E-Verify & I-9 News

Business groups are upset over the arrests this week of nearly 600 immigrant workers at a Howard Industries electrical transformer plant in Laurel, Mississippi, because government agents raided the plant even though the company last year joined the E-Verify program. Some companies believe that participation in the voluntary electronic employment eligibility verification program makes them immune to such raids by U.S. Immigration and Customs Enforcement (ICE) agents.

A careful reading of E-Verify literature on the USCIS website shows, however, that while the assumption of being less likely to be exposed to immigration raids may be true, participation in the E-Verify program does not by itself mean that a company is completely protected from being raided or audited.

One of the flaws of E-Verify is that it cannot show whether a Social Security number submitted electronically to government databases actually belongs to the employee whose work authorization is being verified. There is always a risk that ICE will conduct raids based on suspicions of widespread identity theft and fraud.

USCIS describes E-Verify as “an Internet-based system operated by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). E-Verify is currently free to employers and is available in all 50 states. E-Verify provides an automated link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers.” 

As we pointed out, the Social Security number being E-Verified my be valid, but the system cannot check whether it belongs to the person who is using it, if that person has assumed someone else’s identity. A recent U.S. Government Accountability Office (GAO) report pointed out that “E-Verify may help employers detect fraudulent documents thereby reducing such fraud, but it cannot yet fully address identity fraud issues, for example when employees present genuine documents that may be stolen.” Link to GAO Report.

This is what USCIS website actually says about the question of possible enforcement raids:

“Q : Does participation in E-Verify provide safe harbor from worksite enforcement?

 

An employer who verifies work authorization under E-Verify has established a rebuttable presumption that it has not knowingly hired an unauthorized alien. Participation in the program does not provide a ‘safe harbor’ from worksite enforcement, however.”

If company employees are arrested and charged with identity fraud, a company using E-Verify may be better able to offer a credible ‘good faith’ defense that it did everything possible to avoid violations of employment and immigration laws.  Companies should not assume, however, that E-Verify will completely protect them from all liability.

Using the right Form I-9 and E-Verify software may be helpful in catching some of the common errors made in processing new hires and can improve overall compliance, but it also does not offer a fool-proof protection against identity fraud.

Electronic Form I-9 management system from Tracker I-9™ is now integrated with E-Verify and allows employers to instantly and securely submit E-Verify information to government databases over the Internet. Tracker I-9™ is also offering employers a free E-Verify and Form I-9 HR Toolkit, which can be requested by going to the Tracker I-9™ website.

Also see our press release: Tracker I-9™ Compliance Software Will Help Federal Contractors Meet New Requirement to ‘E-Verify’ Employees’ Work Eligibility

Posted by Tracker I-9™ team.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

There has been some confusion as to whether all current and prospective Federal contractors are already required to use E-Verify to confirm that their employees are eligible to work in the U.S. President Bush’s Executive Order (Amending Executive Order 12989) dated June 9th, 2008, instructed federal agencies to require contractor participation in E-Verify. The Proposed Rule provided detailed guidance on how that requirement is to be implemented to cover Federal contractors and subcontractors. Federal departments and agencies within the Executive Branch are already enrolling with E-Verify to check the status of all new hires within the Federal workforce.

The issuance of the Executive Order and the Proposed Rule made some Federal contractors concerned that they would have to start using E-Verify immediately. The Department of Homeland Security (DHS) June 9 announcement stated that the DHS “designated E-Verify, operated by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration, as the electronic employment eligibility verification system that all Federal contractors must use as required by Executive Order 12989, as amended.” The announcement also said, however, that Agencies responsible for Federal acquisition regulations (FAR) will send a Notice of Proposed Rulemaking (NPRM) to the Federal Register soliciting public comment on proposed changes to these regulations. Comments were to be accepted for 60 days.

In response to numerous complaints from employers, including the U.S. Chamber of Commerce, as well from civil rights organizations and immigrant groups, USCIS posted a clarification on its website stating that under the Proposed Rule current and future Federal contractors are not yet required to participate in the program.

The Federal Contractors Frequently Asked Questions (FAQs) section on the USCIS website now notes that the Proposed Rule is not yet a final rule but rather a proposal that is still open for public comment. The Federal government, however, continues to encourage the use of E-Verify despite objections being raised about the program’s accuracy, protection of privacy rights, and other civil rights concerns.

Federal Contractors Frequently Asked Questions (FAQs)

 

1. As a current or prospective Federal contractor, am I required by the Executive Order or the proposed rule to enroll in E-Verify now?

Not at this time.  At this time, the E-Verify program remains a voluntary program for employers, including federal contractors.  The Executive Order instructs Federal agencies to require contractor participation in E-Verify as a term of future contracts, and the proposed rule provides detailed guidance on how that requirement is to be implemented.  However, the proposed rule is not a final rule; it is a proposal that is open for public comment at this time.  There may be substantive changes to the rule before it becomes final.  Moreover, the final rule will not be effective until 30 days after publication.  Under the proposed rule, you would only be required to enroll in E-Verify if and when you enter into a Federal contract or subcontract that requires participation in E-Verify as a term of the contract.  Although Federal Contractors are not yet required to participate in E-Verify, you are encouraged to enroll in E-Verify now to verify the employment eligibility of your new hires.

The U.S. Congress is likely to extend the E-Verify program. It has been extended twice before and it must be reauthorized in November. Its use is also likely to increase. As of this June, more than 69,000 employers nationwide relied on E-Verify to determine that their new hires are authorized to work in the United States. Employers have run more than 4 million employment verification queries so far in Fiscal Year 2008. USCIS announced that 99.5 percent of qualified employees are cleared automatically by E-Verify without need for any further action. According to a USCIS official, more than 1000 new U.S. employers sign up for E-Verify each week.

Government madates to promote the use of E-Verify are likely to have a significant impact on employers who may be planning to switch from paper I-9 forms to electronic management of employment eligibility verification.  Electronic Form I-9 management system from Tracker I-9™ is now integrated with E-Verify and allows employers to instantly and securely submit E-Verify information to government databases over the Internet. Tracker I-9 is also offering employers a free E-Verify and Form I-9 HR Toolkit, which can be requested by going to the Tracker I-9™ website.

Also see our press release: Tracker I-9™ Compliance Software Will Help Federal Contractors Meet New Requirement to ‘E-Verify’ Employees’ Work Eligibility

Posted by Tracker I-9™ team.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

U.S. Citizenship and Immigration Services (USCIS) issued a reminder to its customers  on August 18, 2008 to use the correct version of the Application for Employment Authorization (Form I-765) dated 05/27/08. The edition date appears in the lower right hand corner of the form as “Form I-765 (Rev. 05/27/08) N”.

USCIS announced that submission of an earlier version of Form I-765 may result in rejection of the application. The main purpose of the Form I-765 is to allow certain foreign nationals in the United States to request employment authorization and an Employment Authorization Document (EAD).

Customers may download the correct version of the Application for Employment Authorization Form I-765 and instructions from www.uscis.gov/i-765 or under the “Immigration Forms” tab on the USCIS website.

In April, the U.S. Department of Homeland Security  (DHS) released an interim final rule extending the period of Optional Practical Training (OPT) from 12 to 29 months for qualified F-1 non-immigrant students. The extension will be available to F-1 students with a degree in science, technology, engineering, or mathematics. To take advantage of the program, they must be employed by businesses enrolled in the E-Verify program. Other conditions also apply. See DHS Announcement

Work authorizations present a special problem for Form I-9 management systems. Very few software programs now available help employers manage the records of employees with unusual or temporary work visa authorizations. The law requires that when an employee’s work authorization expires, employers must reverify his or her employment eligibility.

The Tracker I-9™ system from ImmigrationTracker™ combines both Form I-9 employment eligibility and immigration management in one comprehensive package which generates alerts to HR staff about critical visa and I-9 authorization deadlines.

You may learn about Tracker I-9™ on our website, where you can also request a Free E-Verify and Form I-9 HR Toolkit.

Posted by Tracker I-9™ team.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

Which version of the Form I-9 should employers use for their new hires? 

USCIS made a mistake, corrected it, and posted a clarification on its website. The screenshots below shows the right version of  the Form I-9, which is now available for downloads in PDF on the USCIS website.

For a few days in June, there was a revised version of the I-9 form on USCIS.gov (June 08). The website has since been changed. However, some members had already advised clients to start using this revised form. Is the new form invalid or just not yet required?

The short answer is that if someone had used the previous version of the Form I-9 with the 6-16-2008 revision date, it is still valid.

Here is the long answer from USCIS:

Answer: There was an I-9 form on the USCIS website with a revision date of 6-5-07 that had an expiration date of 6-30-08. In mid-June 2008, a new form was posted with a revision date of 6-16-08 and an expiration date of 6-30-09. However, the content of the form did not change. Therefore, USCIS determined that the revision date did not need to be changed, however the expiration date did need to be changed. As a result, the I-9 form on USCIS.gov is the latest version of the form and it bears a revision date of 6-5-07 and an expiration date of 6-30-09. If individuals used the version of the form with the 6-16-08 revision date, it is still valid per the Verification Division of USCIS. For more information on the USCIS website go to: http://www.uscis.gov/i-9

On the same USCIS website page, you will also see the following statement:

Edition Date :
Rev. 6/5/07. No previous edition accepted.

This page also has a link for downloading Form I-9 in Spanish with the following warning from USCIS:

Note: The Spanish version of Form I-9, available below on this page, may be filled out by employers and employees in Puerto Rico ONLY. Spanish-speaking employers and employees in the 50 states and other U.S. territories may print this for their reference, but may only complete the form in English to meet employment eligibility verification requirements.

Employers can request a Free E-Verify and Form I-9 HR Toolkit from the Tracker I-9™ website.  Tracker I-9™ is the electronic Form I-9 management software with E-Verify and immigration compliance features.

Posted by Tracker I-9™ team.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

I-9 Forms can be filled out and retained on paper, but generating and processing them electronically means fewer errors. This is especially true for companies that have a large number of employees, high turnover rates, and/or multiple worksites.

Electronic I-9 systems allow for more efficient employee on-boarding, space-saving, and vastly improved compliance with employment, nondiscrimination and immigration laws. Using the reporting features of these systems, management and HR staff can be alerted to potential compliance problems.

While the employee’s original documents (such as passport, visa, driver’s license, SNN card, etc.) must still be presented in person, HR or other staff anywhere within a company can enter I-9 data directly into a secure system. Such systems have various self-audit features that help to reduce costly mistakes. They also give management a centralized view and control of the hiring process.

For many employers, some type of electronic management system is therefore essential to keep track of all the documents, deadlines, and work visa reverification requirements.

In processing the Form I-9 information, some software programs can also warn HR staff about actions that may amount to unlawful discrimination, although they can’t be a complete substitute for good knowledge of the law and good judgment. The penalties for ignoring the legal requirements of the I-9 process and for discrimination in hiring can be quite severe, even in cases of unintentional omissions and mistakes. The penalties for discrimination based on citizenship status or national origin can range from $275 to $2,200 for the first offense for each individual discriminated against; form $2,200 to $5,500 for the second offense; and for subsequent offenses, not less than $3,300 and not more than $11,000 for each affected person.

If violations occur, electronic management of the I-9 process may help employers establish “good faith” defense in the event they are charged with knowingly hiring an unauthorized foreign national.

Finally, some software programs also help employers manage the records of employees with unusual or temporary work visa authorizations. The law requires that when an employee’s work authorization expires, employers must reverify his or her employment eligibility.

The Tracker I-9™ system from ImmigrationTracker™ combines both Form I-9 employment eligibility and immigration management in one comprehensive package which generates alerts to HR staff about critical visa and I-9 authorization deadlines.

You may learn about Tracker I-9™ on our website, where you can also request a Free E-Verify and Form I-9 HR Toolkit.

Posted by Tracker I-9™ team.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

The U.S. Chamber of Commerce, representing more than three million businesses and organizations, has come out against the proposed Bush Administration rule requiring Federal contractors to participate in the E-Verify Program.  Opposition to E-Verify from business groups and organizations concerned with protecting employment and privacy rights has not slowed down, however, the U.S. employers’ reliance on the program. It seems very likely that Congress will extend E-Verify, which is set to expire in November, for at least the next five years.

In establishing E-Verify, Congress designated it from the beginning for most participants as a voluntary Internet-based program. But some new Federal regulations as well as new laws passed in a number of states have since made its use mandatory for various categories of  employees and employers.  The Bush Administration now wants to extend it on a mandatory basis to virtually all federal contractors and subcontractors. The Rule would also expand its applicability from new hires only, as is the case in the current voluntary system, to many existing employees of the contractors and subcontractors.

The Chamber of Commerce objected to the Proposed Rule as harmful to business, calling it “misguided, premature, and unwarranted.” The Chamber also concluded that the President exceeded his legal authority by seeking to make a voluntary program mandatory for U.S. employers. It conceded, however, that the Federal Government and employers have a compelling interest in seeing that every tool is made available to employers to ensure a legal workforce.

Read U.S. Chamber of Commerce Comments on the Proposed Rule, June 2008

Also Read U.S. Chamber of Commerce Statement on Proposals for Improving the Electronic Employment Verification and Worksite Enforcement System

The House of Representatives recently voted to renew E-Verify for an additional five years and wants to keep it voluntary. It also ordered studies on E-Verify error rates, their causes, and the impact and costs of erroneous non-confirmations on individuals, employers, and Federal agencies. Other E-Verify bills are pending in the Senate.

Since its inception in 1997 as the Basic Pilot/Employment Eligibility Verification Program, E-Verify has always been controversial with civil rights advocates and some business groups, while some companies, legislators and government officials see it as a useful tool for ensuring a legal workforce. The primary concern over E-Verify has been with potential discrimination against noncitizens, ethnic and racial minorities, and with errors in verifying identity and employment eligibility of employees.

The U.S. Citizenship and Immigration Services (USCIS), which administers the program,  maintains that 99.5 percent of all work-authorized employees verified through E-Verify are cleared without receiving a Tentative Non-confirmation (TNC) or having to take any type of corrective action. In a recent Congressional testimony, USCIS acting director Jonathan Scharfen acknowledged, however, that E-Verify needs safeguards to protect privacy rights and prevent misuse.

View Full Text of the House Bill

Read Congressional Testimony of USCIS Acting Director

It’s still too early to tell what the final version of any new E-Verify legislation will look like, and what will happen to the proposed rule on making E-Verify mandatory for Federal contractors. But as we reported in a earlier post, the use of E-Verify is growing in the U.S. by over 1000 employers per week.

Regardless of what shape the E-Verify legislation will take, the Tracker I-9™ team is ready to assist U.S. employers by providing a secure and reliable Form I-9 management system with E-Verify and making all the necessary software modifications to keep up with the changing laws and regulations. Attorneys on our team continue to track changes in U.S. laws and are part of the software evaluation process. We will try to keep you informed through our blog and our website about any significant E-Verify and Form I-9 changes and developments.

For more information, please read our press releases: 

Tracker I-9™ Compliance Software Will Help Federal Contractors Meet New Requirement to ‘E-Verify’ Employees’ Work Eligibility

Tracker I-9™ with E-Verify Is Now Available

Posted by Tracker I-9™ team. 

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

All things being equal, security experts prefer software that works with on-site servers rather than remote databases accessible only through the Internet. The in-house database solution, however, may not be the right choice for all users, especially for smaller firms without sufficient physical security and technical infrastructure. But even in such cases, customers don’t have to sacrifice security if they select the right software for processing their immigration cases and store their data in a manner recommended by Internet security experts.

As a general rule, an I-9, E-Verify, or immigration software company that has been in business for quite some time and is highly rated by major corporations and top immigration attorneys offers a higher level of data security and a better value for its products. For Web-based systems, the critical question to ask is whether they store client information in one large central database or provide each client with its own separate database, which is the closest to having an in-house server behind your company’s firewall but without the hassle and expense.

An analysis of the I-9, E-Verify and immigration management software market reveals that not all Web-based services are the same. Some companies commingle data in one central database to make it cheaper for them while passing on the risk to the consumer. Probably the only company that has stayed away from this practice has been ImmigrationTracker™, a leading proponent of using secure data storage practices within the immigration, Form I-9, and E-Verify software industry. (www.immigrationtracker.com) ImmigrationTracker™ is the developer of Tracker I-9™ (www.trackeri9) Form I-9 software with E-Verify and work visa management system.  Law firms and Fortune 500 US companies, which have the highest data security requirements, rely on ImmigrationTracker™ software for  Form I-9 and immigration-related data management. Other software companies have never produced such on-premise systems or are only beginning to enter the field.

Nearly all Form I-9, E-Verify and immigration software companies which host data for their clients put all sensitive information in one central database. Tracker I-9™ differs in this respect by offering a separate database for each client. In all cases, clients can access their data remotely, but the level of data security is not the same. According to Microsoft, “customers in fields such as banking or medical records management often have very strong data isolation requirements, and may not even consider an application that does not supply each tenant with its own individual database.” Law firms have equally strong requirements for data security, as do HR departments of corporations, as well as hospitals and universities employing foreign nationals on US work visas.

Using one central database is less expensive and less cumbersome for the software provider. It requires less technical oversight, less equipment, and ultimately less work. It is, however, less secure for the users, as it raises the possibility of commingling of data, loss of data, and clients receiving their competitors’ information by mistake. The single online database solution also makes it much easier for hackers or others who deliberately try to obtain sensitive information. The number of built-in protections, gatekeepers, and password-restricted areas is lower in one-database systems than in systems using separate databases.

Another important consideration in evaluating Form I-9, E-Verify and immigration management software is the archiving of information and the ease of data retrieval. One-database systems make it more difficult and less certain for clients to successfully retrieve their data backups. Users of such systems have complained of being unable in some cases to get access to information that should have been archived and of data being irretrievably lost after a short period of time.

Because of its multiple database solution, as well as other technical features and superior customer service, Tracker I-9™ clients have more secure and easier access to their sensitive information. They can also quickly move from hosted to on-premise system when business expansion justifies storage of data on an in-house server.

This article was written by Ted Lipien, editor of VISAandLAW.com, a global immigration law news website.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

In looking through E-Verify news prior to the launching of our blog, we came across some interesting statistics from a U.S. Government official on the use of the program. They tend to confirm that E-Verify is likely to have a growing and significant impact on U.S. employers.

According to Jonathan Scharfen, the U.S. Citizenship and Immigration Services (USCIS) acting director, the number of registered  E-Verify employers is growing on average over 1,000 per week. Scharfen informed Congress in June 2008 that over 69,000 employers, representing over 269,000 worksites, were signed up to use E-Verify. USCIS administers the program.

E-Verify was first made available on a voluntary basis in 1997 to employers in the five states with the largest immigrant populations: California, Florida, Illinois, New York and Texas. Originally set to expire in 2001, E-Verify has been extended twice, and is due for reauthorization by Congress by November 2008. Since 2004, it has been available to employers in all 50 states and in the U.S. territories where U.S. immigration laws apply.

Scharfen reported to Congress that since 2006, the number of employers registered has doubled in size each year. He also noted in his testimony a substantial increase in the number of states with legislation or Executive Orders that require E-Verify use for some or all employers under their jurisdiction. Arizona and Mississippi have laws requiring all employers in the state to use E-Verify; and Colorado, Georgia, Minnesota, Oklahoma, North Carolina, Rhode Island, South Carolina and Utah require some employers to use E-Verify. A directive issued last year from the U.S. Office of Management and Budget (OMB) required all Federal government agencies to sign up to use E-Verify by October 1, 2007. Last August, the Administration pledged to commence a rulemaking process to require all Federal contractors and vendors to use E-Verify and OMB recently concluded its review on this proposed rule. On June 6, the President signed Executive Order 12989 directing the Secretary of Homeland Security to designate an electronic employment eligibility verification system for Federal contractors to use. Scharfen reported that the day before his testimony the Secretary of Homeland Security had already designated E-Verify as the system Federal contractors shall use.

Additionally, in the past few months a number of DHS regulations were published that require employers to register with E-Verify before obtaining certain benefits. These include (1) a regulation enabling certain F-1 students in Optional Practical Training to apply for a 17-month extension of their employment authorization if they are employed by an E-Verify registered employer and (2) the proposed rule reforming the H-2A agricultural worker program, would allow H-2A workers who are changing employers to begin work with the new employer before the change is approved only if the new employer participates in E-Verify. The acting director of USCIS predicted that participation and usage of E-Verify will grow significantly over the next few years.

Government madates to promote the use of E-Verify are likely to have a significant impact on employers who may be planning to switch from paper I-9 forms to electronic management of employment eligibility verification.  Electronic Form I-9 management system from Tracker I-9™ is now integrated with E-Verify and allows employers to instantly and securely submit E-Verify information to government databases over the Internet. Tracker I-9 is also offering employers a free E-Verify and Form I-9 HR Toolkit, which can be requested by going to the Tracker I-9™ website.

Posted by Tracker I-9™ team.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

The Tracker I-9™ team started the E-Verify & I-9 News Blog to share with American and global employers useful information about E-Verify, Form I-9, and immigration compliance issues. We will cover such topics as online functionality of electronic I-9 and E-Verify software, Form I-9 data security, and work visa management systems. We will also post useful employment and immigration-related news from U.S. Government and other sources as frequently as we find them.

You can expect to start seeing on this blog new E-Verify and I-9 information your company management and HR department can use in evaluating corporate policies and software needs. For now, please visit our Tracker I-9™ website, www.trackeri9.com, where you can request a free Form I-9 and E-Verify HR Toolkit designed to help answer some of the questions you may have about employment and immigration management software.

Posted by Tracker I-9™ team.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.