Form I-9

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President Trump’s October 9, 2019 overtures landed as music to the ears of many a grizzled immigration lawyer who persistently suffers battle fatigue from the culture of virtually never.  On that day the President released a double album, each with artfully penned liner notes:

The songs of TAFCAEA and IAGD,  resonating beautifully, and soothing frazzled heartstrings, make clear that in adjudicating and enforcing federal laws all covered Executive-Branch agencies must:

  • publish clear guidance rules that spell out permissible and prohibited conduct by regulated parties;
  • eliminate instances of “unfair surprise” so that members of the public (the regulated community) are not blindsided by unforeseen changes in how the agencies interpret federal laws;
  • place any purportedly binding agency rules not published in the Federal Register (known as sub-regulatory guidance) into an indexed and searchable section of each agency’s website (or else, the “rules” go away); and
  • soon announce rules of procedure governing administrative inspections and then be held accountable to comply with the published ground rules.

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This blogpost has been updated on July 23, 2019 with information regarding the number of audit notices issued.

Seyfarth Synopsis: The temperature may be heating up in the nation’s capital, but Immigration and Customs Enforcement (ICE) is keeping things cool.  ICE Acting Director, Matthew Albence, confirmed that almost 3330¹ Notices of Inspection (NOI) have already been served, across the 50 states and Puerto Rico, initiating Form I-9 audits for companies of all shapes and sizes. It is expected that over 5000 NOIs will be issued before this latest ICE blitz is over. With the current enforcement climate, there may even be a resurgence of pre-dawn enforcement actions – otherwise known as “raids” – to surprise both workers and their employers. Companies should expect penalties to climb sky high, with recent reports of multi-million dollar fines, especially for non-compliant electronic I-9 systems — that’s right, something that has nothing to do with unlawful workers.  It is expected that over 5000 NOIs will be issued during this round of audits

What is an NOI?

An NOI initiates a government administrative inspection of a company’s Forms I-9 to determine whether they are complying with existing law.  U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) leadership considers civil administrative audits to be just one of many tools that ICE can use to reduce the demand for unauthorized unemployment and to protect opportunities for U.S. workers.  The current enforcement strategy includes an expanded use of civil penalties, employer audits, and debarment, as well as the criminal prosecution of employers who knowingly break the law.

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By Angelo Paparelli

Seyfarth Synopsis: The Social Security Administration has once again resumed issuing No-Match notices to employers.  The notices alert businesses that SSA has identified data discrepancies between the agency’s records and employer-provided data submitted for payroll tax reporting to the IRS.  Issuance of the notice triggers a duty upon employers to take action.  While a No-Match notice may involve an innocent clerical mistake or an unreported name change, it could also offer a clue suggesting that workers named in the notice may lack the right to work in the United States.  This blog outlines the risks and the measures prudent employers should take to comply with SSA requirements while avoiding the knowing employment of unauthorized workers and the risk of unlawful discrimination under the immigration laws.

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By: Dawn M. Lurie and Greg Morano*

On March 1, 2019, the Department of Homeland Security (“DHS”) announced that it would continue to preserve the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador. As we have previously written, to comply with the federal court order in Ramos et al. v. Nielsen et al, DHS’s Federal Register Notice (“Notice”) yet again protects the TPS designation for each country and provides automatic extensions to existing work authorization documents. TPS and related documentation for Nicaragua, Sudan, Haiti, and El Salvador are now automatically extended through January 2, 2020.

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By: Dawn M. Lurie and Greg Morano*

Seyfarth Synopsis:  On October 31, 2018, the Department of Homeland Security (“DHS”) announced that it would preserve the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador.  To comply with the federal court order in Ramos et al. v. Nielsen et al, DHS’s Federal Register Notice (“Notice”) protects the TPS designation for each country and provides automatic extensions to existing work authorization documents.  TPS and related documentation for Nicaragua and Sudan are now automatically extended through April 2, 2019.  The TPS expiration dates for El Salvador and Haiti remain unchanged; September 9, 2019 for El Salvador and July 22, 2019 for Haiti.

TPS: What is the Status of the Program?

The Trump Administration attempted to terminate TPS for Sudan, Nicaragua, Haiti, and El Salvador.  On October 3, 2018, a federal judge issued a preliminary injunction to prevent the termination of TPS and loss of work authorization for TPS beneficiaries.  The court case is ongoing with DHS appealing the injunction order to a higher court.

If the court case is not fully resolved by the time a designated TPS is set to terminate, DHS will issue a Federal Register notice extending TPS documentation for nine months.  This means that your employees will continue to work without interruption, but you will need to update Forms I-9 with the “Auto-Extensions”.  For assistance with identifying automatically extended documents and executing the automatic extensions, see our prior post here.

If a higher court permits DHS to terminate TPS, the beneficiaries’ status will terminate either 120 days after the court order, or on the TPS termination date, whichever is later.

Seyfarth will continue to monitor the court case and provide updates.…
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