Only Days Remain until the NEW I-9 Deadline: Are you in Compliance?

USCIS Revises Employment Eligibility Verification Form I-9
Revision will eliminate certain documents for employment verification

U.S. Citizenship and Immigration Services (USCIS) recently announced that a revised Employment Eligibility Verification Form (I-9) is now available for use. All employers are required to complete a Form I-9 for each employee hired in the United States.

Read the entire article here or download the Form I-9 here.

Federal Judge Orders an Indefinite Stay on Law Regarding No-Match Letters 
October 11, 2007 – Federal judge, Charles R. Breyer of the Northern District of California, ordered an indefinite delay on the Bush administration’s new strategy to curb illegal immigration. Judge Breyer said that the government used improper procedure in issuing this new rule that would have forced employers to fire workers if their Social Security numbers could not be verified within three months.

This decision is a huge win for employers, as this rule could have lead to the unjust firing of many thousands of legally authorized and workers.

Not only did Judge Breyer order a halt to the rule, his decision also bars the Social Security Administration from sending out about 141,000 no-match letters, covering more than eight million employees, which include notices from the Homeland Security Department explaining the new rule.
Lucas Guttentag, chief immigration lawyer for the American Civil Liberties Union, which helped represent the unions in a lawsuit challenging the rule, said the plan's fatal flaw is its reliance on error-filled Social Security records that could lead to the firings of hundreds of thousands of citizens and legal residents.

Judge Breyer also noted this fact. “There is a strong likelihood that employers may simply fire employees who are unable to resolve the discrepancy within 90 days,” even if they are legal, Judge Breyer wrote.

Yesterday, Judge Breyer ordered a halt to the rule until the court could reach a final decision in the case, which could take many months.

For more on the story, click here.

BSCAI Member Alert - Judge Extends TRO on Social Security No-Match Letters
A San Francisco federal judge extended for 10 days a temporary restraining order (TRO) that blocks the Department of Homeland Security (DHS) from using backlogged and error-prone social security records to enforce immigration law. Before October 10, the judge will rule on whether or not to permanently stop the Social Security Administration (SSA) from sending "no match" notices to approximately 140,000 employers across the country.

Following the defeat of comprehensive immigration reform legislation in the U.S. Senate, the Department of Homeland Security has indicated that it will likely finalize rules regarding new verification procedures for employers that receive no-match letters from the Social Security Administration (SSA).  The rules, proposed last June, would require employers to take affirmative steps to verify workers' identities if they receive notice from SSA regarding a mismatched Social Security Number, and for the first time would require employers to fire employees or risk enforcement action.  These rules were initial summarized last year by the Government Affairs team (see www.bscai.org/government_affairs/issues.asp#dhsnomatch), and BSCAI filed comments with the Department of Homeland Security opposing the rules in their draft form.  From our discussions with other business groups, and contacts in Washington, we anticipate that the final rules will offer a longer period for verifying identity (perhaps up to 90 days), but will nevertheless require BSCAI members to request new documentation from their employees in many instances. 

A copy of the rule can be secured from the BSCAI Web site (www.bscai.org/usfls/File/ICEB-2006-0004-00011.pdf), and a summary follows below.  While this summary reflects the draft rules containing a 63-day deadline for resolving discrepancies, we nevertheless expect that time frame to be lengthened in the final rule.

Summary of Proposed DHS Rule

The proposed DHS rule would amend the definition of “knowing” in 8 CFR 274a.1(l)(1), in the portion relating to “constructive knowledge.” Under the proposed rule, when an employer receives a no match letter, they can take advantage of a safe harbor by taking the following steps:

1) Review internal records within 14 days to determine whether the discrepancy is clerical -- i.e., the records were improperly transcribed, misspelled, or other similar error occurred, and advise either SSA or DHS of the mistake.

2) In the event that there is no clerical discrepancy, an employer should request that the employee confirm that the employer's records are correct, and if not, contact the appropriate agency to resolve any inaccuracies or provide corrected documents or records to the relevant agency.  A discrepancy will be considered "resolved" under the proposed rule once the employer verifies with the SSA or DHS that the corrected records have been verified.  Under the proposed regulation, an employer should complete this process within 14 days.

3) Completing and submitting a new I-9 within 63 days of receiving the no match letter, so long as:

a) no document containing a social security number or alien number contained in the no match letter is used in completing the I-9;

b) no receipt for an application for a replacement document containing a social security or alien number contained in the no match letter is used in completing the I-9;

c) a document with a photo must be used to establish identity; and

d) the new I-9 must be retained in the same manner as earlier I-9's.

In the event that the discrepancy cannot be resolved within 60 days, and a new I-9 cannot be completed within 63 days, an employer must elect to either terminate the employee or face the risk that DHS will assert that the employer had constructive knowledge that the individual was an unauthorized alien.

The proposed regulation makes clear that this safe harbor does not apply in circumstances where the employer has actual knowledge that the employee is unauthorized or is complicit in falsifying documents.

BSCAI Legislative Update - Minimum Wage and Immigration Reform
The U.S. House of Representatives and U.S. Senate have adjourned until June 4 for the Memorial Day recess.  The last several weeks of Congressional session included significant legislative activity on issues of critical importance to BSCAI members, including an increase to the federal minimum wage, and Senate consideration of a comprehensive immigration reform bill.  BSCAI's Government Affairs team has been actively engaged in these efforts, and expects to be working throughout the coming weeks with coalition partners to ensure that BSCAI's voice is heard on these key debates.

Minimum Wage
In an effort to secure sufficient bipartisan support for the Iraq spending bill, Democrats included provisions in the legislation that would increase the minimum wage to $7.25 between now and 2009.  This legislation passed the House and Senate last night, and is expected to be signed into law in short order by the President.  Under the new minimum wage provisions, the federal minimum wage will increase to $5.85 per hour effective in late July 2007.  In July 2008, the minimum wage will increase again to $6.55 per hour, with a final increase to $7.25 per hour in July 2009.

In addition to the minimum wage increase, the Iraq spending bill also contained a series of small business tax incentives, including:

• Extension of the Work Opportunity Tax Credit;
• A retroactive extension and expansion of expensing for small business; and
• Modifications to the treatment of S Corporation income.

Immigration Reform
The Senate has again begun the process of debating legislation to reform the U.S. immigration system, including the creation of a temporary guest worker program, and provisions for the legalization of many immigrants already in the U.S.  In addition, Title III of the proposed bill would impose new requirements on all employers, including BSCAI members, to verify the eligibility of their workforce using the Electronic Employment Verification System (EEVS, or Basic Private Pilot).  Title III would also require all employers to verify that any subcontractors with whom they maintain a business relationship are themselves registered with EEVS. 

The current draft of Title III contains a number of provisions that would create the potential for administrative and regulatory burdens on BSCAI members both large and small, including additional training and certification requirements, and the potential for open-ended rulemaking by the Department of Homeland Security.  BSCAI's Government Affairs team is actively working with other business groups and key Senators to develop amendments to improve these aspects of the bill and ensure that any new verification requirements are fair, workable, and effective.  The Government Affairs team met at length with lead staff for Senate Majority Leader Harry Reid last week to outline the concerns of BSCAI members, and the challenges that BSCAI members face in accurately verifying their workers without exposing themselves to legal liability for discrimination.  We will continue these meetings, and will offer amendments to the bill when the Senate returns to debate on June 4.

Look for further updates on key Government Affairs topics as Congress returns to work in the coming weeks.

2007 BSCAI Annual Convention & Trade Show

BSCAI hosted the 2007 Annual Convention & Trade Show, April 13-17 in Chicago, Illinois and nearly broke attendance records. 1,837 BSC professionals and more than 100 exhibitors participated in this event, making it the highest attended event in recent BSCAI history!

OSHA and Alliance Launch Safety and Health Web Page

This Web resource was developed in coordination with the American Industrial Hygiene Association, American Society of Safety Engineers, Center for Business and Public Policy, the Independent Electrical Contractors, Independent Lubricant Manufacturers Association, National Federation of Independent Business, Society of the Plastics Industry, and the Society for Chemical Hazard Communication. It includes a "Highlights" feature that provides brief summaries of key information. This information is organized by industry, safety and health topics. To view this useful and timely resource, click here.

Tips and Information on Planning For an Avian Flu Pandemic

BSCAI has recently received some questions about establishing a plan for a pandemic or bird flu  outbreak. We have done some research and the following sites have information to help you plan for this event.

Ecolab Professional Products - the left hand side of this page has buttons for the avian and pandemic flu. See Ecolab

JohnsonDiversey - you can also search their Web site for more information. See JohnsonDiversey

Health Facilities Management - See the Health Facilities Management Web site.

Centers for Disease Control - visit their pandemic flu Web page or do a search of their Web site. See Centers for Disease Control

World Health Organization - Visit their Web site, WHO

Web Site Offers Employers Work Authorization Verification

he Systematic Alien Verification for Entitlements (SAVE) Program is an intergovernmental information-sharing initiative designed to aid eligibility workers in determining an applicant’s/recipient’s immigration status, and thereby ensure that only entitled applicants/recipients receive Federal, state, or local public benefits. The SAVE Program is an information service for benefit issuing agencies, institutions, and other entities. The SAVE Program also administers employment verification pilot programs that enable employers to quickly and easily verify the work authorization of their newly hired employees. From this site you can obtain the following information:

• Immigration Status Verification for Benefit Issuing Agencies
• Employment Verification Pilot Programs

BSCAI CALENDAR

2008 BSCAI CEO Seminar
January 31 - February 2, 2007
The Westin St. Maarten Dawn Beach Resort & Spa
St. Maarten

2008 BSCAI Annual Convention & Trade Show
April 25-29, 2007
Tampa Convention Center
Tampa, Florida