What is the Form I-9?

The Form I-9, Employment Eligibility Verification, is the form employers are required by law to use to verify that new hires are authorized to work in the United States. Employers must also “re-verify” the employment authorization of employees who have temporary forms of work authorization (i.e., with an expiration date). The Form I-9 is available free of charge on the U.S. Citizenship and Immigration Services (USCIS) website: www.uscis.gov/I-9.

Check out this video made by USCIS regarding the Form I-9.

Are there deadlines to complete the form?

Yes, the law imposes strict timeframes. The employee must complete Section 1 of the form no later than the first day of employment, which is the date that employment for wages or other remuneration begins. The earliest time an employee may complete Section 1 is after accepting a job offer from the employer.

Within three business days of the first day of employment, the employee must present documentation deemed acceptable by the government to demonstrate both identity and authorization to work in the U.S. The employer must physically review the employee’s original document or combination of documents, and complete Section 2 of the Form I-9 within three business days of the employee’s first day of employment. If the employee will work for the company for fewer than three days, both Section 1 and Section 2 of the Form I-9 must be completed no later than the first day of employment.

A previously established 30-day grace period (that was imposed due to COVID restrictions) is ending on July 31. Listen to the full update implications on BAL’s Immigration Report, episode 23, available here.

When does an employer need to complete a Form I-9?

All employers must complete and retain Form I-9 Employment Eligibility Verification for every person they hire for employment after Nov. 6, 1986, in the U.S., as long as the person works for pay or other type of payment.

In the Commonwealth of the Northern Mariana Islands (CNMI), employers have had to complete Form I-9 CNMI for every employee hired for employment in the CNMI from Nov. 28, 2009, to Nov. 27, 2011. The standard Form I-9 must be used for employees hired on or after Nov. 28, 2011.

What Employers Should Expect of the I-9 Audit?

In the event of an I-9 audit, either Immigration Customs Enforcement (ICE) or Homeland Security Investigations (HIS) will issue the employer a Notice of Inspection at least three days ahead of the intended audit. The Notice of Inspection will indicate whether the officials will ask for documentation to be sent in or whether the officials will visit the employer’s workplace.

Why Do You Need an Internal I-9 Audit?

Employers should proactively conduct internal I-9 audits to ensure they are compliant with all I-9 requirements and prepared in the event of an official audit. Failing an audit could result in fines and penalties on the employer including, but not limited to, criminal penalties (where there are repeat offenses), possible debarment from government contracts, as well as negative impacts on business reputation. The Department of Homeland Security recently increased fines for I-9 paperwork violations. As of 2022, fines range from $252 to $2,507 per I-9 form. Therefore, it is crucial that you prepare in advance to ensure appropriate I-9 maintenance.

BAL has an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs, as well as assist with complicated I-9 audit preparation. Contact us  for more information!

I-9 Compliance Guidance for Certain Employees That Fall Into Special Categories:

  • Employees in the Commonwealth of the Northern Mariana Islands: Individuals hired for employment in the Commonwealth of the Northern Mariana Islands.
  • Employees from the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau: Individuals hired for employment who are from the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau.
  • Domestic workers: Individuals who perform child care, household tasks, and/or upkeep of a home or surrounding yard on a regular basis in return for wages or other benefits, and who are not independent contractors or providing services on a sporadic basis or for independent contractors or separate businesses.
  • Minors: Individuals under the age of 18.
  • Employees with disabilities: Individuals with physical or mental impairments that significantly limits one or more major life activities and are placed in a job by a nonprofit organization or association, or as part of a rehabilitation program.
  • Temporary Protected Status (TPS) beneficiaries: Certain individuals from specific foreign countries beset by extraordinary and temporary conditions such as natural disasters and civil wars.
  • Asylees and refugees: Non-U.S. citizens who typically have left their own country and are unable or unwilling to return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
  • Foreign students: Individuals traveling temporarily to the U.S. to pursue a full course of study in an approved program in either an academic or vocational institution, or a recognized nonacademic institution. Academic institutions include colleges, universities, seminary, conservatories, academic high schools, elementary schools, other institutions, and language training programs.
  • Exchange visitors: Individuals traveling temporarily to the U.S as participants in exchange programs administered by the U.S. Department of State.
  • E-Visa holders: Treaty traders and investors who are citizens or nationals of a country that has a treaty of commerce and navigation with the U.S. and who travel to the U.S. under such treaty. This category also includes Australian specialty occupation workers.
  • NAFTA (TN) workers: Professionals and other workers from Canada and Mexico traveling temporarily under the North American Free Trade Agreement (NAFTA), which created special economic and trade relationships for the U.S., Canada, and Mexico.
  • Temporary nonimmigrant workers: Individuals traveling to the U.S. lawfully as nonimmigrants to work temporarily in the U.S.
  • Mergers and acquisitions: Employers’ Form I-9 responsibilities may be affected when they are acquired by or merge with another company.
  • Employees resuming their job after a temporary break in employment: Individuals may be considered to be continuing in employment (with no new Form I-9 required) if, for example, they return to work after taking approved paid or unpaid leave or being laid off.

Exceptions for Completing and Retaining Form I-9

In some cases, employers are not required to complete or keep a Form I-9. Employers are required to complete and retain a Form I-9 for every employee they hire for employment in the United States, except for:

  1. Individuals not physically working in the U.S.
  2. Individuals hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times (some limitations to this exception apply); and individuals hired for employment in the CNMI on or before Nov. 27, 2009.
  3. Individuals employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis.
  4. Independent contractors or individuals providing labor if they are employed by a contractor providing contract services (for example, employee leasing or temporary agencies).

Employers can find more information about the Form I-9 requirements in the USCIS Handbook for Employers on the USCIS website.

BAL can help!

BAL has an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs. Contact us  for more information!

In recent years, several U.S. states and localities have begun to introduce pay transparency laws with the aim of reducing pay inequities and closing the gender wage gap. There are notable differences among these laws, as some require only disclosure upon request by a candidate while others require disclosure of wage ranges on all job postings themselves. These laws introduce an entirely new set of risks to be evaluated and decisions to be made by internal and external counsel for any employer using the PERM recruitment process to extend permanent job offers to foreign nationals.

With a few exceptions, a company wishing to permanently employ a foreign worker in the United States must proceed through the PERM process. This process works first to identify whether a minimally qualified U.S. worker may be available and willing to accept a given role. A company may proceed in offering that role to a foreign worker only if a minimally qualified, willing and available U.S. worker is not found. PERM regulations require employers to post recruitment through various channels mandated by the Department of Labor, but they do not require employers to post wage ranges or disclose benefits in public job postings.

However, an employer going through the PERM process is required to seek a prevailing wage request for each sponsored job from the DOL. At times, the prevailing wage issued by the DOL may be higher than the lower end of the company’s actual wage range. In these situations, a company may proceed with their PERM process but cannot offer a rate lower than the prevailing wage for that particular role.

This situation introduces an interesting conundrum for employers seeking to simultaneously comply with PERM regulations and state- or locality-driven laws on pay transparency. For instance:

  • Washington state and California require any employer with 15 or more employees, with at least one employee in their respective state, to disclose the salary range within the job posting for any position that can be performed in that state. Washington state further requires a description of all benefits and other compensation offered.
  • Colorado similarly requires employers to include salary ranges and provide a general description of benefits for any job to be performed or that can be performed remotely from Colorado; however, this requirement applies to any employer that has at least one employee within the state.
  • Ithaca, Jersey City, New York City, and Westchester County have all enacted variations of a similar wage transparency law, requiring employers with four or more employees to post salary ranges for any job posting where the position can be performed, in whole or in part, by an individual within their respective jurisdictions.

First, it is vital for employers to engage their employment counsel to determine whether a particular wage transparency law applies to them as an employer or to a particular position for which they are recruiting. In many cases, employers must now consider the chosen home addresses of their current employees as well as the candidate pool for the position for which they are hiring. This means that a particular job posting may be subject to wage transparency laws for multiple jurisdictions. In addition, the employer must also work with their employment counsel to determine what constitutes a “good faith” range of the minimum and maximum pay for the position. While some employers provide a very broad range, encompassing actual minimums and the maximum conceivable amount they might be willing to pay, others have provided a scale along the bell curve, or any variation between.

After the wage ranges are vetted and approved by employment counsel, employers are then faced with the challenge of complying with federal PERM regulations, which can sometimes run in direct opposition. For example, while wage transparency laws require employers to post good faith wage ranges, PERM regulations do not permit the lower end of that range to fall short of the prevailing wage determination.

Colorado was the first state to mandate pay transparency in public job postings and quickly recognized the inherent contradiction between their wage transparency law and federal PERM regulations. This led to an informal conclusion that state wage transparency laws would not be enforced in the context of PERM recruitment. However, even this introduces risks for employers, as major employers have been charged recently with conducting PERM recruitment in a manner that is completely at odds with normal recruitment practices. Advertising for PERM roles with different wage content than a company’s normal postings may open it up to additional scrutiny by the state or by the DOL or even the Department of Justice.

As more states and localities enact varied pay transparency laws, the complications will continue to increase. Companies’ in-house counsel, immigration and global mobility teams must take care to partner closely with both their employment counsel and their immigration counsel to ensure that they are implementing practices that comply with both state and federal laws in this space.

Stephanie S. Pimentel is a BAL Partner in BAL’s Dallas headquarters and Asha George is a Senior Associate in BAL’s New York City office.

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If you are ready to partner with an immigration firm, Contact us today.

Meet Our Seattle Immigration Team

BAL’s team of experienced attorneys, including Partner Susan Wehrer and Senior Associates Steven Plastrik and Emily Yao, are well-equipped to assist Seattle-based companies with their immigration needs. With their extensive experience in government, customer service, and a variety of industries, they provide personalized solutions to help clients achieve their business goals. As part of a larger network of offices across the US, Seattle-based clients have access to the full resources of BAL.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on AppleSpotify and Google Podcasts or on the BAL news site.

‌This alert has been provided by the BAL U.S. Practice Group.

Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on AppleSpotify and Google Podcasts or on the BAL news site.

‌This alert has been provided by the BAL U.S. Practice Group.

Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

With the shift to remote work caused by COVID-19, employers of H-1B workers have largely focused on compliance for employees working from home. As offices reopen, some employers are also considering flexible arrangements, such as coworking spaces like WeWork. Office shares may be an attractive option for companies looking to give workers flexibility in returning to an office environment, but they also present compliance concerns. Depending on the circumstances, these flexible arrangements may qualify as a “place of employment” for H-1B workers and trigger compliance obligations. Should employers treat flexible office spaces like a traditional worksite or like a work-from-home arrangement?

In general, before an H-1B worker may begin working at a new or different worksite, the employer must obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor (DOL) that covers the intended area of employment. Employers must give notice of the LCA by posting required information physically or electronically on or within 30 days before filing with DOL. If the employee changes worksites within the same area of employment, employers must complete posting before the H-1B worker starts at the worksite. The notice is meant to inform affected U.S. workers about the H-1B worker’s employment. While there are limited exceptions to the LCA requirement, regulations and policy guidance largely predate the rise of flexible office spaces and have not been updated to address or exempt them.

Under statute, employers must provide notice to “employees in the occupational classification for which H-1B nonimmigrants are sought.” Regulations from 2000 specify this includes “both employees of the H-1B employer and employees of another person or entity which owns or operates the place of employment.” The preamble to that regulation describes this more broadly: notice must be given to workers in the occupational classification “including employees of a third-party employer.” Guidance from 2019 confirms that DOL applies the more expansive definition from the preamble: notice must be given to “all affected employees” including those employed by a “third-party company.” Whereas the regulation focuses on the H-1B petitioner and the owner or operator of the worksite, the contemporaneous preamble and subsequent DOL guidance broaden that to employees of “a third-party employer,” which would include more than just the owner or operator of the worksite.

For work-from-home arrangements, DOL has stated informally at a meeting with stakeholders that it does not expect H-1B workers to post notices at their homes if they will also be working at an employer’s office location. However, DOL has not issued formal guidance on this, nor has it extended its informal statement to other types of worksites.

The potentially expansive definition of affected workers may create compliance issues for employers placing H-1B workers at flexible office locations. First, an employer may not know whether there are any affected workers at a shared office, such as workers in the same job classification as the H-1B worker who are employed by an unrelated company.

Second, the employer’s existing methods of LCA notification may not effectively reach all affected workers at the shared office space. If a company electronically posts its LCA notices on a company intranet, affected workers at a shared space who work for a different company would not have access to the posting. Similarly, even posting LCA notices electronically on a public website may not be legally sufficient if affected workers at the shared office space are not aware of the notice or are unable to identify which worksite it covers.

Third, the flexible office provider’s policies may prohibit the employer from posting hardcopy notices in a shared office. DOL guidance makes clear that it is the employer’s duty to comply with the notice requirement and that the employer remains liable for failures to do so, even if a third-party (such as the owner of the work location) prevents it from posting physical notices.

DOL should clarify LCA notice obligations for shared office spaces and home offices and should treat them similarly to streamline compliance processes. Requiring employers to notify individuals whose work is wholly unrelated to the employment of an H-1B worker aside from occasionally sharing a rented office space or home office out of convenience does not provide additional meaningful protection for U.S. workers. Meanwhile, employers should consider whether additional compliance processes are needed and work with office share providers to identify the options that work best in their circumstances.

Steven Plastrik is a Senior Associate in the Washington, D.C., office of Berry Appleman & Leiden LLP, and is a member of the firm’s Government Strategies team.

This article was previously published in the California Business Journal.

The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.

U.S. Citizenship and Immigration Services (USCIS) has recently resumed employer worksite visits that were put on hold because of COVID-19 and social distancing precautions. This may pose challenges for USCIS and your company, as much of the workforce is still working from home or telecommuting from outside the office. That means employees should be prepared if immigration authorities knock on the front door of their residence.

A home visit from USCIS may seem unusual and alarming to employers and employees alike, but this is not a new practice for the agency—in the family-based immigration context, USCIS officers visit individuals at their homes as a matter of course to confirm the information listed on their petition or application.

Now is a great time for companies to assess their administrative site visit policies and ensure that employees who may be visited at home by an immigration officer understand what to do, whom to contact and what questions they may be asked.

Employers are usually given notice of a verification check—in the past by letter, but recently via email—although the agency has the authority to show up at a work location unannounced to speak with employees, such as the HR or company representative and the foreign national employee who are named in an immigration petition. Immigration verifications are performed by the Fraud Detection and National Security (FDNS) unit of USCIS, and any employee receiving an officer at their home or worksite should promptly ask for a photo ID and a business card to confirm the officer is in fact from USCIS. For prescheduled or unannounced visits, the company is allowed (and recommended) to have an immigration attorney present.

Employees should know beforehand whom to call in the event of a site visit. During the visit, the FDNS officer may ask HR and immigration managers about its general business and its H-1B program, such as the number of H-1B employees and whether employees are sponsored for green cards, and ask about the individual H-1B employee, such as his or her job duties, work location and date of hire. Officers may also question the H-1B employee directly about his or her job, tenure at the company, immigration or visa status before obtaining an H-1B visa, education and work experience, and request documentation such as recent pay stubs, driver’s license and employee badge. More recently, we have seen FDNS officers question the employee’s work-from-home address, length of time the employee has been working from home, and other aspects of the employee’s telework. Finally, FDNS officers may ask to contact the employee’s direct manager separately to confirm the employee’s information.

Enforcement against employers who violate immigration rules has been a priority of the agency in recent years and the trend is expected to continue. In 2018, USCIS beefed up its FDNS unit and began hiring new officers and amplifying targeted site visits with the aim of doubling the number of worksite visits to 20,000 per year and increasing that number every year. The agency has also increased its information sharing with other agencies, allowing USCIS to access information contained in filings with the Labor Department, such as the labor condition application that companies must file to sponsor an H-1B worker.

It is important that companies review and update their policies and procedures for responding to a USCIS site visit or verification and that employees who are working at home understand the protocols. Although COVID-19 continues to keep most companies’ offices closed or at limited capacity, the pandemic is not preventing USCIS from restarting its site visit program—even when the “worksite” is an employee’s kitchen table or spare bedroom.

Kelli Duehning is a Partner and Michael Sela is a Senior Associate in the San Francisco office of Berry Appleman & Leiden LLP.

This article was originally published in the California Business Journal.

The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.

As the holiday season approaches and your employees begin requesting time off for vacation and international travel, it’s important that your foreign employees are aware of immigration-related requirements and the consequences of heading overseas for the holidays.

Employees who were selected in this past April’s H-1B lottery and have an approved H-1B may wish to use holiday travel to obtain a new visa stamp abroad. This is because many employees have changed their status to H-1B status as of Oct. 1 and therefore must have a new visa to travel. In order to return to the U.S. and continue their employment, these employees must first obtain an H-1B visa at a U.S. Consulate in their home country or a third country. This process—and how long it takes to complete—varies from consulate to consulate and requires planning to ensure employees are able to complete the process and return to work without business disruption.

Employees whose H-1B petition is still pending may or may not be advised to travel, depending on their specific circumstances. Employees who have applied for a change of status that is still pending should not travel until the application is approved. Employees with pending extension of status applications, however, are normally permitted to travel before the application is approved.

Some employees may have family members who are planning to travel abroad without them. Spouses and children of an employee (the principal visa holder) should be sure to carry proof that the employee is maintaining status in the U.S., typically in the form of the employee’s approval notice, an employment confirmation letter and paystubs.

Employees who are in the green card process may not be able to travel internationally, or, depending on their current status, may face scrutiny of their nonimmigrant intent if they apply for a visa or re-admission. Some employees with a pending Form I-485 application to adjust their status to permanent resident may be required to obtain a separate travel document, called advance parole, before departing the U.S. to preserve their green card application. Most valid H-1B holders are permitted to travel without needing to apply for advance parole.

Upon returning to the U.S., it is critical that employees provide their BAL attorney with their new I-94 information. The I-94 document controls the employee’s authorized period of stay in the U.S. regardless of what the employee’s visa or I-797 approval notice says. It is not uncommon for an immigration officer to make incorrect notations on an I-94, and a BAL attorney should review the details on the employee’s I-94 as soon as possible to ensure that they are accurate.

As employees prepare for their vacations, they are reminded to factor in plenty of time to navigate any immigration-related issues with their BAL attorneys before finalizing their travel plans.

The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.

Around the world, governments, regardless of political persuasion, are stepping up compliance by more strictly enforcing their existing immigration laws. Increased fines, penalties, and criminalization of unauthorized working and expanded audit activities are more often focusing on companies—rather than workers—for illegal hiring, improper or invalid documentation, failure to complete mandatory procedures and other immigration infractions.

While immigration noncompliance can severely impact a multinational company’s reputation, until recently, fines and legal ramifications for noncompliance had not possessed much regulatory “bite.” Now, however, governments are revising regulations, scrutinizing work authorization for foreign nationals, and enforcing rules and regulations with new rigor to ensure that laws have “teeth.”

In this issue of the Global Trends Report, we take a closer look at immigration enforcement and how noncompliant employers face substantial financial and legal consequences.

Read the full report by completing the form below.