Tag: E-verify

Form I-9 Software: Avoiding Unlawful Discrimination When Selecting and Using I-9 and E-Verify Software Systems

A recent employer fact sheet from the U.S. Department of Justice (DOJ) and U.S. Department of Homeland Security (DHS) provides guidance for avoiding unlawful discrimination and other violations when using private software products to complete Forms I-9 and E-Verify cases.

Quick Hits

  • Employers are responsible for selecting and using software products that avoid unlawful discrimination and comply with Form I-9 and E-Verify requirements.
  • Employers must not use software products that violate Form I-9 and E-Verify requirements or involve system limitations that unlawfully discriminate among workers.
  • DOJ and DHS advise employers to train staff on Form I-9 and E-Verify requirements, and to provide access to published government guidance on Form I-9 and E-Verify requirements.

Employer Compliance With Form I-9 Software Products

The fact sheet reminds employers to use the current Form I-9 and properly complete the Form I-9 for each new hire after November 6, 1986, with any acceptable employee documents. Form I-9 systems must comply with requirements for electronic signatures and document storage including the ability to provide Form I-9 summary files containing all information fields on electronically stored Forms I-9. The fact sheet confirms required software capabilities and employer practices to properly complete the Form I-9 and avoid unlawful discrimination.

Employers must ensure that any software:

  • allows employees to leave form fields blank, if they’re not required fields (such as Social Security numbers, if not required on E-Verify cases);
  • allows workers with only one name to record “Unknown” in the first name field and to enter their names in the last name field on the Form I-9;
  • uniquely identifies “each person accessing, correcting, or changing a Form I-9”;
  • permits Form I-9 corrections in Section 1 and does not complete Section 1 corrections for workers, unless completing preparer/translator certifications in Supplement A;
  • retains all employee information and documents presented for form completion; and
  • permits Form I-9 corrections in Section 2 and allows completion of Supplement B reverifications with any acceptable employee documents.

Employer Compliance With E-Verify Software Products

The fact sheet reminds employers to comply with E-Verify program requirements when using software interfaces for E-Verify case completion. The fact sheet confirms required software capabilities and employer practices for completing E-Verify cases. Employers must still:

  • provide employees with current versions of Further Action Notices and Referral Date Confirmation letters in resolving Tentative Nonconfirmations (mismatches) in the E-Verify system;
  • provide English and non-English Further Action Notices and Referral Date Confirmation letters to employees with limited English proficiency;
  • display E-Verify notices confirming employer use of E-Verify;
  • “promptly notify employees in private” of E-Verify mismatches and provide Further Action Notices. If an employee who has been notified of a mismatch takes action to resolve the mismatch, provide the Referral Date Confirmation letter with case-specific information;
  • delay E-Verify case creation, when required. For example, when workers are awaiting Social Security numbers or have presented acceptable receipts for Form I-9 completion, employers must be able to delay E-Verify case creation; and
  • allow employees to resolve E-Verify mismatches prior to taking any adverse action, including suspensions or withholding pay.

Prohibited Employer Activity When Using Form I-9 Software

The fact sheet notes that an employer that uses private software products for Form I-9 or E-Verify compliance is prohibited from:

  • completing the Form I-9 on an employee’s behalf unless the employer is helping an employee complete Section 1 as a preparer or translator;
  • prepopulating employee information from other sources, providing auto-correct on employee inputs, or using predictive language for form completion;
  • requiring more or less information from employees for Form I-9 completion or preventing workers from using preparers/translators for form completion;
  • improperly correcting the Form I-9, improperly creating E-Verify cases, or failing to report corrections in the Form I-9 audit trail;
  • requesting more or different documentation than needed for Form I-9 completion, or failing to complete reverification in Supplement B of the Form I-9; and
  • imposing “unnecessary obstacles” in starting work or receiving pay, “such as by requiring a Social Security number to onboard or by not paying an employee who can complete the Form I-9 and is waiting for a Social Security number.” (Emphasis in the original.)

Staff Training and Technical Support

The fact sheet warns employers against using software products that do not provide technical support to workers, and it notes that employers are required to provide training to staff on Form I-9 and E-Verify compliance. Resources for staff members using software products for Form I-9 and E-Verify case completion include I-9 Central, the Handbook for Employers M-274, the M-775, E-Verify User Manual, and DOJ publications.

© 2024, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more on Form I-9, visit the NLR Immigration section.

Partial Government Shutdown Causes Full-Blown Headache for Employers Using E-Verify

If you are an employer that is obligated to or has chosen to use E-Verify, then you have probably already received this message from the E-Verify website: “NOTICE: Due to the lapse in federal funding, this website will not be actively managed. This website was last updated on December 21, 2018, and will not be updated until after funding is enacted. As such, information on this website may not be up to date. Transactions submitted via this website might not be processed, and we will not be able to respond to inquiries until after appropriations are enacted.”

But what does this notice actually mean for your business? As long as the shutdown remains in effect, you will not be able to:

  • enroll in the program

  • access your E-Verify account

  • create a case in E-Verify

  • take action on a case you previously submitted

  • add, delete, or edit accounts

  • terminate accounts

  • run reports

Also during this time, your employees will not be able to resolve any E-Verify Tentative Nonconfirmations (TNCs) they received prior to the shutdown. Indeed, the number of days E-Verify is not available will not count toward the days employees have to begin the process of resolving their TNCs.

So, what should you do with your new hires given that you cannot create a case in E-Verify within the three business days required?

  • Make sure you are still completing I-9s in a timely manner. The shutdown does not affect the three business days you have to obtain and verify documentation in Section 2 or any other I-9 obligations.

  • Do not take any adverse action against employees who have open cases in E-Verify.

  • Create a list of all employees hired during the time period E-Verify has been inoperable, and make a notation that the reason the employees were not run through E-Verify is due to the government shutdown.

  • Take the time now to establish a system for running these employees through E-Verify once the system becomes available. Absent other instructions from USCIS, you will most likely be choosing the “other” drop-down field when asked why the case was not created within three days and typing in “government shutdown.”

  • If you’re a federal contractor with a Federal Acquisition Regulation E-Verify clause, think about getting confirmation in writing from your contracting officer that the E-Verify deadlines are extended. Or, if the officer is not available, at least create documentation that you have inquired about this.

© 2019 Jones Walker LLP
This post was written by Laurie M. Riley and Mary Ellen Jordan of Jones Walker LLP.

Client, Staffing Agency and E-Verify: What’s Permissible?

E-Verify LogoCompanies facing an I-9 audit by Immigration and Customs Enforcement (ICE) can be subject to heavy fines and penalties. Some companies that use staffing agencies may especially be concerned about their potential liability, particularly if they believe, after Browning-Ferris, they may be considered a joint employer with their staffing agencies due to the specific facts of the contract.  Can such a business, for its protection, demand that the staffing agency use E-Verify for all individuals placed with the client?

The issue of whether a business may demand that the staffing agency use E-Verify for all staffed individuals implicates the I-9 anti-discrimination provisions that the Department of Justice enforces.  A staffing agency may enroll in E-Verify as an employer or as an E-Verify employer agent with limited participation of hiring sites, but may not designate those hiring sites based on the national origin or citizenship status of employees hired at those sites. If the staffing agency only uses E-Verify at certain sites, it may create the appearance of a discriminatory practice, leading to complaints by employees.

Despite that, a recent TAL, a technical assistance letter, provided general guidelines for staffing agencies in this situation. It first reiterated compliance with the anti-discrimination provisions is required, but also stated that, to the extent E-Verify is used selectively by the staffing agency to meet the client’s demands for reasons “wholly unrelated” to the workers’ citizenship status or national origin, it likely will not violate any anti-discrimination provisions. As with guidance on other employment issues to employers, careful written documentation of the client’s legitimate reasons for the request, wholly unrelated to the citizenship status or national origin of the workers, is essential.

Article By Doreen D. Dodson of Polsinelli PC

© Polsinelli PC, Polsinelli LLP in California 

E-Verify to Destroy Old Records

E-Verify LogoE-Verify has announced that effective Jan. 1, 2016, in compliance with the National Archives and Records Administration’s retention and disposal schedule, it will destroy all transaction records older than 10 years.  Thus, all transaction records created prior to Dec. 31, 2005 will be destroyed.  Further, E-Verify will delete, on an annual basis, all transaction records that are more than 10 years old.

E-Verify has created a new Historic Record Report that will include all transaction records over a 10-year period.  If you wish to get the Historic Record Report, it must be downloaded before Dec. 31, 2015.  To download the Report, please log into E-Verify where you will find instructions to download the Report.

It is always recommended as best practice to record the E-Verify case verification number on the related I-9 form.  It is now also recommended that employers also retain the Historic Records Report with the Forms I-9.

Article By Shaoul Aslan of Greenberg Traurig, LLP
©2015 Greenberg Traurig, LLP. All rights reserved.

E-Verify Update and Improvements

Poyner Spruill Law firm

​E-Verify has been operational since 1997 as part of a Basic Pilot Program to assist employers to verify electronically that a newly hired employee is authorized to work in the US.  A number of states have made use of E-Verify mandatory, including North Carolina which requires that employers with 25 employees to have been enrolled in E-Verify by July 1, 2013.

Update

Currently there are over 530,000 employers nationwide enrolled in E-Verify.  Statistically, the program has grown rapidly as has its accuracy, having verified close to 24 million cases.  Of those, 98.81% have been confirmed as employment authorized.  The US Citizenship and Immigration Services (USCIS) graphic below provides E-Verify’s latest statistics:

E-verify

The Monitoring and Compliance Branch (M&C Branch) was created by the USCIS in 2009 to ensure E-Verify is being used properly.  Its main function is to monitor and guide E-Verify participants by phone, email, desk reviews and site visits.  This unit does not fine employers, but does refer cases of suspected misuse, abuse or fraud to Immigration Customs and Enforcement (ICE) and the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).  There has been an uptick in complaints to the OSC resulting in some sizeable settlements.  All settlement agreements described on the OSC website have one thing in common: all employers participated in E-Verify and the OSC became involved, for the most part, by the USCIS referring the employer to OSC.  Thus, it is noteworthy that participation in E-Verify alone does not protect an employer from enforcement action and penalties.

Recent Improvements to E-Verify System

E-Verify has announced some needed improvements to its system to assist employers who, in doing so, will hopefully not attract M&C Branch attention:

  • Duplicate Case alert now notifies the employer if a social security number  matches any other social security number entered for an existing case with the past 30 days.
  • The user’s name no longer auto-fills: it must now be completed each time to ensure accuracy, providing a prompt to validate or update email and phone number whenever the user’s password expires, which is every 90 days.
  • An employee whose information is entered in E-Verify resulting in a tentative nonconfirmation will receive email notification if they provide their email address on the Form I-9.
  • There is a new photo tool that will display any photo on record with E-Verify, enabling the user to compare it to the photo ID being presented.
  • E-Verify now verifies a driver’s license as to authenticity by matching the data entered by the user against participating state motor vehicle department records. Currently, North Carolina does not participate in this so-called RIDE system.
  • If E-Verify detects fraudulent use of a social security number, it prevents that number from being used more than once.
  • Notices generated by E-Verify are now available in 18 languages.
  • There are monthly webinars in Spanish for employers.
  • E-Verify screens for typographical errors and requires employers to correct them.
  • The Further Action Notice that is generated after a Tentative Nonconfirmation from the Department of Homeland Security includes instructions on how to correct immigration records after resolving the Tentative Nonconfirmation on E-Verify.
  • Updated Further Action Notices are also no longer pre-populated, but are easy to complete.
  • Customer support has been improved and includes an “E-Verify Listens” link that can be accessed by the E-Verify user while in the E-Verify system to assist with E-Verify completion.

While the system is not perfect, it is increasingly pervasive and increasingly “user friendly.”  Further, employers have a strong incentive to use E-Verify properly to avoid settlements generated by  enforcement actions that appear to be directly linked to E-Verify misuse, abuse and fraud.

ARTICLE BY

Jennifer G. Parser
OF
Poyner Spruill LLP

USCIS Announces Comment Period for E-Verify Program

Nataliya Binshteyn of Greenberg Traurig, LLP recently had an article regarding E-Verify published in The National Law Review:
GT Law
 

On September 11, U.S. Citizenship and Immigration Services (USCIS)announced a 60-day period for submitting comments about the E-Verify program. Comments are encouraged and will be accepted until November 13, 2012. Additional details about the Federal Register notice announcing the comment period as well as submission procedures are re-printed below.

Federal Register Volume 77, Number 176 (Tuesday, September 11, 2012)]

Pages 55858-55859

From the Federal Register Online via the Government Printing Office

FR Doc No: 2012-22256

Written comments and suggestions regarding items contained in this notice, and especially with regard to the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), USCIS, Office of Policy and Strategy, Laura Dawkins, Chief, Regulatory Coordination Division,

20 Massachusetts Avenue NW., Washington, DC 20529.

Comments may be submitted to DHS via email at uscisfrcomment@dhs.gov and must include OMB Control Number 1615-0092 in the subject box. Comments may also be submitted via the Federal eRulemaking Portal at http://www.regulations.gov under e-Docket ID number USCIS-2007-0023.

If submitting comment on one of the six E-Verify Memoranda of Understanding (MOU), please identify the MOU that concerns your business process, and, if possible, the article, section and paragraph number within the MOU that is associated with the comment.

All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any voluntary submission you make to DHS. DHS may withhold information provided in comments from public viewing that it determines may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of http://www.regulations.gov.

Written comments and suggestions from the public and affected agencies should address one or more of the following four points:

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

©2012 Greenberg Traurig, LLP

E-Verify: North Carolina and Federal Requirements

An article by Jennifer G. Parser of Poyner Spruill LLP regarding E-Verify appeared recently in The National Law Review:

North Carolina’s Rule

Last June, 2011, North Carolina joined the ranks of an increasing number of states requiring the use of E-Verify.  E-Verify is a free internet-based system that allows employers to determine employment authorization by checking an employee’s documentation against Department of Homeland Security (DHS) and Social Security Administration (SSA) databases.  It applies to certain federal contractors, but also is being adopted by states, regardless of federal contracts being involved.

North Carolina counties, cities and public universities were required to register and participate in E-Verify by October 1, 2011. Private sector employers’ participation in E-Verify is phased in more slowly, according to the employer’s size:

  • Employers with 500 or more employees will be required to participate by October 1, 2012;
  • Employers with 100 or more employees will be required to participate by January 1, 2013; and
  • Employers with 25 or more employees will be required to participate by July 1, 2013.

Federal E-Verify Rule

Private businesses in North Carolina are required to verify the employment eligibility of current employees regardless of the above phased-in legislation if the employer has been awarded a federal contract on or after September 8, 2009 that contains the Federal Acquisition Regulation (FAR) E-Verify clause. Such federal contractors must enroll in E-Verify within 30 days of the contract award date regardless of the business’ size. After enrollment, the federal contractor has 90 days to use E-Verify.  The federal contractor must then use E-Verify for new hires within 3 business days of the employee’s start date.

E-Verify must also used for existing employees assigned to work on the  federal contract within 90 days of the federal contract being awarded or within 30 days of the employee’s assignment to work on the federal contract, whichever is later. For existing employees to be required to be  run through E-Verify, the employee must perform substantial work under the federal contract which does not include administrative or clerical functions.  E-Verify does not apply to work that is performed outside the US, if the term of the federal contract lasts less 120 days, or if the federal contract pertains to commercially available off the shelf items.  A “commercially available off the shelf item”, known COTS, is something generally sold in substantial quantities in the open market.  A few examples are computer software, computer hardware and construction materials.  Also, industries that hire agricultural workers for 90 days or less in a 12 month period are exempt from enrolling in Federal E-Verify.

Unless the subcontractor is a supplier and not subject to the E-Verify federal contractor rule, a federal contractor must also ensure that its subcontractors enroll in and use E-Verify if:

  • The prime contract includes the Far E-Verify clause,
  • The subcontract is for commercial or noncommercial services or construction,
  • The subcontract has a value of more than $3,000, or
  • The subcontract includes work performed in the United States.

A Few Important Rules for Any Business Enrolled in E-Verify 

  • Post the notices that the business is now enrolled in E-Verify alongside antidiscrimination notices by the Office of Special Counsel for Immigration-Related Unfair Employment Practices
  • When completing the I-9 form, the employee’s choice of a List B document must contain a photograph in order to be run through E-Verify
  • Do not use E-Verify selectively
  • Do not use E-Verify to pre-screen job applicants; it is used post-hiring
  • Do not ask for additional documentation in the event of a “Tentative Nonconfirmation” by E-Verify: allow the employee time to correct any error by visiting the local SSA office
  • Do not terminate or take adverse action against an employee  who receives a tentative nonconfirmation: allow them time to correct the error

Penalties, Federal- and State-Imposed

There have been substantial fines levied for immigration-related offenses by Immigration and Customs Enforcement (ICE) against employers enrolled in E-Verify, proving enrollment in E-Verify will not save an employer from potential violations.

Civil penalties for violations of  North Carolina’s E-Verify law are assessed by the NC Commissioner of Labor and range from $1,000 to $10,000.

E-Verify Link

Unless already enrolled in E-Verify as a federal contractor or subcontractor or having elected to do so on a voluntary basis, North Carolina employers with 25 or more employees would do well to visit the E-Verify website.  Click here.  At this point, there is time to become acquainted with E-Verify and its enrollment procedures before registration becomes mandatory.

© 2012 Poyner Spruill LLP