Wednesday, March 27, 2013

U.S. Customs and Border Protection (CBP) today published an interim finale rule in the Federal Register establishing the automation of Form I-94 Arrival/Departure Records.  The interim final rule, which will become effective on April 26, 2013, will help streamline the admissions process for nonimmigrants arriving to the United States by both land and sea.  Nonimmigrants will no longer need to fill out a paper Form I-94, due to the rule establishing an electronic version of the form, but individuals who go through secondary inspection, such as asylees, refugees, and parolees, will be provided a paper copy of their Form I-94.  Furthermore, the rule “adds a valid, unexpired nonimmigrant DHS admission or parole stamp in a foreign passport to the list of documents designated as evidence of alien registration.”  The interim final rule, which can be read in its entirety here, also clarifies the definition of an “original Form I-94” due to the implementation of an electronic version of the form.  As stated in the rule, “The term “original I-94” includes, but is not limited to, any printout or electronic transmission of information from DHS systems containing the electronic record of admission or arrival/departure.”  

For more information, please visit the USCIS website or contact us today at (949) 640-4949 or toll free at (866) 359-4949 to speak with a subject-matter expert.

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Thursday, March 7, 2013

USCIS Releases Newly Revised Form I-9

Updated March 8, 2013
U.S. Citizenship and Immigration Services (USCIS) has announced the official revised Form I-9 containing new revision dates, improved instruction fields and an additional page with new data fields which has been released today.  While the new I-9 Form has been through multiple public comment periods since May of 2012, USCIS has only now indicated that they are ready to release the final revised form.  The new Form I-9 is available to view on the USCIS website or can be downloaded here.

Implementation and Revision Dates

The new Form I-9, released today from the Federal Register, has a revision date of “(REV. 03/08/2013)N” for employers to comply with their employment eligibility verification responsibilities.  USCIS will provide all employers with a 60-day grace period to adopt and implement the new Form I-9, after which, all prior versions of the Form I-9 can no longer be used by the public.  If an employer fails to use the new Form I-9 when processing newly hired employees, they may be subject to penalties imposed under the Immigration and Naturalization Act (INA). Employers utilizing our electronic I-9 Form will automatically have access to the new Form I-9 before the end of the 60-day grace period.  We have already started to program the new I-9 Form in our application and are simply waiting for the final version to be released by USCIS, so we can complete the update to the electronic Form I-9.  As noted by USCIS, you can continue to use the current I-9 during the 60-day grace period.

Employers who currently use I-9 forms to verify the employment eligibility of their employees do not need to complete a new form for those individuals, unless re-verification is necessary.  If unnecessary verification is imposed, the employer may be subject to penalties based on a violation of the anti-discrimination provision of the INA.

Changes to the Form I-9

Although the form will have an additional page, USCIS states in the announcement that “The newly revised Form I-9 makes several improvements designed to minimize errors in form completion.  The new additions to the form are:
  • The addition of data fields for employee’s foreign passport information (if applicable), telephone number and email address.
  • Improved instruction fields for the form.
  • Revision of the forms layout expanding it from one to two pages (not including the form instructions and the Lists of Acceptable Documents).
Form I-9 Compliance, LLC

Upon the release of the official revised Form I-9, Form I-9 Compliance, LLC will begin completing its extensive programming of the revised Form I-9 for all system users.  Form I-9 Compliance will be providing weekly updates as to the official release date of the Form I-9, in its electronic platform.  Form I-9 Compliance will complete all updates to the electronic I-9 and ensure that the new form is integrated with the newest version of E-Verify during the 60-day grace period.

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Tuesday, March 5, 2013

Fowler Equipment Benefits From OCAHO Fine Reductions

Worksite enforcement and immigration related employment fines continue to be at the forefront of U.S. Immigration and Customs Enforcement (ICE) priorities, as Fowler Equipment Company, Inc. becomes the latest company fined based on allegations of form I-9 malpractice.  Fowler Equipment, based out of Union, New Jersey, is a laundry equipment service provider of varying facilities, such as commercial laundromats, hospitals, hotels and apartment buildings, who currently employ around thirty-two (32) individuals.  On January 20, 2012 the Department of Homeland Security (DHS) and ICE filed a complaint against the company alleging they failed to prepare and/or present I-9 forms for twenty-seven (27) employees, failed to ensure that seventy-nine (79) employees properly completed Section 1 of the I-9 and failed as a company to ensure proper completion of Section 2 and/or 3 of the form.

Fowler Equipment Co. initially received a Notice of Inspection (NOI) and Subpoena from ICE on November 19, 2009, resulting in a Notice of Intent to Fine (NIF) from an investigation into the company’s employment practices and form I-9 process.  During the investigation, ICE alleged that Fowler Equipment failed to ensure that Section 1 of the I-9 form was properly completed for eighteen (18) employees, and the company failed to properly complete Section 2 or 3 of the form for sixty (60) individuals.  The baseline penalty of $985 was determined due to 90% of the forms in question contained violations.  Furthermore, ICE enhanced the fines to $981 per violation based on Fowler Equipment having bad faith and a “lack of recognition of [its] violation of the law.”  For eighteen (18) of the seventy-eight (78) I-9s, the government imposed an additional 5% increase for the seriousness of the violations, resulting in a $1,208.50 fine per instance.  The fines were assessed based on the five factors which ICE uses when determining fines for a company, which are: business size, good faith, seriousness, unauthorized aliens, history and cumulative adjustments.

After the initial assessment, Fowler Equipment responded by saying their personnel were acting under the guidance of being in accordance with the law by inspecting and copying the employees’ documents, proceeding to attach copies of the documents to each employee’s I-9 form.  The company went on to “characterize the government’s penalty request as “extraordinary” and takes dead aim at ICE’s penalty guidelines” based on the heightened fine amount and liability placed upon the company.  OCAHO took precedence in the case to determine if the fine amounts were too high for the company stating Fowler Equipment’s workforce is stable with a modest thirty (30) employees, but isn’t a “mom and pop” company with any apparent danger of closing their operations.  After OCAHO completed their investigation, they determined the seventeen (17) violations involving failure to prepare and/or present I-9 Forms will be assessed at $700 per violation while the fifty-nine (59) failures to complete Section 2 by the company will result in a $500 fine per violation, resulting in a total of $41,400 in penalties.

To read the decision in full, visit the Justice Department website.

For more information regarding the proper procedures of presenting and completing Form I-9s, please call 1-949-640-4949 or Contact Us today to speak with one of our compliance experts. 

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