Latest E-Verify Developments from ACIP Symposium

This week, the American Council on International Personnel (ACIP) held its 36th annual symposium, bringing together government representatives and employers to discuss compliance and immigration issues.  As usual, the Symposium held several “hot topic” workshops, including a very informative session on I-9 and E-Verify compliance, which featured speakers from the United States Citizenship and Immigration Services (USCIS) and the Department of Justice – Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). The panel was excellent – providing some late-breaking news and insight into this important topic. Here is a detailed recap of the most important developments coming our way: E-Verify 3.0 As previously mentioned, the new E-Verify design will go live this coming Monday, June 13, 2010, featuring over 200 redesigned screens and improved terminology to simplify the process for employers using the E-Verify web interface (as opposed to an integrated electronic I-9 solution).  It’s important to note that organizations already using E-Verify must take the refresher tutorial (roughly 20 minutes) before they can use E-Verify on Monday. The panelist mentioned that they recognize it would be more convenient if users could take the tutorial prior to an E-Verify revision launch, but right now the systems are intertwined. They are looking at a way of decoupling the tutorial from the launch, so that users can take/pass the tutorial without losing any time on launch day. One of the most popular additions to the E-Verify interface is a field where an employer can provide a reason for not submitting an E-Verify case within 3 days of hire. The employer will now be able to select

  • Awaiting SSN
  • Technical Problems
  • Audit Revealed that New Hire Was Not Run
  • Some Other Reason (free text can be entered)

The panelist also announced that E-Verify has reengineered the E-Verify enrollment process to validate the employer’s existence through the Dun and Bradstreet database and other methods. If there is a mismatch of information, a customer service representative will contact the enrolling business to resolve the discrepancy. Lastly, all of the E-Verify User Manuals have been updated and are available here:

E-Verify 3.5? (Changes coming to the Photo Matching Tool) The E-Verify team confirmed again that US passport photos will be added to the E-Verify database in a future release, enabling employers to use the photo matching tool for employees who present a US passport during the I-9 verification process. As with the EAD and green card, the employer will be required to make a photocopy of the document and compare it with the picture on the screen. If there are discrepancies, the employer can send a copy of the photo to E-Verify so the issue can be resolved. According to the panel, they are anticipating this feature to be implemented in Winter 2010 or Spring 2011. They are also still working on adding the various State Drivers Licenses, but this is an “ongoing” project with no estimated date of arrival. E-Verify Monitoring and Compliance “E-Verify is not out to get you,” according to a Senior Member of the Verifications Division, since the agency is not in the business of enforcing the I-9 or E-Verify rules. They are, however, using the E-Verify hotline and advanced 24/7 technology (aka, “mathematical algorithms”) to monitor E-Verify submissions to spot incorrect use of the system (whether accidental or otherwise). This could include, among other things, running E-Verify queries on foreign nationals only, terminating employment before an FNC is received, or failing to give the employee the TNC letter. How would they know that, you might ask? Apparently, they are tracking print events in the system. So, for example, the M&C folks might notice if an employer receives a TNC and shortly thereafter closes a case (indicating employee was not hired) without printing the notice. In the event of an issue, the E-Verify staff will work with employers or send a compliance letter (the DHS equivalent of slap on the wrist). In egregious cases, E-Verify could refer an employer to ICE or the Office of Special Counsel (see the Memorandum of Agreementbetween the agencies), but this has not happened yet. Federal Contractor Issues A few attendees raised concerns about whether the USCIS is monitoring to see if a particular organization (with a covered contract) has properly enrolled as a federal contractor in the system. The USCIS spokesperson made it clear, however, that it is the government agency’s responsibility to check whether an employer is participating after receiving a qualifying contract. If there are subcontracts involved, the prime contractor is responsible (they should check to see the sub’s “Maintain Company” page).  In either case, the E-Verify team merely checks to see if they are using the system properly and also provides public reports of those employers (with 5 or more employees) who are enrolled as federal contractors. Another attendee asked what a federal contractor should do if it is unable to E-Verify its entire workforce within 180 days (assuming it has elected to do so). The panelist reassured her that she should continue to submit cases after the 180 days and simply document the reason for the delay. Again, the message was that E-Verify wishes to work with employers on these issues. Miscellaneous E-Verify Issues In April, a lengthy E-Verify FAQ was posted on the USCIS web site which provided guidance for sending TNC notices and referral letters to employees. At that time, the USCIS indicated that the employer may provide the TNC and referral letter to the employee in person, or by fax or e-mail as long as proper precautions are taken ensure the employee’s information is protected. Sending by mail, however, was strictly prohibited. Several stakeholders expressed concern with this prohibition in a DHS-sponsored listening session, arguing that direct mail is often more secure than email or fax. In response, the panelist indicated that USCIS will be relaxing the rule to allow for express mail or overnight delivery of TNC notices and letters. In addition, an audience member inquired about the rules for leave of absence, particularly as it relates to submitting an E-Verify query. The panelist indicated that they are working on LOA guidance which should be forthcoming. E-Verify Web Services Providers The panelist also mentioned that USCIS will be reengineering the E-Verify web services program to address potential concerns about organizations that enable E-Verify cases to be submitted through a software interface. As part of this reengineering, the USCIS will publish security requirements for the system as well as deadlines for when the software must be updated with new E-Verify features (such as the photo tool).   I-9 Changes on the Horizon The USCIS will be issuing a Notice of Proposed Rulemaking (NPRM) regarding changes to the I-9 form and the M-274 Employer Handbook. Among other things, USCIS will be clarifying the well-known (and often-debated) 3-day rule which requires employers to complete section 2 of the I-9 within 3 business days of the date employment begins. Some employers have interpreted this to mean the employer must complete section 2 by the employee’s third day of work while others believe an employer has until the 4th day of employment (start date + 3 days). From the speaker’s comments, it sounds like the USCIS will be favoring the latter interpretation. The example given: if employee starts work on Monday (and will work for more than 3 days), employer must review/sign section 2 by the end of Thursday.  Note: this rule is not expected to be finalized until Spring of 2011.  Upcoming Social Security No-Match Guidance A representative from the OSC indicated that the agency will be providing guidance to employers on how to deal with social security no-match letters, in light of the potential immigration and discrimination consequences that can occur. Although she could not give out specifics on the guidance, she did provide a redacted letter which was recently sent to an employer. In the letter, the OSC cautions the employer that it should not assume than an employee referenced in a no-match letter is not work-authorized (since there are many legitimate reasons for a mismatch). Thus, an employer should not use the no-match letter by itself as a reason for taking any adverse employment action (or reverification) against the employee. Dealing with no-match letters requires consideration of a lot of factors, and thus it’s always best to consult an attorney familiar with immigration and employment law issues before proceeding on any particular course of action. Hopefully, the upcoming guidance will make it easier though for us attorneys to figure it out as well!