E-Verify & I-9 News

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.