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Immigration Compliance and Background Screening

Background Screeners, Prospective Blanket Certifications, Background Checks and Litigation

Posted in Background Check, FTC

What do these have in common?  The fact that a federal district court judge believes that a plain reading of the Fair Credit Reporting Act (FCRA) requires background screeners obtain from an employer a certification that the person “has complied” with section 604(b)(1) each and every time before providing a background report.  Meaning no use of one-time prospective blanket certifications.   In the judge’s Memorandum and Order RE: Motion to Dismiss, he grants the employer’s motion to dismiss on the FCRA disclosure and authorization allegation, but does not agree to the same with respect to the background screening company and the 604(b)(1) allegation.

With respect to the allegation against the background screening company, the plaintiff argues that there is a violation of the FCRA because a consumer report was provided by the screener “without first obtaining a certification from M-I stating that M-I ‘has complied’ with its statutory obligations ‘with respect to the consumer report’” pursuant to 604(b)(1).  The judge agrees that in fact this could be the case and that there is no FTC guidance or case law which would allow for a background screener to rely on a one-time prospective blanket certification from employers prior to providing a consumer report under section 604(b)(1).

This is a case to follow if you are a background screening company conducting employment related background checks.  The case number is 1:14-cv-00742 and the plaintiff is Sarmad Syed.  It is pending in the U.S. District Court, Eastern District of California.

If you have any questions about your current practice, please do not hesitate to contact me and the Privacy & Consumer Regulatory practice group at Arnall Golden Gregory LLP.

Understanding the President’s Executive Action on Immigration – Free Webinar

Posted in Department of Homeland Security, E-Verify, Form I-9

I will be presenting with Equifax Workforce Solutions on this free webinar to help employers understand the President’s executive action on immigration and what it means for employers, including what it means for the Form I-9 and E-Verify.

Please click here to learn more and register.

The webinar is December 16th from 1 – 2 pm EST.

I hope you can join me.

The President and Executive Action on Immigration

Posted in Department of Homeland Security, Form I-9

Last night President Obama announced the following regarding executive action on immigration:

  • Undocumented immigrants who have been in the United States for more than 5 years, have a U.S. citizen or permanent resident child, pass a background check and pay their taxes will be eligible for relief from deportation;
  • Steps will be taken to increase resources at the border; and
  • Steps will also be taken to assist high-skilled workers, international graduates and those seeking to invest in the United States.  In a memo issued yesterday, USCIS Director Rodriguez discussed potential policies supporting U.S. High Skilled Businesses and Workers, including new policies and regulations tied to employment-based immigrant visas, reforming Optional Practical Training for international students, promoting research and development in the United States, greater transparency around the L-1B nonimmigrant visa program and increasing worker portability.

The first bullet point alone could affect approximately 4 million undocumented immigrants.  To be clear, this temporary relief is directed to parents and family unity as it requires an undocumented immigrant to meet time and familial relationship requirements in order to qualify.  If they register with the Department of Homeland Security and are found to be eligible, they will be eligible for a work permit and can then apply for a Social Security number and driver’s license.

For employers, this means that individuals who register and are granted a work permit will have greater mobilitiy in their employment choices since they will no longer be concerned about staying under the radar.  It also means that employers may face situations where employees come forward with valid documentation to correct previously presented fraudulent documents for purposes of the Form I-9 and/or they come forward and present new documents and a new identity.  Prior to taking action in these situations you should consult immigration counsel to address Form I-9 and E-Verify issues.  We are happy to assist here at Arnall Golden Gregory LLP.

For more on the President’s announcement, click here.

Tune In Tonight to Hear President Obama Speak about his Executive Authority on Immigration

Posted in Department of Homeland Security, U.S. Congress

Tonight President Obama will address the nation at 8 pm EST on his executive authority on immigration.  The major networks (NBC, ABC, and CBS) are not planning to air the President’s speech this evening.  CNBC reports, “Obama’s speech comes during sweeps week, where networks need to highlight their most popular programming.”

The President is expected to lay out the action he believes he has the authority to take with regard to individuals unlawfully present in the United States as well as to address issues around high skilled workers, border security and possibly other areas.  The President will likely talk about his “prosecutorial discretion” allowing him to defer the deportation of up to 5 million undocumented individuals.  To be clear, this is not a substitute for comprehensive immigration reform, and the President has made that clear.

Yesterday the President spoke from the Oval office about tonight’s announcement.  Listen here.

Tune in for more on this after the President’s announcement tonight.

California Employers Cannot Use Notaries to Complete the Form I-9

Posted in Form I-9

Employers often use notaries to complete the Form I-9 for their remote employees.  Notaries, when doing so, act in their capacity as an agent or representative of the company and not in their capacity as a notary public.  For employers with remote hires, this is helpful as the law requires that an employer (or their agent or representative) must visually inspect the document or documents presented to complete Section 2 of the Form I-9 to confirm that the documents relate to the employee completing the form and appear genuine.  The federal agency responsible for the Form I-9, U.S. Citizenship and Immigration Services (USCIS), states that it is acceptable to use a notary in this capacity.  But enter California.

In California, notaries are not qualified to complete a Form I-9, even in a non-notarial capacity, unless they are qualified and bonded as immigration consultants under state law.  An immigration consultant in California must be bonded and pass a background check.

According to the National Notary Association (NNA), “In August 2014, the California Secretary of State’s Notary Public & Special Filings Section clarified with the NNA that California Notaries who are not qualified and bonded as immigration consultants under the Business and Professions Code Sections 22440-22449, may not complete or make the certification on Form I-9, even in a non-notarial capacity. The Secretary’s office considers Form I-9 to be an immigration form. Any California Notary who is not an immigration consultant violates Government Code Section 8223(c).”

CFPB Publishes FCRA’s Summary of Your Rights

Posted in Background Check

Background screeners and users of background check reports provided by a background screening company (defined as a consumer reporting agency under the Fair Credit Reporting Act (FCRA)) — the wait is over!  The Consumer Financial Protection Bureau (CFPB) has finally posted on its website a full and intact version of A Summary of Your Rights Under the Fair Credit Reporting Act, in English and Spanish, as required under section 609(c)(1) of the FCRA.  For those of you who previously searched for this document on the CFPB’s website, you will recall that it was about as easy to find as a pot of gold at the end of a rainbow.

The Summary is a critical document which must be provided to, for instance, job applicants during the adverse action process — see FCRA § 604(b)(3)(A)(ii).

Whether you are a user of background check reports or the provider of background check reports, if you operate under the FCRA this is a required document under sections 604 and 606 of the FCRA.  The failure to provide this summary is the subject of litigation, particularly under section 604 which relates to pre-adverse action tied to employment (read prior posts on this).

E-Verify Record Disposal — Employers Save Your Historic E-Verify Records

Posted in E-Verify

If you are an employer who has been using E-Verify for more than 10 years, you should download the new “Historic Records Report” before the end of the year.  Why?  Because effective January 1, 2015, E-Verify transaction records more than 10 years old will be deleted from the system.   Meaning, you will no longer have access in E-Verify to cases you created prior to December 31, 2004.  E-Verify is taking this action to comply with the National Archives and Records Administration’s retention and disposal schedule.

The deadline to print this report is December 31st.   For more information see the Fact Sheet and Instructions provided by the Department of Homeland Security.

EEOC Announces a Cooperative Agreement with a Background Screening Company Regarding Pre-Employment Screening

Posted in Background Check, Equal Employment Opportunity Commission

On September 30th, the Equal Employment Opportunity Commission (EEOC) announced that it entered into a “cooperative agreement” with a background screening company regarding its implementation of revised policies and practices to ensure that its pre-employment screening complies with the Americans with Disabilities Act (ADA), the Genetic Nondiscrimination Act (GINA), and civil rights laws’ anti-retaliation provisions.  Janet Elizondo, director of the EEOC’s Dallas District Office, stated, “Increasing employment opportunities through forward-thinking hiring and recruitment models is what both the EEOC and businesses should support.  In doing so, it is important for the EEOC to engage not only with employers directly, but also with their business partners who play an important role in facilitating connections between jobs and jobseekers.”

Note the last part of Elizondo’s statement, “it is important for the EEOC to engage not only with employer directly, but also with their business partners who play an important role in facilitating connections between jobs and jobseekers.”  According to the EEOC’s press release, the agreement with the EEOC acknowledges the company’s “…proactive changes to screening policies and practices, employee training guidelines and website information, to ensure compliance with the ADA and GINA with regard to applicants. It has assured that a job applicant’s medical history and any civil rights, personal injury, or workers compensation claims made by an applicant against his or her prior and present employers are not inquired into and will not be disseminated to prospective employers.”  The Houston based company works with job applicants as an “employment agency”, according to their website, as well as a pre-employment screening company.

USCIS Announces New Form I-9 Desktop Widget

Posted in Form I-9

U.S. Citizenship and Immigration Services (USCIS) announced the release of a new downloadable Form I-9 Desktop Widget that allows employers to automatically launch the Form I-9 from their desktop. Seemed like a good idea, until I tested it.  I downloaded the widget to my desktop, but when I clicked on it I was directed to the I-9 Employment Eligibility Verification webpage, where I had to click on more time to access the Form I-9.

I would be curious to know if others experience the same thing and their thoughts about this new tool.  From a HR perspective, I could simply save the webpage in my Outlook Favorites rather than cluttering my desktop with another shortcut.  But perhaps others feel differently about the new widget.


Colorado Employers – Revised Mandatory Affirmation of Legal Work Status Form

Posted in State Immigration Laws

The Employment Verification Law (C.R.S. § 8-2-122) requires both public and private employers in Colorado to complete the Affirmation of Legal Work Status form within 20 calendar days after hiring an employee.  The revised form, with a date of 09/01/14, must be used for new hires after October 1, 2014.   The employer, not the employee, is responsible for completing and maintaining the form.  The form must be retained for the duration of the employee’s employment.

The Affirmation of Legal Work Status form is separate from employers’ requirement under the Immigration Reform and Control Act (IRCA) to complete the Employment Eligibility Verification form — the Form I-9.  The latter form must be completed within three business days of hire.   The retention requirements are also different in that the Form I-9 must be maintained for three years after date of hire or one year after termination, whichever is later.

To learn more about the Colorado law, click here.