E-Verify & I-9 News

U.S. employers are required by law to verify employment authorization of all workers they hire on or after November 6, 1986, for employment in the United States, regardless of the workers’ immigration status.

A newly-redesigned Form I-9 Customer Guide from the United States Citizenship and Immigration Services (USCIS) offers a number of useful tips to employers seeking answers to employment eligibility verification questions and can be downloaded from the USCIS website.

Employers can also request a free E-Verify and Form I-9 HR Toolkit from the Tracker I-9™ website.

 

•   U.S. employers are required by law to verify the employment authorization of all workers they hire on or after November 6, 1986, for employment in the United States, regardless of the workers’ immigration status.

• Employers who hire or continue to employ individuals knowing that they are not authorized to be employed in the United States, or who fail to comply with employment authorization verification requirements, may face civil and, in some cases, criminal penalties.

• Form I-9, Employment Eligibility Verification, must be completed for each newly hired employee, including U.S. citizens, permanent residents, and temporary foreign workers, to demonstrate the employer’s compliance with the law and the employee’s work authorization.

• The employee must complete Section 1, Employee Information and Verification, of Form I-9. The employee must attest that he or she is a U.S. citizen or national, a lawful permanent resident, or is otherwise authorized to work for the employer in the United States. Each newly hired employee (an employee who has accepted the position) should complete and sign Section 1 no later than the first day of employment, regardless of his or her immigration status.

• The employer is obligated, after physically examining the documents presented by the employee, to complete Section 2, Employer Review and Verification, and Section 3, Updating and Reverification (if applicable), of the I-9 form. Employers must complete and sign Section 2 of Form I-9 within 3 business days of the employee’s first day of employment. If the employment relationship will last less than 3 days, then the employer must verify work authorization and complete Section 2 no later than the first day of employment.

• The employee may provide the documents they choose from those listed on the most recent Lists of Acceptable Documents, which can be found on the I-9 form.

• An employer cannot tell an employee which documents to present for Form I-9 purposes.

• An employee who has been issued temporary work authorization must produce proof of continued work authorization no later than the expiration date.

• Employers should complete Section 3 of Form I-9 when updating and reverifying the employment authorization of an employee whose previous valid authorization has expired.

• Rejecting a document that later proves to be genuine could result in a violation of the anti-discrimination provisions of immigration law, so employers should guard against being overzealous in their inspection of documents the employee presents.

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.

There has been some confusion as to whether all current and prospective Federal contractors are already required to use E-Verify to confirm that their employees are eligible to work in the U.S. President Bush’s Executive Order (Amending Executive Order 12989) dated June 9th, 2008, instructed federal agencies to require contractor participation in E-Verify. The Proposed Rule provided detailed guidance on how that requirement is to be implemented to cover Federal contractors and subcontractors. Federal departments and agencies within the Executive Branch are already enrolling with E-Verify to check the status of all new hires within the Federal workforce.

 

The issuance of the Executive Order and the Proposed Rule made some Federal contractors concerned that they would have to start using E-Verify immediately. The Department of Homeland Security (DHS) June 9 announcement stated that the DHS “designated E-Verify, operated by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration, as the electronic employment eligibility verification system that all Federal contractors must use as required by Executive Order 12989, as amended.” The announcement also said, however, that Agencies responsible for Federal acquisition regulations (FAR) will send a Notice of Proposed Rulemaking (NPRM) to the Federal Register soliciting public comment on proposed changes to these regulations. Comments were to be accepted for 60 days.

 

In response to numerous complaints from employers, including the U.S. Chamber of Commerce, as well from civil rights organizations and immigrant groups, USCIS posted a clarification on its website stating that under the Proposed Rule current and future Federal contractors are not yet required to participate in the program.

 

The Federal Contractors Frequently Asked Questions (FAQs) section on the USCIS website now notes that the Proposed Rule is not yet a final rule but rather a proposal that is still open for public comment. The Federal government, however, continues to encourage the use of E-Verify despite objections being raised about the program’s accuracy, protection of privacy rights, and other civil rights concerns.

 

 

Federal Contractors Frequently Asked Questions (FAQs)

 

1. As a current or prospective Federal contractor, am I required by the Executive Order or the proposed rule to enroll in E-Verify now?

 

 

 

Not at this time.  At this time, the E-Verify program remains a voluntary program for employers, including federal contractors.  The Executive Order instructs Federal agencies to require contractor participation in E-Verify as a term of future contracts, and the proposed rule provides detailed guidance on how that requirement is to be implemented.  However, the proposed rule is not a final rule; it is a proposal that is open for public comment at this time.  There may be substantive changes to the rule before it becomes final.  Moreover, the final rule will not be effective until 30 days after publication.  Under the proposed rule, you would only be required to enroll in E-Verify if and when you enter into a Federal contract or subcontract that requires participation in E-Verify as a term of the contract.  Although Federal Contractors are not yet required to participate in E-Verify, you are encouraged to enroll in E-Verify now to verify the employment eligibility of your new hires.

 

 

The U.S. Congress is likely to extend the E-Verify program. It has been extended twice before and it must be reauthorized in November. Its use is also likely to increase. As of this June, more than 69,000 employers nationwide relied on E-Verify to determine that their new hires are authorized to work in the United States. Employers have run more than 4 million employment verification queries so far in Fiscal Year 2008. USCIS announced that 99.5 percent of qualified employees are cleared automatically by E-Verify without need for any further action. According to a USCIS official, more than 1000 new U.S. employers sign up for E-Verify each week.

 

Government madates to promote the use of E-Verify are likely to have a significant impact on employers who may be planning to switch from paper I-9 forms to electronic management of employment eligibility verification.  Electronic Form I-9 management system from Tracker I-9™ is now integrated with E-Verify and allows employers to instantly and securely submit E-Verify information to government databases over the Internet. Tracker I-9 is also offering employers a free E-Verify and Form I-9 HR Toolkit, which can be requested by going to the Tracker I-9™ website.

Also see our press release: Tracker I-9™ Compliance Software Will Help Federal Contractors Meet New Requirement to ‘E-Verify’ Employees’ Work Eligibility

 

Posted by Tracker I-9™ team.

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.

 

 

The U.S. Chamber of Commerce, representing more than three million businesses and organizations, has come out against the proposed Bush Administration rule requiring Federal contractors to participate in the E-Verify Program.  Opposition to E-Verify from business groups and organizations concerned with protecting employment and privacy rights has not slowed down, however, the U.S. employers’ reliance on the program. It seems very likely that Congress will extend E-Verify, which is set to expire in November, for at least the next five years.

 

In establishing E-Verify, Congress designated it from the beginning for most participants as a voluntary Internet-based program. But some new Federal regulations as well as new laws passed in a number of states have since made its use mandatory for various categories of  employees and employers.  The Bush Administration now wants to extend it on a mandatory basis to virtually all federal contractors and subcontractors. The Rule would also expand its applicability from new hires only, as is the case in the current voluntary system, to many existing employees of the contractors and subcontractors.

 

The Chamber of Commerce objected to the Proposed Rule as harmful to business, calling it “misguided, premature, and unwarranted.” The Chamber also concluded that the President exceeded his legal authority by seeking to make a voluntary program mandatory for U.S. employers. It conceded, however, that the Federal Government and employers have a compelling interest in seeing that every tool is made available to employers to ensure a legal workforce.

 

Read U.S. Chamber of Commerce Comments on the Proposed Rule, June 2008

 

Also Read U.S. Chamber of Commerce Statement on Proposals for Improving the Electronic Employment Verification and Worksite Enforcement System

 

The House of Representatives recently voted to renew E-Verify for an additional five years and wants to keep it voluntary. It also ordered studies on E-Verify error rates, their causes, and the impact and costs of erroneous non-confirmations on individuals, employers, and Federal agencies. Other E-Verify bills are pending in the Senate.

 

Since its inception in 1997 as the Basic Pilot/Employment Eligibility Verification Program, E-Verify has always been controversial with civil rights advocates and some business groups, while some companies, legislators and government officials see it as a useful tool for ensuring a legal workforce. The primary concern over E-Verify has been with potential discrimination against noncitizens, ethnic and racial minorities, and with errors in verifying identity and employment eligibility of employees.

 

The U.S. Citizenship and Immigration Services (USCIS), which administers the program,  maintains that 99.5 percent of all work-authorized employees verified through E-Verify are cleared without receiving a Tentative Non-confirmation (TNC) or having to take any type of corrective action. In a recent Congressional testimony, USCIS acting director Jonathan Scharfen acknowledged, however, that E-Verify needs safeguards to protect privacy rights and prevent misuse.

 

View Full Text of the House Bill

 

Read Congressional Testimony of USCIS Acting Director

 

It’s still too early to tell what the final version of any new E-Verify legislation will look like, and what will happen to the proposed rule on making E-Verify mandatory for Federal contractors. But as we reported in a earlier post, the use of E-Verify is growing in the U.S. by over 1000 employers per week.

 

Regardless of what shape the E-Verify legislation will take, the Tracker I-9™ team is ready to assist U.S. employers by providing a secure and reliable Form I-9 management system with E-Verify and making all the necessary software modifications to keep up with the changing laws and regulations. Attorneys on our team continue to track changes in U.S. laws and are part of the software evaluation process. We will try to keep you informed through our blog and our website about any significant E-Verify and Form I-9 changes and developments.

 

For more information, please read our press releases:

 

Tracker I-9™ Compliance Software Will Help Federal Contractors Meet New Requirement to ‘E-Verify’ Employees’ Work Eligibility

 

Tracker I-9™ with E-Verify Is Now Available

 

 

 

Posted by Tracker I-9™ team.

 

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.

 

 

In looking through E-Verify news prior to the launching of our blog, we came across some interesting statistics from a U.S. Government official on the use of the program. They tend to confirm that E-Verify is likely to have a growing and significant impact on U.S. employers.

 

According to Jonathan Scharfen, the U.S. Citizenship and Immigration Services (USCIS) acting director, the number of registered  E-Verify employers is growing on average over 1,000 per week. Scharfen informed Congress in June 2008 that over 69,000 employers, representing over 269,000 worksites, were signed up to use E-Verify. USCIS administers the program.

 

E-Verify was first made available on a voluntary basis in 1997 to employers in the five states with the largest immigrant populations: California, Florida, Illinois, New York and Texas. Originally set to expire in 2001, E-Verify has been extended twice, and is due for reauthorization by Congress by November 2008. Since 2004, it has been available to employers in all 50 states and in the U.S. territories where U.S. immigration laws apply.

Scharfen reported to Congress that since 2006, the number of employers registered has doubled in size each year. He also noted in his testimony a substantial increase in the number of states with legislation or Executive Orders that require E-Verify use for some or all employers under their jurisdiction. Arizona and Mississippi have laws requiring all employers in the state to use E-Verify; and Colorado, Georgia, Minnesota, Oklahoma, North Carolina, Rhode Island, South Carolina and Utah require some employers to use E-Verify. A directive issued last year from the U.S. Office of Management and Budget (OMB) required all Federal government agencies to sign up to use E-Verify by October 1, 2007. Last August, the Administration pledged to commence a rulemaking process to require all Federal contractors and vendors to use E-Verify and OMB recently concluded its review on this proposed rule. On June 6, the President signed Executive Order 12989 directing the Secretary of Homeland Security to designate an electronic employment eligibility verification system for Federal contractors to use. Scharfen reported that the day before his testimony the Secretary of Homeland Security had already designated E-Verify as the system Federal contractors shall use.

Additionally, in the past few months a number of DHS regulations were published that require employers to register with E-Verify before obtaining certain benefits. These include (1) a regulation enabling certain F-1 students in Optional Practical Training to apply for a 17-month extension of their employment authorization if they are employed by an E-Verify registered employer and (2) the proposed rule reforming the H-2A agricultural worker program, would allow H-2A workers who are changing employers to begin work with the new employer before the change is approved only if the new employer participates in E-Verify. The acting director of USCIS predicted that participation and usage of E-Verify will grow significantly over the next few years.

Government madates to promote the use of E-Verify are likely to have a significant impact on employers who may be planning to switch from paper I-9 forms to electronic management of employment eligibility verification.  Electronic Form I-9 management system from Tracker I-9™ is now integrated with E-Verify and allows employers to instantly and securely submit E-Verify information to government databases over the Internet. Tracker I-9 is also offering employers a free E-Verify and Form I-9 HR Toolkit, which can be requested by going to the Tracker I-9™ website.

Posted by Tracker I-9™ team.

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.