E-Verify & I-9 News

Representatives Sam Johnson (R-TX) and Gabrielle Giffords (D-AZ) have reintroduced the New Employee Verification Act (NEVA) of 2009 (H.R. 2028) which would extend E-Verify until November 2013 while implementing a new system for verifying the work eligibility of new hires. Under the bill, the paper-based I-9 screening process would eventually be replaced with an Electronic Employee Verification System, known as EEVS.  The system would rely on the use of fewer, more secure identity documents and would automatically route verification queries for U.S. citizens through the Social Security Administration (SSA) while non-citizen information would be sent to the Department of Homeland Security (DHS) database. Employers can also choose to enroll in the Secure Electronic Employment Verification System (SEEVS), a voluntary system which employers could use as an added level of security. The SEEVS would include a standard background check and the collection of a biometric technology—such as a fingerprint or eye scan—to secure an employee’s identity, work authorization and prevent future fraudulent use of a Social Security number for the purposes of illegal employment.

More information on the new bill can be found on Congressman Johnson’s web site.

The federal government is once again delaying the effective date of the E-Verify requirement for federal contractors, which mandates E-Verify use for all new hires as well as existing employees who will directly perform work under a covered federal contract. The new effective date of the rule will be June 30, 2009. An advance notice announcing the change is available here.

The federal contractor E-Verify rule was originally scheduled to take effect on January 15, 2009, but the implementation has now been postponed three times due in part to the ongoing federal lawsuit filed by business groups as well as the transition between presidential administrations.

This third “extension” of the E-Verify federal contractor requirement will be welcome news to some employers, as it affords them additional time to develop appropriate policies and procedures and properly evaluate an electronic I-9 and E-Verify solution. Employers are encouraged to request a free E-Verify and Form I-9 HR Toolkit from Tracker I-9 to help prepare for the eventual implementation of this rule.

Nebraska has enacted a new E-Verify bill, which requires employers who receive state or local contracts and tax incentives to electronically verify the work status of all new hires. The bill also requires state and local governments to use E-Verify to ensure that any person applying for certain public benefits is in the United States legally. The new law takes effect on October 1, 2009.

Full details of the new bill can be found on the Nebraska legislature web site.

The Governor’s press release discussing the law is always available online.

Nebraska is now the eleventh state to pass legislation requiring at least some employers to use E-Verify for new hires. State-specific E-Verify laws are detailed and complex. Employers can request a free E-Verify and Form I-9 HR Toolkit from the Tracker I-9™ website to help you to manage these new requirements.

The Acting Deputy Director of the USCIS, Michael Aytes, spoke before the House Committee on Appropriations on April 2nd to discuss and promote E-Verify. Mr. Aytes addressed several criticisms of the program which were originally raised from a 2007 evaluation and also mentioned future plans to improve the system (including an electronic I-9). The entire transcript can be read here.

Mr. Aytes also acknowledged that the E-Verify program must include robust tools to detect and deter employer and employee fraud and misuse. As part of this initiative, the USCIS has established a Monitoring and Compliance Branch, which reviews E-Verify transaction data to detect and deter employer misuse, fraud and discriminatory practices, and offers compliance assistance to help employers use the system correctly. E-Verify has also instituted procedures to refer cases of non-compliance to ICE and the DOJ Office of Special Counsel for Immigration Related Unfair Employment Practices.

To ensure compliance with E-Verify and avoid claims of discrimination, employers should be careful to follow the E-Verify program rules precisely and consult with counsel on difficult situations. When using electronic software, be careful of systems which over-automate E-Verify and always ask your vendor how they handle steps which require active “human” choices.     

Latest E-Verify Usage from Mr. Aytes:

• Employers have run over 3.6 million queries thus far in FY 2009.
• 3.9 percent of queries resulted in a mismatch, or a Tentative Nonconfirmation (TNC)
• Of that 3.9 percent who were not immediately authorized, 0.4 percent of queries are those who were issued a TNC and successfully contested the case. The remaining 3.5 percent of queries that are not found work authorized by the system either did not contest the TNC, were unsuccessful in contesting or were found unauthorized to work at the secondary verification stage.

As of April 3, 2009, all U.S. employers must use a new version of the Form I-9 (dated 2-2-09), to verify the work eligibility of new hires. Here’s what you need to know about the new form:

Employers can no longer accept expired documents

Previously, the U.S. passport and all List B documents were acceptable, even if expired.

This latest version of the I-9 form includes a revised “List A” set of documents

List A documents are those that establish both a worker’s identity and employment authorization. The following documents have been added: Foreign passports containing the I-551 permanent residence notation printed on a machine-readable immigrant visa; the new U.S. Passport Card; passports and certain other documents for citizens of the Federated States of Micronesia and the Republic of the Marshall Islands.

Certain documents have been removed from List A

The following documents have been eliminated from List A: Forms I-688 (temporary resident card) and the I-688A and I-688B (Employment Authorization Cards) which are no longer issued.

Several changes were also made to Section 1 of the I-9 form

Section 1 is where the employee provides biographic information and attests to his or her employment status. In particular, the form has been revised to include a separate section for non-citizen nationals of the U.S., such as persons born in American Samoa; certain former citizens of the former Trust Territory of the Pacific Islands; and certain children of noncitizen nationals born abroad.

The new form is available on the USCIS web site here: http://www.uscis.gov/i-9.

As before, the new I-9 form can be completed electronically

Employers should consider switching over to an electronic I-9 solution, such as Tracker I-9 , which offers built-in compliance rules and peace of mind in knowing that you’re always using the latest version of the I-9. More information on Tracker I-9′s lastest release was published on Friday.