Immigration Alert: November 2007November 16, 2007
According to USCIS, the current Form I-9, which bears a June 5, 2007 revision date, is the only version valid for use. However, USCIS has announced that the Department of Homeland Security ("DHS") intends to publish a Notice in the Federal Register that will give employers at least a 30-day period to transition to the revised Form I-9. We anticipate that this transition period will not expire any earlier than December 7, 2007. Nevertheless, employers are urged to start using the revised Form I-9 as soon as possible.
Differences in Revised Form I-9:
The DHS has not changed the process for Form I-9 completion and/or re-verification, or any of the other rules that relate to this process. The primary differences between the old and revised Form I-9 relate to the List of Acceptable Documents ("LAD"). The following five documents have been removed from the old LAD:
* Certificate of U.S. Citizenship (Form N-560 or N-561)
* Certificate of Naturalization (Form N-550 or N-570)
* Alien Registration Receipt Card (I-151)
* Unexpired Reentry Permit (Form I-327)
* Unexpired Refugee Travel Document (Form I-571)
One document was added to the new LAD, List A:
* Unexpired Employment Authorization Document (I-766)
In addition, all Employment Authorization Documents with photographs, namely, Forms I-688, I-688A, I-688B and I-766, are explicitly listed on LAD, List A as acceptable evidence of both identity and employment authorization. The revised instructions also make clear that the employee is not obligated to provide a Social Security number in Section 1 of the revised Form I-9 unless they are employed by an employer who participates in the E-Verify (formerly, Basic Pilot) program.
Finally, the revised Form I-9 and instructions give greater prominence to the anti-discrimination Statement. Under the immigration laws, employers must not discriminate against employment applicants based on citizenship or national origin, and will commit unfair immigration-related employment practices if they tell employees which documents they must produce off the LAD or ask for more or different documents than the LAD requires.
Employers are reminded that they need to complete the revised Form I-9 only for new employees. Employers need not go back through old Form I-9's and redo them on the revised form. However, employers must use the revised Form I-9 to re-verify any employee whose employment authorization expires. As we have indicated, employers should begin using the revised Form I-9 as soon as possible.
Many of the changes to the new LAD have been in the immigration laws since 1997. However, USCIS had announced that it would not enforce these changes until the Form I-9 was revised to reflect them. Now that the revised Form I-9 has been issued, employers can expect enforcement efforts to resume once the Notice of the revised Form I-9 appears in the Federal Register.
As we previously reported, Arizona Governor Janet Napolitano signed the "Legal Arizona Workers Act" into law. This statute takes effect on January 1, 2008 and, in the words of Governor Napolitano, represents the "most aggressive action in the country against employers who knowingly or intentionally hire undocumented workers." This statute imposes two significant new obligations on all Arizona employers. First, it permits the State of Arizona to suspend the business licenses of any employer caught knowingly or intentionally hiring any person who lacks employment authorization. Second, it requires all Arizona employers to enroll in the federal government's E-Verify (formerly Basic Pilot) program and use it to confirm the work authorization of all new employees.
Recently, Arizona started sending notices to all businesses in the state warning and advising them about this Act's provisions because it will take effect on January 1, 2008. Employers in Arizona need to make arrangements to comply with this new law before the end of the year.
As we previously reported, Oklahoma also passed immigration-related legislation this year. It is called the Taxpayer and Citizen Protection Act of 2007 (the "TCPA"). The TCPA imposes several additional burdens on employers in that state. First, it creates a new civil cause of action that allows U.S. citizen employees to sue their employer if they are fired or laid off but an undocumented worker remains employed. This is accomplished by treating this conduct as an Unfair Trade Practice under Title 15, Section 752 of the Oklahoma Statues. Essentially, this new provision imposes "strict liability" on any employer who fires or lays off a U.S. worker, regardless of the reasons, if they also employ an undocumented worker at that time in any capacity.
Employers must provide proof that they do not employ any undocumented workers to defend against such a claim. Unfortunately, employers with even the most robust Form I-9 policies and practices cannot make this showing because of limitations imposed by both federal law and the federal databases. This essentially means that employers will be held strictly liable for the discharge of a U.S. worker, regardless of the reasons for the discharge, if that employer has an undocumented worker on the payroll, even if the employer is not aware that the worker is undocumented!
Second, the TCPA requires companies doing business with the State of Oklahoma to use the E-Verify program as of November 1, 2007. Indeed, public employers in Oklahoma now are prohibited from contracting for services unless the contractor registers and uses the E-Verify program for all new employees working on the project. This is similar to the Colorado law that took effect earlier this year.
Third, the TCPA requires all Oklahoma employers to withhold 6% of the compensation paid to individuals issued a Form 1099 if these individuals fail to provide a valid Social Security number. Failure to comply makes the employer liable for these taxes unless they have filed an IRS Form 8233 for a withholding exemption and provided a copy to the Oklahoma Tax Commission.
Finally, the TCPA makes it a felony to transport or harbor any person "in furtherance of an illegal presence". This primarily was directed at organizations that transport undocumented workers to and from worksites. However, the statute is written so broadly that it appears to cover any person who transports an undocumented worker for any reason connected to employment. The TCPA adds a presumption of flight risk for those arrested under this provision. This may lead to increased incarcerations for violators no matter how minor the misconduct.
The National Coalition of Latino Clergy and Christian Leaders ("CONLAMIC"), a Washington, D.C.-based Latino Christian advocacy group, filed suit on October 25, 2007 to enjoin the TCPA. On October 31, 2007, the federal district court denied its request for a preliminary injunction. As a result, the TCPA became effective in the State of Oklahoma on November 1, 2007.
The Social Security Administration ("SSA") recently indicated that it will not send additional No-Match letters this year due to the lawsuit that enjoined the new No-Match regulations issued by the DHS in August 2007.
Each year, the SSA typically sends No-Match letters to approximately 140,000 employers, involving nearly 9 million employees. These letters point out discrepancies between the information supplied by the employer and the information in the SSA database. The letters usually are sent in the Spring but this year the SSA waited until the new DHS "Safe Harbor" rule was issued. As we reported, a federal court in San Francisco enjoined the implementation of this "Safe Harbor" regulation on October 10, 2007. Due to the injunction, the SSA will defer sending any more No-Match letters until next year.