Electronic I-9s and the E-Verify Agent Rule

During the past few years, the E-Verify system has been marching along a steady path of improvements and enhancements, both in effectiveness and ease of use. The E-Verify web interface has undergone several facelifts, photo matching is in full swing, and the USCIS has introduced several outreach components to educate employers on proper use. The problem, however, is that all of these educational publications (which include guides, videos, etc.) are focused solely on employers using the web version of E-Verify.

Meanwhile, there is a growing and significant group of employers using electronic I-9 systems which transmit data to E-Verify through an access method known as “E-Verify Web Services.” These employers never see the web interface at all, so many of the USCIS materials and tutorials are completely irrelevant to them.  How do these employers ensure they are following the proper E-Verify procedures? Who assumes responsibility for training and the various E-Verify reporting requirements? What assurances must these organizations receive from their software vendors in light of increasing E-Verify site visits?

Introducing the Web Services E-Verify Employer Agent

A Web Services E-Verify Employer Agent (or WSEE Agent as I like to call it) refers to an organization which uses and/or develops web services software to confirm the employment eligibility of another organization’s employees. WSEE Agents are typically software companies which develop and license electronic I-9 and E-Verify services to employer clients.  As a WSEE Agent, the vendor’s primary responsibility is to develop a software interface which enables the employer to submit E-Verify cases and manage TNC responses as needed from the convenience of an error-checking electronic I-9 system. Utilizing a WSEE Agent does not, however, mean that the software vendor must actually submit E-Verify requests and handle all of the various steps to resolve a tentative non-confirmation (TNC). After all, that’s what the software is designed to do – help employers manage their own electronic I-9 and E-Verify cases. However, the software developer’s responsibilities do not end here. The USCIS has published an extensive Memorandum of Understanding (MOU) for software developers which enumerates specific obligations which must be followed and responsibilities which cannot be waived. While this Software Developer MOU establishes a wide range of requirements, one of the most important obligations as it pertains to employers is the vendor’s responsibility to serve as a WSEE Agent.

How do I know if my software vendor is serving as my WSEE Agent?

All software vendors must register as a WSEE Agent in order to receive the E-Verify specs and develop their software integration. Serving as a WSEE Agent, however, means that your software developer must enroll your organization in E-Verify under their umbrella, train your staff on proper E Verify use, and enter into a contractual relationship by signing a client MOU. Senior USCIS officials have explained that this requirement serves to protect employers that use an electronic I-9 system but lack appropriate recourse, memorialized in the E-Verify Agent contractual relationship, in the event the system or software vendor was not abiding by the rules. Still unsure if your vendor is serving as a WSEE Agent? Here’s a way to tell the difference: if your software vendor is telling you to create your OWN E-Verify account (including the registration of program administrators, company designation, etc.) and having you sign an MOU directly with E-Verify, then they are NOT serving as your WSEE Agent. This quasi-agent relationship can leave an employer vulnerable to service issues and potential scrutiny from USCIS (since the vast majority of electronic I-9 systems follow the proper Agent-umbrella model).

How do employers ensure access to E-Verify data and update their profile without an E-Verify account?

Fortunately, when using an electronic I-9 system with integrated E-Verify, there is little if any reason to access the USCIS E-Verify web interface. A well-designed electronic I-9 system should maintain a detailed record of all E-Verify transactions which can be presented in the event of a USCIS site visit or ICE I-9 audit. Moreover, most electronic I-9 systems include reporting and reminder capabilities which far exceed those offered by the E-Verify web site. As a WSEE Agent, your software vendor is also responsible for updating your profile as needed, which includes designating your organization as an employer with a FAR E-Verify clause. Lastly, if the electronic I-9 system is unavailable for any reason, the software vendor is contractually obligated to access the E-Verify web site on your behalf to ensure you remain in compliance. This is another great reason for using a vendor that serves as your WSEE Agent.

How is training supposed to be handled?

Employers using the web version of E-Verify are very familiar with the built-in tutorials which provide a fundamental overview of the E-Verify system. However, much of this tutorial is irrelevant to employers using an electronic I-9 system, since the interface, dashboard, and reporting functionality would most likely be very different. Fortunately, a software vendor serving as a WSEE Agent is contractually obligated to take the mandatory E-Verify web tutorial on an employer’s behalf in order to develop a specialized curriculum of training which combines those fundamental E-Verify rules with information related to the vendor’s software. In addition, the Software Developer MOU also notes that E-Verify is not responsible for this training. This is another way of saying that USCIS does not expect employers using electronic I-9 software to access their tutorials directly. Be careful of vendors that attempt to shirk these responsibilities by referring you to the E-Verify web site tutorials. Under the MOU, the software vendor acting as a WSEE Agent is clearly responsible for instructing you on the E-Verify rules, and can even face penalties for failure to provide adequate training. From a practical standpoint, it also makes little sense to have your employees access the USCIS-provided E-Verify tutorial, which contains specific instructions and screenshots for using the web version of E-Verify.

Are there any other reasons for ensuring your software vendor serves as a WSEE Agent?

Yes, there are actually numerous provisions in the WSEE Agent MOU which are designed to protect employers that entrust their electronic I-9 and E-Verify cases with a software developer. While these are beyond the scope of this particular blog, the MOU requires WSEE agents to guarantee timely E-Verify updates, compliance with E-Verify logic, contingency planning, data protections and electronic I-9 compliance (to name just a few). Unfortunately, many of these important factors can easily be overlooked in an employer’s quest to adopt the most inexpensive electronic system. As many employers are learning this year, however, the ultimate expense arises from noncompliance with government rules. Bottom line: if you’re using or considering an electronic I-9 solution with integrated E-Verify, make sure you’re covered under the umbrella of a trusted WSEE Agent that provides E-Verify setup, customized training, and the contractual protections of the E-Verify MOU.

For more information on this subject, find out how the Guardian Electronic I-9 and E-Verify System can help your organization.