I-9 |

Employers Face 8/30 Deadline To Complete & Document In-Person Inspections Of I-9 Documentation Examined Remotely During COVID-19 Emergency

June 5, 2023

Employers that took advantage of the temporary flexibility allowed by the U. S. Immigration and Customs Enforcement (ICE) during the COVID-19 health care emergency to inspect identity and employment authorization documents presented by workers to fulfill the Form I-9, Employment Eligibility Verification requirements now must conduct and document their in-person of the identity and employment eligibility documents for those workers by August 30, 2023.

The Form I-9 rules usually require that employers physically conduct an in-person examination of the identity and employment eligibility documents of each worker to verify the worker’s eligibility to work in the United States.

While ICE’s Form I-9 rules continued to require in-persona physical inspection of worker identity and eligibility documents throughout the health care emergency, COVID-19 temporary flexibilities announced by ICE in March 2020 temporarily allowed employers to use remote inspection of the physical documentation in lieu of in-person inspection under certain circumstances while the flexibilities remained effective.

ICE announced in October 2022 that the COVID-19 flexibilities would end on July 31, 2023. When it announced the impending end of the temporary flexibilities, ICE also reminded employers relying on remote inspection of workers’ physical documentation that the employers would have to inspect in person documents for employees whose documents previously were examined remotely within 30 days after the end date of the flexibilities on July 31, 2023. Consequently, employers relying on remote inspections now face an August 30, 2023 deadline to complete the required in-person physical inspection of identity and employment authorization documents, for workers allowed to work based on remotely inspected identity and employment eligibility documents in accordance with the COVID-19 temporary flexibilities and after the employer physically examines the employee’s identity and employment authorization documents, to annotate the Form I-9 by adding “Documents Physically Examined” and the inspection date to the Section 2 “Additional Information” field on the Form I-9. ICE has indicated that workers allowed to work based on identity and eligibility documentation examined remotely under the temporary flexibilities will not qualify as eligible to work unless the required in-person inspection is completed and documented by the August 30, 2023 deadline. See I-9 Central Questions and Answers for more information.

Along with catching up their Form I-9 physical inspections and documentation for any workers hired during the COVID-19 emergency based remote inspection of identity and employment eligibility documentation employers should keep in mind that the end of the Form I-9 COVID-19 temporary flexibilities is only one a several developments impacting their ability to employ US or foreign citizens under U.S. law since the beginning of the pandemic. The Department of Homeland Security (“DHS”), Department of Labor and other agencies also have modified various other requirements for VISAs, terms and conditions of employment, national origin and other discrimination, safety and other laws. Additionally, DHS and other agencies also are pursuing other regulatory and enforcement changes, including by example, the Notice of Proposed Rulemaking for alternative procedures allowing remote document examination for Form I-9 DHS published last year. DHS has indicated it expects to publish a Final Rule in the Federal Register that will implement this proposal soon. Business leaders should review their overall compliance and stay tuned for new developments.

For More Information

We hope this update is helpful. For more information about these or other health or other employee benefit, insurance, health care, workforce or other legal, management or public policyresponsibilities or developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.

Solutions Law Press, Inc. invites you to receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government and community leaders to prepare for and deal with pregnancy, disability and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about preparation of workforce, health care and other business and government policies and practices to deal with management in a wide range of contexts ranging from day to day operations, through times of change and in response to complaints, investigations and enforcement.

Author of a multitude of other highly regarded publications and presentations on MHPAEA and other and health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.

A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community and government leaders on health, severance, disability, pension and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration and defense of their organization’s workforce, employee benefit and compensation, safety, discipline and other management practices and actions.

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here such as:

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Posted by Cynthia Marcotte Stamer

DOJ New Language Access Law Enforcement Initiative & Denver Police Language Access Investigation Resolution Highlight Need To Manage LEP Accommodation Compliance & Risks

December 19, 2022

The Justice Department announced the launch of a new nationwide Law Enforcement Language Access Initiative (“LEP Initiative”) to help law enforcement agencies meet obligations to provide meaningful language assistance to limited English proficient (LEP) individuals along with driving home it’s commitment to enforce these LEP obligations by announcing a LEP investigation resolution with the Denver Police Department.

LEP Initiative

The Civil Rights Division’s Federal Coordination and Compliance Section in partnership with U.S. Attorneys’ Offices will lead the new LEP Initiative. Specifically, the initiative will:

Develop technical assistance resources and tools that can assist local and state law enforcement agencies in their efforts to provide meaningful language access to LEP individuals and populations within their jurisdiction.
Affirmatively engage law enforcement agencies that want to review, update, and/or strengthen their language access polices, plans and training.
Leverage collaboration with U.S. Attorneys’ Offices to conduct trainings in communities across the country to increase awareness of language access obligations and encourage widespread adoption of best practices by law enforcement agencies.
Strengthen the department’s ties and engagement with LEP community stakeholders and LEP populations.

“Providing law enforcement agencies with the tools they need to ensure effective and meaningful language access promotes and advances greater safety for limited English proficient people,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “Through this Initiative, we will be able to share these language access best practices and similar resources with law enforcement agencies all across the country.”

Denver LEP Resolution Agreement

Coincident with announcing the LEP Initiative, the Justice Department and the U.S. Attorney’s Office for the District of Colorado announced an agreement to resolve an investigation into allegations that the Denver Police Department (DPD) discriminated on the basis of national origin against LEP individuals in violation of Title VI of the Civil Rights Act of 1964. Title VI prohibits race, color, and national origin discrimination by recipients of federal financial assistance.

The Justice Department’s investigation of the DPD began after community members raised concerns about incidents involving Burmese and Rohingya-speaking LEP residents living in the East Colfax area of Denver. The Justice Department says it’s investigation revealed numerous instances where DPD officers either failed to provide language assistance to LEP individuals or provided language assistance that was ineffective or inappropriate. For example, the investigation uncovered situations where children, family members and bystanders were relied upon for language assistance, including in circumstances where more reliable and objective language assistance should have been provided.

As part of this settlement agreement, the DPD has agreed to implement a series of changes to its language access policies, procedures and training, including:

Updating its Language Access Policy and Plan in order to establish procedures for communicating with LEP individuals, including witnesses and suspects, and to prohibit the use of children, family members, or bystanders to communicate with LEP individuals, except in exigent circumstances;

Appointing its first-ever LEP Coordinator and establish Language Access Points of Contact (LAPCs) in every DPD district;
Training all DPD employees and new recruits on identifying, communicating with, and documenting interactions with LEP individuals; and
Creating a Language Access Committee that includes stakeholders representing LEP community interests.

The Justice Department announcement of the LEP Initiative in conjunction with the DPD and other growing series of investigations and enforcement demonstrates the strength of the Biden Administration’s continuing emphasis on the advancement of LEP and other civil rights and their enforcement in the public and private sector.

Public sector, organizations and agencies facing investigation commonly face threats to their federal funding if compliance deficiencies are found in an investigation.

Healthcare, educational, government, funded housing, and government contractors can expect discrimination, prosecution and sanctions, federal program, exclusion, or funding, and other sanctions in response to a finding of noncompliance.

Meanwhile, all other covered entities at minimum face, the threat of lawsuits brought by the government, private, litigants, or both.

Even when these enforcement actions are resolve, a bolster negotiation, the expenses of defense and correction can be high. The sanctions, cost of defense and other anticipated fall out where they violations are indefensible, or so great that negotiation of a reasonable resolution is difficult present even greater risks and costs. To mitigate exposure to these risks and costs, all organizations should review their current practices and training to shore up their efforts, in anticipation of a possible complaint or investigation.

Organizations should seek help from experienced legal counsel to design and train their operations leaders and team about appropriate practices and should seek the advice of legal counsel with investigation of complaints or other concerns, questions or any other issues about the adequacy of practices, documentation or other concerns impacting their compliance with these and other discrimination and civil rights practices in light of this emphasis. Organizations also should be careful to avoid any actions that might be construed as retaliation. Parties raising concerns should be carefully dealt with as the expression of these concerns could provide a basis for complaints, as well as complaints or prosecution for retaliation.

More Information

We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.

About the Author

Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, a Fellow in the American College of Employee Benefits Counsel repeatedly recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” by LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law and among the “Best Lawyers In Dallas” in “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney and management consultant, author, public policy advocate and lecturer widely known for 30+ years of advising, representing and defending domestic and international public, closely held and government organizations on workforce, employee benefits, internal controls and governance, and other risk management, compliance and government relations concerns as well as her coaching, scholarship, training and legislative and public affairs advocacy on these and related areas.

Ms. Stamer helps health industry and other organizations and their management manage. Ms. Stamer’s legal and management consulting work throughout her nearly 35 year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce management operations and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy. Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns. She also represents and defends clients in investigations, audits, enforcement actions and other dealings with the the Department of Labor, IRS, ICE, DOJ, HHS, DOD, FTC, SEC, CDC and other public health, Department of Justice and a multitude of federal, state, and locate agencies, state attorneys’ general and other federal and state agencies, public and private credentialing, licensing and accreditation bodies, as well as conducts and counsels clients on private litigation, employment and other services disputes, regulatory and public policy advocacy, training and discipline, enforcement and other strategic and operational concerns.

Ms. Stamer uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, expat and medical tourism, onsite medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities. As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others. She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.

Ms. Stamer also is deeply involved in helping to influence workforce, health care, pension, social security, insurance and other policies critical to the workforce, benefits, and compensation practices and other key aspects of a broad range of businesses and their operations. She both helps her clients respond to and resolve emerging regulations and laws, government investigations and enforcement actions and helps them shape the rules through dealings with Congress and other legislatures, regulators and government officials domestically and internationally. A former lead consultant to the Government of Bolivia on its Social Security reform law and most recognized for her leadership on U.S. health and pension, wage and hour, tax, education and immigration policy reform, Ms. Stamer works with U.S. and foreign businesses, governments, trade associations, and others on workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a Fellow in the American Bar Foundation and State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting and other JCEB agency meetings. She also works as a policy advisor and advocate to many business, professional and civic organizations.

Author of the thousands of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer also is a highly sought out speaker and industry thought leader known for empowering audiences and readers. Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.

Ms. Stamer also shares her leadership through her extensive involvement in many professional, community and civic organizations. Currently, she serves as Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR and a representative for its Annual Agency Meeting with the EEOC, Chair of the ABA Intellectual Property Section Law Practice Management Committee, Vice Chair of the ABA International Section Life Sciences Committee, Chair-Elect of the ABA Tort & Insurance Section (TIPS) Medicine and Law Committee, RPTE Section Employee Benefits Committee Welfare Plan Chair, and in various other projects and capacities. She also previously has served as an ABA Joint Committee on Employee Benefits Council Representative, Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and the ABA RPTE Employee Benefits & Other Compensation Group, the Society for Human Resources Management Region IV Board Chair and National Consultant’s Board Member; am Editorial Advisory Board Member and author for HR.com, Insurance ThoughtLeaders, BNA CD-Rolm, and Employee Benefits News; the Alliance for Healthcare Excellence Board President, Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, on the North Texas United Way Long Range Planning Committee Member, as a Board Member and Compliance Chair of the National Kidney Foundation of North Texas and many others.

Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. These include hundreds of highly regarded articles and workshops on health and other benefits, workforce, health care and insurance concerns.

For more information about these requirements, Ms. Stamer or her experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

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NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication. Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

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Posted by Cynthia Marcotte Stamer

H-2B Visa 2023 Application Window Opens 1/1; New Attestation Form Required

December 19, 2022

The filing window to submit an H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices) requesting work start dates of April 1, 2023, or later, opens January 1, 2023, at 12:00 a.m. Eastern Time. Employers submitting H-2B visa applications in 2023 should prepare to file the newly required Form ETA-9142-B-CAA-7, Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers Under Section 204 of Division O of the Consolidated Appropriations Act, 2022, Public Law 117-103, and Public Law 117-180 (the “Form”).

OFLC has announced that following OFLC’s standard operating procedures, H-2B applications requesting an April 1, 2023, work start date will be denied if they are filed before January 1, 2023, at 12:00 a.m. Eastern Time. OFLC plans to randomly order for processing all H-2B applications requesting a work start date of April 1, 2023, filed during the initial three calendar days (January 1-3, 2023) using the randomization procedures published in the Federal Register on March 4, 2019. Each day, from January 3, 2023 through January 6, 2023, OFLC will publish on the Foreign Labor Application Gateway System website the number of H-2B applications it has received to date and the total number of requested worker positions on those applications. Employers, workers awaiting these visas and other stakeholders should monitor the Gateway to assess the continued availability of the allotted H-2B visas.

Meanwhile, the Department of Labor Employment and Training Administration on December 16, 2022 published a notice announcing the 2023 AEWR for herding or production of livestock on the range in the Federal Register. The AEWR for occupations involving herding or production of livestock on the range is new for the H-2A Program. AEWRs are the minimum wage rates the Department of Labor has determined must be offered and paid by employers to H-2A workers and workers in corresponding employment to help ensure the Department meets its statutory obligation to certify that the employment of H-2A foreign workers will not adversely affect the wages of agricultural workers in the U.S. similarly employed. Employers affected by this mandated minimum wage rates should account for these rates in their budgeting and compliance activities.

The Office of Foreign Labor Certification (“OFLC”) announced December 19, 2022 that employers requesting H-2B visas to hire nonimmigrant workers under the FY2023 cap increase must complete and submit the new the new Form. The Form and its instruction currently available for immediate use by employees here. Employers planning to request H-2B visas should obtain and begin preparing the Form along with their applications to be ready to file when the 2023 application window open January 1, 2023.

For Help With Comments, Investigations Or Other Needs

If your organization would like to learn more about the concerns discussed in this update or seeks assistance auditing, updating, administering or defending its human resources, compensation, benefits, corporate ethics and compliance practices, or other performance related concerns, contact management attorney and consultant Cynthia Marcotte Stamer.

An attorney Board Certified in Labor & Employment Law by Texas Board of Legal Specialization, Ms. Stamer is recognized for work helping organizations management people, operations and risk as a Fellow in the American College of Employee Benefit Counsel, a “Top Woman Lawyer,” “Top Rated Lawyer,” and “LEGAL LEADER™” in Labor and Employment Law and Health Care Law; a “Best Lawyers” in “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law.”

For 35 years, Ms. Stamer’s work has focused on advising and assisting businesses and business leaders with these and other employment and other staffing, employee benefit, compensation, risk, performance and compliance management and other operational solutions and concerns. Her experience includes helping management both manage performance and manage legal risk and compliance. While helping businesses define and manage the conduct and performance of their employees, contractors and vendors, she also assists employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, leave, and other labor and employment laws, advises and defends businesses against labor and employment, employee benefit, compensation, fraud and other regulatory compliance and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor, Department of Justice, SEC, Federal Trade Commission, HUD, HHS, DOD, Departments of Insurance, and other federal and state regulators. Ms. Stamer also speaks, coaches management and publishes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

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NOTICE: Terms. These materials are for general informational and educational purposes only. They do not establish an attorney-client relationship, are not legal advice, a substitute for legal advice, an offer or commitment to provide legal advice or an admission. The information and statements in these materials may not address all relevant issues or apply to any situation or circumstances. The author reserves the right to qualify or retract any of these statements at any time. and does not necessarily address all relevant issues. Because the law evolves and in ways that subsequent developments could impact the currency and completeness of this discussion. The author disclaims and has no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers are urged to engage competent legal counsel for consultation and representation considering the specific facts and circumstances presented in their unique circumstance at any time. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication. Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein. ©2022 Cynthia Marcotte Stamer. Nonexclusive right to republish granted to Solutions Law Press, Inc. All other rights reserved.

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Posted by Cynthia Marcotte Stamer

Biden Administration DHS Proposes New Rules On When Noncitizens Ineligible To Enter Or Remain In US Based On Likelihood To Become “Public Charge”

February 28, 2022

The U.S Department of Homeland Security is inviting public comment on proposed regulations (the “Proposed Rule”) defining the rules DHS will apply to decide when a noncitizen is inadmissible to the United States under section 212(a)(4) of the Immigration and Nationality Act (INA) because the person is likely at any time to become a “public charge.” The proposed rules could affect workers or family members of workers who are noncitizens seeking to renew visas who have accessed certain public assistance while in the United States as well as noncitizens seeking new visas to enter the United States. The deadline for submitting comments is April 25, 2022.

Public Charge Rule Generally

Under Section 212(a)(4) of the INA, an applicant for a visa, admission, or adjustment of status generally is inadmissible if the applicant “is likely at any time to become a public charge” The public charge ground of inadmissibility, therefore, applies to individuals applying for a visa to come to the United States temporarily or permanently, for admission, or for adjustment of status to that of a lawful permanent resident.By statute, however, some categories of noncitizens such as refugees; asylees; certain T and U nonimmigrant visa applicants (human trafficking and certain crime victims, respectively); and certain self-petitioners under the Violence against Women Act are exempt from the public charge inadmissibility ground. Also the DHS Secretary possesses discretionary authority to waive public charge inadmissibility for a noncitizen that provides a suitable and proper bond or undertaking approved by the Secretary.INA Section 235 addresses the inspection of applicants for admission, including inadmissibility determinations of such applicants and INA Section 245 generally establishes eligibility criteria for adjustment of status to that of a lawful permanent resident.

Public Charge Proposed Rule Highlights

The Proposed Rule would consider a noncitizen likely at any time to become a public charge if he or she is likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense. The Proposed Rule also would establish:

How DHS proposes to identify the types of public benefits that would be considered as part of the public charge inadmissibility determination;
General principles regarding consideration of current and past receipt of public benefits in public charge inadmissibility determinations
Factors that DHS would consider in prospectively determining, under the totality of the circumstances framework, whether an applicant for admission or adjustment of status before DHS is inadmissible under the public charge ground.
Changes to existing information collections submitted with applications for adjustment of status to that of a lawful permanent resident to include questions relevant to the statutory minimum factors.
A requirement that all written denial decisions issued by USCIS to applicants reflect consideration of each of the statutory minimum factors, as well as the Affidavit of Support Under Section 213A of the INA where required, consistent with the standards set forth in the Proposed Rule, and specifically articulate the reasons for the officer’s determination.

The proposed regulation, if adopted as proposed, would implement the following major changes:

Amend 8 CFR 212.18, Application for waivers of inadmissibility in connection with an application for adjustment of status by T nonimmigrant status holders. This section clarifies that T nonimmigrants seeking adjustment of status are not subject to the public charge ground of inadmissibility.
Add 8 CFR 212.20, Applicability of public charge inadmissibility. This section identifies the categories of noncitizens who are subject to the public charge ground of inadmissibility.
Add 8 CFR 212.21, Definitions. This section establishes key regulatory definitions: Likely at any time to become a public charge, public cash assistance for income maintenance, long-term institutionalization at government expense, receipt (of public benefits), and government.
• Add 8 CFR 212.22, to clarify that evaluating the likelihood at any time of becoming a public charge is a prospective determination based on the totality of the circumstances. This section provides details on how the statutory minimum factors, as well as an Affidavit of Support Under Section 213A of the INA, if required, and current or past receipt of public benefits would be considered when making a public charge inadmissibility determination. This section also states that the fact that an applicant has a disability, as defined by section 504 of the Rehabilitation Act (Section 504), will not alone be a Start Printed Page 10572 sufficient basis to determine whether the noncitizen is likely at any time to become a public charge. This section also includes categories of noncitizens whose past or current receipt of public benefits will not be considered in a public charge inadmissibility determination.
Add 8 CFR 212.23, Exemptions and waivers for public charge ground of inadmissibility, which will provide a list of statutory and regulatory exemptions from and waivers of the public charge ground of inadmissibility.
Amends 8 CFR 245.23, Adjustment of aliens in T nonimmigrant classification, which will clarify T nonimmigrants seeking adjustment of status are not subject to the public charge ground of inadmissibility.

The Proposed Rule differs from the previous regulation DHS published on August 14, 2019 on the pubic charge rule, which is no longer in effect. Rather than continuing Trump Administration efforts to defend the prior regulation against various litigation challenges then pending before the United States Supreme Court, the Biden Administration announced its withdrawal of the prior regulation to reconsider its provisions, resulting in the termination of that litigation. The proposed regulation reflects the results of the Biden Administration’s new approach to the rule making, which many perceive as more generous to noncitizen applicants in various respects. The Preamble to the proposed regulation reflects the Biden Administration’s view that the 2019 Final Rule expanded DHS’s definition of “public charge,” in a manner ‘associated with widespread indirect effects on noncitizens were not even subject to the public charge ground of inadmissibility, such as U.S. citizen children in mixed-status households. According to the Preamble to the Proposed Rule, although the 2019 Final Rule imposed heavy paperwork burdens while the 2019 Final Rule was in place DHS only denied 3 of the 47,555 applications for adjustment of status to which the rule was applied and DHS subsequently reopened and approved those 3.

Potential Implications On Employers, Health Care Organizations & Others

The implications of the Proposed Rule vary depending on the circumstances. Because the Proposed Rule will de-emphasize prior reliance of a noncitizen on certain assistance, it may make it easier for noncitizen employees and others who received assistance during the COVID-19 pandemic or under other circumstances in the past to renew their visa to remain in the U.S. This could be helpful to businesses that concerned about the loss of noncitizen workers or service providers who otherwise might be disqualified by the prior need for or receipt of public assistance or unwilling to come or stay in the U.S. because of the disqualification of family members under the public assistance criteria.

The easing of the standard also may impact health care, community, religious, charitable or other organizations concerned that certain populations of noncitizens they service could be denied entry or forced to leave the United States.

Meanwhile, federal, state and local governments, community agencies and others also should assess the program eligibility and cost implications of the Proposed Rule and begin planning accordingly.

To review the Proposed Rule, a summary of the proposed regulation and history of the public charge rule and other details, see here. Persons interested in commenting on the proposed regulation should submit their comments electronically on or before April 25, 2022 following the instructions here.

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For additional information about the requirements or concerns discussed in this article, republication or other related matters, please contact the author, employment lawyer Cynthia Marcotte Stamer via e-mail, via telephone at (214) 452 -8297 or on LinkedIn.

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About the Author

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, Form I-9 and other compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, internal controls, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

Well-known for her extensive work with health and life sciences, insurance, financial services, technology, energy, manufacturing, retail, hospitality, governmental and other highly regulated employers, her nearly 30 years’ of experience encompasses domestic and international businesses of all types and sizes.

A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a management consultant, business coach and consultant and policy strategist as well through her leadership participation in professional and civic organizations such her involvement as the Vice Chair of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy; current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association and others.

Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.

About Solutions Law Press, Inc.™

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.

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Comments Off on Biden Administration DHS Proposes New Rules On When Noncitizens Ineligible To Enter Or Remain In US Based On Likelihood To Become “Public Charge” | COVID, COVID-19, employee, Employer, Employers, h-2A Visa, I-9, Immigration, Internal Controls, Internal Investigations, Pandemic, Remote Work, Telecommuting, visas | Tagged: Corporate Compliance, COVID-19, Department of Homeland Security, Eligibility to Work, Employer, I-9, Immigration, Internal Controls, Managment, Workforce | Permalink
Posted by Cynthia Marcotte Stamer

Confirm Continuing Form I-9 Compliance As Employees Return From COVID-19 Remote Work

February 24, 2022

U.S. employers of employees returning to the workplace after working remotely during the COVID-19 emergency should include verifying the physical presence and all other Form I-9, Employment Eligibility Verification (Form I-9) requirements for complying with Section 274A of the Immigration and Nationality Act (INA) are met by each employee returning to the workplace to minimize the risk of liability arising from failing to physically examine eligibility and identity documentation of employees hired to work remotely without physical examination of their original identity and eligibility documentation based on COVID-19 related limited Form I-9 flexibilities granted by the Department of Homeland Security (“DHS”); upcoming or missed deadlines for reverification of eligibility to work documentation for employees whose eligibility documentation contains an expiration date or both. Employers should use care to ensure that COVID-19 related staffing or other operational disruptions result in any failures to timely reverify eligibility to work for employees with expiring eligibility documents; to examine in the physical presence of the employee the identity and eligibility documents of employees hired to work remotely during the COVID-19 health care emergency within three days of the date the employee resumes working at an employer’s worksite on a regular basis or April 30, 2022.

U.S. law requires that each employer, agricultural recruiter and referrers for a fee who recruits, refers for a fee, or hires an individual for employment in the U.S. (“employer”) verify the employee’s identity and employment authorization by properly completing and retaining the Form I-9 for that employee. In addition to requiring each employee to complete Section 1 of the Form I-9, employers also must require each employee to present original identity and eligibility to work documentation for examination by the employer in the physical presence of the employee before the employer completes and signs Section 2 of the Form I-9. In some instances, employers that previously completed a Form I-9 for an employee subsequently may be required to complete Section 3 (“reverify”) when the employee relief upon documentation with an expiration date to prove eligibility to work by presenting unexpired original eligibility documentation to the employer for examination in the physical presence of the employee before the employer can complete the certifications required by that Section of the Form I-9.

Whether conducting an original employment verification or reverifying the employment eligibility of an employee when eligibility documents expire, the Form I-9 rules normally require the employer to physically examine the document presented by the employee to prove identity and eligibility to work to ensure the documents the employee presented are originals of a document on the Lists of Acceptable Documents or is an acceptable receipt and that the presented document reasonably appears genuine and to relate to the presenting employee. When the documents meet these conditions, during this physical examination, the employer must enter the necessary information to complete the applicable of Section 2 or 3 of the Form I-9 and appropriately date and sign the Form I-9.

Employers hiring employees based on documents that will require reverification usually track the impending expirations and notify the impacted employees at least 90 days before the date is required that they will be required to present a List A or List C document (or acceptable receipt) showing continued employment authorization on the date that their employment authorization or documentation whichever is sooner, expires.

COVID-19 DHS Form I-9 Flexibility Guidance Limited To Qualifying COVID-19 Remote Employees; Set To Expire April 30

On March 20 2020, DHS issued Form I-9 flexibilities guidance in response to precautions implemented by employers and employees related to physical proximity associated with the COVID-19 health care emergency. Under the currently applicable extension of the flexibility guidance published in December, 2021, that flexibility is set to expire on April 30, 2020.

The March 20, 2020 Form I-9 flexibility guidance granted employers temporary flexibility to delay examination of original identity and employment authorization documents in the employee’s physical presence for employees working remotely as a COVID-19 precaution provided that the employer:

Inspected the Section 2 documents remotely over video link, fax or email, etc.;
Obtained, inspected, and retained copies of the documents, within three business days for purposes of completing Section 2;
Physically inspected the documents after normal operations resumed by requiring all employees on boarded using remote verification to report to the employer within three business days for in-person verification of Form I-9 identity and employment eligibility documentation;
Maintained and provided as required written documentation of their remote onboarding and telework policy for each employee and other necessary documentation and other evidence to meet the criteria to qualify for the flexibility; and
E-Verify participants who met the criteria and choose the remote inspection option continue to follow current guidance and create cases for their new hires within three business days from the date of hire.

For purposes of completing the Form I-9 documentation for employees covered by this flexibility, DHS directed employers taking advantage of this flexibility to delay physical inspection to enter “COVID-19” as the reason for the physical inspection delay in the Section 2 when originally completing the employee’s Form I-9 and when the employer physically inspected the documents when normal operations resumed, to add “documents physically examined” with the date of inspection to the Section 2 additional information on the Form I-9, or to section 3 as appropriate. DHS specified that employers could rely upon this COVID-19 related flexibility until the earlier of 60 days from the date of its notice or within 3 business days after the termination of the National Emergency.

On March 31, 2021, DHS updated its March 20, 2020 Form I-9 flexibilities guidance effective April 1, 2021, to limit an employer’s ability to delay inspection in the physical presence of the employee to remote workers. The updated guidance states employers are required to inspect the Form I-9 identity and employment eligibility documentation in person for any employees who physically report to work at a company location on any regular, consistent, or predictable basis. For employees working remotely hired on or after April 1, 2021, however, the March 31, 2021 update specifies the flexibility to delay inspection in the physical presence of the employee applies to employees working work exclusively in a remote setting due to COVID-19-related precautions until the earlier of the date the remote worker undertakes non-remote employment on a regular, consistent, or predictable basis, or the date DHS terminates Form I-9 flexibility guidance. DHS also stated that the flexibilities do not prevent employers from commencing, in their discretion, the in-person verification of identity and employment eligibility documentation for employees hired on or after March 20, 2020, and presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.

Since DHS subsequently extended the availability of the Form I-9 flexibility policy through April 30, 2022 because of ongoing precautions related to COVID-19, employers that meet the conditions of the guidance currently may continue to delay in person inspection of the Form I-9 eligibility and identification documents for a remote worker hired after March 31, 2021 until the earlier of the date the employee resumes physically reporting to work at a company location on any regular, consistent or predictable basis; April 30, 2022 or the date normal operations resume. Meanwhile, employers must monitor the DHS and ICE’s Workforce Enforcement announcements about when the extensions end and normal operations resume.

Verify & Strengthen Compliance To Avoid Potentially Costly Fines & Other Liability

Maintaining appropriate Form I-9 verification and documentation compliance is critical to reduce exposure to expensive civil fines and in the case of certain wilful violations, even potential criminal liability.

DHS base penalties for I-9 violations adjust for inflation annually. Under the inflation adjustments implemented in November, 2021. the I-9 violation penalty per Form I-9 are now:

For the first offense, $590-$4,722;
For the second offense, $4,722-$11,803; and
For the third or subsequent offense, $7,082-$23,607.

Appropriate documented compliance and remediation efforts by an employer are taken into account and can significantly mitigate if not eliminate civil and criminal liability assessments for Form I-9 and other immigration law violations Given the potential liabilities of noncompliance and the likely expiration of the COVID-19 flexibility guidance. all employers should include confirmation of continued I-9 compliance to their risk management activities.

As the COVID-19 health care emergency abates and businesses resume more normalized operations, employers that have resumed normal operations as well as employers with workers continuing to work remotely as part of their COVID-19 containment arrangements should ensure the employer has inspected the Form I-9 original identity and eligibility documentation of each employee physically reporting to work on any regular, consistent or predictable basis. In addition, as employees that previously worked remotely in response to the COVID-19 health care emergency resume onsite work, employers also should confirm that the Form I-9 documents not previously inspected in the presence of the employee in reliance on the I-9 flexibility guidance are required to present their original documentation for in person inspection by the employer within three days. Finally, because the COVID-19 health care emergency disrupted the normal operations and staffing of many employers, most employers also will want to audit the expiration dates, if any of any time limited eligibility documents presented by their employees to ensure that timely steps are taken to notify and secure updated eligibility documentation for employees whose employment relies upon those expiring documents.

Along with confirming that I-9 documentation for new hires and noncitizen employees relying upon expiring documentation during the COVID-19 health care emergency, employers also generally shoild reconfirm the adequacy of their overall I-9 policies, practices and documentation. Section 274A(b) of the Immigration and Nationality Act (INA), codified in 8 U.S.C. § 1324a(b), requires employers to verify the identity and employment eligibility of all individuals hired in the United States after November 6, 1986. 8 C.F.R. Section 274a.2 designates the Form I-9, Employment Eligibility Verification (Form I-9), as the vehicle for documenting this verification. For current employees, employers are required to maintain for inspection original Form(s) I-9 on paper or as an on-screen version generated by an electronic system that can produce legible and readable paper copies. For former employees, the retention of Form(s) I-9 is required for a period of at least three years from the first day of employment or one year from the date employment ends, whichever is longer.

Employers receiving a NOI or other request for inspection typically will want to contact experienced legal counsel immediately upon receipt to discuss any concerns and review the materials to identify any potential areas of concern and opportunities for improvement or liability mitigation prior to the inspection.Employers that receive a Notice of Inspection (NOI) from DHS can expect to be asked to produce the requested Form(s) I-9 for inspection along with a copy of the employer’s payroll, a list of active and terminated employees, articles of incorporation, business licenses and other supporting documentation. Businesses relying on contractors, subcontractors or leased employees should be prepared to access and provide any documentation regarding those workers available when requested, particularly in light of ongoing worker reclassification and joint employer initiatives by various federal agencies. The time period to produce these documents in the NOI can be short. Typically the NOI offers three or more days before the scheduled inspection. However, legal counsel frequently may work with DHS to arrange for a short extension of the deadline to allow for collection and organization of the requested materials. However, even with such extensions, advance preparation and organization, including collection or negotiation of access to contract labor, contractor, payroll and other relevant records, can be critical.

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Posted by Cynthia Marcotte Stamer

Employers Must Tread Carefully To Manage Foreign Worker Employment & Employment Discrimination Explosures

June 23, 2016

A $180,000 wrongful termination settlement that Foothill Packing, Inc. just paid to settle Department of Labor charges illustrates the potential Catch-22 tightrope that employers must walk when choosing between citizens and resident aliens with visas for hiring and firing decisions.

The Foothill wrongful termination settlement resolving H-2A visa rule violation charges illustrates an often overlooked side of the potential Catch-22 that U.S. employers can face when making hiring and other employment choices between work-eligible foreign and U.S. citizen employees or candidates.

Usually, we hear about employers nailed for employment discrimination against noncitizens. This time, firing U.S. citizens and keeping foreign workers was the problem.

Employers Must Juggle Many Duties When Dealing With Foreign Applicants & Workers

The H-2A visa program requirements established by the labor provisions of the of the Immigration and Nationality Act and provisions of the Migrant and Seasonal Agricultural Worker Protection Act (H-2A visa program) allows companies and farm labor contractors to bring in foreign agricultural workers on a temporary basis when an adequate amount of qualified U.S. workers cannot be found to perform the work. As a condition to qualifying to hire foreign workers under the program, the H-2A program explicitly requires all jobs in this country must be offered to U.S. citizens before an employer may receive authorization to hire foreign workers. To fulfill this requirement, an employer must demonstrate that it made required efforts to hire U.S. workers prior to having their visas approved. Employers also must not give H-2A workers preferential treatment or wrongfully discharge U.S. workers.

The H-2A visa program requirement that employers offer work to available U.S. workers before seeking to employ foreign workers under a H-2A visa exists concurrent with the national origin and race discrimination prohibitions of Title VII of the Civil Rights Act. Title VII, among other things, generally prohibits U.S. employers from discriminating in hiring or other terms and conditions of employment based on a worker’s national origin, ancestry or race. The national origin discrimination prohibitions of Title VII of the Civil Rights Act generally extend to any discriminatory employment decision by an is covered by Title VII, including recruitment, hiring, promotion, transfer, wages and benefits, work assignments, leave, training and apprenticeship programs, discipline and layoff and termination.

Beyond the national origin, race and other nondiscrimination requirements of Title VII, employers dealing with workers who are not U.S. citizens also generally are accountable for complying with various other nondiscrimination and other employment laws including but not limited to the following:

The Immigration Reform and Control Act of 1986 (IRCA), which prohibits employers with four or more employees from discriminating because of citizenship status against U.S. citizens and certain classes of foreign nationals authorized to work in the United States with respect to hiring, referral, or discharge. IRCA also prohibits national origin discrimination by employers with between four and fourteen employees.
The Fair Labor Standards Act (FLSA): The FLSA requires, among other things, that covered workers, including those who are not U.S. citizens, be paid no less than the federally designated minimum wage.
Employment of foreign nationals under special visa programs, such as H-1B and H-2A visas, also may be subject to certain requirements related to wages, working conditions, or other aspects of employment.
When making employment decisions and taking hiring or other employment actions involving foreign workers on H-2A visas or otherwise, employers must understand and tread carefully to comply with all of these requirements.

DOL Chared Foothill Violated H-2A Visa Program By Retaining Foreign Workers While Terminating U.S. Citizens

According to the June 13, 2016 U.S. Department of Labor Wage and Hour Division (DOL) announcement of the Foothill settlement, DOL investigators determined that Foothill, a packing and labeling company, violated the H-2 visa program by terminating 18 workers, who were U.S. citizens, that Foothill claimed failed to meet production standards when the investigation found that many of the terminated workers consistently exceeded the production of many of the foreign workers Foothill continued to employ to the same jobs. In reaching this finding, the DOL interpreted the H-2A visa program requirement that H-2A program’s prohibition against providing preferential treatment to foreign worker as extending to layoffs.

To resolve the charges, Foothill Packing paid $180,000 in back wages to the 18 terminated workers and also paid $55,000 in penalties for the violations of H-2A provisions of the Immigration and Nationality Act, and provisions of the Migrant and Seasonal Agricultural Worker Protection Act. The settlement agreement also requires Foothill to:

Designate a staff member whose primary job duties consist of monitoring and reporting the firm’s compliance with all H-2A regulatory requirements;
Provide annual training to all frontline supervisors involved with the H-2A program;
Provide detailed reasons for any future terminations to the U.S. Department of Labor; and
Otherwise comply with the labor provisions of the requirements of the H-2A Visa Program.

Reconciliation Of H-2A Visa Rules With Civil Rights Act Nondiscrimination Rules

The key to reconciling the H-2A visa program requirement that employers show preference to U.S. workers over H-2A visa workers in hiring and retaining workers and the race and national origin employment discrimination prohibitions of Title VII is understanding that Title VII’s protections are construed and enforced as extending to all work-eligible workers in the United States, whether born in the United States or abroad and regardless of citizenship status.

While Title VII does not prohibit citizenship discrimination per se, citizenship discrimination does violate Title VII where it has the “purpose or effect” of discriminating on the basis of national origin. For example, a citizenship requirement would be unlawful if it is a “pretext” for national origin discrimination, or if it is part of a wider scheme of national origin discrimination.

The H-2A visa program’s requirement that an employer show preference for U.S. workers over workers whose eligibility for employment is based on a H-2A visa is based on the eligibility of the employer to work in the United States under United States immigration laws. As such, when the adverse action is taken against a worker using a H-2A visa for eligibility to work, the action is based on eligibility to work required by the I-9 verification rules, and not based on the ancestry, place or origin, race or other elements of national origin.

Whether or not dealing with a H-2A visa worker, however, employers still must tread carefully to conduct and document their employment actions with respect to workers to withstand scrutiny under both requirements in the event of a challenge on either or both fronts. Both doing the right thing and documenting throughout the process is critical as the “after acquired evidence” rules of evidence applicable to employment discrimination claims under the Civil Rights Act could prevent an employer from presenting documentation or other evidence to support an employer’s defense of a valid, nondiscriminatory business purpose to rebut discrimination claims in the event of litigation or a government investigation or charge.

About The Author

Cynthia Marcotte Stamer is a noted Texas-based management lawyer and consultant, author, lecturer and policy advocate, recognized for her nearly 30-years of cutting edge management work as among the “Top Rated Labor & Employment Lawyers in Texas” by LexisNexis® Martindale-Hubbell® and as among the “Best Lawyers In Dallas” for her work in the field of “Tax: Erisa & Employee Benefits” and “Health Care” by D Magazine.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, a Fellow in the American College of Employee Benefit Counsel, past Chair and current committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, a former ABA Joint Committee on Employee Benefits Council Representative and , Ms. Stamer helps management manage.

Ms. Stamer’s legal and management consulting work throughout her nearly 30-year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.

Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns.

Ms. Stamer also is deeply involved in helping to influence the Affordable Care Act and other health care, pension, social security, workforce, insurance and other policies critical to the workforce, benefits, and compensation practices and other key aspects of a broad range of businesses and their operations. She both helps her clients respond to and resolve emerging regulations and laws, government investigations and enforcement actions and helps them shape the rules through dealings with Congress and other legislatures, regulators and government officials domestically and internationally. A former lead consultant to the Government of Bolivia on its Social Security reform law and most recognized for her leadership on U.S. health and pension, wage and hour, tax, education and immigration policy reform, Ms. Stamer works with U.S. and foreign businesses, governments, trade associations, and others on workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a Fellow in the American Bar Foundation and State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting and other JCEB agency meetings. She also works as a policy advisor and advocate to many business, professional and civic organizations.

Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer serves on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and as an editorial advisor and contributing author of many other publications. Her leadership involvements with the American Bar Association (ABA) include year’s serving many years as a Joint Committee on Employee Benefits Council representative; ABA RPTE Section current Practice Management Vice Chair and Substantive Groups & Committees Committee Member, RPTE Employee Benefits & Other Compensation Committee Past Group Chair and Diversity Award Recipient, current Defined Contribution Plans Committee Co-Chair, and past Welfare Benefit Plans Committee Chair Co-Chair; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; International Section Life Sciences Committee Policy Vice Chair; and a speaker, contributing author, comment chair and contributor to numerous Labor, Tax, RPTE, Health Law, TIPS, International and other Section publications, programs and task forces. Other selected service involvements of note include Vice President of the North Texas Healthcare Compliance Professionals Association; past EO Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division; founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former Southwest Benefits Association Board of Directors member, Continuing Education Chair and Treasurer; former Texas Association of Business BACPAC Committee Member, Executive Committee member, Regional Chair and Dallas Chapter Chair; former Society of Human Resources Region 4 Chair and Consultants Forum Board Member and Dallas HR Public Policy Committee Chair; former National Board Member and Dallas Chapter President of Web Network of Benefit Professionals; former Dallas Business League President and others. For additional information about Ms. Stamer, see CynthiaStamer.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal control and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources at Solutionslawpress.com such as:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating or updating your profile here. ©2016 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc. ™. All other rights reserved.

Comments Off on Employers Must Tread Carefully To Manage Foreign Worker Employment & Employment Discrimination Explosures | Affirmative Action, Corporate Compliance, Discrimination, E-Verify, EEOC, EEOC, Employer, Employers, Employment, Employment Discrimination, h-2A Visa, Immigration, OFCCP, Rehabilitation Act, Uncategorized | Tagged: Discrimination, Employer, I-9 | Permalink
Posted by Cynthia Marcotte Stamer

Ranching Employers: Labor Department Tightening H-2A VISA Rules For Employing Range Workers

October 19, 2015

Ranching businesses that employ foreign workers with H-2A VISAs to herd sheep, goats, cattle or other range livestock (“Herders”) should begin preparing to comply with significant changes in the Labor Department regulations governing the recruitment and employment of Herders made in the new Labor Department Final Regulation on Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Range (Final Rule).

The Final Rule available for review here significantly modifies the Labor Department’s existing rules on the employment of Herders under the H-2A VISA program in ways likely to affect the practices of virtually all ranching businesses that current employ such workers. These changes include the consolidation of the currently separate set of rules for Herders working cattle versus those working other hooved livestock into a single rule, significant changes to the wage and other employment conditions that ranching businesses must meet when employing Herders, and streamlining certain procedures employers can use to apply for H-2A visas for Herders.

Ranching businesses and other employers that presently employ or contemplate employing Herders under the H-2A VISA program will want to consult with legal counsel for assistance in evaluating the effect of these rules on the employment of Herders to adjust practices and budgets as necessary to comply with these new requirements.

Single Rule For All Herding Jobs

As a starting point, the new Final Rule establishes a single regulation covering all H-2A VISA jobs related to the herding or production of livestock on the range. The Department currently administers separate procedures through two distinct Training and Employment Guidance Letters; one covering the herding and production of only sheep/goats and the other covering other livestock (e.g. cattle). The Final Rule will apply to Herders working in jobs relating to the herding of all species of domestic hooved animals customarily raised on the range under a single, integrated rule. It generally will cover jobs typically performed on call 24 hours per day, 7 days per week. It will apply to work:

Performed on the range for the majority of workdays (more than 50 percent);
Generally requiring the use of range (including remote, non-mobile) housing, where the work sites are not near enough to the worker’s residence or ranch to permit the worker to reasonably return to a fixed housing location; and
Consisting entirely of duties and activities that are, or are closely and directly related to, herding and livestock production. (An enhanced definition includes examples of duties that are and are not closely and directly related.)

For this purpose, the Final Rule defines “range” as any area located away from the ranch headquarters where the herder is required to constantly attend to the livestock, evaluated based on the totality of the circumstances using a multi-factor test. Factors include whether the land is uncultivated, involves wide expanses, such as thousands of acres, and/or is located in remote, isolated areas; and whether the work typically requires range housing to enable the herder to constantly attend to the herd.

Wage Requirement Changes

The Final Rule also will change the rules for determining the wages that employers must pay Range Workers. The Final Rule mandates that employers pay a wage, that equals or exceeds the highest of the monthly AEWR (described more below), collective bargaining agreement, or applicable minimum wage set by court or law (e.g., Federal, State or local minimum wage), free and clear at least twice monthly during the entire certified period of employment.

The new AEWR will be an amount set by the Labor Department on the effective date of the Final Rule or thirty days from its publication. The new AEWR will apply to all pending and future requests for prevailing wages, as well as all open certifications. Relative to the new AEWR, the Final Rule establishes a new methodology for setting the monthly AEWR for all range occupations using the current Federal minimum wage ($7.25/hour) as the basis for an initial national monthly wage rate, calculated based on a 48-hour workweek. This initial AEWR for range occupations will be adjusted annually based on the Employment Cost Index for wages and salaries (ECI), beginning in 2017. The Final Rule also specifies that to convert the hourly wage rate to a monthly wage rate, the Labor Department multiplies the hourly wage rate by 48 hours and 4.333 weeks. Finally, the Final Rule provides for a a two-year transition phase in of the new AEWR starting with requiring 80 percent of the full wage from the effective date of the Final Rule through calendar year 2016, then 90 percent in calendar year 2017, and full implementation beginning in calendar year 2018.

The Department of Labor says these changes are needed to correct “wage stagnation” over the past 20 years. In other words, employers should expect to see wage costs rise.

Stricter Rage Worker Housing & Other Employment Condition Requirements

The Final Rule also tightens the required housing and other employment conditions that ranchers must fulfill when employing Herders on the range. The Labor Department says these changes are made to better protect U.S. workers doing essentially the same jobs as H-2A workers by preventing adverse effect on U.S. worker’s wages and working conditions. For instance, the Final Rule:

Establishes specific standards for range housing used for range workers, identifies the circumstances in which heating equipment is required. It also states that “range housing” includes housing that is remote, but need not be mobile and provides for SWA inspection at least every three years, while permitting SWAs to inspect more often.
Clarifies that the employer must disclose in the job order and provide range workers all tools, supplies, and equipment required by law, by the employer, or by the nature of the work to perform the duties assigned in the job offer safely and effectively, without charge or deposit charge. Additionally, the Final Rule continues the requirement that employers provide workers with an effective means of communicating with persons capable of responding to the worker’s needs in case of an emergency.
Requires employers to provide adequate food, free of charge, and adequate potable water to range workers. The Final Rule also quantifies the minimum amount of potable water the employer must provide (4.5 gallons per day for drinking and cooking purposes). Where potable water cannot be transported to the worker by motorized vehicle, the Final Rule allows the employer to rely on natural sources of water provided that it provides the worker with the means to test and render that water potable.

Streamlined Filing Requirements

The Final Rule also streamlines the H-2A VISA application process by allowing employers to file H-2A applications directly with the Chicago National Processing Center (NPC) simultaneously with the H-2A Application for Temporary Employment Certification, Form ETA-9142A. This change eliminates the current requirement that employers first file the H-2A application with the State Workforce Agency (SWA), It also allows and allowing agricultural associations of employers, who file as joint employers with one or more of their members in more than two contiguous states, to file a single “master application” and job order covering the workforce needs of each association-member. Identifies specific eligibility criteria for jobs covered by these procedures and provides that non-range duties and activities are governed by the general H-2A procedures and standards.

Changes To Recruitment Requirements

The Final Rule also modifies certain of the recruitment rules. Some of the more notable recruitment rule changes are that the Final Rule:

Brings consistency to job order clearance by having job orders for all range occupations remain active until 50 percent of the work contract period has elapsed.
Requires that all range occupation jobs appear in the DOL’s national electronic repository until 50 percent of the work contract period for the job opportunity(ies) has elapsed, so U.S. workers may easily learn about these job openings and make themselves available for work to employers from across the nation.
Expands the waiver previously applied to range sheep and goat herding occupations to all range herding and livestock production occupations so that newspaper advertisement is not required.

Period of Need

The Final Rule specifies that employers hiring range workers for herding or production of sheep or goats may list a period of up to 364 days on the application and job order, consistent with longstanding practice. In contrast, employers hiring range workers for herding or production of other livestock may list a maximum period of 10 months, consistent with longstanding practice.

These impending changes will require most employers of Range Workers to make significant adjustments in their practices as well as their budgets. To help prepare for these changes and preserve valuable lead time to respond, employers of Range Workers should consult with qualified legal counsel for assistance in evaluating the implications of these new rules on their current practices and with planning to respond to these changes.

For Help With Investigations, Policy Updates Or Other Needs

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law extensively involved in health and other employee benefit and human resources policy and program design and administration representation and advocacy throughout her career, Cynthia Marcotte Stamer is a practicing attorney and Managing Shareholder of Cynthia Marcotte Stamer, P.C., a member of Stamer│Chadwick │Soefje PLLC, author, pubic speaker, management policy advocate and industry thought leader with more than 27 years’ experience practicing at the forefront of employee benefits and human resources law.

Ms. Stamer helps management manage. Ms. Stamer’s legal and management consulting work throughout her 28 plus year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk.

Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce management operations and compliance. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

A Fellow in the American College of Employee Benefit Counsel, past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, an ABA Joint Committee on Employee Benefits Council Representative and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is recognized nationally and internationally for her practical and creative insights and leadership on health and other employee benefit, human resources and insurance matters and policy.

Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations. Best-known for her extensive work helping health care, insurance and other highly regulated entities manage both general employment and management concerns and their highly complicated, industry specific corporate compliance, internal controls and risk management requirements, Ms. Stamer’s clients and experience also include a broad range of other businesses. Her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns.

Ms. Stamer also uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, ex-patriot and medical tourism, on site medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities.

As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others.

She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large-scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.

She also currently or previously served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.

Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves on an American Bar Association (ABA) Joint Committee on Employee Benefits Council representative; Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the ABA RPTE Employee Benefits & Other Compensation Committee, its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its incoming Defined Contribution Plan Committee Chair and Practice Management Vice Chair; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division; on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications. She also previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association. For additional information about Ms. Stamer, see www.cynthiastamer.com, or www.stamerchadwicksoefje.com the member of contact Ms. Stamer via email here or via telephone to (469) 767-8872.

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Posted by Cynthia Marcotte Stamer

Record $2.3 Million+ H-2A Backpay Order Plus Civil Money Penalty Reminds Businesses Employing Foreign Workers To Manage Compliance

July 10, 2012

Underpaying and failing to meet other H-2A visa program requirements for its employment of temporary foreign agricultural workers was an extremely costly mistake for Yerington, Nevada-based onion grower Peri & Sons.

Peri & Sons must pay a record total of $2,338,700 in back wages to 1,365 workers, plus a $500,000 civil money penalty to the Department of Labor for failing to properly pay foreign agricultural workers working under the H-2A visa program under a consent order entered by U.S. Department of Labor Administrative Law Judge Steven Berlin in San Francisco. The consent order announced by the Labor Department Wage and Hour Division today (July 10, 2012) reminds U.S. businesses of the need to meet compliance responsibilities when employing foreign workers and illustrates the significant risks that employers of foreign workers risk by failing to meet minimum wage and hour, overtime, vis, I-9 and other requirements for employing foreign workers.

The record back pay order stems from charges brought by the Labor Department’s Wage and Hour Division after it determined that Peri & Sons violated the FLSA and the H-2A visa program requirements by underpaying H-2A employees involved in irrigation, harvesting, packing and shipping of onions sold in grocery stores nationwide. All of the affected workers came to the U.S. from Mexico under the H-2A temporary agricultural worker visa program. In most cases, their earnings fell below the hourly wage required by the program, as well as below the federal minimum wage of $7.25 per hour for a brief period of time. Investigators also found that workers were not paid for time spent in mandatory pesticide training or reimbursed for subsistence expenses while traveling to and from the U.S. Additionally, Peri & Sons did not pay the worker’s return transportation costs at the end of the contract period.

The H-2A temporary agricultural worker program permits agricultural employers who expect a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to do temporary or seasonal agricultural work. The employer must file an application stating that a sufficient number of domestic workers are not available and the employment of these workers will not adversely affect the wages and working conditions of similarly employed workers in the U.S. Employers using the H-2A program also must meet a number of specific conditions relating to recruitment, wages, housing, meals and transportation. See more on H-2A visa employment rules here.

Reflective of the Obama Administration’s heavy emphasis of the enforcement of wage and hour and other laws protective of workers, the Peri & Sons order shows the potential risks that employers run when violating these rules. To minimize these exposures, employers of H-2A or other workers employed under special visa programs should carefully manage these programs to ensure their ability to prove compliance with all requirements of the visa program, the FLSA, and other relevant laws. These programs should include careful and ongoing due diligence to maintain a current understanding of all applicable requirements for the legal employment of these workers and the establishment of systemized processes and documentation both to support compliance and to preserve evidence necessary to prove this compliance against possible investigations or charges. When conducting and planning these activities, businesses should keep in mind that employers of foreign workers generally are accountable for meeting all human resources and related laws generally applicale to employees as well as additional visa and other eligibility to work credentialing, documentation, pay and other requirements.

About Ms. Stamer

Recognized in International Who’s Who, and Board Certified in Labor & Employment Law, attorney and management consultant Cynthia Marcotte Stamer has 25 years experience advising and representing private and public employers, staffing and manpower companies, employer and union plan sponsors, employee benefit plans, associations, their fiduciaries, administrators, and vendors, governmental leaders and others on wag hour and other workforce, employee benefits, compensation, internal controls and compliance, and related performance and risk management concerns. Her experience includes extensive work advising domestic and international businesses about employment, recruitment, compensation and management of workers and other human resources, employee benefit and other reengineering, performance management, risk management, compliance, public policy and other concerns and opportunities.

A primary drafter of the Bolivian Social Security privatization law with extensive domestic and international workforce, regulatory and public policy experience, Ms. Stamer has extensive experience advising U.S. and foreign businesses about the employment of foreign workers in the U.S., as well as other cross-border employment and other workforce management and compliance concerns. In addition, Ms. Stamer also has worked extensively domestically and internationally on public policy and regulatory advocacy on human resources and other workforce, health and other employee benefits, insurance, tax, compliance and other matters. She has represented clients in dealings with the US Congress, Departments of Labor, Treasury, Health & Human Services, Federal Trade Commission, HUD and Justice; state legislatures attorneys general, insurance, labor, worker’s compensation, and other state and local agencies and regulators; and various foreign governments and their officials.

Ms. Stamer also shares her experience through leadership involvement in a number of human resources and related management and professional organizations An Editorial Advisory Board Member and author for the Institute of Human Resources (IHR/HR.com), Insurance Thought Leaders, Employee Benefit News, and various other highly regarded publications, Ms. Stamer also presently serves as Co-Chair of the ABA RPTE Section Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Committee, an ABA Joint Committee on Employee Benefits Representative and in various other professional and civic leadership. She previously has served on the Dallas World Affairs Council Board, and has been active in cross border policy, trade and other activities of the US-Mexico Chamber of Commerce and a variety of other organizations.

A prolific author and popular speaker, Ms. Stamer regularly authors materials and conducts workshops and professional, management and other training on employee benefits, human resources, health care, privacy and data security, technology and other compliance and management topics. Ms. Stamer has written and spoken extensively on cross-border migration, workforce, health care, pension, insurance, ethics and internal controls, public policy and other challenges businesses and governments face in connection with cross border or multinational employment or operations. An Editorial Advisory Board member and author for HR.com, Insurance Thought Leaders and many other publications, Ms. Stamer also regularly serves on the faculty and planning committees of a multitude of symposium and other educational programs.

Her publications and insights on these and other related topics appear in the Health Care Compliance Association, American Bar Association, Atlantic Information Service, Bureau of National Affairs, World At Work, SHRM, The Wall Street Journal, Government Institutes, Inc.,Business Insurance, the Dallas Morning News, HR.Com, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For more details about Ms. Stamer’s services, experience, presentations, publications, and other credentials or to inquire about arranging counseling, training or presentations or other services by Ms. Stamer, see www.CynthiaStamer.com or contact Ms. Stamer at (469) 767-8872 or via e-mail here.

Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:

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Posted by Cynthia Marcotte Stamer

DOL Announces Changes To H-2B Prevailing Wage Calculation Rules

January 20, 2011

The methodology used to calculates the prevailing wages the Labor Department requires employer to pay H-2B workers and United States (U.S.) workers recruited in connection with a temporary labor certification for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2B status will change effective January 1, 2012. Comments on the Final Regulation published here (Final Regulations) in the January 19, 2011 Federal Register are due March 21, 2011. Employers using or contemplating using H-2B workers should take into account these new rules when budgeting and projecting workforce costs and assessing the cost-effectiveness and compliance requirements associated with these contemplated relationships.

To comply with its H-2B program obligations, an employer must pay H-2B workers hired in connection with an H-2B application a wage that will not adversely affect the wages of U.S. workers similarly employed. The Labor Department’s H-2B procedures have always provided that adverse effect is prevented by requiring H-2B employers to offer and pay at least the prevailing wage to the H-2B workers and those U.S. workers recruited in connection with the job opportunity.

The Final Regulations are issued largely in response to an August 30, 2010 court order that set aside portions of regulations governing the H-2B temporary worker program issued on December 19, 2009 at 73 Fed. Reg. 78020 (“2008 Final Rule”). On August 30, 2010, a Federal Court found that the Labor Department violated the Administrative Procedures Act when it issued the 2008 Final Regulations. See Comit[eacute] de Apoyo a los Trabajadores Agricolas (CATA) v. Solis, Civil No. 2:09-cv- 240-LP, 2010 WL 3431761 (E.D. Pa.). In that decision, the Federal District Court ordered the Labor Department to “promulgate new rules concerning the calculation of the prevailing wage rate in the H-2B program that are in compliance with the Administrative Procedure Act. The Final Regulation is issued in response to this order.

Under the Final Regulation, Labor Regulation § 655.10 generally will provide that for temporary labor certification purposes, the prevailing wage is the highest of the following:

The wage rate set forth in the CBA, if the job opportunity is covered by a CBA that was negotiated at arms’ length between the union and the employer;
The wage rate established under the DBA or SCA for the occupation in the area of intended employment if the job opportunity is in an occupation for which such a wage rate has been determined; or
The arithmetic mean of the wages of workers similarly employed in the occupation in the area of intended employment as determined by the OES. This computation will be based on the arithmetic mean wage of all workers in the occupation.

The NPC now only will consider employer provided wage surveys for purposes of determining the prevailing wage in a very limited number of circumstances where the employer is permitted to and makes a request for a prevailing wage determination in accordance with the Final Regulations.

For assistance with assessing or defending your current worker classification, wage and hour or other health care and human resources policies and controls, please contact Cynthia Marcotte Stamer at cstamer@solutionslawyer.net, 972-419-7188.

For Help With Investigations, Policy Updates Or Other Needs

If you need assistance reviewing your prevailing wage determinations under these, government contracts or other laws, or evaluating, managing or defending your organization’s existing other labor and employment, employee benefit, compensation, compliance or other practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872 .

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit and management policies and practices. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer frequently has worked, extensively on these and other workforce and performance related matters. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

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Solutions Law Press, Inc.™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested in exploring other Solutions Law Press, Inc. ™ tools, products, training and other resources here and reading some of our other Solutions Law Press, Inc.™ human resources news here.

Comments Off on DOL Announces Changes To H-2B Prevailing Wage Calculation Rules | E-Verify, Employers, Government Contractors, Human Resources, I-9, Immigration, Internal Controls, Internal Investigations, Nonresident aliens | Tagged: Employer, Employment, H-2B Visa, I-9, Immigration, International, Prevailing Wage, Visa | Permalink
Posted by Cynthia Marcotte Stamer

ICE Invites Comments On Information Required For IMAGE Program Employers

August 31, 2010

September 30, 2010 now is the deadline for employers and others wishing to comment on the information that the Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE) plans to require employers to supply when completing the “Form 73–028, IMAGE Information Request and Membership Application/ICE Mutual Agreement between Government and Employers” (IMAGE Form) required to participate in the IMAGE program originally announced by ICE in the June 11, 2010 Federal Register here. In a notice published in the August 31, 2010 Federal Register, ICE announced that it is extending the period for commenting on its proposed information collection requirements for an additional 30 days after having received no response to its June 11, 2011 request for comments. Read more here.

For Assistance or More Information

If your organization needs assistance reviewing or responding to the request for comments or otherwise designing, defending or administering I-9 or other human resources compliance concerns, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here.

Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has more than 23 years experience advising employers and others about I-9 and other labor and employment, employee benefits, compensation and other workforce compliance, risk management and defense matters. She continuously advises employers about these and other related regulatory compliance, workforce management, operational, public policy, enforcement, litigation and risk management and other concerns. Ms. Stamer also publishes, conducts client and other training, speaks and consults extensively on these and other health and managed care program concerns and practices. She regularly speaks and conducts training for the ABA, American Health Lawyers Association, Institute of Internal Auditors, and many other organizations. Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To contact Ms. Stamer or for additional information about Ms. Stamer, her experience, involvements, programs or Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here.

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If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available for review here. If you or someone else you know would like to receive future updates and notices about other upcoming Solutions Law Press events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. For important information concerning this communication click here.

Comments Off on ICE Invites Comments On Information Required For IMAGE Program Employers | Affirmative Action, E-Verify, Employers, Human Resources, I-9, Immigration | Tagged: Employer, Employment, I-9, ICE, Immigration | Permalink
Posted by Cynthia Marcotte Stamer

Labor Department Final H-2A Certification Procedures Tighten Requirements For Employment Of Temporary Agricultural Employment Of Workers

February 11, 2010

By Cynthia Marcotte Stamer

The Labor Department is tightening requirements for the employment of temporary agricultural workers under the H-2A temporary agricultural worker program. Final Labor Department Regulations governing the labor certification process and enforcement mechanisms for the H-2A temporary agricultural worker program will be published in tomorrow’s federal register. The rule will be effective March 15, 2010.

Among other things, the final rule includes stronger mechanisms for enforcement of the worker protection provisions required by the H-2A program by the Labor Department. It also contains provisions designed to ensure U.S. workers in the same occupation working for the same employer, regardless of date of hire, receive no less than the same wage as foreign workers. It creates a national electronic job registry where job orders will be posted through 50 percent of the contract period. It also prohibits cost-shifting from the employer to the worker for recruitment fees, visa fees, border crossing fees and other U.S. government mandated fees.

The H-2A nonimmigrant visa classification applies to foreign workers coming to or already in the U.S. to perform agricultural work of a temporary or seasonal nature. The U.S. Department of Homeland Security may not approve an H-2A visa petition unless the Department of Labor, through its Employment and Training Administration, certifies that there are not sufficient U.S. workers qualified and available to perform the labor involved in the petition and that the employment of the foreign worker will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers.

During fiscal year 2009, employers filed 8,150 labor certification applications requesting 103,955 H-2A workers for temporary agricultural work. The Department of Labor certified 94 percent of the applications submitted for a total of 86,014 workers.

To view a fact sheet and more information about the benefits of the new H2A Rule, see here.

For Assistance

If you would like to request a copy of the regulation or have questions about or need assistance evaluating, commenting on or responding to I-9 or other employment related immigration, employment, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, and a Council Member on the ABA Joint Committee on Employee Benefits, Ms. Stamer has more than 22 years experience advising and assisting employers, employee benefit plans and their fiduciaries, and others about these and other workforce management and compliance matters. Her work includes extensive experience advising and defending employers and others in relation to I-9, employment discrimination and other workforce hiring and management concerns domestically and internationally. She also advises, assists, trains, audits and defends employers and others regarding the federal and state Sentencing Guideline and other compliance, equal employment opportunity, privacy, leave, compensation, workplace safety, wage and hour, workforce reengineering, and other labor and employment and defends related audits, investigations and litigation, charges, audits, claims and investigations by the ICE, IRS, Department of Labor and other federal and state regulators. Ms. Stamer also speaks, writes and conducts training extensively on these and other related matters. For additional information about Ms. Stamer and her experience, see here or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Labor Department Final H-2A Certification Procedures Tighten Requirements For Employment Of Temporary Agricultural Employment Of Workers | Corporate Compliance, Human Resources, I-9, Immigration, Internal Controls | Tagged: Employer, Employment, H-2A, I-9, Immigration, International, Visas | Permalink
Posted by Cynthia Marcotte Stamer

Homeland Security Updates List of Nations Whose Nationals Are Eligible for H-2A or H-2B Visas

January 20, 2010

The Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) in conjunction with the United States Secretary of State yesterday announced the countries whose nationals are eligible to participate in the H–2A and H–2B visa program for the upcoming year. USCIS may only approve H–2A and H–2B petitions for nationals of countries included among this list of countries. USCIS published the list the Federal Register on January 19, 2010.

The countries included on the list of countries whose nationals are eligible to participate in the H–2A and H–2B visa programs for one year period beginning January 18, 2010 through January 17, 2011 include: Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Ethiopia, Guatemala, Honduras, Indonesia, Ireland, Israel, Jamaica, Japan, Lithuania, Mexico, Moldova, The Netherlands, Nicaragua, New Zealand, Norway, Peru, Philippines, Poland, Romania, Serbia, Slovakia, South Africa, South Korea, Turkey, Ukraine, United Kingdom, and Uruguay.

If you have questions about or need assistance evaluating, commenting on or responding to this invitation or other employment, compensation, employee benefit, workplace health and safety, or corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is experienced assisting employers and others to design, administer and defend I-9 and other labor and employment, compensation, employee benefits, corporate ethics and compliance and other risk management practices. She also advises, assists, trains, audits and defends employers and others regarding the federal and state Sentencing Guideline and other compliance, equal employment opportunity, privacy, leave, compensation, workplace safety, wage and hour, workforce reengineering, and other labor and employment and defends related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience, see here or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Homeland Security Updates List of Nations Whose Nationals Are Eligible for H-2A or H-2B Visas | Human Resources, I-9, Immigration, Nonresident aliens, Risk Management | Tagged: Employment, H-2A Visa, H-2B Visa, I-9, Immigration | Permalink
Posted by Cynthia Marcotte Stamer

September 8, 2009 New Deadline For Government Contractors, Subcontractors Deadline To Use E-Verify

June 9, 2009

September 8 now is the deadline for federal government contractors and subcontractors to begin using U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system to verify the eligibility of employees to work in the United States.

The Obama Administration recently delayed implementation of the final rule requiring federal contractors and subcontractors to use E-Verify to confirm the eligibility of employees to work in the U.S. The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (collectively known as the Federal Acquisitions Regulatory Councils) published an amendment in the Federal Register on June 5, 2009, postponing the applicability of the final rule until Sept. 8, 2009.

As originally published November 14, 2008, the final rule requiring that federal government contractors and subcontractors agree to electronically verify the employment eligibility of their employees went into effect January 19, 2009. However, the compliance deadline was delayed in January and again in April, 2009 by the Obama Administration. Prior to the delay granted this month, the deadline to begin using U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system was delayed to June 30, 2009.

Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting employers and others to respond to proposed legislation and regulations and addressing other leave and other labor and employment, employee benefit, compensation, and internal controls concerns. If your organization needs assistance with assessing or responding to H.R. 2450 or assistance with leave and absence management or other labor and employment, compensation or benefit concerns or regulations, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or your favorite Curran Tomko Tarski, LLP attorney. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see here.

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You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Curran Tomko Tarski LLP attorneys at here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update distributions here. Also stay abreast of emerging internal controls and compliance challenges by registering for our Corporate Compliance, Risk Management & Internal Controls distributions. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.

Comments Off on September 8, 2009 New Deadline For Government Contractors, Subcontractors Deadline To Use E-Verify | Corporate Compliance, E-Verify, Employee Benefits, Employment Agreement, Government Contractors, Human Resources, I-9, Immigration, Internal Controls, Public Policy, Risk Management | Tagged: Corporate Compliance, E-Verify, Employers, Employment, Employment Agreements, Government Contractors, Human Resources, I-9, Internal Controls, Labor | Permalink
Posted by Cynthia Marcotte Stamer

Employers Must Begin using New I-9 Form April 3, 2009; Government Contractor E-Verify Rules Take Effect May 21, 2009

April 2, 2009

U.S. employers must begin using the revised U.S. Citizenship and Immigration Services (USCIS) Employment Eligibility Verification Form known as the I-9 (Form I-9) on April 3, 2009. Meanwhile, certain federal contractors and subcontractors also must prepare to comply with impending requirements to use USCIS E-Verify when hiring employees scheduled to take effect May 21, 2009.

New Form I-9

The use of the new Form I-9 is required under an interim rule published by USCIS in December 2008. The interim rule also changes the types of acceptable identity and employment authorization documents employers can accept from new hires and prohibits employees from using expired identification documents to verify their work eligibility beginning April 3, 2009. Employers will be required to use the new Form I-9 and to secure documentation of proof of eligibility to work in accordance with the revised rules contained in the interim rule for all new hires and to reverify any employee with expiring employment authorization in accordance with the interim regulations beginning on April 3, 2009.

Employers can download a copy of the new Form I-9 at http://www.uscis.gov/files/form/I-9_IFR_02-02-09.pdf. The interim regulations are available for review at http://edocket.access.gpo.gov/2008/E8-29874.htm. USCIS presently is updating the Handbook for Employers, Instructions for Completing the Form I-9 (M-274).

The new Form I-9 replaces the June 5, 2007 edition of the Form I-9 (the Old Form I-9), which will not be valid for use after April 2, 2009. A big change in the new Form I-9 requirements is that expired documents cannot be accepted as proof of eligibility to work. All documents presented during the Form I-9 completion process now must be unexpired. The new Form I-9 and interim regulations also add and remove certain documents to the list of documents that employers can accept of proof of identity and/or eligibility to work in the U.S.

The interim rule originally was scheduled to take effect on Feb. 2, 2009. The Obama Administration extended the effective date to April 3, 2009 under a directive issued in January.

Federal Contractor E-Verify Rule Scheduled To Take Effect May 21, 2009

Certain federal contractors and subcontractors also need to prepare to comply with a new federal rule that will require them to use E-Verify to verify the employment eligibility of new hires scheduled to take effect May 21, 2009. The rule will only affect federal contractors who are awarded a new contract after May 21st that includes the Federal Acquisition Regulation (FAR) E-Verify clause. Federal contractors may NOT use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the FAR E-Verify Clause.

The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees. The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business with companies that have a legal workforce. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States.

Interested persons can review the final regulation and read frequently asked questions about this new rule on the internet at the following cites:

ü Final Regulation at http://edocket.access.gpo.gov/2008/E8-26904.htm

ü Frequently Asked Questions at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=cb2a535e0869d110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD

If you have questions or concerns about the matters discussed in this publication or other human resources, employee benefits or compensation matters, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or publication, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 270-2402 or via e-mail to Cstamer@Solutionslawyer.net. .

More Information

We hope that this information is useful to you. You can register to receive future updates and information about upcoming programs, access other publications by Ms. Stamer and other helpful resources or additional information about Ms. Stamer at CynthiaStamer.com or by contacting Ms. Stamer directly. If you or someone else you know would like to receive updates about developments on these and other human resources and employee benefits concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at CynthiaStamer.com. You also can register to participate in the distribution of these updates by registering to participate in the Solutions Law Press HR & Benefits Update Blog at https://slphrbenefitsupdate.wordpress.com.

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Posted by Cynthia Marcotte Stamer

Employers Face 8/30 Deadline To Complete & Document In-Person Inspections Of I-9 Documentation Examined Remotely During COVID-19 Emergency

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H-2B Visa 2023 Application Window Opens 1/1; New Attestation Form Required

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September 8, 2009 New Deadline For Government Contractors, Subcontractors Deadline To Use E-Verify

Employers Must Begin using New I-9 Form April 3, 2009; Government Contractor E-Verify Rules Take Effect May 21, 2009

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