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E-Verify is an Internet-based sys­tem ope­ra­ted by Depart­ment of Home­land Secu­rity (DHS/U.S. Citi­zen­ship and Immi­gra­tion Ser­vices (USCIS) in part­ner­ship with the Social Secu­rity Admi­nis­tra­tion (SSA). E-Verify is cur­rently free to employers and is avai­lable in all 50 states. E-Verify pro­vides an auto­ma­ted link to fede­ral data­bases to help employers deter­mine employ­ment eli­gi­bi­lity of new hires and the vali­dity of their Social Secu­rity numbers.

Employers or “Desi­gna­ted Agents” (e.g., pay­roll com­pa­nies) must regis­ter online and agree to the terms of par­ti­ci­pa­tion to use E-Verify. [Regis­tra­tion includes agreeing to the DHS/Immigrations and Cus­toms Enfor­ce­ment (ICE) Memo­ran­dum of Unders­tan­ding (MOU). A dis­cus­sion of the ICE E-Verify MOU is out­side the scope of this post.]

E-Verify will soon be requi­red of all fede­ral contrac­tors. Many state legis­la­tures are also enac­ting state laws man­da­ting employer use of E-Verify.  Fede­ral (and in many states, state) contrac­tors are now requi­red to par­ti­ci­pate in the E-Verify pro­gram to confirm employ­ment eli­gi­bi­lity.  Although E-Verify is an exten­sion of and impro­ve­ment for the exis­ting I-9 laws all employee, it is also direc­ted at ille­gal immi­grant work authorization.

If you haven’t brow­sed the E-Verify web­site per­haps you should, or you can just read this post. DHS is now pro­mul­ga­ting “final” E-Verify regs. I present an E-Verify over­view and update in this post.

How E-Verify Works

The employer enters the employee data from the Form I-9 every new employee must com­plete. The E-Verify site ini­tial veri­fi­ca­tion almost imme­dia­tely returns one of 3 results: (1) Employ­ment Autho­ri­zed; (2) SSA Ten­ta­tive Non­con­fir­ma­tion (“TNC”); or (3) DHS Veri­fi­ca­tion in Process.

If the ini­tial veri­fi­ca­tion result is employ­ment autho­ri­zed the E-verify sys­tem pro­vides a Case Veri­fi­ca­tion Num­ber. The employer enters the Case Veri­fi­ca­tion Num­ber on the employee’s Form I-9 record.

If the ini­tial veri­fi­ca­tion result is a TNC or DHS veri­fi­ca­tion in pro­cess this does not mean the employee is not employ­ment autho­ri­zed. A TNC with SSA or a DHS Veri­fi­ca­tion in Pro­cess merely indi­cates there is not a data base match. Again, this does not mean the employee is not employ­ment autho­ri­zed. If the sys­tem returns a TNC or DHS veri­fi­ca­tion in pro­cess do not start a new case. Gene­rally, DHS will respond to an DHS veri­fi­ca­tion issue within 24 hours.

TNC–Tentative Non­con­fir­ma­tion. In the event of either an SSA or DHS “Ten­ta­tive Non­con­fir­ma­tion” (“TNC”), the employer is requi­red to print out the case details (print out promp­ted from the web­site, in either English or Spa­nish) and review them with the employee. The regs pro­vide that the employee can contest a TNC by either SSA or DHS, or the employee may choose not to contest the TNC in which case it is consi­de­red a final nonconfirmation.

The employee has 8 busi­ness days to resolve (or start to resolve) the TNC with the Social Secu­rity Admi­nis­tra­tion (SSA). The employee should be allo­wed to work during this 8 –day per­iod s/he has to resolve the TNC.

The employer is not held in limbo wai­ting for the employee to get back to it concer­ning the emlpoyee’s reso­lu­tion of the TNC. After 10 busi­ness days from the date of the E-Verify ini­tial veri­fi­ca­tion result the employer re-visits its E-Verify account on the web and retrieves the Government’s (SSA’s) deter­mi­na­tion of the employee’s actions. (The employee chooses either to contest or not contest the TNC. If the employee contes­ted the TNC the results will be indi­ca­ted. If the employee did not contest the TNC, the non­con­fir­ma­tion becomes final.)

The employer sim­ply goes to the web­site and updates the Case Reso­lu­tion. If the TNC is then final, the employee is not be conti­nue employed.

Photo Scree­ning Tool. If the employee pre­sents either a Per­ma­nent Resident Card (“green card”) or an Employ­ment Autho­ri­za­tion Docu­ment (“EAD”) as one of the I-9 List A, B or C Docu­ments the DHS sys­tem has that photo in its database.

The Photo Scree­ning Tool “Iden­tity Veri­fi­ca­tion” allows the employer to com­pare the photo on the docu­ment with the DHS data­base photo. The actual EAD or Per­ma­nent Resident Card photo that is embed­ded in the iden­tity docu­ment is the photo in the DHS data­base from which the docu­ment was made. There is no dis­cre­pancy as to a beard or chan­ged facial fea­tures. The ID photo on the docu­ment is the exact same digi­tal image in the DHS data­base, regard­less of whe­ther the employee’s facial fea­tures have chan­ged since the offi­cial DHS photo was made.

Employer Res­pon­si­bi­li­ties

E-Verify can only be used for new hires and not cur­rent employees. It must be used for all new hires. It can only be used after the employee has com­ple­ted the Form I-9. (The Form I-9 must be com­ple­ted within 3 days of the start of employ­ment (ini­tial pay per­iod). An employer who par­ti­ci­pates in E-Verify must sign the ICE MOU and post two pos­ters: an “E-Verify Par­ti­ci­pant” pos­ter and an “Anti-Discrimination” pos­ter (both down­loa­dable from the website).

Employee Rights

New hires have the right to contest or not contest a TNC from either SSA or DHS. New hires can contact the depart­ment of Jus­tice to report UIREPs (unfair immi­gra­tion rela­ted employ­ment prac­tices) or dis­cri­mi­na­tion based on natio­nal ori­gin claims.

Thorny E-Verify Issues with State and Fede­ral Contracts

Who is an employee “assi­gned” to the contract?

When does an employee “directly per­form work” on a contract that sub­jects the employer to the E-Verify requirement?

How will an employer with mul­tiple work­sites handle the logis­tics of get­ting all of its I-9s back to its I-9 office in 3 days?

Can a cur­rent employee com­plain that s/he was assi­gned to a contract because e employer wan­ted to run him/her through E-Verify, and the­reby esta­blish an UIREP or natio­nal ori­gin dis­cri­mi­na­tion claim?

How does the contrac­ting entity manage its sub­con­trac­tors’ E-Verify compliance?

State laws variously require contrac­ting employer’s par­ti­ci­pa­tion in E-Verify.

But this year, law­ma­kers in seve­ral states are hesi­ta­ting to man­date use of the fede­ral scree­ning sys­tem. Though both Mis­souri and South Caro­lina consi­de­red making it obli­ga­tory for all employers, in the end Mis­souri will require it only of state agen­cies and state contrac­tors, while South Caro­lina will give busi­nesses a choice: using E-Verify or che­cking employees’ dri­vers’ licenses. And Vir­gi­nia law­ma­kers flatly rejec­ted demands that they man­date enrollment for any employers.

 

E-Verify Penal­ties

E-Verify penal­ties include:

·     Debarr­ment from contracts;

·     Mone­tary fines;

·     Cri­mi­nal pro­se­cu­tion and penal­ties, inclu­ding imprisonment;

·     Cri­mi­nal mone­tary fines;

·     Bad Public Relations.

What Should Employers Be Doing Now about E-Verify?

First and fore­most employers must clean house NOW!!! Every employer who per­forms contracts with the Fede­ral Govern­ment or who has contracts with a State that requires par­ti­ci­pa­tion in E-Verify must begin trai­ning pro­grams and inter­nal audits of their I-9 compliance.

Employers must esta­blish they fol­low “best prac­tices” for their I-9 com­pliance pro­gram, including:

·     3^rd party audits of sub­con­trac­tors’ I-9 compliance;

·     Review and change sub­con­tract contract lan­guage for I-9 compliance;

·     Review and esta­blish SSN no match policies

·     Esta­blish and imple­ment immi­gra­tion com­pliance poli­cies and procedures.

My I-9 web­site offers a “one-stop” tho­rough pre­sen­ta­tion of many aspects of I-9 employ­ment eli­gi­bi­lity and employ­ment veri­fi­ca­tion, inclu­ding how to com­plete the Form I-9, employer UIREPs and unlaw­ful dis­cri­mi­na­tion, E-Verify, Social Secu­rity No-Match Let­ters, ICE enfor­ce­ment, employer penal­ties, employer best prac­tices and a monthly Newsletter.