I-9/E-Verify

By: Dave Fowler

The direction provided in the instructions for the Form I-9, the Handbook for Employers (M-274), and the E-Verify User Manual for the employment date in Section 2 could provide more specific. Consequently, there are different interpretations used by entities such as employers, E-Verify Designated Agents, electronic I-9 service providers, ICE, USCIS, and OFCCP. Wouldn't it be nice if everyone used the same definition!

I propose that the rule for the employment date in Section 2 should be the following:

The employment date in Section 2 may be the current date (the date Section 2 is signed) or a prior date, but it cannot be a future date.

Here is the rational for this definition.

1. The language in the cerfication statement in Section 2 says 'that the employee began employment on (month/day/year)                  '  Words have meaning and this language says began rather than will begin. Therefore, the language indicates that the date should be the current date or a prior date and not a future date.
2. Since the signatory is attesting that the information in Section 2 is accurate, using a future date requires the signatory to attest to an event that has not yet occurred. Since there is no way to guarantee the employee will actually start work on a future date, it does not make sense to attest to a future event by entering a future date in Section 2.
3. E-Verify will not accept an employment date that is in the future. Since E-Verify, the government's free system that employers can use to verify a new hire is authorized to work in the U.S., does not accept a future date, it makes sense to not enter a future date in Section 2 of the Form I-9.
4. There are basically two reasons for entering a prior date in Section 2 of the Form I-9.
   1. The employer has three work days do complete Section 2 of the Form I-9 for a new hire. Therefore, the employment date could be prior to the Section 2 signature date.
   2. If the employer identifies that an employee is missing a Form I-9, the employer should complete a Form I-9 as soon as possible. In this situation, the employment date in Section 2 will be more than three days prior to the Section 2 signature date.

One other point, there is really no relationship between the Section 1 and the Section 2 signature dates. However, the Section 1 signature date must be the same or prior to the Section 2 signature date. The employee should complete Section 1 before or at the same time the employer completes Section 2.

By the way, the employment date in Section 2 MUST be completed when the employer signs Section 2. The Form I-9 instructions state that employers must record in Section 2 the date employment begins. Some employers, especially in the staffing industry, leave the employment date blank and when the employee is placed in a position the employment date is entered. This is not compliant and is a very dangerous practice that would likely be considered to be a substantial violation in the event of an ICE audit. Substantial violations have a high likelyhood of resulting in penalties against the employer. This practice also results in the employment date in Section 2 being a future date since the date would be after the Section 2 signature date.

If you use the rule proposed above you should have compliant employment dates in Section 2 of your Forms I-9.

Good luck!

Dave Fowler

but I wish we were being smarter.

• Why lend money to someone with no income, no job, and no assets? Isn't that how we got into the current economic situation?

• Who signs the largest contract ever had without reading it? Isn't this what the Congress did with the bailout?

• Who would make largest purchase ever and not track the money went and what was received? Isn't this what the government is doing with the TARP funds?

• Isn't it just common sense to only use stimulus money to hire legal workers?

• Why increase pork barrel spending and drive up the deficit in tough economic? That's not how we handle our family budgets, is it?

• Why don't we put politics aside and do what’s right for the country? Aren't we allowing people to use the economic downturn for personal and political gain?

• Why don't those in power take responsibility and be accountable rather than blame others?

• Do smart people really raise taxes and increase spending when cash is tight? Shouldn't we stop ineffective spending and only invest to increase revenues and reduce costs?

• What happened to using plain common sense?

Let's use what we already have to solve the problems we face. For example:

• E-Verify works. Let’s use it and improve it. E-Verify gets negative press because IT WORKS. If the government can punish an employer for hiring an illegal worker, then the government has an obligation to provide a way for employers to verify that a worker is legal. As with any software product, there are specific situations that need to be fixed. However, as a software product E-Verify:
  • 96% – works perfectly
  • 3.5% – detects invalid users
  • 0.5% – results in data correction that benefits the employee

• The administration is starting discussions on immigration reform next week. Here are some ideas for resolving the bickering over immigration reform:
  • Allow illegal immigrants who are already here to stay, unless they are a criminal. It is not feasible to force these individuals to leave the country.
  • Require illegal immigrants to register with the government. Give them 1 year to do so. If someone does not register, they are arrested, jailed, and deported when caught.
  • Illegal immigrants can never vote, hold public office, or be appointed to a position where they can change our laws. This would eliminate the politics from the process since both major political parties consider illegal immigrants to be new voters.
  • Secure the borders to stop the flow of illegal immigrants and human smuggling
    
    
• Don’t restrict capitalism by unfairly and unnecessarily burdening employers. Be patient and let the system work. The current economic climate will pass. Do things that encourage employers and employees and be true to our core values.
  
  
• Focus on the big, important, and urgent things first. Demonstrate a smart approach to the world.
  
  
• Experts estimate that it would cost $10 billion to solve the world’s clean water problem. Allocate $10 billion of the stimulus money to solve this problem. This will help restore our standing in the world community.
  
  
• America’s first priority is to protect our freedom and the freedom of others. Freedom built our country and it will continue to do so if we let it.

 Again, maybe it's just me...

I-9/E-Verify

By: Dave Fowler

July 9, 2009 - Well, my speculation was way off! This one surprised me and, I'm sure, many others.

The Administration has decided to move forward with the FAR rule requiring federal contractors to use E-Verify. In a press release dated July 8, 2009 the Department of Homeland Security Secretary Janet Napolitano announced that "After a careful review, the Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009." Click here for the full press release. I interpret the term full implementation to indicate that the rule will be implemented as it currently stands, which includes the a verification requirement for existing employees. No mention was made in the press release of the lawsuit filed against the rule by the U.S. Chamber of Commerce and others.

Based on what is happening in the administration and with other interested parties such as the U.S. Chamber of Commerce, here is a hypothetical timeline that has a chance of happening.

June 1, 2009 - U.S. Chamber of Commerce releases a statement that the FAR rule for federal contractors is going to be delayed again (this is the 5th time) until September 8, 2009.

June 1, 2009 - Center for Immigration Studies releases a statement that President Obama will begin meeting with Congress on June 8, 2009 regarding immigration reform. Update from Aaron Blake of The Hill (see article below): The White House had planned the meeting for June 8 originally and rescheduled it for June 17. It is being rescheduled for next week, according to a White House official. "The meeting will happen soon and a new date is being set," the official said. The meeting is set to include a small number of senators and members of Congress and is acting as a kickoff for the administration’s efforts on immigration.

June 2009 - DHS Secretary Janet Napolitano announces that there will be changes to the FAR rule that will resolve the lawsuit filed by the U.S. Chamber of Commerce and others.

July 8, 2009 - On or before this date a new FAR rule removing the requirement to submit existing employees to E-Verify and possibly other technical changes will be published in the Federal Register with a 60 day comment period.

September 8, 2009 - the FAR rule will take effect and federal contractors with covered federal contracts will be required to submit all new hires to E-Verify.

This is just speculation, but, who knows, it could happen. Stay tuned.

Updated 6/26/09: Rahm Emanuel says votes not there for immigration reform (BACKGROUND ON MEETING WITH MEMBERS OF CONGRESS TO DISCUSS IMMIGRATION REFORM) - http://blogs.suntimes.com/sweet/2009/06/rahm_emanuel_says_votes_not_th.html. (6/25/09)

Updated 6/25/09: United States: Immigration Alert: USCIS Announces Further Delays In E-Verify Implementation, Article by Mintz Levin Immigration Practice Group - http://www.mondaq.com/article.asp?articleid=81810. (6/24/09) 

Updated 6/16/09: NumbersUSA says - Obama Administration and DHS to Gut E-Verify Executive Order. (6/12/09)

Updated 6/16/09: Frank Davies of the Mercury News Washington Bureau writes - Obama, Congress flirt with tackling immigration reform. (6/14/09)

Updated 6/16/09: Aaron Blake of The Hill writes - White House puts off immigration meeting again.

I take the same route to and from work every day. I’m sure others have had the same experience, but there are days when I get to work and don’t remember much of the drive. I don’t pay very much attention to my surroundings because the buildings I pass and the streets I drive on don’t change.

One afternoon at work, one of my colleagues (and fellow blogger), Reid, asked me if I had noticed the squirrel statue in the roundabout by our building. (If you aren’t familiar with a roundabout, it’s basically a four-way intersection, but it has a circular roadway around a central island). Even though Reid is a psychologist, I thought he had lost his mind. Surely if there was something as strange as a statue of a squirrel in the roundabout that I go through twice a day I would have noticed it. But sure enough, as soon as he pointed it out to me from our office window, I saw the squirrel positioned right in the middle of the roundabout. I couldn’t believe it and wondered how I could have missed something so obvious. Now I wonder what else I’ve missed not only in my surroundings but in my day-to-day activities as well.

It is easy for work processes to become like my commute – so routine that we switch to autopilot and perform our tasks without even noticing them. When was the last time you systematically evaluated your pre-employment hiring process? If you always go through the process in the same way without really looking at what you are doing, how will you make improvements? If you look for candidates without really thinking about what makes a person successful on the job, what are you missing? Perhaps we should take some time to step back and evaluate our processes and determine what it is that we are really trying to accomplish. We might find something important that needs to be altered (or at least something we hadn’t noticed before) that will help us be more successful. Feel free to call or email us so that pan can help you find your squirrel statue.

Jenni Ginsburg

The current economic recession is sending more and more companies into financial crisis. The number of businesses filing for bankruptcy protection is at its highest level in over two years.

According to the AACER (Automated Access to Court Electronic Records) there were 7,843 commercial bankruptcy filings during the month of March. This was up 23% from February. It is also the highest monthly total of business filings since 2006.

Other data from the AACER showed that in the first quarter of this year 20,251 businesses sought either Chapter 7 or Chapter 11 protection; a 52.4% increase over the 13,291 business bankruptcy filings during the same period last year.

Bankrupt employers, trustees and anyone considering purchasing bankrupt businesses may have specific procedural requirements to insulate themselves from additional employer liabilities.

Pat Powell

TALX has received information from the WORKFORCE West Virginia, that the unemployment taxable wage base will be increasing from $8,000 to $12,000 effective with the second quarter, 2009.

West Virginia Senate Bill 246 was passed on April 11, 2009 and the wage base change became effective with this passage. The state will be issuing a letter to employers in the near future. They have already contacted a few of the larger payroll providers.

It is highly unusual to have a wage base change in the middle of the year; credit these unusual economic times. Employers will need to immediately change their payroll systems to reflect the new wage base. Employers will not be required to file amended first quarter returns as the change was not effective until after the first quarter ended. However, employees who met the first quarter wage base of $8,000 will now be subject to tax on the next $4,000 of taxable wages.

Pat Powell

In these troubled times, many companies are being forced to make substantial staffing cut-backs. Announcements are coming daily with some industries being affected more than others. The automotive industry in particular is scrambling to "right-size" its workforce in an effort to avoid bankruptcy and as part of recovery plans associated with Federal Bailout grants (GM's Downsizing Strategy Moving With Great Efficiency | workforce.com.)

From an unemployment perspective it is essential to understand the impact a layoff will have on your company’s unemployment tax rate. In addition, failure to meet certain employee notification requirements under the Federal Warn Act could result in penalties and open the door to class action suits or individual employee lawsuits (TALX Bulletin Employer Downsizing.)

From a liability perspective, it is important to protect your company in the area of employment litigation (Nine Ways to Protect Your Company During Staff Reductions | workforce.com.)

Lastly, maintaining employee morale for those left behind can be a challenge. Treatment of exiting employees can say a lot about a company and has a tremendous impact on the productivity of the remaining workforce (In a Time of Layoffs, Keep Human Resources Humane - BusinessWeek.)

While workforce reductions are often reactionary resolutions to tough economic conditions, planning is essential. It is crucial that you know the impact of every decision made along the way.

Tammy Mullin

According to the Bureau of Labor Statistics employers took 2,933 mass layoff actions involving 299,388 workers in March. These are the highest levels on record. Mass layoff events increased by 164 from February and initial claims increased by 3,911. Twenty-six states reached program highs for March in terms of average weekly initial claims.

These types of unemployment numbers are taking their toll on the state trust fund balances. As of April 23, 14 states have borrowed money from the Federal Unemployment Fund. The outstanding loan balance is currently over $9.7 billion.

Both California and Michigan have already borrowed over $2 billion each. This is the first time since 1983 that any state has borrowed over $2 billion and it’s only April.

Pat Powell

The Employer Tax Services Group will be holding webcasts on May 6 & 7, 2009. These webcasts will focus on the impact of the recession on unemployment taxes for 2009 and beyond. The newly signed American Recovery & Reinvestment Act will be discussed in detail as well as Trust Fund solvency and subsequent Title XII Loans. Even though unemployment tax rates have been set for 2009, it's never too early to understand how the recession and new law changes will affect future tax payments. To attend one of the webinars, just click here.

Interesting controversy over Texas Governor Rick Perry’s announcement in March that he was rejecting additional unemployment funding because there were too many strings attached Texas Governor Rick Perry Rejects $555 Million In Stimulus Money - cbs2.com. He continues to make headlines and was even the brunt of jokes on The Colbert Report on April 20th. 

Other states are agreeing with Perry, just look at the press coming out of the State of Virginia recently Virginia Lawmakers Split on What's Best for Workers, Employers - washingtonpost.com.  

So why is this happening?  What are those strings everyone is talking about?  

Well, states will get a portion of $7 billion, if they have enacted or will enact an “alternative base period” – the earnings period used to establish a UI claim – as well as two of four other unemployment benefit expansions: 1) part-time worker eligibility; 2) compelling family reason quit eligibility, 3) benefits for dislocated workers in approved training; and 4) dependent allowances.  When the stimulus money runs out, Texas estimates that it will cost employers an additional $75 million a year TEXAS GOV. RICK PERRY STILL OPPOSES ACCEPTING STIMULUS MONEY FOR UNEMPLOYMENT BENEFITS.

While we know that the additional unemployment coverage will benefit the individuals out there desperate for work now, what we don’t know is whether that will have enough of an impact on the economy to outweigh the negative impact on employers struggling to stay in business.  At the end of the day, only time will tell.
For more information on the Stimulus package, visit the Industry Insights section under News and Events at www.talx.com .

Tammy Mullin