Immigration Compliance In 2009 – The Theme Is Change

New I-9 Form, E-Verify And New H-1B Petition Filing Period Top The List

2009 clearly appears to be a year of change, and employers will need to be especially mindful of immigration compliance changes, including a new I-9 form and the new regulation requiring federal contractors to use E-Verify (which are summarized below). In addition, the filing deadline for new H-1B petitions is approaching.

New I-9 Form
Employers will be required to begin using a new Employment Eligibility Verification Form (Form I-9) on February 2, 2009. The new Form I-9 will be the only version of the form employers can use to satisfy the Employment Eligibility Verification process. The new form and instructions can be found at www.uscis.gov/i-9.

Federal Contractor E-Verify
The Department of Homeland Security (DHS) recently announced that the implementation of the regulation requiring certain federal contractors to use E-Verify will be postponed from January 15 to February 20, 2009. E-Verify is the Internet-based system operated by DHS in cooperation with the Social Security Administration that allows participating employers to electronically verify the employment authorization of newly-hired employees. The final regulation requires certain federal contractors to use E-Verify for new hires and to reverify existing employees working on covered contracts.

The announcement comes amidst a legal challenge to the validity of the regulation. In December, a coalition of business groups filed a lawsuit alleging that the federal government lacked the authority to issue the regulation because the Congressional legislation authorizing E-Verify makes clear that participation in the system is voluntary. The delay in implementation provides both sides in the lawsuit an opportunity to make their initial case before a judge and, potentially, time for the new Obama Administration to reconsider the regulation.

New H-1B Petitions
The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) begins on March 31, 2009. Persons currently employed as F-1 students or J-1 trainees and persons outside of the U.S. commonly require new, cap-subject H-1Bs. March 31 is the initial filing date for petitions seeking H-1B status with an effective date of October 1, 2009. Due to the annual numerical limitations, it is important that employers file all new H-1B petitions on March 31.

Note: This article was published in the January/February 2009 issue of The Employment Law Authority.