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12 Tips to Prepare for Mandatory E-Verify:

[Editor’s Note: Today’s article is courtesy of Alan Gordon, Managing Attorney at Alan Gordon Immigration Law based in Charlotte, North Carolina.]

A key component of the immigration reform proposal is implementation of the E-Verify system nationwide.  The Department of Homeland Security (DHS), acting through its enforcement agency, Immigration and Customs Enforcement (ICE), continues to actively pursue and fine companies for violating employment eligibility verification (I-9) rules. ICE has issued thousands of Notices of Inspection (NOI), and has conducted individual I-9 audits of numerous small, medium and large employers.  Employers should take proactive measures to monitor their compliance with I-9 employment eligibility verification rules, allowing the company to be better prepared when ICE knocks on the door.  With the possibility of E-Verify becoming mandatory for all employers, it’s important that employers take proactive measures now to be compliant with the immigration laws.

The following 12 tips can help your company minimize audit risks and move towards better E-Verify and Form I-9 compliance:

1. Display the “Notice of Participation” and the “Right to Work” Posters:  Employers enrolled in E-Verify should display the correct posters in their place of business.  The English and Spanish versions of the “Notice of Participation and “right to Work” posters must be displayed in a visible place.

2. E-Verify Usage:  Do not use E-Verify BEFORE the employee has accepted your employment offer or before Sections 1 and 2 of Form I-9 have been completed. IMPORTANT: Employers must timely complete I-9s for their workers even if they participate in E-Verify.

3. Create the E-Verify Case no later than 3 days after hire:  Do this as soon as the required Form I-9 is completed.   This must be no later than 3 days after hire.  Employers who have transitioned to a well-developed electronic I-9 and E-Verify software will find these processes to be much smoother and more efficient.

4. Deferred Action for Childhood Arrivals (DACA):  If an employee provides an Employment Authorization Document (EAD) from DACA approval, the employer must document the EAD and its validity date on Form I-9, under section 2.  If the employer did not have prior knowledge of the employee’s unlawful status, the employer should submit a new E-Verify application for an existing employee who provided a new EAD.

5. Tentative Non-Confirmation (TNC) issued by E-Verify: Employers must provide notice of the TNC to the employee. The employee has eight federal work days to contest a TNC.  If the employee has contested the TNC, the employee is authorized to continue working until a final resolution is received.

6. E-Verify for Re-Hires:  If an employee is re-hired within three years, the employer may use the re-hired employee’s existing Form I-9 and E-Verify record on file.

7. Managing E-Verify Usage:  Employers who enroll in E-Verify must use the program consistently.  If usage is not consistent, USCIS will red-flag the inconsistency which may result in increased scrutiny and possibly a non-compliance notice.

8. Re-verifying Employees’ Work Eligibility: E-Verify will alert you when an employee’s Employee Authorization Document or Form I-94 is expiring.  You must re-verify employment eligibility by completing Section 3 of the worker’s Form I-9.

9. Non-Traditional Hires:  If employers acquire employees through non-traditional hiring methods, such as through mergers and acquisitions, the employer should consult with experienced immigration counsel to determine the best E-Verify strategy.

10. Close-out your E-Verify case as soon as you receive a Final Verification Result:  Employers must either record the E-Verify case number on the employee’s Form I-9, or print the case details and keep them with the employee’s Form I-9.  Be consistent.  Use the same process for all E-Verify cases.

IMPORTANT: Retain all Forms I-9 for the required statutory period, i.e., three years from the date of hire, or one year from the date of termination, whichever is later.  Develop a tracking system to identify those I-9s that can be purged (and destroyed).

11. Avoid the “over-document” trap of E-Verify Photo Matching:  E-Verify contains a photo matching component that is triggered only when employees provide a permanent resident card (Form I-551), Employment Authorization Document (Form I-766B) or a US passport or passport card.  This applies only if your employee volunteers the documents.  A lawful permanent resident employee is not required to provide their Form I-551 to prove employment eligibility.  Requiring employees to provide specific documents, or not refusing to accept valid List A, or List B and C documents can lead to claims of discrimination based on national origin and/or citizenship.   In January 2013, a South Carolina company paid a fine of $250,000.00 for treating work-eligible non-U.S. citizens differently from U.S. citizens during the employment eligibility verification process.

12. Ensure all sections of Form I-9 are fully completed:  Stapling a copy of the photocopied documents in lieu of properly completing and signing Section 2 of the I-9 is NOT acceptable.   An employee’s failure to sign Section 1, an employer’s failure to timely prepare the I-9, and an employer’s failure to sign Section 2 have all been deemed “substantive” violations”, not “technical or procedural” violations, resulting in higher fines.

The Congressional Research Service report on E-Verify, released March 19, 2013, contained troubling information on the accuracy of the system.  The report found that for a three month period in 2008 (April – June) E-Verify’s total inaccuracy rate was 4.1%.

About the Author

Alan Gordon is the Founding and Managing Attorney at Alan Gordon Immigration Law, a comprehensive immigration law firm providing services to employers, foreign nationals and their families for over thirty years. The firm provides a range of corporate immigration services, including I-9 Audits and E-verify defense and assisting companies in developing an immigration compliance strategy to minimize liabilities arising out of government audits.

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