Under Investigation for Discrimination? It may be as a result of E-Verify

During the past few months, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has reached settlements with various employers, including Master Klean Janitorial, El Rancho Corp., SK Food Group, and Potter Concrete for Form I-9 document abuse and/or citizenship discrimination. While such settlements (and the accompanying press releases) are nothing new for the OSC, we have noticed a very interesting trend in terms of how the investigations began: almost all of them were initiated by a referral from the U.S. Citizenship and Immigration Service (USCIS). Who at the USCIS is referring these matters to the OSC?

The answer is the USCIS’s Verification Division Monitoring and Compliance Branch (M&C Branch), which identifies and seeks to deter possible discriminatory practices and employer misuse of the E-Verify system.  Although the M&C Branch does not have the authority to fine employers, it does refer cases of suspected misuse, abuse, and/or fraud to the OSC and Immigration and Customs Enforcement (ICE). Some of the common E-Verify behaviors which may give rise to M&C scrutiny include:

  • Failure to create an E-Verify case within the third day after the employee started work for pay;
  • Aberrrant non-use of the E-Verify system
  • Impermissible verification of current employees (hired before the employer enrolls in E-Verify)
  • Failure to print the Tentative Non-Confirmation Notice (now called “Further Action Notice”) when triggered by the E-Verify system; and
  • Having a significant number of cases where a lawful permanent resident presented an I-551 permanent resident card.

As part of their compliance tracking, the M&C Branch provides information and guidance to E-Verify participants by emails and phone calls as well as through participation in a desk review or site visit. In 2012, the M&C Branch sent over 62,000 emails to employers, initiated or responded to over 7,200 telephone calls, conducted 48 desk reviews and made 32 site visits.

A desk review is not an audit, nor is it an inspection (although it can certainly feel like one).  Employers are selected to participate in a desk review if a standard review of their company’s E-Verify usage indicates they may be experiencing difficulties with the system.  Participants selected for a desk review provide M&C Branch with E-Verify employment-related documents, such as copies of TNC notices, referral letters, and electronic copies of human resources procedures for processing I-9 forms and E-Verify cases. M&C Branch reviews and analyzes these documents and then advises the employer on how to correct any problems.

A site visit is a coordinated consultation between M&C Branch staff and E-Verify participants conducted at the E-Verify participant’s place of business. M&C Branch may contact an E-Verify participant for a site visit if its records show a participant appears to be experiencing difficulties or issues when using E-Verify. Participants selected for a site visit receive a telephone call or email from M&C Branch before a site visit.  During a site visit, M&C Branch provides compliance assistance by discussing its observations on how the E-Verify participant processes their cases and it advises on how to properly follow E-Verify policies and procedures.

Hopefully, one will not have to interact with the M&C Branch but if one does, one at least will know their role within the USCIS and E-Verify. Furthermore, it appears more and more likely that the M&C Branch will be taking an active role in reviewing E-Verify data.