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Everything You Wanted to Know About E-Verify... But Were Afraid to Ask

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Everything You Wanted to Know About E-Verify....

But Were Afraid to Ask

April 2012 Presenter: Cynthia J. Lange, Partner Fragomen, Del Rey, Bernsen & Loewy, LLP

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Agenda:

What E-Verify is and isn’t

Why employers enroll

What to consider when thinking about enrolling

Possible risks

Monitoring and Compliance Unit

Other Agencies involvement in E-Verify

Employee considerations

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What is E-Verify

A No-cost Internet based system used to supplement the I-9 form

E-Verify matches data on the I-9 with data in

government databases such as Name, Date of Birth, Social Security number, Immigration information, and more

Partnership between the U.S. Department of Homeland Security and the Social Security Administration

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Why Employers Enroll in E-Verify

Some state laws, local governments or government contracts require employers to enroll

“Federal contractors” may need to enroll

Industry-specific concerns drive enrollment

Reduces chance of SSN no-match

Safe harbor for good faith reliance on result

E-Verify promoting participation

- I E-Verify

- Federal Contractor Regulation Amendment

- IMAGE (ICE initiative incorporating E-Verify)

Other nationwide trends

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Why did your Company sign up for E-Verify ?

To improve ability to verify work authorization 42%

Federal government required participation 31%

State or local government required participation 28%

Parent company required participation 15%

Believed using E-Verify would help us to avoid

(ICE) audit, raid, or fine 14%

To satisfy a client’s request 10%

Believed it would make us more competitive 7%

Other 5%

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2010 Customer Satisfaction Survey

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E-Verify Employer Participants

How Many People do you Employ?

1 - 19 18% 185

20 - 99 33% 348

100 - 999 38% 399

1,000 - 9,999 9% 89

10,000+ 2% 23

Number of Respondents 1,044

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2010 Customer Satisfaction Survey

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Frequency of Use

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Which best describes how frequently you use E-Verify?

Once a week or more 22% 232

Two or three times a month 23% 234

About once a month 14% 146

Once every few months 26% 273

Once or twice a year 12% 121

Less than once a year 3% 31

Number of Respondents 1,037

2010 Customer Satisfaction Survey

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E-Verify Is Voluntary (except where it is not)

Federal contractors and subcontractors

State and local requirements

ICE agreements

STEM extension

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State (and Local) Enforcement Trends

Immigration enforcement laws as reaction to perceived federal inaction (ex: AL, AZ, FL, GA)

Growing list of states with E-Verify requirements

Supreme Court upheld AZ law

- Chamber of Commerce v. Whiting

Concerns to H.R. community:

- Inconsistent requirements in various jurisdictions

- Lack of understanding on the part of state or local officials

- Unnecessary disruption to business

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Understanding E-Verify’s Implications

Errors in government databases can cause Tentative Non Confirmations

E-Verify cannot overcome all ID fraud (if photo tool not used)

E-Verify does not confirm an individual’s immigration status

While Everify does provide a protection from knowingly hire violations but does not prevent ICE from

conducting worksite enforcement

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Preparing to Enroll in E-Verify

E-Verify Memorandum of Understanding (MOU) and the employer responsibilities

Determine what entity is enrolling

Determine what hiring site is enrolling

Decide who will need to access E-Verify and who will be responsible for owning the process.

Determine if any changes are necessary to the company’s business processes

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Preparing to Enroll In E-Verify

Understand how E-Verify impacts the Form I-9

- SSN becomes mandatory

- List B documents must have a photograph

- Copies of supporting documents must maintained

- Specific data from the I-9 must be entered into the E-Verify system

Understand how the company processes its Forms I-9:

- Where do employees complete the Form I-9

- When do employees complete the Form I-9

- Does your company forward its Form I-9s to a central location

- Does each location where the Form I-9 is completed have a computer with internet access

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How to Enroll in E-Verify

The Enrollment Checklist (E-verify website)

- Access methods

- Signing the MOU

- Specific data required for registration

- Identifying users

E-Verify Training Materials (E-verify website)

- User Manual

- Tutorial

- FAQ

- Video’s on Demand

- Presentations

- Webinars

http://www.uscis.gov/portal/site/uscis

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When to use E-Verify

For New Hires

After the I-9 is completed

Within 3 days from the date of hire

Receipts may delay processing E-Verify

ONLY specific Federal contractors or subcontractors

with an E-Verify clause can process existing employees once registered

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E-Verify Processes/Systems:

Normally a 3 step process:

- 1. Input data into E-Verify System

- 2. Take appropriate action on results

- 3. Resolve case

Photomatch

Tentative Non-confirmations (TNC)

Final Non-confirmations (FNC)

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SSA tentative no confirmation issued

Employee contests finding; Must visit SSA

local office

Employee contests finding;

Must call DHS Employee data

from completed I-9 is submitted to E-Verify via

website, appropriate

questions answered and

photo match completed

where necessary

DHS tentative no confirmation issued

Employee does not contest finding or does not

resolve issue with DHS within 8 days Noncitizens

Information is compared with SSA database through DHS

System

Work authorization not confirmed (by SSA’s database)

Information is compared with DHS database

Final non- confirmation

USCIS Immigration Status Verifier

reviews I-9 information and

checks other DHS databases

Authorized

Authorized

Employer Informs employees of the finding

Employee does not contest finding or does not resolve issue with SSA local office

within 8 days Citizens

Employer informs employee of the finding Final non- confirmation Authorized

Authorized

Authorized

Social Security Administration

Department of Homeland Security

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Photomatching

Used to match the photo on certain documents when presented by the employee to complete the I-9. It is employee’s choice whether or not to provide these documents.

- Form I-766 (Employment Authorization Document)

- Form I-551 (Permanent Resident Card or “Green Card”)

- U.S. Passport or passport card

System will show copy of the photo from the document and ask employer to compare and indicate whether or not they match as a tool to prevent fraud

Practice Tips: must be exact match, hit Yes, E-Verify will return

“employment authorized” response.

Hit NO, you will get a TNC

Can’t tell: explain why and mail it in or send in an electronic copy and let DHS decide.

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Tentative No Confirmations

Notify the employee of the TNC

Print the TNC Notice and review it with the employee

13 languages for TNC notice and referral letters

The employee must chose to CONTEST or NOT CONTEST

- If employee chooses to contest then provide referral to appropriate agency

- If employee chooses not to contest then may terminate employee and close the case in E-Verify

The employee has eight federal government business days from the referral date to visit or call the

appropriate agency and resolve the TNC

Do not take adverse action against the employee during the TNC process

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Final No Confirmations

Must notify DHS if employer continues to employ a worker for whom employer receives an FNC

Failure to so notify DHS: Fines of $550 to $1,100 per worker

Practical Problem Area for the 1% of false positives or false FNCs, particularly naturalized U.S. citizens

Employee Hotline Number

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E-Verify Statistics (FY 2011)

98.3 % of employees are automatically confirmed as work authorized.

1.7% of employees who receive initial system mismatches:

1.39% of employees not found to be work authorized:

- 1.13 percent do not contest the mismatch.

- 0.01 percent of employees who receive mismatches and contest are not found work authorized.

- 0.24 percent of employees who receive mismatches are unresolved because the employer closed the cases as "self- terminated”.

19

http://www.uscis.gov/portal/site/uscis

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E-Verify Statistics

20

Based on FY 2011 Data

http://www.uscis.gov/portal/site/uscis

(22)

Possible Risks If E-Verify Is Not Properly Used

Privacy rights can infringed if not handled properly

Anti-discrimination laws can be triggered if not careful

Data errors can cause tentative non-confirmations for legally valid and work authorized people

Investigations can be triggered

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E-Verify Monitoring and Compliance Unit

Monitoring and Compliance created to maintain system integrity

Detect and deter improper use of the system.

Also works to safeguard personal privacy information;

prevent the fraudulent use of counterfeit documents;

and refer instances of fraud, discrimination, and illegal or unauthorized use of the system to enforcement

authorities.

E-Verify’s Monitoring and Compliance has been calling and visiting employers to ensure they are informed about proper compliance procedures and guidelines and and not misusing the system

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What if Your Organization Is Not In Compliance

Verify the Scope of Registration – What offices have you registered?

- Don’t forget about PR, US VI, Guam or CNMI

Provide Notice – Put up Posters

Timely Process – Three-day rule

Resolve Queries – Close out cases!

Properly Resolve TNCs – Give employee opportunity to contest

Properly Resolve FNCs – “Continuing to Employ”

violations possible

Retain E-Verify Results and Supporting Documents

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E-Verify from OSC’s Perspective

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has a

Memorandum of Understanding with E-Verify

E-Verify is actively referring concerns to OSC when the algorithms suggest disparate treatment, such as not printing TNC letters for part or all employees with TNCs

OSC lists “Do’s and Don'ts on its website to help employers with E-Verify compliance and Non-

discrimination

www.justice.gov/crt/about/osc/pdf/.../e_verifydosan ddonts.pdf

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E-Verify from ICE’s Perspective

Immigration and Customs Enforcement is the enforcement arm of Immigration under DHS

E-Verify has an Memorandum of Understanding with ICE

Employment after a Final Non-confirmation may raise issues of “knowingly employing”

ICE is also concerned about improper use of E-Verify resulting in employing unauthorized workers

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Worker Protection

Videos advising workers of rights

Workers Rights

Self-Check

Advocacy and Watchdog groups

Employee Hotlines

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What’s New or Near Future of E-Verify

List of Employers enrolled now on Website

Expecting new MOU format and requirements to be published for comment in 2012

E-Verify now available in the CNMI

Self Check is now available nationwide

E-Verify can verify driver’s licenses through RIDE (Records & Images Verified by DMVs for E-Verify)

Mississippi first state to pilot this program

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For More Information

E-Verify Website:

- Memorandum of Understanding

- Employer User Manuals

- Posters

- TNC and Referral Letters

- VODs and presentations

- FAQs

- FAR regulation

- Employer/employee hotlines

- Tutorials

- E-Verify Connection

I-9 Employer Handbook

http://www.uscis.gov/files/form/m-274.pdf

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