As previously reported, the United States Citizenship and Immigration Services (USCIS) has established a Monitoring and Compliance (M&C) Branch to monitor and research potential cases of misuse, abuse, discrimination, breach of privacy, and fraudulent use with the E-Verify and SAVE programs. The introduction of this compliance initiative comes largely as a result of criticism by Congress and others that E-Verify is not effective and is rarely policed.

Under the proposed system, most of the monitoring will occur electronically through a database known as the Compliance Tracking and Management System (CTMS), which is owned and operated by the USCIS. In a rule published last week, the USCIS announced its intentions for the CTMS system, and described in detail the compliance activities it will conduct. Comments to the rule will be accepted until June 22, 2009.

In the rule, the USCIS described a range of “non-compliant behaviors” that it will research and monitor. These include:

• Fraudulent use of Alien-Numbers (A-Numbers) and SSNs by E-Verify users;
• Termination of an employee because he receives a tentative nonconfirmation
  (TNC);
• Failure of an employer to notify DHS, as required by law, when an employee who receives a final nonconfirmation (FNC) is not terminated;
• Verification of existing employees (as opposed to new hires);
• Verification of job applicants, rather than new employees (pre-screening);
• Selectively using E-Verify or SAVE for verifications based on foreign appearance, race/ethnicity, or citizenship status;
• Failure to post the notice informing employees of participation in E-Verify; and
• Failure to use the E-Verify, consistently or at all, once registered.

Although it’s unclear how aggressively the government will pursue these investigations, employers should take steps now to ensure that they are in compliance with the terms of the E-Verify memorandum of understanding and put effective systems and policies in place.

For a detailed description of the CTMS and compliance measures, you can read the Privacy Impact Assessment which was posted to the DHS site this week.