E-Verify & I-9 News

Today, the Department of Homeland Security (DHS) will publish a supplemental final rule , which sets out employer obligations after receiving a “no-match” letter. These letters are sent by the Social Security Administration (SSA) , which is responsible for processing W-2 wage and tax statements submitted by employers on an annual basis. If the combination of name and social security number on the W-2 cannot be matched to an SSA record, the SSA will attempt to resolve it by sending these “no-match” letters to employees, employers and self-employed individuals to inform them of the discrepancy. There could be any number of benign reasons why the W-2 information may not match SSA records, including typographical mistakes, unreported name changes, or inaccurate or incomplete employer records. A no-match letter could also indicate a misrepresentation or improper use of the SSN, which has given rise to this DHS rule and its 2007 predecessor.

Implementation of the rule was previously challenged in federal court last year, leading to a suspension of no-match letters until the suit can be decided. At this time, it’s unclear what effect this new supplemental rule will have on the pending federal lawsuit, although it appears from court documents that the parties to the litigation will meet soon to discuss whether their issues have been addressed by this supplemental rule.

U.S. employers are required by law to verify employment authorization of all workers they hire on or after November 6, 1986, for employment in the United States, regardless of the workers’ immigration status.

A newly-redesigned Form I-9 Customer Guide from the United States Citizenship and Immigration Services (USCIS) offers a number of useful tips to employers seeking answers to employment eligibility verification questions and can be downloaded from the USCIS website.

Employers can also request a free E-Verify and Form I-9 HR Toolkit from the Tracker I-9™ website.

  U.S. employers are required by law to verify the employment authorization of all workers they hire on or after November 6, 1986, for employment in the United States, regardless of the workers’ immigration status.

Employers who hire or continue to employ individuals knowing that they are not authorized to be employed in the United States, or who fail to comply with employment authorization verification requirements, may face civil and, in some cases, criminal penalties.

Form I-9, Employment Eligibility Verification, must be completed for each newly hired employee, including U.S. citizens, permanent residents, and temporary foreign workers, to demonstrate the employer’s compliance with the law and the employee’s work authorization.

The employee must complete Section 1, Employee Information and Verification, of Form I-9. The employee must attest that he or she is a U.S. citizen or national, a lawful permanent resident, or is otherwise authorized to work for the employer in the United States. Each newly hired employee (an employee who has accepted the position) should complete and sign Section 1 no later than the first day of employment, regardless of his or her immigration status.

The employer is obligated, after physically examining the documents presented by the employee, to complete Section 2, Employer Review and Verification, and Section 3, Updating and Reverification (if applicable), of the I-9 form. Employers must complete and sign Section 2 of Form I-9 within 3 business days of the employee’s first day of employment. If the employment relationship will last less than 3 days, then the employer must verify work authorization and complete Section 2 no later than the first day of employment.

The employee may provide the documents they choose from those listed on the most recent Lists of Acceptable Documents, which can be found on the I-9 form.

An employer cannot tell an employee which documents to present for Form I-9 purposes.

An employee who has been issued temporary work authorization must produce proof of continued work authorization no later than the expiration date.

Employers should complete Section 3 of Form I-9 when updating and reverifying the employment authorization of an employee whose previous valid authorization has expired.

Rejecting a document that later proves to be genuine could result in a violation of the anti-discrimination provisions of immigration law, so employers should guard against being overzealous in their inspection of documents the employee presents.

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 final rule requiring federal contractors to use E-Verify was submitted to the OIRA (Office of Information and Regulatory Affairs) yesterday for clearance. There is no word yet on whether any changes have been made since it was first proposed in June 2008. There were a lot of contentious issues raised in the rule, not least of which was that it seeks to apply E-Verify to existing employees.

By executive order, the OIRA is given 90 days to review a rule for clearance.  This timeline can, however, be extended by the head of the rulemaking agency and the OMB (Office of Management and Budget) Director. Once the rule has been cleared, it will be published in the Federal Register.

Until that time arrives, the E-Verify programs remains voluntary for Federal Contractors, and in all situations, it can only be used for new (not existing) hires.

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.

As of October 1, 2008, Federal contractors and all other employers are still prohibited from checking an existing employee through E-Verify. This prohibition, however, may be lifted for employers with U.S. Government contracts if the Bush Administration’s proposal to make the use of E-Verify mandatory for Federal contractors is adopted without modifications. The Administration wants to apply this rule not only to future employees of Federal contractors but also to their current employees. As of now, however, all employers are prohibited from running existing employees through E-Verify. 

An advisory for employers posted on the USCIS website notes that:

“the proposed FAR rule is subject to comment from the public, consideration of these comments by the government, and subsequent issuance of a final rule in the Federal Register with a stated effective date.  Until the FAR rule is published in the Federal Register as a final rule, existing program rules apply to all employers using the program.  Under the proposed FAR rule, only those employers that are awarded a contract with the Federal Government that includes the contract term required by the final FAR rule may run existing employees through E-Verify, and then, only if such employees work on the covered contract.”

Because many  U.S. employers were confused by the proposed rule, the USCIS website advisory was revised to clearly state that “at this time, the E-Verify program remains a voluntary program for employers, including Federal contractors.” The Administration, however, continues to encourage all employers, including Federal contractors, to enroll in E-Verify now to verify the employment eligibility of new hires.

Employers can request a free E-Verify and Form I-9 HR Toolkit from the Tracker I-9™ 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.

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Yesterday, President Bush signed a spending bill which includes funding for the E-Verify Program until March 6, 2009. E-Verify is the federal government’s Internet-based system for U.S. employers to verify the work eligibility of new hires. Participation in the E-Verify program remains voluntary for most U.S. companies, but recent legislative and executive actions at the federal and state level have mandated its use for a growing number of businesses and other employers.

Although E-Verify has now been temporarily reauthorized, Congress will still need to deal with long term renewal of the program when it reconvenes next year.  In addition, there is still an open issue as to whether federal contractors who provide services/construction valued at more than $3,000 will need to use E-Verify as stipulated in President Bush’s executive order , signed earlier this year. This requirement will likely take shape next year after implementing regulations have been drafted.