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E-Verify Releases Final Version of ICA v31 and Sets Deadline of March 31, 2022 for Web Services Providers

What you need to know:

E-Verify has published a new version (v31) of the E-Verify ICA used by electronic I-9 and E-Verify web services providers to integrate with the E-Verify system. Changes include modification of the duplicate case checking process, adding the ability to close a case during the scan and upload step, requiring users to download the Further Action Notice before referring a case, and adding a new case delay reason – “Awaiting response on case created with incorrect information.”

Electronic I-9 and Web services providers must incorporate the v31 changes into their software no later than March 31, 2022.

In-Depth Discussion

If you’re an E-Verify employer, you probably get a little nervous when you hear about a new “version” or “enhancement” coming down the pike. The E-Verify system may be billed as “fast, free, and easy” but in HR, we know that those three words are not often used in the same sentence when describing government-mandated steps.

So it was with some trepidation that I cautiously opened an email I received from E-Verify on Friday, announcing that they had released a “final” version of their latest web services enhancements through a document called an “Interface Control Agreement” or ICA.

To those unfamiliar with this particular acronym, an E-Verify ICA is essentially a specifications document provided to electronic I-9 software vendors and web services providers, which sets out the rules and requirements for integrating with the E-Verify system. Each ICA has a version number (this latest is “version 31”), and more importantly, a deadline for implementation, which is typically 6 months after release.

In years past, many web services developers (and employers) would first learn of an E-Verify ICA update upon its publication by USCIS, or sometimes even later as the deadline approached. In an effort to reduce the mad dash of development, the USCIS released a “draft version” of the ICA in July of this year which gave us a sneak peek at the changes to come.

v31 Changes

For the most part, the v31 changes do not impose any new requirements or burdens on employers – although there may be one unintended consequence in connection with the agency’s COVID-19 policies that are currently still in effect. Below is a detailed description of each change in v31 and how it may impact employers and HR managers.

(1) Duplicate Case Process

E-Verify’s v31 implements 3 changes to the duplicate case alerting system:

  1. Expands the current duplicate case lookback period from 30 federal government workdays to 12 calendar months
  2. Restricts a user from creating a new case if an open duplicate case for the same employee already exists
  3. Removes the restriction on the number of duplicate cases that can be displayed at one time

Why is E-Verify changing the duplicate case process?

In a presentation earlier this year, the USCIS estimated that they see over 1 million duplicate case entries per year, due in large part to accidental re-submissions by employers and HR representatives. The agency hopes that the changes listed above will reduce this extra noise and improve overall system integrity.

How will this impact employers?

Employers will likely see a greater number of duplicate case alerts from the E-Verify system, especially for organizations with large numbers of seasonal rehires (i.e., employees who are rehired within 12 months or less of their previous stint). Under the E-Verify rules, employers have the option of treating all rehired employees as new hires (which entails completing a new I-9 and E-Verify case) or completing Section 3 for all rehires and only completing a new I-9 and E-Verify case for those rehires for whom no previous E-Verify case exists.

Employers with frequent rehires may also be impacted by the second change listed above – restricting the creation of a new case when an open duplicate for the same employee exists – particularly, for those employees with unresolved SSA TNCs due to the pandemic. Per the USCIS temporary policy, these cases remain frozen in a referred state, which means they cannot be closed by the employer, even in the event of employee termination.

At this time, it’s unclear how USCIS expects employers to manage E-Verify cases for rehires when a prior SS TNC remains open.

(2) Closing a Case at the Scan and Upload Status

When an employee presents a US passport, passport card, green card, or employment authorization document, E-Verify will automatically engage the “photo matching” process whereby the employer must confirm that the photo displayed in E-Verify is identical to the photo on the document the employee presented for I-9 purposes.

If the employer indicates that the photo displayed by E-Verify did not match the photo on the employee’s document, E-Verify will prompt the employer to make a copy of the document the employee provided and submit it to DHS for review. The employer may either scan and upload an image of the document or send a copy of the document via express mail at the employer’s expense.

 

However, what happens if the employee terminates for whatever reason? Currently, users cannot close a case in E-Verify that is in the “SCAN_AND_UPLOAD” status. Instead, the USCIS-approved workaround has to been to upload a blank piece of paper so that case can then proceed to a TNC (at which point, it can then be closed).

Why is E-Verify changing this process?

There may be situations (as described above) when an employer needs to close a case that is currently in the scan and upload status

How will this impact employers?

Employers will now have an easier (and more intuitive) process for closing E-Verify cases that are in this particular status.

(3) TNC FAN Process

When an employer receives an E-Verify tentative nonconfirmation (TNC), they are instructed to notify the employee of the TNC result as soon as possible and give the employee a copy of the Further Action Notice (FAN) which describes the TNC in more detail and allows the employee to formally contest it. A sample SSA TNC FAN is provided here.

An electronic I-9 system (with integrated E-Verify) must download the required FAN and present it to the employer in the event of a TNC. But previously, the E-Verify system did not strictly require this download step to occur prior to the employer submitting the TNC for SSA or DHS referral.

Through this latest enhancement, E-Verify is now requiring the system to download the FAN before the user can refer a TNC case.

Why is E-Verify changing this process?

To ensure that employers present that the FAN to the employee as required by program rules.

How will this impact employers?

The workflow step (with the electronic I-9 platform) may change to require that the user click (download) the FAN before a TNC case can be referred.

(4) Case Reason Delay

Under the E-Verify “three-day rule,” an E-Verify case is considered late if it’s created later than the third business day after the new hire first started work for pay. For example, if a new hire starts work for pay on a Monday, the E-Verify case must be created no later than Thursday (assuming a standard work week).

When E-Verify detects a late case, the system will automatically prompt the user to provide a reason for the delay from a list of available options, including the following:

  • Awaiting Social Security Number
  • Technical Problems
  • Audit Revealed that New Hire Was Not Run
  • Federal Contractor with FAR E-Verify Clause verifying an existing employee (if applicable)
  • Other

If the organization chooses “other”, they must provide a reason (maximum of 200 characters).

Through this latest release, E-Verify is now adding a sixth potential reason for the delay – “Awaiting response on case created with incorrect information” to address situations where the initial case was held up in E-Verify review, and a subsequent case was created with corrected information.

Why is E-Verify changing this process?

To reduce the data entry burden for employers (i.e., employers will now be able to select this new option rather than enter their own description).

How will this impact employers?

When a late E-Verify submission is detected, employers will see a new “reason” option that can be selected.

Conclusion

From a technical point of view, the v31 ICA is a relatively minor upgrade (in the grand scheme of things), requiring the web services provider to support a few additional business rules and requirements.

However, it is important to remember that web services providers must design, test, and implement these changes no later than March 31, 2022 (the deadline imposed by USCIS). If a provider fails to make the changes within this time period, they may be unable to interact with the E-Verify system at all – a fairly dire consequence for both the provider and all of its clients.

Have a question on v31 or E-Verify in general? Please drop us a line. And if you’d like to learn more about the Guardian Electronic I-9 and E-Verify system, you can contact us here.


About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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