New York Labor and Employment Law Report : New York Employment Lawyer & Attorney : Bond Schoeneck & King Law Firm : NY Labor Relations, Employee Benefits

1. Any employee may present a receipt showing that an application for a replacement List A, B, or C document has been submitted because the document was lost, stolen, or damaged. The receipt notice serves to verify the individual’s employment authorization for 90 days from the date of hire, or, in the case of reverification, the date the employment authorization expires. Upon the expiration of the receipt period, the employee must present the actual document for which the receipt was obtained.
2. An employee who is a lawful permanent resident may present a receipt that constitutes an arrival card which is a portion of Form I-94 or Form I-94A which contains a temporary I-551 stamp (and photograph). This temporary I-551 stamp placed on the I-94 card, which is found within the employee’s passport, is considered the receipt. This type of receipt is considered valid as long as it is submitted for I-9 purposes before the expiration date listed on the temporary I-551 stamp. If there is no listed expiration date on the I-551 stamp, the receipt expires within one year from the date of issue.
3. An employee who is a refugee may present a receipt that constitutes Form I-94 or Form I-94A with an unexpired refugee admission stamp. The receipt notice serves to verify the individual’s employment authorization for 90 days from the date of hire, or, in the case of reverification, the date the employment authorization expires. Upon the expiration of the receipt period, the employee must present an unexpired employment authorization document (i.e., Form I-766, Form I-688B) or an unrestricted Social Security Card combined with a valid List B document.
4. Certain employees who hold non-immigrant visas and who are authorized to work for a specific employer incident to status (e.g., E, H, L, O, P, and TN) may continue to work for their sponsoring employers up to 240 days following the expiration of their authorized period of stay. In order for this rule to apply, the application or petition for an extension of status must be filed in good faith and before the expiration of the original status. In these cases, a USCIS receipt showing that a timely extension application or petition was filed (i.e., Form I-797) must be accepted for reverification purposes.
5. Individuals holding valid H-1B visas for another employer may “port” or work for another employer once the new or prospective employer has timely filed an H-1B portability petition on behalf of the individual. An application is generally considered “filed” once it is accepted for processing by the U.S. Citizenship and Immigration Services (USCIS). A copy of the Receipt Notice for the filed H-1B portability petition, together with the copy of the alien’s unexpired I-94 card can be accepted as evidence of employment authorization for employment verification purposes. Once the H-1B portability petition is approved, the employer should update the I-9 by reviewing the passport with the newly issued H-1B Approval Notice for the employee at issue.
6. In April 2008, USCIS issued a rule specifically pertaining to F-1 students. Under the rule, if a student in lawful F-1 status is the beneficiary of a timely filed H-1B petition requesting a change of status (from F-1 to H-1B), the student’s status is extended, along with any grant of optional practical training (“OPT”) work authorization, until October 1. In these cases, the employer may accept the expired OPT work authorization document combined with an endorsed Form I-20 that demonstrates that the student’s employment work authorization – OPT – has been extended and is still valid, and the USCIS Receipt Notice (Form I-797) showing receipt of the timely filed H-1B Petition.

Employers should also be aware of the following additional considerations:

• A receipt showing an employee has applied for an employment authorization document – whether it is for an initial grant of work authorization or a renewal – cannot be accepted as sufficient evidence of work authorization for I-9 purposes.
• A receipt is never acceptable for employment lasting less than 3 days.
• An employer’s failure to honor a receipt in one of the circumstances or exceptions set forth above may constitute document abuse and is prohibited under the Immigration and Nationality Act. 

ICE’s aggressive approach was highlighted last month by two investigations. First, a national retail clothing company agreed to pay a $1 million fine based on an ICE audit of its electronic I-9 verification system. While the audit did not reveal any evidence of the employment of unauthorized workers, there were systemic deficiencies in the employer’s compliance program that motivated ICE to demand the substantial fine.

In addition to seeking civil penalties and potential debarment from federal contracts, ICE has pursued criminal charges against employers and company officers. IRCA authorizes criminal penalties for employers that engage in a “pattern or practice” of knowingly employing unauthorized workers. In one recent case, ICE identified 16 unauthorized workers through an I-9 audit of company records. The company advised ICE that the employees had been terminated, but a subsequent investigation revealed that at least two of the workers remained on the payroll and had been advised by the business owner to “go out and get good social security numbers.” The business owner and the company vice president now face criminal charges for knowingly continuing to employ unauthorized aliens.

These enforcement actions derive from ICE’s 2009 comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for lawful workers. Under this strategy, ICE focuses its resources on the auditing and investigation of employers suspected of knowingly employing illegal workers. In conjunction with this initiative, ICE has conducted high-profile, targeted audits of employers with connections to public safety and national security, as well as those employers identified during ICE investigations as potential employers of unauthorized workers.

The aggressive enforcement attitude of ICE should be an urgent reminder to senior human resources personnel to: (i) re-evaluate I-9 procedures; (ii) conduct self-audits of I-9 records; (iii) remain alert to circumstances that may suggest an issue with an employee’s work authorization; and (iv) avoid any conduct that could be interpreted by ICE as encouragement of, acquiescence in, or constructive knowledge of, fraudulent I-9 documentation.
 

What Happens During an H-1B Site Audit?

H-1B site audits are usually unannounced, and take place at either the employer’s principal place of business or the foreign national’s physical work-site location. During the site visit the investigator will often ask to speak with the employer representative who signed the H-1B Petition. If this person is unavailable, the investigator usually requests, as an alternative, to speak with a Human Resources representative. During the audit, the investigator will typically ask specific questions to verify the representations made by the employer in the H-1B Petition, and may also request a tour of the facility. In addition, the investigator may ask to interview the H-1B employee about his/her job title, duties, responsibilities, employment dates, position locations, academic background and previous employment experience. Finally, the investigator may request the opportunity to speak with colleagues and/or managers of the H-1B employee.

How Should an Employer Respond to the Audit?

If an employer is subject to an unannounced H-1B site visit, the employer should immediately request that its immigration attorney be present. Even though the investigator will not reschedule a site visit so that an attorney may be present, the investigator will allow counsel to be present by phone. The employer should also have procedures in place to ensure that the investigator is directed to a designated company official. That designated official should request the name, title, and contact information for the site investigator. If the investigator introduces himself/herself as a contractor of FDNS, the employer’s representative should request a business card and confirm the investigator’s identity before permitting the individual to enter the employer’s premises, and before providing any detailed information about the employer’s business.

The employer should have at least two employer representatives accompany the investigator during the site visit. One representative should be the primary spokesperson on behalf of the employer. The second representative should take detailed notes of all information requested by and provided to the investigator, the locations visited, pictures taken, and/or any other relevant information from the site visit.

If the employer has strict policies regarding audio recording, photography, or video recording, the employer should advise the investigator accordingly. If the investigator requests information from the employer and the employer cannot provide accurate information without further research, the employer should so inform the investigator, and offer to contact the investigator as soon as the requested information is obtained. Under no circumstances should the employer “guess” about any information requested during the site visit.

Prepare for Site Visits Before They Occur.

An adverse assessment by the FDNS could be used to deny a petition, if the site visit occurs during re-adjudication, could result in a revocation of a previously approved petition in the post-adjudication process, and/or could be referred to U.S. Immigration and Customs Enforcement (“ICE”) for further investigation. A referral to ICE could lead to civil or criminal penalties and prosecution. Given the potential consequences of an adverse audit, and because most H-1B site visits are unannounced, employers must be prepared for such visits well in advance.

Ensuring that required documentation is up-to-date and is easily accessible is the best way to prepare for a site visit. Specifically, employers should retain complete copies of all submitted I-129 petitions and supporting documents in confidential files, and be familiar with and ensure the accuracy of the representations made in the I-129 petitions. With respect to each filed H-1B Petition, the employer must maintain a public access file. Employers should also ensure they are in compliance with any mandatory employment posting obligations to prepare for the possibility the investigator will request a tour of the facility.

To better prepare the designated official for possible questioning by the investigator, consider staging a mock visit under the supervision and direction of counsel and subject to the attorney-client privilege. To prepare the beneficiary for potential questioning, employers can consider providing a redacted copy of the I-129 Petition and supporting documents to the beneficiary, including information on the nature of the job opportunity, the terms and conditions of employment, and the beneficiary’s education and prior work history. A mock interview of the beneficiary, with counsel present, can also be helpful.