Effective February 2, 2009, a U.S. Citizenship and Immigration Services’ (USCIS) Interim Rule requires that all documents presented during the I-9 verification process be unexpired and that that employers begin using a new I-9 Form for all persons hired, and to perform any required reverification of employment authorization for current employees or for rehired employees.

The revision to the I-9 included changes to the List A and C documents, as well as adding a “noncitizen national of the United States” box to the employee’s attestation block to section 1 of the form. The I-9 Form itself was revised and published in the Federal Register as part of the rulemaking. The revision to the I-9 included changes to the List A and C documents, as well as adding a “noncitizen national of the United States” box to the employee’s attestation block to section 1 of the form.

The Interim Rule also updated the I-9 Lists A and C by deleting some documents and adding others. The three expired and out-of-issue documents deleted from List A are: Form I-688, Temporary Resident Card; Form I-688A, Employment Authorization Card; and Form I-688B, Employment Authorization Card.

Two documents were added to List A: The temporary I-551 printed notation on a machine-readable immigrant visa in addition to the foreign passport with a temporary I-551 stamp and a passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

The Interim Rule also added the computer-generated Form I-94A to List A, to accompany the familiar Form I-9 that nonimmigrants continue to use for admission at U.S. ports of entry and preclearance offices. While the Interim Rule did not add the Passport Card, to the regulation, it did add that document to the U.S. Passport listed in block on List A found on the Form I-9 revision it published.

The USCIS also issued new reverification instructions requiring that when an employee must be reverified because his or her employment authorization has expired, employers should ensure that they use the revised Form I-9 with its new List of Acceptable Documents.

The USCIS has informed the public that the amended I-9 Form and the revisions to the Handbook for Employer will soon be available in order that the new rules may be followed in a timely manner.

MILLER LAW OFFICES' FAR E-VERIFY GUIDE

With the publication of the FAR E-Verify final rule requiring that federal contractors and certain subcontractors use the E-Verify system for both new employees and existing employees assigned to federal contracts, an estimated 3.8 million persons’ I-9 data will be processed electronically beginning January 15, 2009.

The rule applies to solicitations issued and contracts awarded after the effective date of the final rule on January 15, 2009. All employers, including federal contractors, may enroll in E-Verify at any time without waiting for the effective date. Under the final rule, employers are required to enroll in E-Verify if and when they are awarded a federal contract or subcontract that requires participation in E-Verify as a term of the contract.

The rule requires the insertion of the E-Verify clause into applicable federal contracts, committing government contractors to use E-Verify for their new hires and all employees (existing and new) assigned to a given federal contract.

The rule requires the insertion of the E-Verify clause for prime federal contracts with a period of performance longer than 120 days and a value above the simplified
acquisition threshold ($100,000). The rule only covers subcontractors if a prime contract includes the clause. For subcontracts that flow from those prime contracts,
the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000. The rule exempts contracts that include only commercially available off-the-shelf (COTS) items (or minor modifications to a COTS item) and related services; contracts of less than the simplified acquisition threshold ($100,000); contracts less than 120 days; and contracts where all work is performed outside the United States.

Those employees who normally perform support work, such as indirect or overhead functions, and do not perform any substantial duties applicable to the contract, are excluded from coverage.

FAR E-VERIFY PROCEDURES

A federal contractor must E-Verify their new hires and the employees who are assigned to the contract, and may elect to also E-Verify the entire workforce.
If your company has already enrolled in E-Verify you will need to update your company profile through the Maintain Company page. Once your organization is also
updated as a federal contractor, all E-Verify users will need to take a federal contractor tutorial that explains the new policies and features that are unique to federal
contractors.

Select federal contractor from the drop-down box. Once you have indicated that you are a federal contractor, the system will then prompt you to identify the federal
contractor category (e.g., institutions of higher education; state and local governments and governments of federally recognized Indian tribes; and certain sureties) that best describes your organization along with what groups of your current employees you plan to verify (i.e., current employees assigned to the federal contract or your entire workforce). After enrollment, CIS will review your information and activate your account. After the account is activated, you will receive an E-mail with your login instructions, user ID, and password.

As a federal contractor participant in E-Verify, you are required to use E-Verify for all new employees, following completion of the Form I-9 verification, and for all
existing employees who are classified as “employees assigned to the contract.”

Employees that your company has already verified through E-Verify should not be re-verified. The fact that a previous employer has successfully used E-Verify for your new employee does not exempt you from your E-Verify obligation for that employee.

Those employees who have an active federal agency HSPD-12 credential or who have been granted and hold an active U.S. Government security clearance for access to confidential, secret, or top secret information do not need to be verified.

Only those employers that win a contract or subcontract that includes the E-Verify clause may run existing employees through E-Verify.

FAR Deadlines

When a contractor wins the bid on a federal contract that contains the FAR E-Verify clause, the contractor and any covered subcontractors on the project are
required to enroll in the E-Verify program within 30 calendar days of the contract or subcontract award date.

The FAR E-Verify rule also applies to indefinite-delivery/indefinite-quantity contracts modified after the January 15, 2009 effective date of the rule. The FAR rule provides that if the remaining period of performance extends at least six months after the final rule effective date, and the amount of work or number of orders expected under the remaining performance period is substantial, then the contract should be modified to include the clause.
If the employer has not yet enrolled in E-Verify, then the company has 30 days from the date of contract award to enroll and 90 days from the date of enrollment to initiate verification queries for employees already on the staff who will be working on the contract.

After the 90-day phase-in period, the contractor will be required make the E-Verify inquiry for the newly hired employee within 3 business days after their start date.
To meet this three-day requirement, employers may initiate verification of a newly hired employee before their start date if the employee has accepted the job offer and filled out the Form I-9. The pre-screening of job applicants is not allowed; the system may be used for new hires only after the employee has been offered the job and has accepted. The contractor must continue to use E-Verify for the life of the contract for all your new hires, whether or not they are employees assigned to the contract, unless certain exceptions apply.

If the company has been enrolled in E-Verify for more than 90 days, then the contractor is required to continue to initiate verification of newly hired employees within three business days of their start date, but the company has 90 days from the contract award date to begin using E-Verify for each employee already on the staff who are assigned to the contract.

BACK TO THE PAST: I-9 FORM RESTORED

The USCIS posted a new edition for Form I-9, Employment Eligibility Verification, dated 6/16/08, to its website. That edition has been recalled.
It was later announced that the previous edition of the form dated 6/5/2007 (expiration date June 30, 2009) would be restored to active status.

The current I-9 shows that five documents have been removed from List A of the List of Acceptable Documents:
Certificate of U.S. Citizenship (Form N-560 or N-561)
Certificate of Naturalization (Form N-550 or N-570)
Alien Registration Receipt Card (I-151)
Unexpired Reentry Permit (Form I-327)
Unexpired Refugee Travel Document (Form I-571)

One document was added to List A of the List of Acceptable Documents:Unexpired Employment Authorization Document (I-766)
All Employment Authorization Documents with photographs have been consolidated as one item on List A: I-688, I-688A, I-688B, I-766

Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number in Section 1 of the Form I-9, unless he or she is employed by an employer who participates in E-Verify. E-Verify employers must only accept List B documents with a photo.

Executive Order Directs Agencies to make E-Verify Mandatory for Government Contractors

President Bush issued an executive order on June 6, 2008, requiring that Federal Agencies require all federal contractors to use the E-Verify electronic verification system to ensure their workers can legally work in the United States. The effect of the Executive Order is discussed in a USCIS FAQ which is accessed through our
Links Page.

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR)to require government contractors and subcontractors to join E-Verify. The councils estimate that in the initial fiscal year the rule is expected to be effective (2009) that there will be 168, 324 contractors and subcontractors that will be required to verify their entire workforce, including US citizens, not just new hires. The rule would require approximately 3.8 million employees to be verified through the electronic system. 73 Federal Register 33377 (June 12, 2008).

New Optional Practical Training Rules

The Optional Practical Training (OPT) program allows F-1 international students who are degree candidates to apply for up to 12 months of employment authorization.

Students who have received one year or more of full-time curricular practical training or two years of part-time curricular training are ineligible for post-completion OPT.1 The student must apply for the Designated School Official recommendation, apply for, and receive a CIS Employment Authorization Document (EAD), Form I-766, before beginning employment. The student may not begin OPT until the date indicated on his or her EAD. The EAD processing by the CIS is usually taking at least 90 days, so advance planning and timely execution are necessary to allow the student to meet employment opportunities without delay.

On April 8, 2008, the Department of Homeland Security published an interim final rule which changed OPT rules to provide for a cap gap extension for students
sponsored for H-1B employment, extended OPT for STEM program students and changed the timing for the application process for OPT for all students. The interim final rule provides new reporting requirements for students, foreign student officers and employers who participate in the applicable programs. 2
F-1 Students may now apply for post-completion OPT no more than 90 days before their program end date and up to 60 days after their program end date. The I-765
application for an Employment Authorization Document must be properly filed with the appropriate CIS service center within 30 days of the date the students DSO
recommends OPT in SEVIS. The student should request the DSO to recommend post-completion OPT within 30 days of the date the student expects the application to
arrive at the USCIS Service Center. If the OPT recommendation in SEVIS is dated more than 30 days prior to the receipt date, the CIS has advised that the application may be denied.3

The requested end date for post-completion OPT cannot be more than 12 months after the requested start date. The end date may be sooner if the student has less

than 12 months of OPT left at the current degree level or the student wishes to retain a period of OPT for pre-or post-completion OPT for another degree at the same
academic level.4

The interim final rule also established a limit on the number of days students in a period of post-completion OPT can be unemployed and still maintain F-1 status.5 For students on regular post-completion OPT or an automatic extension due to the cap gap provisions, the limit is 90 days, including those students with a cap gap extension. Students with an approved STEM OPT extension will receive another 30 days of unemployment time for a total of 120 days over the entire period of post-completion OPT.

Cap gap extension

Under the April 8, 2008 interim final rule6, a cap gap extension has been created. It represents the period in which an eligible F-1 student’s status is automatically
extended to bridge the gap between the end of F-1 status and start of H-1B status. If the student is in a period of authorized post-completion OPT on or after the
date the student becomes eligible for the extension, the students post-completion OPT is also automatically extended.

OPT STEM Extensions

DHS now allows a 17 month extension of optional practical training from 12 to 29 months for F-1 students who major in specified science, technology, engineering and mathematics (STEM) SEVIS authorized programs.7 This regulatory change affected in-status F-1 students enrolled on a full-time basis for at least one full academic year in a college, university, conservatory, or seminary who are eligible for 12 months of optional practical training (OPT) to work for an U.S. employer in a job directly related to the student’s major area of study, provided the accepted employment is accepted with employers enrolled and considered by the CIS to be in good standing in the E-Verify program.

A student with an expired EAD may continue to be employed while a STEM OPT extension is pending based on the automatic extension of the students work
authorization for up to 180 days.8 The interim final rule requires F-1 students with an approved OPT extension to report and periodically verify changes in the student’s name or address and changes in the employer’s name or address. Under the terms of the rule, employers of the F–1 students with these OPT extensions must report to the student’s designated school official (DSO) within 48 hours after the OPT student has been terminated or leaves the employment prior to the end of the OPT period.

The CIS issued a SEVP Policy Guidance 0801-01 “Updates to Post-Completion Practical Training” (April 25, 2008), which explained the new procedures to students and their academic advisors.9

F-1 students who have received a bachelors, masters, or doctoral degree on the DHS STEM Designated Degree Program List10, working for a U.S. employer in a job
directly related to the student’s major area of study are allowed to obtain an extension of their existing post- completion OPT period for up to 17 months, for a
maximum period of post-completion OPT of 29 months. The extension, however, is only available to students who are employed, or will be employed, by an employer
enrolled (and determined by USCIS to be in good standing) in the CIS E-Verify employment verification program at the time the student applies for the 17-month extension.

The student who applies for the extension must agree to report to a DSO at his or her school the following: Changes to the students name, the students residential and mailing address, the students employer, and the address of the students employer. The student must also report to a DSO every six months from the date the OPT
extension starts to verify this information. In addition, the employer of a student under extended OPT must report to the students school DSO within 48 hours after the student leaves employment.

The employee is considered to have worker departed when the employer knows the student has left the employment or if the student has not reported for work for a period of 5 consecutive business days without the consent of the employer, whichever occurs earlier.11

1 8 C.F.R. §214.2(f)(11).
2 73 Fed. Reg. 18944-18956 (April 8, 2008)(interim final rule).
3 2008 OPT Guidance §5.3.
4 2008 OPT Guidance §6.2.
5 2008 OPT Guidance §4.9.
6 73 Fed. Reg. 18944-18956 (April 8, 2008)(interim final rule).
7 Id.
8 2008 OPT Guidance §8.4.2.
9 2008 OPT Guidance.
10The STEM Designated Degree Program List is based on the Classification of Instructional Programs(CIP) developed by the U.S. Department of Educations National Center for Education Statistics (NCES). See Classification of Instructional Programs--2000: (NCES 2002- 165) U.S. Department of Education, National Center for Education Statistics. Washington, DC: U.S. Government Printing Office. This publication may be found at http://nces.ed.gov/pubs2002/2002165--2.pdf. The approved list is available on SEVPs Web site at http:// www.ice.gov/sevis. DHS will announce any future changes to the list on this Web site.
11 Interim Rule at 18955-18956.

Immigration by Torchlight is an immigration law news and commentary blog by Los Angeles attorney Charles Miller of the Miller Law Offices.Click here for archives.