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Government's New I-9 Guidance and Immigration Incentives for Employers

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Government's New I-9 Guidance and Immigration Incentives for Employers

May 23, 2011

The government recently announced that it has launched a new website called I-9 Central to assist employers in completing I-9s for new hires. The handy site includes step-by-step instructions for completing the forms, samples of the documents that employers may accept, a calculator to help employers determine how long they must retain each form, information on employee rights in connection with the I-9 process, and an overview of the penalties for noncompliance. Employers may find this a helpful complement to the government's I-9 Employer Handbook.

The government also recently upped the ante in encouraging employers to use E-Verify by expanding the list of degrees in Science, Technology, Engineering or Mathematics ("STEM") eligible for an additional 17 months of F-1 Optional Practical Training ("OPT") work authorization beyond the typical 12 month period generally provided to all foreign graduates of U.S. institutions. The government's action on STEM followed President Obama's May 10 immigration address, in which he said the many talented students we train at our universities should apply in the United States the skills they have acquired here. The updated STEM Designated Degree Program List now includes Neuroscience, Mathematics, Computer Science, Business Statistics and more. The caveat, however, is that STEM degree holders must work for employers that use E-Verify in order to qualify for the additional 17 months of OPT work authorization.

Employers hiring recent foreign national graduates of U.S. institutions usually do not have to immediately sponsor them for H-1B or other work authorization. Rather, employers may complete the required I-9 employment verification form based on the new graduate's Employment Authorization Document ("EAD"), which she obtains directly from the USCIS based on OPT. OPT provides F-1 students with up to 12 months of authorized employment status to work in a capacity directly related to their majors, either during their schooling (pre-completion) or within 14 months of graduation (post-completion). In 2008, in an effort to encourage employers to use E-Verify, the Department of Homeland Security provided for a 17-month extension of post-completion OPT for students with STEM degrees if they work for an employer that uses E-Verify. This *carrot* allows employers the option of waiting a total of 29 months before having to sponsor STEM employees for H-1B visas or other work authorization. The E-Verify program is an Internet-based system established by the Department of Homeland Security (DHS), in partnership with the Social Security Administration (SSA), to verify employee eligibility to work in the United States. Employers with federal contracts or those that operate in certain states are mandated to use E-Verify. Many employers are still hesitant to move forward with E-Verify, citing expensive implementation and other concerns about pervious kinks in the verification system.

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