Jan 26, 2009

Immigration Client Alert

New I-9 Form in Effect

On December 12, 2008, the Department of Homeland Security (DHS) amended its regulations governing the types of acceptable identity and employment authorization documents and receipts that employees may present to their employers for completion of the Form I-9, Employment Eligibility Verification. Under this interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9. This rule also adds a new document to the list of acceptable documents that evidence both identity and employment authorization and makes several technical corrections and updates. Employers must use the revised Form I-9 for all new hires and to re-verify any employee with expiring employment authorization beginning on February 2, 2009. The form is available on the U.S. Citizenship and Immigration Services website.

E-Verify Mandatory for Federal Contractors

Most federal contractors will be required to use the government’s “E-Verify” program as of May 21, 2009, not only for newly-hired employees, but also for everyone in the company who is working on a federal contract which is awarded, extended or renewed starting on that date. Those employers subject to the new rule will be required to enroll in E-Verify within 30 days of being awarded a federal contract. Within 90 days after enrollment, they must comply with E-Verify for all new hires. There are, however, certain exceptions to this rule. Among these are:

  1. Contracts that include only commercially available off- the-shelf (COTS) items (or minor modifications to a COTS item) and related services;
  2. Contracts under $100,000;
  3. Contracts to be performed in less than 120 days; and
  4. Contracts involving work performed exclusively outside the United States;
  5. The rule does not apply to parent or subsidiary companies which are not obligated under the federal contract.

There are also partial exemptions for state and local governments, universities and Indian tribes. For more information on E-Verify, please visit here. Please note that on December 23, 2008, the US Chamber of Commerce filed a complaint with the U.S. District Court of Maryland, Southern District, challenging DHS’s rule that requires federal contractors to enroll in E-Verify.

ESTA Authorization for Visa Waiver Program Travelers

As of January 12, 2009, eligible citizens or nationals from all Visa Waiver Program (VWP) countries must obtain approval through the Electronic System for Travel Authorization (ESTA) at least 72 hours before initiating travel to the United States. ESTA requires travelers to provide basic biographical and passport information as well as eligibility to travel to the U.S. under the VWP. A traveler must reveal any arrests or convictions, previous visa denials or communicable diseases. ESTA approval is valid for up to two years, or when a person’s passport expires, whichever first occurs. For additional information about ESTA, or to register for ESTA online, please visit here.

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