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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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”.
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http://www.uscis.gov/portal/site/uscis
E-Verify Statistics
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Based on FY 2011 Data
http://www.uscis.gov/portal/site/uscis
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
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
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
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
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
Worker Protection
• Videos advising workers of rights
• Workers Rights
• Self-Check
• Advocacy and Watchdog groups
• Employee Hotlines
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