Updates On NC and Federal Immigration Law: I-9, E-Verify and Pending NC House Bill 786

by Poyner Spruill LLP

?New Form I-9

As of May 7, 2012, the old Form I-9 is obsolete and the new form must be down-loaded from www.uscis.gov/files/form/i-9.pdf?. Use of the old form is unacceptable.  If Immigration Customs and Enforcement does an inspection, using obsolete forms puts an employer at risk for fines.
The instructions for the new Form I-9 are more precise and while the form is longer, it is clearer.  The form requires more information from the employee to complete in Section 1, whereas Section 2 for the employer is fairly similar to the old Form I-9.  The Handbook for Employers, Instructions for Completing Form I-9, found at www.uscis.gov/files/form/m-274.pdf? has been updated to address the new form and should be kept handy during the I-9 process. 

E-Verify Update

As of July 1, 2013, all employers in North Carolina with 25 employees or more must enroll in E-Verify.  To remind, E-Verify is a free, online database with information retrieval from the Social Security Administration, US Department of Homeland Security and the US State Department.  E-Verify is only used by a designated employee to enter the new employee information into the system once the I-9 process is complete.  A memorandum of understanding must be entered into between the employer and the US government prior to use and access is strictly controlled to a designated employee who must undergo online tutorials.  In determining if a multi-state based employer falls within the 25 employees or more threshold, only employees in state are to be counted.   

Federal Immigration Reform: Major Points

The Border Security, Economic Opportunity and Immigration Modernization Act, approved May 21, 2013 by the Senate Judiciary Committee, is garnering bipartisan support and contains major changes to current US immigration law.  Below are some highlights of the proposed law now being considered in Congress:

  • E-Verify is going to be phased in for all employers over a 5 year period.
  • Once the vulnerable borders are found to be 90% secure through increased surveillance costing $4.5 billion, “registered provisionals” who have lived in the US since 12/31/11 with no felonies or no more than 3 misdemeanors, will be given a 13 year path to citizenship, requiring payment of back taxes and $2,000 in fines.
  • The annual quota on H-1B or “skilled” workers will be raised from 65,000 to 110,000, and can be raised as high as 180,000 based upon demand.  As under current law, existing H-1B visa holders are not counted against this quota.
  • Starting in 2015, there will be a new W visa to address the guest worker program currently in force.  An annual quota of 20,000 low-skilled workers will be able to increase up to a cap of 200,000 after five years.  The number of visas would fluctuate depending on unemployment rates, job openings, employer demand and other data.  To protect US workers, an employer would not be able to terminate the US worker either 90 days before or after hiring such guest workers, and the unemployment rate in the employer’s sector doesn't exceed 8.5 percent.  Also, the guest worker will not be “tied” to one employer, but will be able to change jobs.  Of great concern to the construction industry is an annual cap of 15,000 workers for construction jobs, as this is considered to be completely inadequate by the industry.  To address this issue, a new federal bureau will be created, the Immigration and Labor Market Research Bureau,  to present construction employment data every 3 months to adjust this cap. 

Pending NC House Bill 786: NC’s Immigration-related Legislation

This bill, whose short title is Reclaim NC Act, has passed both the House Judiciary and Finance Committees and is being discussed on the House floor this week.  It has not been passed as of June 5, 2013, but Poyner Spruill will keep you updated on its passage and modifications, if any.

Following are the provisions directly  relating to immigration law.
  • Contractors and their subcontractors entering into a contract with a county or city must use E-Verify.
  • An employer will not be penalized if it relies upon an employee’s valid restricted drivers permit or valid restricted ID as part of its obligation to submit newly hired employee information into the E-Verify system.
  • Illegal aliens may apply for and obtain a restricted drivers permit if unlawfully present in the US, as long as they agree to a criminal history check, there is no criminal history (and that check includes taking of fingerprints), the applicant submits a valid birth certificate or passport, the applicant can show that he or she has been a resident of North Carolina for at least one year with that period of residence beginning prior to April 1, 2013, and proof of financial responsibility. The restricted permit will be in a vertical format and contain a copy of the holder’s finger print.
  • Law enforcement officers may attempt to determine the immigration status of any person, who is detained, arrested or stopped for the enforcement of any other law, where “reasonable suspicion exists” that the person is unlawfully present in the US.  The officer may accept a valid NC driver’s license, NC ID card, restricted drivers permit or ID card, but not a “consular matricula”.  A consular matricula is an ID card issued by Mexican Consulates in the US to its Mexican citizens who can prove their nationality and identity.
  • A motor vehicle driven without a driver’s license, restricted drivers permit or insurance may be subject to forfeiture, with the forfeiture procedure and the protection of an innocent vehicle owner or lien holder spelled out in detail. 
  • An undocumented person will not be able to obtain a bond for any traffic offense, including driving with a revoked license and some speeding violations.

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