Alien Card Not Renewed-Now What?
njjel
1,235 Posts
An ee of 10 years has not been able to get his alien registration card renewed (he has appealed and lost). Are we liable if we continue to employ him? (His original card was valid and not expired.) The BCIS says that we violate the I-9 if we ask him for new documentation so what do we do now? Any forum immigrations lawyers out there, please weigh in on this one. Thanks!
Comments
"Consideration of a future employment authorization expiration date in determining whether an alien is qualified for a particular job may constitute employment discrimination. You will, however, need to reverify the employee's eligibility to work when ANY expiration date on teh Form I-9 is reached. When an employee's work authorization expires, you must reverify his or her employment eligibility. You may use section 3 of the form or use a new Form I-9. The employee must present a document that shows either an extension of the employee's initial employment authorization or new work authorization. If the employee cannot provide you with proof of current work authorization, you cannot continue to employ that person. You must reverify on the Form I-9 not later than the date the employee's work authorization expires. If an investigation reveals than an employer has knowingly hired or knowingly continued to employ an unauthorized alien or has failed to comply with the employment eligibility verification requirements, the agency may take action. First offense: Not less than $250 and not more than $2000 per unauthorized alien; second offense $2000-$5000; Subsequent offenses: $3000-$10000.
That's clear enough to me personally, regardless of the comments you got from the bureaucrat.
However, my concern is as stated in my post - since the er can't go back and ask for additional documentation - what do we do now? Are we liable?
First thing to do is to re-verify the Name, birthday, and gender with the SSN through the SSA 800 telephone number. Given that there is a mis-match then you definately have an illegal foreign national. Suspend this ee immediately so that he is not working, send the ee to the SSA to straighten out the mess. If the ee does not return within 5 working days terminate the employee/employer relationship. Just sent one out last week, had another walkoff on Wednesday and we are just waiting the 3 day no call no show policy to expire and I'll send him packing.
2nd, given a match then this ee has truly let his welcome expire and the ee is now under illegal status, check with your attorney to make sure that the ee now is in the same category of all other illegals with no rights under our law. Afterwhich, I would follow the same procedure as above: suspend to stop the working relationship, send to SSA to fix the mess with the mis-match, who will send him to the INS, if the ee does not return within 5 days cancel your employer/employee relationship.
Cold hard facts of the events of the day. Our President Bush and President Fox were going to try and fix the issues. However, 9/11/01 followed by the IRAQ war and the lack of support for our actions to protect our country, things have changed.
The Department of Home Land Security is now incharge of INS and Department of Labor is in agreement. Our working world with 1.6 million illegal foreign nationals working in side our borders is about to be cleaned-up. Prepare for the "sucking noise" when they all get up and go home because they are going to be un-employed with no protections under our laws and no right to be working and drawing an income and willing paying taxes with every pay day.
What do you do now? PUNT and hope that some other team grabs the ball and runs with it-----believe me you will not want the ball!
PORK
If it is a I-551 card (the typical "green card") then it does not have to be reverified when it expires.
If it is either a I-688 or I-688A then these need to be renewed and reverified. If he can't get these renewed, then you have to cut him loose.
PORK
The I-551 DOES have an expiration date, but that is only for the card. It does not mean that their employment elibility expires also. The I-551 establishes permanent residency, and work elibility, the expiration date on the card does not mean that the status of permanent residency or work elibility expires also.
This is taken from the BCIS website in regards to "Green cards".......
"Expiration dates do not affect current employment, since employers are neither required nor permitted to re-verify the employment authorization of aliens who have presented one of these cards to satisfy I-9 requirements (this is true for conditional residents as well as permanent residents). Note: Even if unexpired, “green cards” must appear genuine and establish identity of the
cardholder"
HRsage you are living in a sea of the 1.6 million foreign nationals that are here as illegal aliens, we have a few. Our/MY efforts on this thread are designed to alert everyone and NJJEL being only one, there is a hell'va mess out there in our world of work and the cost are as you can read above or below pretty serious. Not only are the fines serious business, but you individually are accountable for your companies' actions and could be grossly negleigent for not taking some "good faith positive action to protect the company".
Let's see $5000.00 per ee X # of days (365 days X 3 years is 1095 days of personal knowledge of the illegal foreign national working in our company) is $5,475,000.00 for my HR actions based on a confession in good faith and our companies' desire to keep these good workers, for we were of the same belief that most were that National Origin and Title VII came to play in this. The courts have cleared that mess and the illegal foreign national does not have a ligitmate claim to any protection as an illegal alien. Therefore, any opportunity to rid the company of a potential risk, one would be so wise to take that action. OH, IN THE ABOVE CALCULATIONS THAT IS FOR ONE (1) EE AND I'V GOT (10) TEN, THAT WE ARE WAITING OUR GOOD FAITH EFFORT TO GET THEIR STATUS CHANGED! My calculator will not add that many oooooooooos till it hurts.
TAKE IT OR LEAVE IT BUT DON'T CHOKE ON IT, WE ARE ONLY WRITING ABOUT POSSIBILITIES.
PORK
PORK
Gene
I'm printing this right off of the federal website: [url]http://www.bcis.gov/graphics/howdoi/faqeev.htm[/url]
The terms Resident Alien Card, Permanent Resident Card, Alien Registration Receipt Card, and Form I-551 all refer to documentation issued to an alien who has been granted permanent residence in the U.S.. Once granted, this status is permanent. However, the document that an alien carries as proof of this status may expire. Starting with the “pink” version of the Resident Alien Card (the “white” version does not bear an expiration date), and including the new technology Permanent Resident Cards, these documents are valid for either two years (conditional residents) or ten years (permanent residents). When these cards expire, the alien cardholders must obtain new cards. An expired card cannot be used to satisfy Form I-9 requirements for new employment. Expiration dates do not affect current employment, since employers are neither required nor permitted to re-verify the employment authorization of aliens who have presented one of these cards to satisfy I-9 requirements (this is true for conditional residents as well as permanent residents). Note: Even if unexpired, “green cards” must appear genuine and establish identity of the cardholder.
The key sentences here for me are "Expiration dates do not affect current employment." And, "since employers are neither required nor permitted to re-verify the employment authorization of aliens who have presented one of these cards to satisfy I-9 requirements (this is true for conditional residents as well as permanent residents)." My answer to your question is no - you're not liable - you're not supposed to recertify employment authorization if one of the cards was presented at time of hire & since the employee is currently working for you - expiration doesn't affect current employment.
As a precautionary measure, I would print off the section from the website that this comes from & staple it to the form. If you are audited, you can show that you did research the issue & made a decision based on the available information.
FOLKS I SAY AGAIN THIS IS A BIG MESS AND EACH SHOULD FEEL COMFORTABLE WITH ONE'S POSITION ON THIS ISSUE FROM DAY ONE. THANKS FOR THE DIRECT QUOTE AND I'LL PRINT IT OFF AND ATTACH IT TO ME WALLET AS UNCLE SAM COMES AFTER MY NEGLECT!
THE BIGGEST CONCERN, THAT I HAVE IS WHO DO WE TRUST? FOR YOUR INFORMATION THE AMNESTY PROGRAM IN WHICH WE HAVE TWO OF OUR 10 REAL CASES, ON WHICH WE HAVE APPLIED FOR AN EXCEPTION TO THE RULES IN ORDER TO GET TO THE NEXT LEVEL. THE ole INS I-551 A & B, CALLS FOR A "REQUIREMENT TO ADVERTISE LOCALLY TO FILL A POSITION IN WHICH OUR ILLEGALS ARE ALREADY SITTING IN ORDER TO PROCESS INTO THE I-551B PHASE. IF WE ADVERTISE WE WILL HAVE US CITIZENS RESPOND AND THAT WOULD KILL THE I-551 A & B REASON FOR BEING. THE REGIONAL DIRECTOR HAS REFUSED TO GIVE THE EXCEPTION REQUESTED, AND THE AMNESTY APPLICATION IS ON HOLD WAITING THE FEDERAL DECISION. COMING DOWN THE ROAD IS THE SSA & IRS MIS-MATCH; DOL IS WAITING FOR US TO BE SQUEEZED SO HARD WE'LL DUMP THE ALIENS & CANCEL THE APPLICATIONS.
I JUST WISH WE WOULD BE ABLE TO MOVE ONE WAY OR THE OTHER! THERE ARE NOT ENOUGH HOGS IN THE WORLD TO PAY FOR THIS LITTLE MESS AND FINES.
PORK
>and lost, this must not be one of those green, oink, expired or
>unexpired permanent Residents or why would he/she be applying for and
>denied a renewal??? Why even apply or appeal an already exsisting
>legal status????
This is why I asked first what Card are we talking about that expired. It is probably not a I-551, and is most likely a I-688 or I-688A or B. Only those need to be updated.
I'm also interested in what the forum lawyers have to say about this. (I'm certainly not one, nor do I play one on T.V.) Where are those LAWYER DAWGS when you need them?
PORK we can read you loud and clear, there's no need to SHOUT.
And Mwild31 thanks for the backup. I was feeling a little alone.
PORK
"The terms Resident Alien Card, Permanent Resident Card, Alien Registration Receipt Card, and Form I-551 all refer to documentation issued to an alien who has been granted permanent residence in the U.S.. Once granted, this status is permanent. However, the document that an alien carries as proof of this status may expire."
So, their STATUS IS PERMANENT, however the DOCUMENT that demonstrates proof may expire. It would seem then, that they are not 'illegal' to work in the US as their US residency has been permanently established, it's just the paperwork has expired. Bummer if you're looking for a new job, doesn't matter if you are continuing to work for the same employer.
Have any of the attorney's responded yet?
PORK
The ones that do need to be reverified are "Employment Authorization Cards." (There may be other types of cards too.) The one I am looking at says plainly on the front "The person identified is authorized to work in the U. S. for the validity of this card." On the back it says, "This card is not evidence of U. S. citizenship or permanent residence. This document is void if altered, and may be revoked by the Immigration and Naturalization Service." It is Form I-766.
I think the consensus we reached in that earlier discussion is that we are talking about two different types of immigrant status.
I have a new question of sorts...in reviewing files of our I-9s that need reverification, I found one that is expired. The person tells me she has applied for a new one, but they told her it will take 120 days for her to get it. I asked if she has a receipt or something to verify it was in process. She's supposed to bring it to me.
I'm finding that this is a huge entangled bureaucracy that moves very slowly. We have a number of very good employees that have had to wait and wait for documentation. The question that started this thread said that someone's appeal had been denied. Can we continue to employ someone based on their word that their application for permanent residence or renewal is in process?
If I followed the letter of the law, I'd be firing some good people right now. But I feel like part of the problem is the paperwork snafu and the slow moving bureaucracy. We've had others in the past who said the same things, and with a little time, they've produced the documents. They usually come up with receipts, letters from their attorneys or other verification that things are in process.
Would an INS inspector have any leeway on something like this?
JUST KIDDING!! I just wanted to make Don and Pork jump in their seats.
We must have some type of documention stating the time frame for the renewal. Usually it's 90-120 days, but they get a NOTICE OF ACTION from the INS, stating this. If they don't have this by the time their cards expire (only the non-perm residents) then we cut them loose, because keeping them without it is a violation.
But let's see what others do to.
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Mwild, where do you find this stuff? You should change your screen name to Google.
The employee I was concerned about brought me a card that doesn't have an expiration date. It says she is authorized to work till an "indefinite"date. She brought another form that indicates permanent resident status has been approved, but it takes up to 545 days to receive documents.
The wheels move slowly.
Happy Veterans Day.
Anyone else come across a work authorization card with no expiration date??
And I may have the name, but I'm far from being a "sage". I just hope to be one day, when I'm old like Don and Pork.
I have a copy of an Notice of Action on an Application for Employment Authorization. I checked the receipt # on it on-line and found it to be approved.
I also have a copy of Notice of Action an Application to Adjust to Permanent Resident Status. On-line, the case status is pending and it says it is taking between 570 and 600 days for processing this kind of case. As I said, the wheels of bureaucracy move slowly.
The employee has worked for us 11 years, and has had to renew her work permit annually. It has always been approved.