Immigration Compliance

By Dawn M. Lurie and Greg Morano

In mid-April, United States Citizenship and Immigration Services (USCIS) introduced long awaited enhancements to the program as part of the new “modernized E-Verify system”. In fact, the overhaul is enormous in scope, the new system is entirely separate from the previous itineration of E-Verify. From a data storage location shift to reinforcement of the old infrastructure, the bones of the system are being reinforced.  Employers will continue to maintain access to their old data while being able to open cases in the new system. The updates demonstrate USCIS’ continued focus on improving the system, which makes perfect sense in the face of a possible, nationwide, E-Verify mandate.

What is E-Verify

E-Verify is an internet based system that compares information from an employee’s Form I-9 to the Department of Homeland Security (DHS) and Social Security Administration (SSA) records to confirm employment eligibility. Continuously improving, but not perfect, the system struggles with cracks in its armor especially when it comes to ensuring identity. However, one of the key benefits of E-Verify is that employers are provided a rebuttable presumption that there has been no violation of the statute, with regard to the knowing hiring of an unauthorized worker, if the employee’s information has been confirmed by the system. This is important in the context of a Form I-9 inspection.

Enhanced Usability Features

For many E-Verify users, E-Verify has created a functionality to search cases by last name. USCIS also expanded features in an attempt to lower the number of Tentative Nonconfirmations (TNCs) by improving user friendliness. The system now includes more helper text and added visuals about the data fields and acceptable documents. More importantly, E-Verify will provide real-time feedback on possible errors to allow users to quickly correct data entry errors; once spotted, users can now edit case information without changing pages.

System Streamlining

E-Verify has streamlined its case creation and management to augment the system’s speed and accuracy. In another move to reduce TNCs, E-Verify modernized how it matches employee data to government data, and created an, “Are You Sure?” alert to assist users in identifying any data points that may lead to a TNC. Additionally, the entire TNC process has been streamlined, which may require training and process changes. USCIS combined Department of Homeland Security (DHS) and Social Security Administration (SSA) TNCs—E-Verify now sends cases to SSA and DHS simultaneously. If both agencies issue a TNC, the user will see a dual TNC, rather than two separate ones. In turn, the employee will receive a combined SSA and DHS Further Action Notice to respond to the TNC with the employee now having ten days to address both issues at the same time.

 Data Integrity and System Compliance

Companies with concerns regarding the integrity of E-Verify data will be happy to know that this update improves on many areas. If you have become accustomed to seeing all cases in your E-Verify reports, this update administratively closes cases that have not been accessed in 365 days or more. The update also improves photo matching features and now allows for mobile uploads. One change that will require employers to update their E-Verify processes is that users now must enter a reason as to why an employee continues to work after receiving a Final Nonconfirmation (FNC). While E-Verify indicates that the change “allows for better record keeping for FNCs retained by an employer”, companies should carefully consider all FNCs and confer with counsel prior to allowing any individual with a FNC case result to continue to work for pay.

Web Services Participants (electronic I-9 users)

E-Verify participants accessing the system through their own software, or via a vendors’ software, will need to ensure their vendor is updating its electronic I-9 capabilities pursuant to guidance that the USCIS Verification division will likely release in the next few weeks. The new Web Services Interface Control Agreement (ICA) documents the information used to develop and test the software interface. Vendors generally have six months to update their system and test the new ICA scenarios. Companies are urged to ensure their vendor is on top of these changes, has the resources to deal with the changes and will be in compliance in terms of the necessary updates.

Next Steps

Due to the considerable efforts USCIS undertook to start the E-Verify modernization process, growing pains are a guarantee. Some employers have already identified issues with the new system, including concerns over identifying the three day period in which to complete E-Verify timely. USCIS is currently providing employers who have an issue completing a case in the new system an extra 10 business days to submit it. To take advantage of this, USCIS requests that users contact E-Verify at enrmod-projectteam@uscis.dhs.gov with “Employer Name – E-Verify Modernization Issues” in the subject line.

Seyfarth will continue to update employers as USCIS pushes updates and work out the kinks in the new system.

By Mark Katzoff

The omnibus spending bill signed into law by President Trump on March 23, 2018 included a six month extension of the EB-5 regional center program to September 30. This marks the latest in a series of short-term extensions over the last few years while Congress has attempted to agree upon legislation providing more substantive changes to the EB-5 program in general.

Continue Reading Regional Center Program Extended Six Months

Seyfarth Synopsis: Following the wave of Notices of Inspection (NOI) at 77 Northern California businesses last month, Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) agents are continuing to spread the cheer with NOIs targeting businesses in Southern California this week.  Serving NOIs throughout the greater Los Angeles area, the inspections appear industry agnostic.  The NOIs delivered by HSI agents and auditors notify businesses that they must produce their employees’ Forms I-9, Employment Eligibility Verifications within 72 hours.  The notices often include a list requesting additional company information and documents as well.

Local HSI offices are keeping ICE’s Deputy Director Thomas Homan’s promise of increasing its activities not just across the nation but more specifically targeting sanctuary cities and states like California.  It is important to note that businesses receiving the NOIs are not all within the service, manufacturing, agriculture, or traditional “infrastructure” sectors. Employers across industries should take a look at their Form I-9s and overall immigration compliance – the time to figure things out is not during the 72 hours after a NOI is issued.

Continue Reading California Continues to Shine Under ICE’s Spotlight

By Dawn M. Lurie and Alexander Madrak

True to its word, last week Immigration and Customs Enforcement (ICE) agents issued Notices of Inspection (NOIs) at seventy-seven Northern California businesses. ICE’s Homeland Security Investigations (HSI) agents spread out across northern California, serving NOIs in Sacramento, San Francisco, and San Jose at the end of January. No employees or employers were arrested at the time; instead, HSI agents notified businesses that they are being audited and provided seventy-two hours to produce their employees’ Forms I-9, Employment Eligibility Verifications.

The worksite actions follow ICE’s Deputy Director Thomas Homan’s comments that ICE would increase its activities in California after designating itself an official sanctuary state for undocumented immigrants following the passage of AB 450. With Homan’s nomination to be the Director of ICE, these and other comments by Homan indicate ICE may very well follow through on its promises—both that enforcement will increase by “four to five times” this year and that California may bear a disproportionate brunt of the action.

Employers across industries should proactively prioritize addressing immigration compliance by:

  1. conducting careful internal assessments;
  2. conducting Form I-9 audits (with the assistance of competent counsel);
  3. reviewing and/or establishing procedures to ensure employees are prepared to deal with visits from ICE;
  4. creating and updating immigration compliance polices; and,
  5. providing training and resources in order to ensure the Form I-9 process is captured correctly.

Prioritizing immigration compliance today will prevent problems and minimize exposure tomorrow.


By: Dawn M. Lurie, Alexander Madrak and Greg Morano*

United States Citizenship and Immigration Services (USCIS) issued automatic extensions of Employment Authorization Documents (EADs) for Temporary Protected Status (TPS) beneficiaries from Nicaragua, Honduras, Haiti, and most recently, El Salvador. Employers should be prepared to recognize these automatically extended EADs and correctly handle the resulting influx of Form I-9 updates.

What’s the Latest on TPS?

While the government is back in business, the path to immigration reform seems as tumultuous as ever. The chances to reverse the termination of TPS are slim, and the impact is slowly beginning to sink in for TPS beneficiaries and employers alike. An Immigration Forum Fact Sheet on TPS notes: “Recent data estimate that TPS holders from El Salvador, Honduras, and Haiti contribute a combined $4.5 billion in pre-tax wages or salary income annually to our nation’s gross domestic product.”

What Do Employers Need to Know?

Continue Reading Auto Extension Influx: Automatic Extension of El Salvador TPS EADs

  1. By: Mahsa Aliaskari

Update: At midnight the federal government shut down.  We will keep employers updated as details of immigration related closings and the negotiations in Congress become available.

Seyfarth Synopsis: As we wait to hear the fate of yet another temporary extension to continue funding the government after midnight on Saturday January 20th – employers should know how a shutdown may impact processing of immigration petitions and immigration programs.

Continue Reading Déjà vu – Government Shutdown and Impacts on Immigration

By: Dawn M. Lurie

Seyfarth Synopsis: “ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”  Referring to Immigration and Customs Enforcement’s (ICE) early morning raids at nearly a hundred franchisee convenience stores across the nation, the ensuing public comments from agency officials confirm that 2018 will be a year of increased immigration enforcement.  ICE investigations can result in the arrest of employers and employees and the imposition of large-scale fines; under the current Administration, though, it’s not only ICE that companies need to consider.  Following the “Buy American, Hire American” Executive Order, a myriad of reinvigorated agencies that span all parts of the government have increased immigration-related oversight.  Employers should proactively prioritize addressing immigration compliance. 

Continue Reading Following a Long Thaw, ICE Returns with Increased Worksite Enforcement

By Dawn Lurie, Mahsa Aliaskari, and Jason Burritt

Seyfarth Synopsis: USCIS released a revised version of Form I-9 that employers must use to verify identity and employment authorization of new hires effective September 18, 2017. There are no substantive changes from the current Form I-9, which USCIS issued in November 2016 and considered a major overhaul.  Employers are urged to utilize the roll out of the new Form I-9 as an opportunity to offer I-9, E-Verify and Antidiscrimination training, to assess their state of immigration compliance and to address necessary remediation.  

As expected, the U.S. Citizenship and Immigration Services (USCIS)  released a revised version of Form I-9, Employment Eligibility Verification, on July 17.  Employers can use this new Form I-9 or continue using the  Form I-9 with a revision date of 11/14/16 N through September 17.  As of September 18, employers may only use the new form with a revision date of 07/17/17 N; no other versions will be acceptable.  The issuance of the new form does not necessitate employers  “redoing” previously completed Form I-9s, this is going forward only.

What’s New?

In the Form I-9 instructions:

  • Updated the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) to Immigrant and Employee Rights Section (IER). Given the lack of any true substantive updates, it appears this name change is the main reason for the form update.
  • Removed “the end of” from the phrase “the first day of employment.”

In the List of Acceptable Documents:

  • Added the Consular Report of Birth Abroad (Form FS-240) to List C and made it easy to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3 (in the dynamic Form I-9) and to identify it in E-Verify.
  • Combined the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
  • Renumbered all List C documents except the Social Security card into an easier format.

In the new M-274, Handbook for Employers:

  • USCIS reflected these changes and endeavored to simplify the format.

What’s the Same?

No changes to storage – which means that employers may still keep Form I-9s in a single format or a combination of formats, such as paper, microfilm or microfiche, or electronic.  For paper I-9s, we continue to recommend a three “binder system” consisting of Active, Reverifications and Terminated I-9s.  Employer should keep all of the forms separate from personnel folders and safeguarded due to privacy concerns.

For electronic users, this version’s updates should not be as difficult as the one released in November of 2016.  However, it is important to note that keeping up with version changes, as well as USCIS directives on how to record certain status updates or other bits and pieces of information,  is clearly an issue for some Electronic I-9 vendors.  For those employers considering electronic systems, or already using an electronic I-9, it is critical to conduct due diligence to ensure that the product complies with the regulations and guidance.  Not all systems meet the electronic I-9 regulations, and the mere fact a large vendor sells the product does not necessarily render the product compliant.  We expect that Immigration and Customs Enforcement (ICE) will begin to develop and showcase an expertise in this area in the near future.

No changes to retention – which means that employers should retain all Form I-9’s for active employees as well as all Form I-9’s for terminated employees for three years from the date of hire or one year from the date of termination, whichever is later.

No relief for employers with remote workforces – which means that the person who completes Section 2 must see the new hire in person, the original documents presented for Section 2, and record the documents in Section 2.  No Skype, no Facetime, no WhatsApp, no Instagraming, no scanning and no faxing.

What Should We Do Now?

The 60 day transition period for employers and electronic I-9 vendors provided by the government should be used for more than deprecating the old Form and introducing the 7/17/17 version before September 18, 2017.  In fact, we recommend that companies immediately begin to use the new Form and notify their HR and other staff of the change.  This is an excellent opportunity to also offer I-9, antidiscrimination and E-Verify related trainings as well as to review immigration related policies and handbooks (or to start thinking about developing them).  Given the focus on compliance by the new administration, immigration related efforts should prove time and money well spent.  There is speculation that increased worksite enforcement, greater scrutiny and less tolerance for companies with I-9 related issues is on the horizon.  Now is the time to schedule experienced immigration compliance counsel for an on-site proactive I-9 review, including access to those that own the I-9 “process” on the ground.  This review should include observations focusing on the implementation of well-intended standard operating procedures.  Site visits and /or direct discussions are critical to assessing and identifying potential I-9 related  liabilities.  The chance to remediate on your own timeline, and not that of the government, is priceless; proactive remediation is key.

Interested in an immigration compliance assessment?  Contact the authors or your relationship partner at Seyfarth.

Seyfarth Synopsis: As the Department of Homeland Security, as well as the administration generally, signals increases in immigration enforcement activity, businesses are advised to implement clear protocols for the conduct of key personnel in the event of a visit by a federal officer, particularly Special Agents of the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”).   This guidance identifies the likely purposes of an ICE visit and sets forth critical steps for key personnel should such a visit occur.  Businesses are advised to work with legal counsel to tailor this general guidance to their specific industry and business processes.

In light of the Trump Administration’s promises of increased immigration enforcement, employers and employees are growing more concerned about the prospect of government worksite visits either to effectuate arrests or to conduct investigations and audits.  To be clear, the Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement  (“ICE”) agency has clarified that there has been no directive to initiate worksite enforcement (aka raids) against employers. Notwithstanding, it does appear that recent ICE arrests have swept not only individuals either alleged to have committed a crime or for whom an immigration warrant is outstanding, but also others accompanying the intended arrestee who are found to lack legal status in the U.S.

In addition to arrests, other investigative and audit activity looms on the horizon. Chatter continues about a possible increase in Form I-9 audits by ICE’s Homeland Security Investigations Unit (HSI), and similar activity by the U.S. Citizenship and Immigration Services Fraud Detection National Security Unit [1] as well as it’s E-Verify Monitoring and Compliance branch [2]. Additionally, the Department of Justice’s newly named Employee and Immigrant Rights Office (legacy Office of Special Counsel), will continue to pursue investigations into citizenship, national origin discrimination and document abuse matters. This Alert focuses on a visit by the folks at HSI, a separate Alert will be focused on USCIS site visits and investigative visits by other agencies.

Continue Reading Quick Guidance: What To Do In The Event of a Visit By The DHS-ICE Agents