E-Verify & I-9 News

Today, the E-Verify Team formally retracted the Frequently Asked Questions for federal contractors that were distributed to webinar participants by email last Wednesday, March 17th. As previously reported, these FAQs contained some new guidance concerning E-Verify setup and the tentative nonconfirmation (TNC) process. According to today’s announcement, the FAQs were sent in error, and E-Verify is seeking further clarification on a few of the pointers before posting a new a version on its web site. Stay tuned for the constantly evolving E-Verify rules!

In other news, the DHS issued a 30 day extension of its E-Verify data collection survey, which is required under the Paperwork Reduction Act of 1995 for “information collections” by the federal government. The notice was originally announced on January 6, 2010, but apparently, DHS did not receive any responses. Written comments or suggestions about the E-Verify process can be sent via fax to 202-272-8352 or via email to rfs.regs@dhs.gov (with the subject line OMB-55).

DHS will use this information to evaluate how the E-Verify program is working nationally, whether employers are using it as intended, and the positive and negative impacts if E-Verify were to become mandatory. Comments will be accepted until April 26, 2010.

The United States Citizenship and Immigration Services (USCIS) has released a Fact Sheet which explains the new E-Verify civil rights initiatives announced this week and provides guidance on how information will be shared with the Department of Justice. As previously reported, the E-Verify program is often criticized on the basis that it may promote unintentional discrimination (particularly against foreign-born workers) who are more likely to receive a TNC. In response, the USCIS has announced a trio of initiatives (employee hotline, training, and government information sharing) to educate workers and employers on E-Verify and address any actual discrimination which occurs.

What does this mean to employers?

As an employer, it’s important to understand how your E-Verify data may be shared with other government agencies and what the potential risks are. Under this new sharing agreement, the USCIS can refer matters to the DOJ when they feel an employer is engaging  in discrimination on the basis of national origin or citizenship status OR there is evidence of misuse, abuse or fraudulent use of E-Verify. The referral from USCIS will include relevant E-Verify data as well as other information obtained through an audit or the E-Verify hotline. The DOJ will then use this information to identify potential patterns or practices of discrimination OR in investigating individual claims. If discrimination is found, the DOJ may bring enforcement actions against the employer within 210 days of the filing of a charge or, for independent investigations, within 180 days of the last discriminatory act. In turn, the DOJ will share any discriminatory information it uncovers with the USCIS so it may act accordingly.

Bottom line: it’s very important to closely monitor your E-Verify activities and ensure that all proper procedures are being followed.

In addition, the USCIS has provided more information on its employee hotline including the types of question that can be addressed. When calling the number, the employee will be able to choose from 4 options, including (1) General E-Verify information; (2) Completing the Form I-9; (3) Contesting an E-Verify case; and (4) Filing a complaint regarding possible discrimination or employer misuse of the E-Verify program. The hotline will also provide information on reporting an identity theft, although it will not be able to tell you whether an identity has actually been stolen.

The employee hotline (888-897-7781) will be active on April 5, 2010. Hours of operation are:

 8 a.m. – 5 p.m. local (continental United States, Puerto Rico and U.S. Virgin Islands)
 8 a.m. – 4 p.m. (Alaska)
 8 a.m. – 2 p.m. (Hawaii 

Earlier this week, E-Verify released a lengthy Q&A document which addresses questions posed during a DHS-sponsored webinar held last September.  While many of the questions (and answers) are repetitive, there are some useful pointers concerning E-Verify setup, use, and the TNC process. What follows is a brief synopsis of the most useful Q&As along with this author’s comments.    

E-Verify Setup

Q1. When posting the two required posters (E-Verify and Right to Work) is it required that both English and Spanish posters be posted?

A1. Answer: As a participating Employer, you are required to post the English and Spanish notice provided by DHS indicating your company’s participation in the program, as well as the Right to Work Poster issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices. Both of these notices must be clearly displayed in plain view at your hiring site(s) to inform prospective and current employees that your company is participating in the E-Verify Employment Verification Program.

Comment: E-Verify staff has also indicated that employers may post these electronically on their intranet or I-9 software, which is especially useful for remote hires.

E-Verify Daily Use

Q2. Are you supposed to print and keep your results from each search?

A2:  Employers are required to print the Case Details page from each verification performed and attach it to the employee’s Form I-9, or document the Case Verification Number at the top of the Form I-9.

Comment: if you are using an electronic I-9 software application with integrated E-Verify, make sure the system maintains the history for you, so you go totally paperless.

Q3. Will it be possible for me to be the only person in my company who enters information into the E-Verify program? We have lots of managers in remote locations, but I’d like to do all the verifying from our headquarters?

A3. Answer: Yes. Employers may verify on behalf of one or multiple hiring sites by enrolling in our Employer Access Method. However, we do recommend that you add at least one additional user in the event there are circumstances that prevent you from performing the employment eligibility verification within three days.

Comment: electronic I-9 software takes this a step further, allowing you to control not only managers but also entire worksites. This allows you to use electronic I-9s for your entire organization while gradually rolling out E-Verify participation.

TNC Issues  

Q4. How long does an employer have to notify an employee of a TNC?

A4: E-Verify does not place a specific deadline on notifying an employee of a tentative non-confirmation, however, we ask that the employee be informed as soon as possible so that the referral process may be initiated.

Comment: notifying the employee is an extremely important step, so the best practice is to do so immediately. When discussing the TNC with the employee, make sure all communications are handled privately.  

Q5. How long does an employee have to decide whether to contest the results?

A5. The amount of time given to employees to decide whether to contest is at the employer’s discretion. Employers are simply asked to initiate the referral process in a reasonable amount of time. If the employee decides not to contest or does not return in the time set by the employer, the case may be resolved as Resolved Unauthorized/Terminated.

Comment: while it’s important to give the employee some time to read the TNC, employers should set a deadline for a response in their company policy and make sure to apply it consistently.

Q6. If an employee does not want to contest a TNC can he or she remain employed?

 A6.  Yes. E-Verify provides employers with the option to resolve the case as “Resolved Unauthorized/Terminated” or “Employee Not Terminated” once employees receive an initial answer of  a tentative non-confirmation. Please note that if an employer selects Employee Not Terminated, this means that they will disregard the TNC and continue to employ the person without having initiated a referral to the Social Security Administration (SSA) or Department of Homeland Security (DHS). Additionally, if a Form I-9 audit determines that the employee is indeed without employment authorization, the employer will be subject to the penalties outlined in the Form I-9 Handbook for Employers.

Comment: despite this answer’s accommodating tone, this option should not be taken lightly. There are serious penalties for continuing to employ an undocumented worker, so you should always consult with legal counsel before making this choice.

Training Video Snapshot

Today, DHS Secretary Janet Napolitano and USCIS Director Alejandro Mayorkas announced several new E-Verify initiatives in response to concerns about the program’s overall effectiveness and accuracy. These efforts are designed to increase employer compliance with various E-Verify rules, prevent employment discrimination and deal with identity theft. In particular:

1. DHS has entered into an agreement with the Department of Justice whereby the two agencies will share information concerning potential E-Verify discrimination or misuse, which will ultimately bring noncompliant employers under greater scrutiny.
2. DHS is setting up an informational telephone hotline for employees seeking E-Verify information or looking to file a complaint about possible discrimination or employer misuse. The hotline number is (888) 897-7781 and will be active beginning April 5, 2010.
3. DHS has published training videos on E-Verify procedures and policies, with a particular emphasis on employee rights. The video, which depicts the story of an employee who receives a TNC at work, can be viewed in English and Spanish on YouTube here.

In related news, the DHS publicly defended E-Verify on its blog today, asserting that the system’s accuracy and efficiency continues to improve despite news to the contrary. Lauren Kielsmeier, the Acting Deputy Director and Chief of Staff for USCIS, points out that just 3.3% of the overall population studied by Westat (the independent evaluation firm) was incorrectly found to be work authorized. She also writes that USCIS is planning additional enhancements to E-Verify such as adding U.S. passports to the photo tool and working with states to access state driver’s license data. USCIS is also planning to launch a pilot program to explore the use of biometric or biographic-based verification.

Latest stats: more than 192,000 participating employers at more than 705,000 worksites nationwide currently use E-Verify to electronically verify their workers’ employment eligibility. Since Oct. 1, 2009, E-Verify has processed more than six million queries.

Immigration and Customs Enforcement (ICE) recently confirmed that employers should be provided 10 days to cure technical or procedural paperwork violations following a government I-9 audit.  This reassuring news comes courtesy of the American Immigration Lawyers Association (AILA), which recently met with ICE HQ to discuss I-9 violations amidst the recent flurry of audits and some inconsistent practice at local ICE offices. In response to questions by AILA, ICE confirmed that penalties were still based on INS guidance from the late 1990s, which categorized I-9 errors into two groups: substantive verification failures, which are not subject to the ten-day correction period, and technical or procedural verification failures, which may be corrected. Substantive errors could arise, for example, when the employee fails to sign section 1 or forgets to check one of the boxes indicating his or her citizenship or immigration status. Technical or procedural violations tend to be more benign in nature including, for example, the failure of the employee to enter his or her maiden name, address, or birth date in Section 1 or failure of the employer to provide the title, business name, and business address in Section 2.

It’s important to note, however, that an employer must have made a good faith effort to comply with the I-9 requirements in order to take advantage of the ten-day correction period. So if an employer repeatedly made mistakes in knowing reliance of the 10 day correction period or attempted to correct the errors by back-dating, ICE may very well fine them to the fullest extent.   

Assessing whether your I-9 errors are substantive versus technical is a complex process, requiring analysis of various policy memoranda and case law. If you are facing a government audit, it’s always best to consult experienced legal counsel who can advise you on your potential I-9 liability and a prudent course of action.

The growing patchwork of E-Verify laws continues, with Utah and Virginia becoming the first states to pass bills mandating E-Verify participation in 2010. As with previous laws enacted in 2008-2009, these bills require certain employers to use E-Verify to check the work eligibility of new hires. Below is a brief synopsis of the new laws and requirements.

Utah

Utah’s E-Verify law, the Private Employer Verification Act, requires all private employers who employ more than 15 or more employees as of July 1, 2010, to use a “status verification system” to verify the employment eligibility of new employees. The status verification system is broadly defined to include E-Verify, the SSNVS, or another DHS-approved system. Interestingly, the law exempts new hires on the H-2A or H-2B seasonal visas. By observing the law, employers will be shielded from civil liability for the unlawful hiring of an undocumented worker as long as the E-Verify systems indicated he or she was work authorized. Similarly, an employer may not be held civilly liable for the refusal to hire an individual if E-Verify indicated that he or she was not work authorized.

Unlike the federal E-Verify program, employers can also choose to voluntarily register with the state to certify compliance and pay a fee. In a familiar move, Utah also intends to electronically post the list of registered employers on its public website.

Virginia

Virginia’s E-Verify law requires only state agencies to enroll in the E-Verify Program by December 1, 2012 and thereafter begin using the system for all new hires. As originally passed by the House, the bill would have also included public contractors, localities, and employers with 15 or more employees. That version was ultimately pared down to its current form. The Senate also changed the effective date from December 1, 2010 to December 1, 2012. The complete bill history is available online.

The Department of Justice has released an account of some recent enforcement activity and telephone interventions against employers for improper use of E-Verify and I-9 document abuse. What follows is a brief synopsis of these cases along with the lessons learned.

Case #1: Employer suspends new hire during TNC process

A small bakery participates in E-Verify and receives a tentative nonconfirmation (TNC) for one of its new hires. In response, the bakery suspends the worker without pay. The worker contacts the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) and lodges a complaint. An investigation ensues and as a result, the bakery agrees to reinstate the worker and pay $4,104 in back pay.

Lesson learned: an employer cannot take adverse action (e.g. suspension or firing) against an employee who chooses to contest a TNC until a Final Non-confirmation is issued by the E-Verify system.

Case #2: Employer fires new hire upon receiving TNC

A landscaping company participating in E-Verify receives a TNC notice for a legal permanent resident employee during the initial verification process. Company then immediately terminates employee without giving him the opportunity to contest. Employee files a charge of citizenship status discrimination and document abuse with the OSC. As a result, landscaping company reinstates worker with back pay.

Lesson learned: same as above, plus employers must make sure to follow the E-Verify guidelines and give employee the opportunity to contest a tentative nonconfirmation.

Case #3: Telephone intervention prevents improper E-Verify use

Employer calls OSC hotline wondering if it can just run non-US citizens through E-Verify to ensure they are work authorized.  In a related question, caller asks if it can demand to see a green card in order to activate the photo tool even though employee properly gave a driver’s license and unrestricted SS card during the I-9 process. In response, the OSC advised that employers cannot selectively run new employees through E-Verify; instead, it must be used for all new hires at a given location. With regards to the photo tool, OSC explained that employers can never request specific documents during the I-9 or E-Verify process, although there is an exception for E-Verify in that you can demand that a List B document contain a photo.

Lesson learned: I-9 and E-Verify situations can be tricky, but there are resources (such as the OSC hotline) to help employers. Also, all users of E-Verify should make sure to take the mandatory tutorial to understand these important requirements and nuances.

The OSC Newsletter containing these stories can be downloaded here.

Today, the U.S. Immigration and Customs Enforcement (ICE) issued its latest round of I-9 Notices of Inspection (NOIs) to 180 businesses in the Southeast, including Louisiana, Mississippi, Alabama, Arkansas and Tennessee. As previously reported, these audits stem from a new government strategy implemented in 2009 to reduce the demand for unauthorized employment and protect employment opportunities in the US. Under this strategy, ICE has been focusing its resources on administrative actions (such as I-9 auditing) rather than using the high profile (and more expensive) ICE raid as done in years past.

I-9 Auditing Links

Over the past year, we published several articles on the I-9 audit process, including potential fines. For your convenience, here are links to these various resources.

• Anatomy of an I-9 Subpoena
• I-9 audit numbers around the country
• DHS releases I-9 penalty schedule and overview of inspection process
• DHS announces 1,000 new I-9 audits nationwide
• The New I-9 Audit: A “Quiet” Immigration Raid
• DHS memo sets out new I-9 enforcement strategy

The DHS began testing its redesigned E-Verify interface, which includes new navigation tools, case alert functionality, and other features designed to increase employer compliance while maintaining employee privacy. The new E-Verify look is part of a broader DHS initiative to improve operating efficiency and user friendliness in response to previous evaluations which found the system to be burdensome and lacking in safeguards. While employers will most likely welcome the new look and functionality, these cosmetic changes won’t address the program’s effectiveness or accuracy rate, which came under fire last week. DHS seems committed, however, to continually improve the system on both fronts, so let’s take a sneak peak at some of the pros and cons of this redesigned interface.

The Home Page has been redesigned to provide a quick link to start a new verification and also inform users of E-Verify news and case alerts. At present, the news appears to be more along the lines of system alerts, which in the past, have not been updated that frequently. The navigation pane on the left-hand side has also been modified, although the overall functionality is the same.

E-Verify Case Alerts are located at the bottom of the screen, and are intended to bring to your attention cases that need some action. In particular, users can see Open Cases to be Closed; Cases with New Updates; and Work Authorization Documents Expiring. This last alert, while helpful on the surface, may actually cause confusion since employers are supposed to reverify employment authorization on the I-9 form in these situations, and not through E-Verify.

Verification: the screen for entering I-9 information now displays the fields in 3 columns (rather than 1 long one) and features pull-down menus for the various date fields (hire date, doc expiration date, etc.). The SSN field now has 3 boxes to force the user to enter the number in a proper format. After the verification has been completed, the system will mask the SSN, to preserve the employee’s privacy. Noticeably absent, however, is real-time field alerts when the user has entered an improper document number or hire date.

Navigation and instructions As you’re performing an E-Verify query, the system highlights a progress indicator (>>) to visually represent where you are in the verification process. E-Verify Instructions and terms have also been simplified (e.g., “resolve case” will now be called “close case”).

Close case process has also been reworked so the employer now has choices written in plain language. (Say good bye to “Invalid Query!”).  The first question asked is whether the employee is currently employed with the company. If yes, the user can choose to indicate that they entered data more than once, submitted incorrect data, or the employee chose not to contest a TNC (if applicable). If the employee is not currently employed, the employer can indicate whether the employee quit or was terminated for some other reason.

It’s not yet clear when E-Verify will release this new look on their live servers, but given the recent pressure and scrutiny, I expect to see it very soon.