E-Verify & I-9 News

Here are the latest E-Verify facts, figures, and other notables as provided by the USCIS.

E-Verify Usage Statistics as of June 18, 2009:

• Over 130,000 participating employers
• Over 3.27 million queries run in FY 2007
• Over 6.6 million queries run in FY 2008
• Over 5.6 million queries run to date in FY 2009

Top Industries Using E-Verify:

• Professional, Scientific, and Technical Services
• Administrative and Support Services
• Food Services, Clothing and Accessories Stores
• Funds, Trusts, and other Financial Vehicles

E-Verify accuracy statistics (based on program data from the third quarter FY2008)

• 96.1% Work authorized instantly or within 24 hours

• 3.9% received tentative non-confirmations
  • 2.96% from SSA
  • 0.95% from DHS

Of the 3.9% of cases that received a TNC, the vast majority (3.5%) result in a Final Non-confirmation. The remaining percentage (0.37%) were later confirmed as work authorized.

Today, the USCIS announced that employers can continue to use the current version of the Form I-9 (Rev. 2/2/09) beyond its expiration date of June 30, 2009. The Form I-9 is currently under review at the Office of Management and Budget (OMB), and the USCIS has requested that it be approved without any substantive change. Once approved, a new Form I-9 will be posted on the USCIS web site with a new revision and expiration date. According to today’s press release, employers will be able to use either the revised version or the current version of the form.

Employers using an electronic I-9 system will be largely unaffected by these developments as long as their system has the required fields and data elements of the current I-9 form and can reproduce a legible hardcopy in the event of an audit.

John Morton, the newly appointed Assistant Secretary for ICE, recently spoke before the U.S. House of Representatives Committee on Homeland Security regarding the Fiscal Year 2010 Budget for ICE and operational priorities. In his speech, Mr. Morton emphasized that ICE is committed to worksite enforcement, and that he would continue to promote both criminal investigation of employers and the use of administrative tools such as Form I-9 audits and the imposition of “meaningful civil fines” as a deterrent. An April 2009 Fact sheet cited more than 5,100 administrative arrests in FY2008 for immigration violations, which represents a 30% increase over the previous year. ICE has also increased criminal arrests for owners, managers, supervisors, and HR employees who knowingly hire undocumented workers.

Source: http://www.ice.gov/pi/news/factsheets/worksite.htm

Mr. Morton also advocates E-Verify as a “valuable compliance tool” and promises to proactively partner with the private sector to train employers who want to avoid unwitting violations of the law. In a separate speech before an international employer group, Mr. Morton recognized that E-Verify’s 3% error rate could be improved, but insisted that it’s still a good working model and the best tool the government has at its disposal right now.

On July 1, 2009, several state E-Verify mandates will go into effect, affecting employers in Georgia, Mississippi, South Carolina and Utah. Most of these laws were enacted some time ago, and are being implemented in stages as indicated below. Here is a quick summary of these new state requirements as of July 1, 2009:

Georgia: all state contractors and subcontractors must use E-Verify if the contract is for the physical performance of services within the state of Georgia. Previously, only state contractors with 100 or more employees were impacted. More information can be found here.

Mississippi: all employers with 100 employees or more must participate in E-Verify. This law will expand to include employers with 30 or more employees in July 2010 and all employers in July 2011. The full text of the law can be found here.

South Carolina: all employers with 100 employees or more must either participate in E-Verify or only hire employees who possess or qualify for a South Carolina driver’s license (or other state license with similarly strict requirements). This law will expand to include all employers in July 2010. More information is available through this link.

Utah: state contractors and subcontractors must use E-Verify or the Social Security Number Verification Service (SSNVS) if the contract is for the physical performance of services within the state of Utah. The full text of the law can be found here.

Yesterday, the Homeland Security Appropriations Subcommittee unanimously approved a $42.6 billion fiscal year 2010 spending bill for the Homeland Security Department, which includes a provision that would reauthorize the E-Verify program until 2011. As previously reported, the E-Verify program is set to expire on September 30, 2009, unless Congress takes action to extend it.

Advocates on both sides of the immigration debate have been pressing President Obama and congressional leaders for comprehensive immigration reform, and the timing of this 2 year E-Verify extension surely reflects that. Most insiders agree that electronic verification (in some format) will be a central component of the new immigration regime.

In the meantime, the spending bill must now be approved by the full Appropriations Committee, the entire House of Representatives and the Senate before it becomes law. This is not likely to happen before Congress’ August recess, so the exact fate of E-Verify will most likely be decided at the last minute. Stay tuned for further updates.

The mandate for federal contractors to use E-Verify has been delayed again (4 times and counting), with the new effective date being set for September 8, 2009. The official notice of the delay has been published in the Federal Register.

The federal contractor E-Verify rule was originally scheduled to take effect on January 15, 2009, but the implementation has now been postponed four times due in part to the federal lawsuit filed by business groups as well as the ongoing debate surrounding immigration reform under the Obama administration.

Insider sources indicate that there is still strong bi-partisan support for some form of mandatory electronic verification (for both federal contractors and all employers), but it remains to be seen how the Administration will resolve some of the more controversial provisions of the current rule. In particular, many business groups have been lobbying against vicarious liability for subcontractors and E-Verification of an employer’s existing workforce.

Regardless of how the rule turns out, employers should start preparing for electronic verification now by auditing their current I-9s, transitioning from paper to electronic I-9s, and devising proper policies and procedures for this new era of electronic employment verification. Employers are encouraged to request a free E-Verify and Form I-9 HR Toolkit from Tracker I-9 to help prepare for these new requirements.