E-Verify Questions from Our Readers

Last week, we answered some questions from our blog readers about I-9 compliance. Today, we’ll tackle a few questions from our longtime readers related to E-Verify.

1. My company just started using E-Verify. What’s the error rate?

Signing up with E-Verify can be a big step depending on how large your company is. The accuracy of the E-Verify system depends largely on how updated the various federal databases are. Some states like Mississippi, for example, have integrated their Department of Motor Vehicles databases with the E-Verify program, which has resulted in a slightly higher rate of Tentative Non-Confirmations (TNCs) issued than the rest of the states at large. However, this is due to the fact that the E-Verify system can check against more data.  For the more curious of our readers, you can access the latest accuracy stats online for the national average for TNCs.

As for user error rates…. that is a whole other issue! The data is not out yet and USCIS has not been too open about exactly how this data will be used, if at all, “against” employers. For now, USCIS is sending emails to E-Verify enrolled employers which it has determined to be using the system incorrectly.

2. How is USCIS planning to use the information gathered in E-Verify? Example: late entries, number of days cases are opened, etc.

When it comes to anything technology and government, the phrase “data mining” might as well be verboten. Does the E-Verify technology have the capability of tracking how employers have utilized the system, how quickly they are responding to TNCs and FNCs and how proactive employers are in notifying USCIS? Absolutely!

The more relevant question might be whether or not USCIS plans on using the data it collects on employer-usage patterns to develop more robust guidelines to help employers, or whether it intends to analyze the data for the purpose of administering non-compliance fines.

At this point, it’s still a bit early to tell which direction USCIS is headed. Absent congressional legislation mandating the use of E-Verify nationwide though, we might still be in the “honeymoon” period where USCIS will not act on enforcements priorities for E-Verify non-compliance. Coupled with the fact that USCIS is still actively trying to encourage employers enroll, it makes sense for any enforcement actions by USCIS to be delayed (if it materializes at all).

3. What is the timeline for resolving TNCs?

According to USCIS’ instructions page, an employee has eight (8) federal working days to take action to resolve a TNC. This does NOT mean that the employee, faced with a TNC, has only eight federal working days to work for the employer or eight days total in which the TNC must be corrected.

If the employee seeks corrective action during those eight federal working days, then the time to resolve the TNC depends on what information is needed to remediate the TNC. It could be a complex database issue that may require the employee make a formal request to a government agency. In those rare cases, it may take many months before the employee will receive an update (let alone a resolution) from that government agency.

What should an employer do in the meantime? By all means, we encourage our employers to plan their courses of action in advance with experienced legal counsel, prior to taking any negative actions against an employee who is faced with correcting a TNC.  At minimum, employers should contact the hotlines for assistance in the absence of legal counsel.

4. Why doesn’t the government make all companies use E-Verify?

There are many ways to respond to this question, but I’ll limit myself to just two. First, E-Verify system was “borne” out of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). It’s a legislative creation which means that Congress must agree on a way to mandate this system nationally. At least in this congressional session, Congress hasn’t been very agreeable with each other. Many issues which use to be routine are politicized. Until there is congressional consensus, E-Verify cannot be legally required for all employers nationally.

Second, for certain employers, E-Verify constitute a burden on its workforce. (I’ll discuss this in more details in an upcoming blog article). Large (think 10,000+ employees) employers with a legitimate authorized workforce still must navigate the tribulations of TNCs. For a workforce of hundreds of thousands, a high TNC rate could be detrimental to its workforce. (Keep in mind the statistics that USCIS releases on its E-Verify accuracy is an average and may not reflect actual usage for any given employer.) In addition, the time burdens, costs on the employer for managing the E-Verify process, employees’ lost wages for time off work, lost productivity and additional costs to resolve the TNC can be high.

5. What happens if an employee goes to SSA on their own to have an issue corrected prior to getting the employer TNC letter?

Funny you should ask! I actually blogged about one way in which this scenario played out before the Department of Justices’ OSC Division. You can read about it here. In this scenario, the employer ultimately agreed to pay back wages, interest and civil penalties.

Employers navigating the “simple” E-Verify process need not go it alone. There are plenty of experienced immigration attorneys who can assist, in addition to robust E-Verify software like theGaurdian System that enables employers to log in and manage the E-Verify process much more efficiently than if they had gone it alone. You can check out the software and its advantages here.

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We’ll be following up with more articles related to I-9 and E-Verify. Do you have general E-Verify questions? Send them to us and we might pick it for our next round of questions and answers blog article. Visit our demo page to learn more about our I-9 and E-Verify software system, the most robust system to help employers improve compliance.