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Immigration Compliance and Background Screening

Background Screening Companies Take Note

By Montserrat Miller on Posted in Background Check

The Federal Trade Commission (FTC) recently announced that it is issuing Warning Letters to certain companies who may not be complying with the Fair Credit Reporting Act (FCRA).   The Warning Letters stem from FTC non-attorney staff calling a company inquiring about their products and services in order to test their FCRA compliance. The FTC’s press release reads, in part:

FTC Warns Data Broker Operations of Possible Privacy Violations

The Federal Trade Commission sent letters to ten data broker companies warning that their practices could violate the Fair Credit Reporting Act (FCRA) after a test-shopping operation by the FTC indicated the companies were willing to sell consumer information without abiding by FCRA requirements.

……

The ten companies receiving the warning letters from the FTC include:

 ***************

Don’t be one of those companies.  With respect to background checks for employment screening purposes, if you assemble or evaluate information on consumers and provide it to employers so that they can screen or evaluate employees, then you are a consumer reporting agency (CRA) that is required to comply with the FCRA.  This is true even if you obtain this information from criminal background checks or other public records.

The Warning Letter to Crimcheck.com can be found by clicking here. 

FTC Blog Posting can be found by clicking here.

FTC Press Release can be found by clicking here.

Minnesota Employers — Watch a Ban the Box Measure

By Montserrat Miller on Posted in Background Check

The Minnesota Senate passed SF 523, which if passed by both chambers would be effective January 1, 2014 and would mean that Minnesota has a “ban the box” initiative in effect.  Which further means that a private employer couldn’t ask about an applicant’s criminal history on the job application (i.e., have you been arrested or convicted of a crime?).  Below is the pertinent section of the Senate bill.  The bill is now pending in the House.  For a history of the legislation in the Minnesota State Legislature as well as to see who the bill’s authors are, click here.

364.021 PUBLIC AND PRIVATE EMPLOYMENT; CONSIDERATION OF CRIMINAL RECORDS.
(a) A public or private employer may not inquire into or consider the criminal record or criminal history of an applicant for public employment until the applicant has been selected for an interview by the employer or, if there is not an interview, before a conditional offer of employment is made to the applicant.

Comprehensive Immigration Reform Legislation – Senate Style

By Montserrat Miller on Posted in E-Verify, Form I-9, U.S. Congress

It’s finally here.  The Gang of 8 introduced a comphrehensive immigration reform bill this week, the “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744).  Here are some key items to note:

  • The bill is controversial and for the most part, everyone seems to be complaining about it. 
  • The Senate Judiciary Committee will hold hearings on the bill tomorrow and Monday.
  • The Senate Judiciary Committee expects to hold a mark-up of the legislation in May, and assuming it is voted out of Committee favorably, it could see floor action in June.
  • The House of Representatives may/may not introduce its own measure as they are certainly work on their own measure.
  • The bill covers the following major areas: Border Security, Legalization, Interior Enforcement, Reforms to Non immigrant Temporary Visa Programs).

As an employer I would be reading many sections but one I will highlight here includes the interior enforcement provisions and the section entitled “Employment Verification System”.  I”m looking at the fact that the legislation mandates use of E-Verify by employers over a period of time.  Good news is that it pre-empts state or local laws, ordinances, policies or rules relating to the “hiring, continued employment, or status verification for employment eligibility” of undocumented individuals.  However, it does allow a state or locality to continue to exercise its authority over business licensing and similar laws as a penalty for failure to use E-Verify.  Which means that if this bill becomes law, your business license will be tied to your use of E-Verify.

Use of E-Verify, or the Employment Verification System as the bill calls it, will be rolled out as follows:

  • Employers in critical infrastructure — one year after publishing of the regulations to implement the relevant section in the law, the government will be able to mandate use by such employers;
  • Employers with 5,000+ employees must participate two years after the publishing of regulations;
  • Employers with 500+ employees must participate three years after the publishing of regulations; and,
  • All other employers must participate within four years after the publishing of regulations.

In a twist, the E-Verify mandate covers use by employers of the system for new hires as well as current employees with temporary work authorization which expires.  The latter would be a new requirement as presently E-Verify is only for new hires and in limited circumstances, such as for federal contractors only, it applies to existing employees.

This is a massive bill — 844 pages to be exact — and therefore stay tuned as I review other sections and share those with you.  For now remain calm and carry on.

I-94 Automation and What it Means for Employers

By Montserrat Miller on Posted in Form I-9

I have previously written that Customs and Border Protection (CBP) is chomping at the bit to automate the I-94 process. Well, they’ve done it.  A notice in the Federal Register last week announced an interim final rule (IFR), which will be effective April 26, 2013.  The IFR, “Definition of Form I-94 to Include Electronic Format” is the first step in the automation process, with the end game being the elimination of the paper I-94 card foreign nationals receive when they seek admission to the United States.  

Who does this IFR apply to and why should you care as an employer? 

  • Putting aside foreign travellers coming to the United States to visit one of our great national parks, this will impact temporary foreign workers coming to the United States in H-1B, O-1, L-1, etc. status if they arrive  by air or sea. 
  • The I-94 card is used for a variety of purposes, including completing the Employment Eligibility Verification form (Form I-9), applying for a driver’s license with DMV and other situations in which a foreign national is seeking a government benefit.

What will happen?

  • When a foreign traveler enters the United States they will no longer receive a paper I-94 card if entering by air or sea.  Instead they will be directed to a website — www.cbp.gov/I94 — which is as of today’s date not yet operational.  This website will be where they will be able to print out an electronic Form I-94.
  • The above referenced electronic Form I-94, according to the IFR, is the “functional equivalent” of the paper I-94 card.

As an employer what can you expect with I-94 automation?

For Form I-9 and employment purposes, the electronic Form I-94 would be used for purposes of completing List A of the Form I-9.  Therefore, an H-1B worker would typically present a foreign passport and a small, white paper I-94 card.  Due to automation, that same H-1B worker will no longer have a small white I-94 card affixed to their passport but will instead have a computer generated printout of their I-94 card.  The printout, as I stated earlier and according to CPB, is the “functional equivalent” of the paper Form I-94 and can be used for purposes of the Form I-9 (see pages 18460 and 18461 of the IFR).

However, having said that, CBP isn’t completely doing away with the small, paper version of the I-94 card and so as an employer it is entirely possible that you will continue to see the small version of the I-94 card (for an example see page 60 of the M-274) as well as the computer generated printout version.  Situations in which you would see the traditional paper I-94 card as shown in the current version of the M-274 would include for those entering by land, refugees, asylees, parolees and whenever else CBP feels like issuing a paper Form I-94 at a port of entry.

So…happy I-9 completions!

New Form I-9 and M-274 Handbook for Employers

By Montserrat Miller on Posted in Form I-9, Uncategorized

Over the past week or so you’ve likely heard a lot about the new Form I-9 all employers must begin using by May 7, 2013.   Which means that starting May 8, 2013 employers must use the new Form I-9 for new hires.  If you stockpiled prior versions, recycle those because starting on May 8, 2013 employers can only use the Form I-9 with the date “03/08/13 N” in the bottom left hand corner of the form.  The “N” means prior versions not allowed.   The Form I-9 is available in Spanish as well, but only as a resource/reference for Spanish-speaking employees and the Spanish version of the Form I-9 can only be completed in Puerto Rico.  Finally, the Handbook for Employers (M-274) has been updated as well to reflect changes to the Form I-9.  Employers should have on hand, as a resource for those completing the Form I-9, a copy of the revised Handbook.

You can read more about this and free Form I-9 training sessions provided by U.S. Citizenship and Immigration Services in E-Verify Connection.

Have a great day!

U.S. Citizenship and Immigration Services Issues a New Form I-9

By Montserrat Miller on Posted in Form I-9

The revised Employment Eligibility Verification form (Form I-9) is two pages in length and includes new data fields such as foreign passport and country of issuance information, telephone number and email address.  The Immigration and Nationality Act requires a Form I-9 be completed for all new hires establishing the employee’s identity and work authorization in the United States.

Employers have 60 days to switch to the new form – by May 7, 2013. Use of an outdated Form I-9 is a violation of the immigration laws.

Click here for the USCIS Press Release and click here for the new Form I-9.

The New Form I-9 is Here

By Montserrat Miller on Posted in Form I-9

In a Federal Register announcement today, U.S. Citizenship and Immigration Services announced that a new Employment Eligibility Verification form (Form I-9) will be available shortly.  The revised Form I-9 will be two pages in length and will include new data fields such as an employee’s foreign passport information and telephone number and email address.  It allegedly improves upon the Form I-9′s instructions.  Employers will have 60 days from the date it is listed in the Federal Register to begin using the new Form I-9 and prior versions will not be acceptable.

Stay tuned for more information!

Limits on the Use of Credit Reports for Employment Screening

By Montserrat Miller on Posted in Credit Reports, U.S. Congress

Representative Steve Cohen, a Democrat from Tennessee, has introduced H.R. 645 in the House of Representatives.  The legislation would amend the Fair Credit Reporting Act (FCRA) to prohibit employers from using credit reports in the hiring process as well as prohibit the use of credit reports for the purpose of making adverse employment decisions.  The only exceptions to this would be for jobs which require a security clearance, are with state or local government, or for certain individuals working in the financial industry (i.e., supervisory, managerial, professional, or executive positions).  The legislation is short sighted and employers should be concerned about it as checking a prospective employee’s credit history as part of a background check is relevant to determine the possibility of risk to the financial health of a business or its customers.  Rep. Cohen has introduced this legislation in multiple Congresses and the legislation continues to miss the mark as generally employers only use credit reports in situations where they feel that someone’s credit history is relevant to the position in question. If this legislation passes, it means employers would not be able to consider one’s credit history as part of a background check by a background screening company for lawyers, cashiers, pharmacists, NBA referees, executives in non-financial institutions, jewelers, academic financial aid offices, Human Resources employees, procurement employees and so on. 

Check out the bill and see if your representative is a co-sponsor of the bill as so far the legislation has 29 co-sponsors.  The bill, the Equal Employment for All Act is pending in the House Financial Services Committee.  You can contact your member of Congress to share your concerns about the legislation by calling the Capitol Hill switchboard at 202-224-3121 and asking to be directed to your members office.

New Jersey Ban the Box and Impact on Job Applications and Background Checks

By Montserrat Miller on Posted in Background Check

Legislation has been introduced in New Jersey which will place restrictions on employers use of criminal history information when screening job applicants.  Similar to an ordinance that was recently enacted in Newark, New Jersey, the Opportunity to Compete Act (S. 2586/A. 3837) goes beyond a simple ”ban the box” legislative effort.  Ban the box measures are those which seek to remove from the job application the question regarding whether one has been arrested or convicted of a crime.   As the bill’s title states, the legislation “establishes certain employment rights for persons with criminal histories” and some of those include the following:

  • An employer would not be able to consider one’s criminal history pre-application or ask about such on the job application. Such could only be considered after a conditional offer of employment has been made.
  • With the exception of certain crimes such as murder, arson or a sex offense, an employer would only be able to consider convictions dating back 10 years.
  • If an employer makes an adverse employment decision based on an applicant’s criminal history, the applicant must be provided a package which includes a copy of the results of the criminal report, a completed copy of the Applicant Criminal Record Consideration form and a copy of the Notice of Rights.  Applicants would then have 10 business days to provide evidence to the employer related to the accuracy and relevance of the criminal history inquiry.  If an employer maintains their decision to not hire the individual after this stage, they must complete another section of the Applicant Criminal Record Consideration Form and provide it to the job applicant within 45 days.
  • Civil fines for failure to comply with the provisions of the bill range from $500 to $7,500 depending upon an employers size and history of previous violations.

These are highlights of the bill.  If you would like to receive a copy of the legislation since it is not yet available online please email me at montserrat.miller@agg.com. The legislation also includes a copy of the Applicant Criminal Record Consideration form, which is similar if not identical to the form which must be used in Newark.  Note that Newark’s ordinance is broader in that it covers job advertisements and housing.   Note that these  steps would be in addition to requirements under the Fair Credit Reporting Act with respect to the use of consumer reports and in conjunction with the EEOC’s guidance on the use of arrest and conviction records for employment screening. 

Blog Expansion

By Montserrat Miller on Posted in Uncategorized

In the coming weeks you will notice an expansion of the content of this blog to focus on additional issues of concern to employers and those addressing workforce/personnel issues.  The blog will still provide updates on immigration compliance but will expand to include privacy-related issues. For instance, you may see a posting about background checks and the use of criminal history records for employment screening or about Ban the Box initiatives which seek to remove from the job application the question about arrests or convictions.  I hope you will benefit from the expansion of this blog and I would appreciate your feedback to montserrat.miller@agg.com.  In case you are wondering if Montserrat is a male or female name, click here.