The Latest and Greatest E-Verify Enhancements for 2015
Human resource managers take note: like it or not, E-Verify is here to stay and gaining steam like the proverbial runaway freight train. Now boasting more than half a million employer participants nationwide, E-Verify is no longer labeled a “pilot program” or a just a temporary fix for addressing employment eligibility verification. It’s a fast-growing (and ever-changing) machine which may eventually transform the hiring process in the US altogether.
In the meantime though, the Department of Homeland Security (DHS) has been shifting E-Verify into high gear with enhancements designed to cope with the increased usage and the inevitable sticky situations that arise for human resource managers. What could go wrong you might ask? Here are a few possibilities:
- You’ve been enrolled in E-Verify since 2010, and lo and behold, you discover that your company has only used it on half of its employees. One of your HR managers also came up with his own rather unique interpretation of what a TNC means and seems surprised to learn about this thing called a TNC notice. Suddenly, you receive a call from E-Verify…
- You’ve just hired Melinda, and the team can’t wait for her to start. Turns out, however, that Melinda has had several previous names, and she never bothered to update her Social Security records. E-Verify knows this, and now she has to visit her local SSA office within 8 business days of referral (right during her busy orientation schedule).
- Fast-forward a couple of weeks, and Social Security still can’t sort out Melinda’s SSN records. After multiple attempts to resolve the discrepancy, E-Verify finally throws its virtual hands in the air and delivers the dreaded “Final Nonconfirmation” message…
DHS is very much aware of these issues, and they’ve been diligently adding a variety of new features (and programs) to reduce needless TNCs, provide employees with an opportunity to contest final nonconfirmations, and catch those employers who fail to follow the E-Verify rules. Of course the question remains – will these programs help or hinder the I-9 and E-Verify process? Read on to learn about the latest developments slated to be introduced in the next fiscal year.
#1 – Big Data for Big Brother
By now, many employers are very familiar with the E-Verify Monitoring and Compliance (M&C) branch, whose sole purpose is to analyze and monitor employers’ E-Verify submissions for possible misuse or discriminatory conduct. Over the past few years, the M&C have contacted thousands of employers for potential E-Verify violations such as prescreening, failure to print TNC notices, failure to verify within three days of hire, and impermissible verification of existing employees (among other things). In certain egregious cases, the M&C branch has referred these employer names and their E-Verify data to both ICE and the Department of Justice for further investigation.
During the next year, DHS will continue to improve its Data Analytics Tool (DAT), which features advanced analytic techniques and various models that can be used to detect (or predict) fraud and discrimination. While the DHS has not shared exactly how these models work, the FY2016 budget justification indicates that they utilize an “outcome based” compliance index that provides an overall view of a participating employer’s compliance with E-Verify based on a variety of usage patterns.
What does this mean for HR managers? As we’ve advised in the past, employers must treat E-Verify seriously and make sure to closely monitor (and police) their own case activity. Experts also recommend drafting an E-Verify policy (with the help of immigration counsel) and utilizing specialized software which enforces the E-Verify rules and prevents misuse.
#2 – Formal Process for Contesting a Final Nonconfirmation
As employers know, E-Verify provides individuals with an opportunity to contest initial mismatches through a formal (and well-documented) process involving deadlines, forms to complete, and procedures which must be followed. When a final nonconfirmation occurs, however, the choices for an employer (and employee) seem much more limited. According to the E-Verify Memorandum of Understanding (MOU), an employer is encouraged to terminate an employee who receives an FNC. In fact, if the employer continues to employ the individual after an FNC, the employer is obligated to notify DHS (through the system) AND is subject to a civil money penalty between $550 and $1,100 for each failure to do so.
But that’s not all – the employer is then also subject to a rebuttable presumption that it has knowingly employed an unauthorized worker in violation of section 274A(a)(1)(A) of the Immigration and Nationality Act. Not exactly an attractive option.
However, later in the MOU, it indicates that employers or employees may call E-Verify at 1-888-464-4218 or OSC at 1-800-255-8155 with any questions about a final nonconfirmation. Aha! So there is an appeal process after all. But how in the world is an employee (or employer) supposed to know this? Shouldn’t this FNC process also be formalized as well?
Once again, the DHS is well aware of this issue, and according to the FY2016 budget justification, they will soon complete their multi-year initiative for reducing FNCs that may have been issued in error. In addition, E-Verify will issue a new FNC letter and develop a formal review process so that they can track and monitor cases that are appealed as erroneous. Presumably, there will be additional timelines and rules involved.
#3 – Further empowerment of employees with “myE-Verify”
Lastly, we turn to an employee-centric program that has been steadily expanding over the past few years. Most recently, in October 2014, USCIS began deploying “myE-Verify,” an online portal which enables individuals to manage their virtual “employment eligibility verification” records and protect themselves against identity theft.
How does it work? First, you must run a “Self Check” case on yourself to find out if E-Verify considers you to be authorized to work. Self Check was developed primarily to reduce needless TNCs by giving individuals the opportunity to detect and correct mistakes in their government profiles before starting a new job. As of April 13, 2015, myE-Verify is now available to individuals nationwide. One important note though for HR managers: employers cannot require new hires to complete a self-check as a condition of employment.
Assuming you receive an “employment authorized” result from Self Check, you can then create a myE-Verify account which provides additional self-service options. For example, you can use “Self Lock” to prevent your social security number from being used by someone else to successfully pass an E-Verify check (particularly relevant if you have been the victim of identity theft). It’s important to note, however, that you’ll need to unlock your SSN through myE‑Verify if you are planning to start a new job anytime soon in order to avoid a TNC.
In the future, myE-Verify plans to offer the following additional self-service features:
- Document Expiration Reminders: an email will be sent to you when a document (like a passport or driver’s license) is about to expire so you can take steps to keep documents up-to-date.
- Case Tracker: view the status of an E-Verify or Self Check case that requires follow up.
- Case History: view where and when your information has been used in the E-Verify system.
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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 Executive Vice President and General Counsel at LawLogix, where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.