E-Verify & I-9 News

Previously available only in five test states (AZ, CO, ID, MS and VA) and the District of Columbia, the E-Verify Self-Check on­­line system that allows job-seekers to check their own work eligibility has now been expanded to 16 additional states, CA, LA, ME, MD, MA, MN, MO, NE, NV, NJ, NY, OH, SC, TX, UT and WA.

The Self Check service is a free, Internet-based application that can be used by a U.S. worker over the age of 16 to confirm his or her employment eligibility. It is currently available in only these 21 states while it is evaluated and improved. Self Check is now available in Spanish and is expected to be available nationwide by March 2012.

Developed in response to a request by Congress to create a service through which U.S. workers could check their own employment eligibility status outside of the employer focused E-Verify process, Self Check can help take the mystery out of the employment eligibility confirmation process. After the user enters a small amount of information, the Self Check service will check that information against various government databases to determine the user’s eligibility to work in the United States.  Self Check will then return one of three results: Work Authorization Confirmed, Possible Mismatch with SSA, or Possible Mismatch with Immigration Information. If any mismatches are found between the information provided to Self-Check and the governments records, the system provides instructions on what steps to take to try to resolve the issue.

Employers are warned not to use Self-Check to pre-screen the employment eligibility of new hires. If an employer or potential employer asks to see a Self-Check query to prove work authorization, individuals are instructed to notify the Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices at 800-255-7688. Also, a positive Self-Check result does not guarantee that individuals will pass through E-Verify without issue at a later date. Self Check has the potential to benefit employees and employers by reducing the number of data mismatches during the E-Verify process  and thereby decrease the amount of time spent resolving those mismatches.  The Self-Check tool is available at www.uscis.gov/selfcheck.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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[Editor’s Note: today’s post is brought to you by guest blogger John Manley, U.S. Immigration Attorney and Co-Liaison to U.S. Customs and Border Patrol.]

On Wednesday, October 26, DHS Secretary Janet Napolitano testified before the United States House of Representatives Committee on the Judiciary. E-Verify was one of several topics in Secretary Napolitano’s testimony.

Here is the link to the entire DHS testimony:  NAPOLITANO

Highlights of Secretary Napolitano’s testimony include the assertion that USCIS has continued to improve E-Verify’s accuracy and efficiency, enhance customer service, and reduce fraud and misuse in a number of additional ways.  In addition, the Secretary points out that in March of this year, USCIS launched the new E-Verify Self-Check feature, an innovative service that allows individuals in the United States to check their own employment eligibility status before formally seeking employment.  Here is the portion of the testimony where Secretary Napolitano directly discusses E-Verify and Worksite Enforcement:

Worksite Enforcement and E-Verify

“DHS has implemented a smart and effective approach to worksite enforcement. By focusing on employers who knowingly and repeatedly hire illegal labor, we are targeting the root cause of illegal immigration, utilizing robust Form I-9 inspections, civil fines, and debarment, and enhancing compliance tools like E-Verify. Since Fiscal Year 2009, ICE has audited more than 6,000 employers suspected of hiring illegal labor, debarred 441 companies and individuals, and imposed more than $76 million in financial sanctions—more than the total amount of audits and debarments during the entire previous administration. In Fiscal Year 2011, ICE also criminally arrested 221 employers accused of violations related to employment, an agency record. In short, our approach to worksite enforcement has been working, and has been successful at bringing employers into compliance with the law.

As a corollary, we have strengthened the efficiency and accuracy of E-Verify – our web-based employment verification system managed by U.S. Citizenship and Immigration Services (USCIS) and designed to assist employers in complying with the law. As of Fiscal Year 2011, more than 292,000 employers have enrolled in E-Verify, representing more than 898,000 locations. More than 1,000 new employers enroll each week and the number of employers enrolled in E-Verify has more than doubled each fiscal year since 2007. In Fiscal Year 2011 alone, E-Verify processed 17.4 million employment queries.

In March of this year, USCIS launched the new E-Verify Self-Check feature, an innovative service that allows individuals in the United States to check their own employment eligibility status before formally seeking employment. This voluntary, free, fast, and secure service gives users the opportunity to submit corrections of any inaccuracies in their DHS and Social Security Administration records before applying for jobs, thereby making the process more efficient for employees and employers. The Self Check service is currently available in both English and Spanish to users who maintain an address in 21 states and the District of Columbia. Self Check will be available nationwide by March 2012.

USCIS has continued to improve E-Verify’s accuracy and efficiency, enhance customer service, and reduce fraud and misuse in a number of additional ways. To improve E-Verify’s accuracy, USCIS reduced mismatches for naturalized and derivative U.S. citizens by adding naturalization data and U.S. passport data to E-Verify. Because of this enhancement, in Fiscal Year 2011, more than 80,000 queries that previously would have received an initial mismatch requiring correction at the secondary verification stage were automatically verified as employment authorized. In June 2010, E-Verify launched improved navigational tools to enhance ease-of-use, minimize errors, and bolster compliance with clear terms of use. USCIS also has increased its staff dedicated to E-Verify monitoring and compliance, adding 80 staff positions to support monitoring and compliance since the beginning of Fiscal Year 2010. Finally, to more effectively address identity theft, USCIS now allows for the verification of passport photos through the E-Verify system.”

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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The USCIS announced the newly redesigned Employment Authorization Document (EAD) card and paper Certificate of Citizenship (Form N-560).

Coming just months after a previous EAD redesign, these new versions further facilitate authentication, enhance security and discourage fraud by incorporating technology and tactile features in the EAD card and using a printing process that renders the certificates more tamper proof.

According to the USCIS press release, “The new features of the EAD will better equip workers, employers and law enforcement officials to recognize the card as definitive proof of authorization to work in the United States.”

Despite the new look and feel of these documents, there is no change to the way in which applicants apply for and receive them. USCIS will replace EADs already in circulation as individuals apply for their renewal or replacement. All previously issued EADs remain valid until the expiration date printed on the card. Previously issued Certificates of Citizenship remain valid indefinitely.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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[Editor’s Note: today’s post is brought to you by guest blogger Bruce Buchanan, partner-in-charge of immigration practice, King & Ballow, LLP.]

Tennessee is one of 18 states that have passed legislation or have an executive order implementing E-Verify. However, the Tennessee Lawful Employment Act, which will become effective on January 1, 2012, is unique in that the use of E-Verify is not mandatory. Under the new law, an employer may enroll and use E-Verify for newly-hired employees, or it may accept, copy and maintain a state-issued driver’s license or identification, unexpired U.S. passport, permanent resident card, work authorization, birth certificate, certificate of naturalization, or a few other forms of identification from newly-hired employees.

You will note the documents above are redundant of documentation needed for I-9 verification. The only real difference is the requirement to maintain a copy of the identification document. Under the Immigration Reform and Control Act (IRCA), an employer is not required to maintain a copy of the presented documents from List A or Lists B and C.

A second provision in the law involves a “non-employee” providing labor or services to an employer. A “non-employee” is defined as “any individual, other than an employee, paid directly by the employer in exchange for the individual’s services.” If an employer contracts with an individual/non-employee, it must request and maintain a copy of one of the specified documents, such as state-issued driver’s license or identification. However, a subcontractor, who is not an individual, is not covered by this provision under the definition of non-employee.

An employer violates the law by failing to receive E-Verify confirmation or to request and maintain a copy of one of the specified identification documents. An employer has a “safe harbor” and cannot be found to have violated the law by employing an employee without work authorization if the employer utilized E-Verify and received a confirmation or the employee appealed the tentative non-confirmation and the appeal has not been resolved. This “safe harbor” is not available for employers who copy and maintain an employee’s driver’s license or identification if the employee is found to be working without employment authorization.

The Tennessee Lawful Employment Act will be phased in as follows: Employers with 500 or more employees and governmental entities must comply by January 1, 2012; employers with 200 to 499 employees by July 1, 2012; and employers with six to 199 employees by January 1, 2013. Employers with five or fewer employees are exempt from the law.

Any lawful resident of Tennessee or a federal agency employee may file a complaint with the Tennessee Department of Labor and Workforce Development, which will investigate such complaints. This provision is an extension of the current law which only allows state or local officials to file a complaint alleging an employer’s employment of an unauthorized worker.

The penalties for the new law are: First offense – $500 penalty + $500 per employee or non-employee not verified or copy of documentation maintained; second offense – $1,000 penalty + $1,000 per employee or non-employee not verified or copy of documentation maintained; and third offense – $2,500 penalty + $2,500 per employee or non-employee not verified or copy of documentation maintained

Most states that have passed E-Verify require it for all employers. Why is Tennessee different? In my opinion, two primary factors are the strength and the diversity of the Chamber of Commerce and the level of tourism in Tennessee. The Chamber of Commerce has opposed mandatory E-Verify. Further, Tennessee’s Chamber includes a lot of foreign-based employers, such as Nissan’s North American headquarters in the Nashville area, Volkswagen’s new manufacturing facility near Chattanooga and Wacker Chemie AG in east Tennessee.

The second apparent factor is tourism. Again, Tennessee strives to be a friendly state toward domestic and foreign tourists, and E-Verify can be viewed as unfriendly to an immigrant population. Interestingly, the only other state which just passed non-mandatory E-Verify is Louisiana, a state heavily reliant upon tourism.

After passage of this law in 2011 without mandatory use of E-Verify, the Tea Party supporters in Tennessee felt like the Republicans had abandoned them in favor of the Chamber of Commerce. The Tea Party supporters vowed to seek mandatory E-Verify in 2012. Only time will tell if they will be successful.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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Following the recent U.S. Supreme Court ruling that allows state and local governments to mandate the use of E-Verify and penalize violators, counties in Washington and Utah unanimously passed E-Verify ordinances yesterday.

Cowlitz County, WA now requires current contractors (and any employer vying for a county contract) to use E-Verify to prove that their workers are legal. This E-Verify requirement applies to any contractor employee who will work on the project, no matter how long they’ve been employed.

Commissioner James Misner called the decision a “no brainer,” saying that the federal E-Verify system is more accurate than simply taking a copy of a worker’s Social Security card and filing it with employment paperwork. Nearby counties of Clark and Lewis and the city of Woodland already require E-Verify, and backers of the new ordinance say that without the requirement, illegal immigrants would flock to Cowlitz.

Meanwhile in Utah, county commissioners enacted their own E-Verify ordinance. Beginning in mid-December, all places of business in the unincorporated areas of Washington County will be required to confirm the employment eligibility of new hires through the E-Verify system. While Utah currently has statewide E-Verify requirements (here and here), there are no penalties for non-compliance (other than ineligibility to enter state contracts) and it only applies to businesses with 15 or more employees.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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Ruling on the recently-enacted Alabama immigration law, (“H.B. 56″), Chief Judge Sharon Blackburn of the United States District Court for the Northern District of Alabama ordered that Alabama employers must begin complying with the E-Verify provisions of H.B. 56.

Effective on April 1, 2012, Alabama businesses must still confirm the work authorized status of all newly-hired workers using the federal E-Verify system, and face penalties for hiring unauthorized aliens (see our previous post for more details about H.B. 56)

Furthermore, as of January 1, 2012, a business must enroll in the E-Verify program, not knowingly employ, hire or continue to employ an unauthorized alien, and attest to both of those requirements by sworn affidavit in order to receive government contracts, grants or other incentives from the State.

Judge Blackburn did ease some burden on employers by eliminating several provisions of the Alabama law. First, the federal court enjoined Section 16 of H.B. 56, which prohibits taking a state tax deduction for wages paid to an unauthorized alien employee. Next, Section 17 was eliminated, which would have created an opportunity for a “discrimination” claim when an employer retained or hired an unauthorized alien over a documented worker.

Lastly, the federal court blocked the State of Alabama from enforcing Sections 11 (f) and (g) of H.B. 56, which make it illegal for an occupant of a motor vehicle stopped on the street to attempt to hire someone to work at a different location if it impedes traffic and for an individual to enter into a motor vehicle for such purpose if it impedes traffic. This section’s elimination makes compliance easier for small employers and contractors who often use roadside hiring to find laborers.

The fifth state to enact immigration laws since Arizona’s SB 1070 took effect, Alabama is the first to have these key provisions upheld. Although none of these rulings are final, Judge Blackburn’s final decision is likely to reflect these orders. Employers who violate these provisions face extremely costly fines and the risk their right to do business in Alabama.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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