labor lawAdivision of labor law center

Effective May 21, 2009 companies entering into new federal contracts will have to use E-Verify to double-check the immigration and legal work status of new employees. This deadline has been delayed from January 15, 2009. 

The Office of Management and Budget or OMB recently extended the deadline after a request by the SHRM, or Society of Human Resource Management.

President Obama’s Chief of Staff Rahm Emanuel sent a memo to all federal agencies, suggesting that they delay effective dates of any regulations introduced during the last few months of the Bush Administration. SHRM had partnered with other business organizations to fight the new regulation in court.

The Department of Justice concurred with the SHRM request to delay the deadline. Although a federal district court judge in Maryland must review the delay, it seems certain to be approved.

This action gives federal contractors (more…)

The U.S. Citizenship and immigration Services or USCIS has given employers  a few more weeks to start using the new I-9 form.

Effective April 3, 2009 every U.S. employer will be required to use a revised version of the employment eligibility verification form – more familiarly known as the I-9 form.

According to an interim rule that was published by the USCIS in December, 2008, employers were required to begin using the form on February 2, 2009. That deadline has now been delayed by 60 days.

According to unnamed sources at the USCIS, the delay will provide adequate time to complete a full review of the new form and the employment verification requirements. A notice of the delay will appear in the Federal Register.

Employers are invited to comment on the new rule for 30 days, until March 4, 2009.

A number of employment law and regulatory deadlines set in the last few months of the Bush Administration have been postponed (more…)

Beginning January 14, 2009, a new rule requires federal contractors to use an electronic system like E-verify to check the immigration status and employment eligibility of every new employee, and old employees on certain sensitive federal projects.

A suit filed by SHRM, the Society for Human Resource Management, seeks to overturn that law. SHRM has filed a federal suit with four other employer organizations to block the rule. In addition to SHRM, the December 23, 2008 suit was filed on behalf of the U.S. Chamber of Commerce, Associated Builders and Contractors, American Council on International Personnel and the HR Policy Association.

SHRM has asked the Bush administration to withdraw the proposed rule from consideration. The administration has declined, however, and employers should continue to use E-verify to comply with the law.

Under an executive order from President Bush, federal contractors and subcontractors (more…)

Employers should be aware of new regulations imposed by the US Department of Labor affecting permanent labor certification applications by certain employers.

The Labor Department announced in late July that it has begun stricter control of all pending permanent labor certification applications filed by (more…)

The Department of Homeland Security will begin fining employers who use the outdated Form I-9 after December 26, 2007.

The new I-9 form was introduced on November 7, 2007. The forms are required under the Immigration Reform and Control Act of 1986.  That law, for the first time, put the onus on employers to show that every worker hired was legally entitled to work in the U.S. Prior to 1986, although it was illegal to employer undocumented workers, enforcement was left up to a federal agency, the Immigration and Naturalization Service or INS.

Since 2001, the functions of INS have been absorbed by ICE, or Immigrations and Customs Enforcement, and the Department of Homeland Security, or DHS.

Employers were expected to begin using the updated forms for new hires on November 26, 2007.  However, there was a 30-day grace period during which the DHS levied no fines against employers who used the old form. That period will officially end on December 26.

Employers who do not use the new form fact significant penalties and may even be charged with hiring illegal workers. Fines can potentially top $200,000 per employee for repeat offenses.

The updated I-9 forms are available from www.laborlawcenter.com.

There is no need for employers to re-certify workers hired before November 26, 2007 using the new form I-9. However, the updated form should be used for all new employees. It should also be used whenever it becomes necessary to recertify an existing employees – when an immigration document expires, for example.

Under the law, employers are required to retain the completed I-9 on file for up to three years. If an employee is terminated after less than 2 years of employment, the I-9 form should remain on file for one year after termination. If any of the supporting documents expire during the 3-year period, the employer must have the employee complete a new form I-9 with current documents. Examples of documents that might expire include a driver’s license or resident alien card. Some other documents, such as a social security card, do not expire. 

The law expressly permits employers to copy the I-9 documents and retain those copies. Because those documents include information on an employee’s protected status, including race, citizenship and national origin, employers are urged to retain the I-9 forms and supporting documents together in a single location, separate from personnel files.

The new I-9 form removes some acceptable documents from List A, documents that prove both identity and work eligibility. These items were, for the most part, seldom used and easier to forge than the currently accepted documents. That is partly because some of the old documents did not include photographs. Items that can no longer be used by employers for I-9 purposes include:

• 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)

On the newest version of the I-9 form, the following documents are acceptable under List A:

• U.S. Passport (expired or unexpired)
• Permanent Resident Card or Alien Regiistration Receipt Card (Form I-551)
• Unexpired foreign passport with a temporary I-551 stamp
• Unexpired  Employment Authorization Document with photograph ( Forms I-766, I-688, I-688A or I-688B)

An additional document that is acceptable under List A is an uexpired foreign passport with an unexpired Arrival-Departure Record, Form I-94. However, the Arrival-Departure Record must be in the same name as the passport, contain an endorsement of the alien’s nonimmigrant status, and authorize the alien to work for the employer.

In another change, a U.S. passport may now be accepted under List A, whether it is expired or unexpired.