not they are complying with employment eligibility verification laws and regulations. The Immigration Reform and Control Act (IRCA) of 1986 requires all U.S. employers to verify the employment eligibility and identity of all employees hired to work in the U.S. after November 6, 1986. This employment eligibility is verified by completing an Employment Eligibility Verification form (Form I-9). The ICE inspections will concentrate on auditing the Form I-9s of employers, but could also involve an inspection of I-9 policies and procedures, unemployment tax records, and other documentation.
Although ICE officials say that specific employers have been targeted to receive NOIs based on reports alleging employment of illegal workers, wage violations, and other illegal workplace practices, we encourage all of our clients to conduct regular internal audits of its Form I-9s to ensure compliance with IRCA. I-9 audits can be conducted in-house by your own personnel, or our team of immigration attorneys can conduct an I-9 audit on your behalf. For employers who have not been auditing I-9 records on a regular basis, we recommend that the employer have the records audited by a third party that can perform an entire audit of all I-9 records, or do a condensed audit, in which a select number of randomly chosen forms are audited. This will give employers confidence to know whether it is in compliance with IRCA.
If there are problems with the Form I-9s, employers will be advised as to the proper steps to be taken. These steps can help to ensure future compliance, and can also be used as a good faith defense should there be problems. We often hear from employers that the Form I-9s are completed and are in "good shape." Unfortunately, the reality is that few employers are properly completing the forms, and few employers are actually in compliance with the federal regulations. To avoid possible civil and criminal penalties, employers should ensure that the employment eligibility of current and newly-hired employees is verified properly. Please contact one of our immigration attorneys if you would like assistance with an internal audit of your I-9 forms or in-person or Webinar training of your personnel on the I-9 process.
E-Verify System Adds U.S. Passports to Photo Matching Tool
As of September 26, 2010, employers participating in the Department of Homeland Security's E-Verify program must compare the photo from U.S. passports or passport cards presented during the I-9 process with the government's digitally stored photos online. Photo matching is a feature of E-Verify that requires employers to verify that the photo displayed in E-Verify is identical to the photo on the document that the employee presented for Section 2 of Form I-9. Prior to September 26, 2010, the photo matching tool was activated automatically if an employee presented an Employment Authorization Document (EAD) or Permanent Resident Card (Green Card). The photo matching tool will now also be activated if an employee presents a U.S. passport or passport card with his or her Form I-9. If no photo is available, the case will either automatically skip photo matching or "No Photo on this Document" may display in place of a photo. At this time, other documents with photos, such as a state-issued driver's license, will not activate photo matching.
If an employee presents a Permanent Resident Card, Employment Authorization Document, or U.S. passport or passport card as the verification document, the employer must make a copy of that document and keep it on file with Form I-9. Employers are reminded that a photo displayed in E-Verify should be compared with the photo in the document that the employee has presented and not with the face of the employee.
Please contact one of our immigration attorneys if you have questions about these changes or want to know more about the E-Verify program.
USCIS Provides Updated H-1B Visa Numbers for FY2011
Employers are advised that H-1B visa numbers remain available for Fiscal Year (FY) 2011. U.S. Citizenship and Immigration Services (USCIS) has announced that, as of October 19, 2010, approximately 44,300 H-1B cap subject petitions have been received and counted towards the 65,000 H-1B cap. USCIS has also received approximately 16,200 petitions needed to meet the 20,000 cap for foreign workers with U.S. advanced degrees. Until USCIS announces that the respective caps have been met, employers can continue to file H-1B temporary worker petitions for foreign national workers. Once the H-1B cap is reached, employers will not be able to obtain new H-1Bs until October 1, 2011.
If you are considering the hiring of a foreign worker who will need H-1B sponsorship, we encourage you to contact one of our immigration attorneys as soon as possible to review your hiring plans. In the meantime, we will continue to provide you with latest developments on the H-1B numbers.
New USCIS Visa Application and Petition Fees Go Into Effect on November 23, 2010
Visa applicants and petitioners are reminded that USCIS' new fee schedule goes into effect on November 23, 2010. Applications or petitions postmarked or otherwise filed on or after this date must include the new fee or they will be rejected. The new fee schedule increases most application and petition fees by an average of about 10 percent, although some fees have been lowered or remain unchanged. The basic filing fee for an H-1B or L-1 nonimmigrant petition, for example, increases from $320 to $325. The basic filing fee for an I-485 Application to Register Permanent Residence or Adjust Status increases from $930 to $985. The basic filing fee to request USCIS' Premium Processing Service increases from $1,000 to $1,225. The filing fee for an N-400 Application for Naturalization, $595, will remain the same. According to USCIS, the fee increase is needed because the agency is self-funded and fewer applications and petitions are being filed. If you are considering the filing of a visa application or petition for yourself or on behalf of an employee, we encourage you to contact one of our immigration attorneys as soon as possible in case the application or petition can be filed prior to the fee increase.