The Long Arm of E-Verify Monitoring and Compliance
In our last blog, we discussed the latest and greatest E-Verify enhancements for FY2015, including (among other things) enhanced “data analytics” which enable DHS to closely monitor and prevent potential misuse with the E-Verify system. Shortly thereafter, I received a few comments from HR managers who were happily oblivious to DHS’ Monitoring and Compliance (M&C) branch, and all of the associated (scary) audit implications. Some comments included:
“I thought there was no enforcement with E-Verify. That’s why I signed up.”
“What happens if I make a few mistakes? Will I then be subjected to an audit?”
“How many audits have they conducted, and how have they turned out?
And like clockwork, the United States Citizenship and Immigration Services (USCIS) just published a new report which sheds some light on M&C’s recent compliance activity during the past few years and the potential consequences of misusing the system. Have you been contacted by the E-Verify M&C unit and wondered why? Are you concerned about the potential repercussions? Read-on to learn all about this “silent” E-Verify enforcement tool and what it may mean for your organization.
Compliance Activities FY11 through FY14
We’ll begin the stats – as you can see below, the M&C branch has been steadily increasing its monitoring and compliance activity through two primary channels: compliance actions and interagency actions. Let’s take a closer look.
The M&C branch monitors and tracks a variety of E-Verify “behaviors” which may indicate that an employer has gone astray or simply does not understand all of the required steps and procedures. Here are a few of the most common E-Verify behaviors that the M&C unit tracks (and why):
The M&C branch will run these data analytics on a monthly basis and produce internal reports identifying questionable employer practices. Once M&C detects one of the suspect behaviors mentioned above, they may reach out to the employer through a variety of means including compliance assistance emails, phone calls, desk reviews, and site visits (not necessarily in that order). Here is a quick review of what each entails:
Compliance assistance emails and phone calls: these are the most common form of M&C communication, and they generally inform the employer of the potentially “noncompliant” behavior along with proper instructions for using the E-Verify system. The M&C unit will also invite the employer to contact them regarding any questions they may have.
Desk Reviews: in the event of a pattern or practice of E-Verify issues, the M&C branch may also conduct a “desk review” whereby they will ask the employer to provide them with E-Verify employment-related documents, such as E-Verify case printouts, TNC FAN letters, employment verification procedures, and other process documents. The M&C branch will then provide a final report to the employer with recommendations for improvement.
Site Visits: In other situations, M&C may invite the employer to participate in a site visit, whereby two M&C staff members visit the employer’s office and observe how the E-Verify participant manages its account and processes E-Verify cases. As with the Desk Review, the M&C will require a variety of supporting documentation and ultimately provide a recommendation for future compliance initiatives.
Now I know what you’re thinking – this doesn’t sound that bad at all, right? So E-Verify contacts us, we say “oops” and then go about fixing our problems. No harm, no foul? Well, that would be true, except for an often-ignored provision of the E-Verify Memorandum of Understanding, which allows E-Verify to refer employers to other agencies that do have enforcement authority: namely the U.S. Immigration and Customs Enforcement (ICE) or the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (DOJ/OSC).
And as we can see from the stats above, the USCIS actually initiated over 900 interagency referrals during the last fiscal year. Some of these have actually turned into full-blown investigations – particularly in cases where it appears the employer may be requiring the new hire to present a specific document during the hiring process.
How can E-Verify tell? One possible way is that they may analyze the number of cases where a lawful permanent resident was E-Verified with an I-551 permanent resident card. If there are a significant number of such cases, the M&C unit may consider that the employer was actually telling new hires to show them a green card (never mind the fact that many LPRs will indeed present a green card of their own volition).
In other cases, the M&C data analytics may reveal that the employer is not following all of the necessary steps to resolve a TNC (including printing the FAN, providing the employee an opportunity to contest, allowing the employee to work and receive training during the referral process, etc.). The OSC maintains a list of “E-Verify Do’s and Don’ts” which may provide further insight into how your E-Verify data can quickly get you in trouble.
Lastly, let’s not forget that the USCIS also has the authority (under the MOU) to kick an employer out of the E-Verify program in the event of repeated and egregious misuse. Such termination could be devastating for an employer’s business, especially if the company has qualifying E-Verify FAR contracts or operates in a state with a mandatory E-Verify law or ordinance.
Best Practices to Avoid E-Verify Scrutiny
Like it or not, E-Verify is watching your every move – thanks to the power of data analytics. While the vast majority of M&C activities are educational (and thus benign) in nature, employers are still vulnerable to interagency sneak attacks from OSC and ICE based purely on their E-Verify usage. In order to avoid this kind of scrutiny, experts recommend that you adopt the following best practices:
1. Treat the E-Verify process seriously. While it may be touted as fast, free, and easy, E-Verify has its own sets of rules, requirements, and responsibilities that must be closely examined and observed in order to stay on the government’s good side. If you’re new to the E-Verify world (or just have concerns and questions), I highly recommend that you contact an experienced immigration attorney who can help you evaluate your compliance with the E-Verify program rules.
2. Create standard operating procedures for your E-Verify process. Experts have long recommended that employers create their own internal I-9 handbook, and so it naturally follows that E-Verify should be an included component as well. A good E-Verify handbook will include your organization’s specific E-Verify process (including who will be submitting the case) as well as detailed instructions on how E-Verify TNCs will be managed (including the timeline for contacting the employee; the method used to communicate the TNC for remote hires; whether employee will be paid for time off to resolve the case; procedures for handling a Final Nonconfirmation; etc.)
3. Use Electronic I-9 software offered by an E-Verify Employer Agent. While the E-Verify transactional costs and risk of non-compliance can be high, the USCIS enables employers to work with “Web Services E-Verify Employer Agents” who will be responsible for the setup, training, and management of any technical E-Verify issues. By using an electronic I-9/E-Verify system, employers can significantly reduce the likelihood of an M&C visit (or interagency referral) and also improve their overall hiring workflow.
Want to learn more about how an electronic I-9 system can improve your E-Verify process while ensuring compliance with the rules and requirements? Contact us today to learn more about the Guardian I-9 and E-Verify solution from LawLogix.
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.