• March 2011

How the Obama Administration Has Cracked Down on Employers

By Linda Rahal
Attorney / Owner / Founder
Trow & Rahal, P.C.

As you have likely seen in the news, the Obama Administration has been cracking down on employers who hire undocumented immigrants.

One of the most high-profile examples is the Chipotle Mexican Grill food chain, which has more than 1,000 stores around the country. In light of an audit conducted by the U.S. Immigration and Customs Enforcement (known as ICE), the chain was forced to fire more than 600 employees from its 50 Minnesota restaurants in December. They accounted for about half of Chipotle’s employees in the state.

“Stemming from Minnesota, we’re in communication with ICE to expand our use of E-verify,” said Chipotle communications director Chris Arnold, who noted that chain executives are in discussions with officials. “We’ve used it in states that require it – Arizona, South Carolina, and North Carolina.”

Chipotle also recently received notification from ICE that its 60 restaurants in Virginia and Washington, D.C., will be audited.

What does this mean for your company?

In the past, workplace enforcement actions by immigration officials resulted in the arrest and deportation of undocumented workers — but employers were often left untouched. In 2009, however, the Obama Administration announced that it was shifting its workplace enforcement to employers, and in the last year, the number of audits of employers has dramatically increased, to more than 2,700.

Investigations can lead to large financial penalties for employers, as well as criminal charges for managers, human resources managers, and company owners. In this atmosphere, the importance of understanding the requirements for completing I-9 forms cannot be over emphasized.

What you need to know about Form I-9

In early January 2011, the U.S. Citizenship and Immigration Services (USCIS) revised its Handbook for Employers: Instructions for Completing Form I-9 (M-274) (“the Handbook”).

Some key changes were made regarding that document that are acceptable for employees to present for work authorization and for completing the Form I-9.

As background, every employer is required to complete a Form I-9, which has two sections, for a new employee.

  • Section 1 is completed by the employee by his or her first day of work.
  • Section 2 is completed by the employer within three business days of the first day of work for pay.

The employee is required to provide documents for proof of identity and proof of employment authorization by the third day of employment. Form I-9 instructions list permissible documents in List A, List B, and List C.

Following is a summary of key changes in the Handbook that impact employers of foreign nationals.

J-1 Exchange Visitors and Students. The J-1 visa program is unique in that the Department of State (DOS) administers the exchange visitor program and designates exchange visitor program sponsors. The USCIS does not issue EADs (Employment Authorization Documents) to J-1 exchange visitors for work authorization. They are issued several other documents that, when presented in combination, are acceptable under List A: unexpired foreign passport, Form I-94 and Form DS-2019 (the document issued by the DOS affirming the foreign national’s participation in a J-1 program).

F-1 Students. Receipt notice for EAD not sufficient: The Handbook provides a detailed explanation of how to complete the I-9 for foreign nationals in F-1 visa status. An EAD issued by the USCIS is needed for a student to be able to work in F-1 Optional Practical Training (OPT), which is usually granted upon graduation for a period of up to 12 months. The EAD card must be approved before the student can begin work. A receipt notice is not sufficient.

Acceptable I-9 documents for “Cap-Gap” F-1 students. Often a student is working in F-1 OPT visa status and the employer wants to be able to continue employment after the F-1 OPT period concludes by filing an H-1B visa petition and changing the student’s F-1 OPT status to H-1B.

If an H-1B visa petition is filed and receipted in — but no H-1B visa petitions are available until the following October 1 because the H-1B cap has been reached — the student is authorized to continue to work even after the EAD expires. This automatic work authorization is called “cap-gap” protection.

List A documents for completing the Form I-9 now include an expired EAD in conjunction with a Form I-20 from the school, endorsed with employment authorization, as acceptable documents. Cap-gap provides employment authorization through September 30 of the year in which the H-1B petition is filed. On October 1, the employer must re-verify employment authorization and update the Form I-9.

Acceptable I-9 documents for F-1 students with an OPT STEM extension. An F-1 student who receives a U.S. degree in science, technology, engineering, or mathematics (STEM) may apply for a one-time 17-month extension of his/her OPT, if his/her employer participates in E-Verify (see side article). Unlike the general rule that USCIS filing receipts are not acceptable for completing I-9 forms, List A now indicates that students who qualify for this STEM extension of F-1 OPT can show (1) a USCIS filing receipt for the application to extend work authorization (EAD), (2) the expired EAD card; and (3) a Form I-20 endorsed with STEM extension of OPT.

H-1B Employees Changing Employers (H-1B Portability). The Handbook now clarifies that for a List A document, the employee in H-1B visa status changing from the existing employer to a new employer (“porting”) can begin work with the new employer upon filing an H-1B petition with USCIS by providing (1) the I-94 card issued for the prior employer, and (2) a valid foreign passport. Previously, the USCIS indicated that the new employer required Form I-797 Receipt Notice from the USCIS before the employee could start working.

Completing Form I-9 for Nonimmigrant Categories when Requesting Extensions of Stay. When an employer files a timely extension visa petition for an employee in a nonimmigrant visa status such as H-1B or L-1, the employee is authorized to continue to work while the extension petition is pending with the USCIS for a period not to exceed 240 days (or until USCIS denies the petition).

The Handbook now clarifies that to update an I-9 form when such an extension has been filed, the employer should write “240-Day Ext.” and record the date the employer submitted the Form I-129 (Petition for a Nonimmigrant Worker) to USCIS in the margin of the I-9 next to Section 2.

Additionally, the Handbook expands upon what documentation should be added to the Form I-9. Previously, the employer was advised to attach only the receipt notice. The Handbook now adds that the employer should keep the following documents with the Form I-9 in this situation:

1. A copy of the new I-129 that was filed for the extension;
2. Proof of payment for the filing of the new I-129; and
3. Evidence that the new I-129 was mailed to USCIS.

After the extension is filed, USCIS will issue a receipt notice, which should also then be added and kept with the I-9. When the extension of stay is approved, the employer should record in Section 3 the document title, number, and expiration date listed.

When USCIS filing receipts are acceptable I-9 documents (“Receipt Rule”)

In general, a USCIS receipt notice is not an acceptable document for purposes of completing the Form I-9. However, an individual may present a receipt in lieu of a document listed on I-9 in two circumstances of relevancy:

1. A receipt for a replacement document when the document has been lost, stolen, or damaged, valid for 90 days, after which the individual must present the replacement document;
2. An I-551 stamp in the passport of a Legal Permanent Resident, considered as a receipt for the green card.

The receipt rule does not apply to EAD cards, except in the circumstance of the F-1 STEM extension (see above).

Electronic retention of Form I-9 and documentation of electronic storage systems

The Handbook offers expanded guidance for Form I-9 storage systems. Employers must follow certain guidelines, outlined in the Handbook, should they choose to keep their I-9 forms in an electronic generation or storage system. Click here to view The Handbook.