Friday, January 28, 2011

Legal Weblog: USCIS Reaches H-1B Cap

Legal Weblog: USCIS Reaches H-1B Cap: "U.S. Citizenship and Immigration Services (USCIS) announced on Jan 27, 2011 that it has received a sufficient number of H-1B petitions to re..."

USCIS Reaches H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) announced on Jan 27, 2011 that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 (October 1, 2010-Sept 30, 2011) that arrive after Jan. 26, 2011. USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

Earlier in December, USCIS announced receiving more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the ‘advanced degree’ exemption. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Pursuant to the Immigration and Nationality Act, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY2011 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:
- extend the amount of time a current H-1B worker may remain in the U.S.;
- change the terms of employment for current H-1B workers;
- allow current H-1B workers to change employers; and
- allow current H-1B workers to work concurrently in a second H-1B position.
Source: USCIS

Wednesday, January 12, 2011


Legal Weblog: REVISED HANDBOOK FOR I-9 COMPLIANCE: "USCIS has revised and released a new handbook on instructions for completing I-9 form. The new handbook (M-274) should be read and re-read b..."

Saturday, January 1, 2011

I-9 Compliance: What Every Employers Needs to be wary of!

We all hear about increased enforcement of immigration laws but are under the impression that one need only worry about immigration laws if one employs aliens. This is a MYTH. In September 2010, Abercombie & Fitch was fined $1,047,110.00 for their technology related deficiencies in I-9 verification system. It’s not just about hiring unauthorized employees/workers knowingly or unknowingly but proper identification, completion, re-verification and retention of I-9 forms for all employees is imperative. I-9 compliance is required for every employee Citizen or non-citizen.

So what is I-9 and what steps must employer take to comply with I-9?
I-9 is a one page form[1] divided into three sections requiring employee to show work authorization and identity and employer to verify the same.

Section 1 should be completed and signed by new employee no later than the first day of employment, regardless of his or her immigration status.
Section 2 of I-9 form must be completed by Employers signed and dated within 3 business days of the employee’s first day of employment. If the employment relationship will last less than 3 days, then the employer must verify work authorization and complete Section 2 no later than the first day of employment. Employer must physically examine the documents. If an employee is unable to present required document(s) within 3 business days, the employee must produce a receipt showing that he/she has applied for the replacement document. In addition, the employee must present the actual document within 90 days of the hire AND the employee must have indicated that he/she is already eligible to be employed in the United States by checking the appropriate box in Section 1.
Section 3 of I-9 form must be periodically updated and re-verified by employer for employees who are not permanently authorized to work in United States.

There are three lists of documents:
List A[2] documents establish both identity and authorization to work in the United States. The applicant may show any one of these documents to complete the I-9 Form. If the applicant does not provide one of the documents specified in List A, the person may show a document described in List B and a document described in List C.
List B[3] documents only establish identity.
List C[4] documents only establish employment eligibility, meaning the person is authorized to work in the United States.
If the employee cannot produce the required documents within the requisite time that employee should be terminated immediately.

Retention Period
Employers must fill out and keep a Form I-9 for every employee hired on or after November 6, 1986. Employers must do an I-9 form for every employee, and not just non-citizens. In the case of former employees, retention of Forms I-9 are required for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer.

I-9 compliance is not required for below employees:
i. Hired before November 7, 1986, who are continu­ing in their employment and have a reasonable expectation of employment at all times;
ii. Employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis;
iii. Independent contractors; or
iv. Providing labor to you who are employed by a con­tractor providing contract services;
v. Not physically working on U.S.soil.

The Law provides for penalties from $100 to $1,000 for each incorrect or missing I-9. The number of criminal prosecutions of employers found to be in violation of I-9 employment eligibility verification has also risen steadily over the past few years. The employer is required to verify documents for both identity and authorization to work in the United States. Persons or entities who are convicted of having engaged in a pattern or practice of knowingly hiring unauthor­ized aliens (or continuing to employ aliens knowing that they are or have become unauthorized to work in the United States) after November 6, 1986, may face fines of up to $3,000 per employee and/or 6 months imprison­ment. Persons who use fraudulent identification or employ­ment authorization documents or documents that were lawfully issued to another person, or who make a false statement or attestation to satisfy the employment eligi­bility verification requirements, may be fined, or impris­oned for up to 5 years, or both.

The violations can be by hiring unauthorized workers, paperwork violations of I-9, lack of verification of documents presented, asking more documents than necessary which can lead to discrimination lawsuits. Proper completion of I-9 forms is one of the best ways to avoid legal penalties.

Federal contractors and subcontractors are required to use E-Verify as of September 8, 2009. E-Verify is an Internet-based system that allows an employer, using information reported on an employee's Form I-9, Employment Eligibility Verification, to determine the eligibility of that employee to work in the United States. For most employers, the use of E-Verify is voluntary and limited to determining the employment eligibility of new hires only. The law also obliges U.S. employers not to discriminate against individuals on the basis of national origin or citizenship, or require different documents from an individual. Thus it is imperative to comply with I-9 after making a decision to hire and not to request different or more documents than is necessary to avoid claims of discrimination and document abuse.

Let’s begin this year by proper compliance of I-9 forms and emplacing a mechanism of internal self-audits of I-9 forms to avoid unwanted fines later.

[1] I-9 form can be downloaded from-
[2] List A Documents
1. U.S. Passport (unexpired or expired) 2. Certificate of U.S. Citizenship (INS Form N-560 or N-561) 3. Certificate of Naturalization (INS Form N-550 or N-570) 4. Unexpired foreign passport, with I-551 stamp or attached INS Form I-94 indicating unexpired employment authorization 5. Alien Registration Receipt Card with photograph (INS Form I-151 or I-551) 6. Unexpired Temporary Resident Card (INS Form I-688) 7. Unexpired Employment Authorization Card (INS Form I-688A) 8. Unexpired Reentry Permit (INS Form I-327) 9. Unexpired Refugee Travel Document (INS Form I-571) 10. Unexpired Employment Authorization Document issued by the INS which contains a photograph (INS Form I-688B)

[3] List B Documents
These documents establish identity. Unless the person has provided a document from List A (above), the applicant must show a document in both List B and List C to complete the I-9 Form.
1. Driver's license or ID card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address;2. ID card issued by federal, state or local government agencies or entities provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address; 3. School ID card with a photograph; 4. Voter's registration card; 5. U.S. Military card or draft record; 6. Military dependent's ID card; 7. U.S. Coast Guard Merchant Mariner Card;
8. Native American tribal document; 9. Driver's license issued by a Canadian government authority.
For persons under age 18 who are unable to present a document listed above: 10. School record or report card 11. Clinic, doctor, or hospital record 12. Day-care or nursery school record .
[4] List C Documents
These documents establish employment eligibility.
1. U.S. social security card issued by the Social Security Administration (other than a card stating it is not valid for employment) 2. Certification of Birth Abroad issued by the Department of State (Form FS-545 or Form DS-1350) 3. Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the United States bearing an official seal 4. Native American tribal document 5. U.S. Citizen ID Card (INS Form I-197) 6. ID Card for use of Resident Citizen in the United States (INS Form I-179) 7. Unexpired employment authorization document issued by the INS (other than those listed under List A)