Articles Posted in E-Verify

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USCIS announced that effective January 1, 2015 it will delete annually all E-Verify transaction records that are more than 10 years old. This means that on January 1, 2015, employers will no longer have access to E-Verify cases created prior to December 31, 2004. To access these cases, the employer must download a Historic Records Report before December 31, 2014. The report will include all transaction records for cases more than 10 years old and is only available from October 1, 2014 to December 31, 2014.

E-Verify will advise employers each year when the Historic Records Report is available for downloading. If an employer did not use E-Verify for more than 10 years prior, there will be no records to report.

USCIS states that it is best practice to (1) record the E-Verify case verification number on the related Form I-9 and (2) retain the Historic Records Report with the Forms I-9.

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I-9 and E-Verify compliance enthusiasts report a noteworthy trend in recent cases brought to the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Many of the recent cases in which OSC has reached settlements with employers for work authorization noncompliance were initiated by a referral from USCIS’s Verification Division Monitoring and Compliance Branch (M & C Branch).

The E-Verify Statute requires that Department of Homeland Security (DHS) ensures the security of the E-Verify System. The authority to monitor and provide oversight is based on Section 404(d) of the E-Verify statute and the Memorandum of Understanding which E-Verify employers are required to enter into with DHS.

The M & C Branch describes their mission as overseeing the usage of E-Verify and detecting and reducing misuse with the responsibility of protecting the integrity of the E-Verify Program. In addition to acting as a customer service center for confused or novice E-Verify employer-participants, M & C Branch monitors E-Verify system usage to identify potentially noncompliant employer-participants.

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USCIS identifies 5 ways to update or correct immigration records, depending on which document must be changed. Employees should be aware of each of these ways, especially after the resolution of an E-Verify Tentative Nonconfirmation (TNC). E-Verify is an online database that employers can use to confirm the employment eligibility of newly hired employees. The employer representative submits information provided on the Form I-9 to compare with government databases. A mismatch of information results in a TNC, of which the employer must alert the employee to take steps to resolve. Notably, the employee is allowed to work until the TNC is resolved.

TNCs may be issued because the employee’s immigration records themselves are inaccurate. Correcting these inaccuracies can prevent future TNCs and other employment and immigration-related issues down the road. After resolving a TNC, USCIS recommends to the employee the following methods to correct any inaccuracies in his or her immigration records:

(1) Contact USCIS to correct Form I-551 (Lawful Permanent Resident card) or Form I-766 (EAD card). The employee may schedule an appointment for an in-person interview at a local USCIS office on the Infopass website or call 1-800-375-5283.

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On February 18, 2014, unofficial minutes were published from a November 19, 2013 meeting with USCIS and ICE regarding Form I-9. One of the most important matters discussed in the meeting was the inability of an employee to provide his or her I-94 number on the first day of employment due to technical issues within the CBP’s online I-94 system. USCIS rejected suggestions that would allow for employment without providing the I-94 number (e.g., implementing a procedure comparable to the Receipt Rule used in Section 2). USCIS stated that adopting such suggestions would constitute rulemaking. USCIS instead relied heavily on CBP’s statement that it neither has nor ever had glitches in its system. USCIS emphasized the regulation that if the employee’s I-94 number is required to complete Section 1 and the number is not known, then the employee cannot work for pay as the Form I-9 cannot be completed. This also means that the employer cannot open an E-Verify case for that individual.

A second important issue discussed was whether birth certificates issued by hospitals are acceptable List C documents. The Form I-9 Manual (M-274) reads that only birth certificates issued by government authorities are acceptable. USCIS’s I-9 Central guidance on the matter states that USCIS cannot comment on state law or whether a hospital may have the authority to issue birth certificates under that state law. USCIS was asked revise and clarify the guidance to recognize that state laws may have changed in the decades between birth certificate issuance and presentation to complete the Form I-9. USCIS refused this suggestion and in response repeated the I-9 Central guidance language on the issue.

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In U.S. v. Occupational Resource Management, Inc., OCAHO addresses key issues in the adjudication of I-9 violations allegations, 10 OCAHO no. 1166 (2013). We discuss below two of these important matters and how they emphasize the importance of employers’ use of E-Verify.

1) Constructive knowledge

Federal regulations prohibit hiring a foreign national worker knowing that he or she is unauthorized to work in the United States. Regulations define “knowing” as including both actual and constructive knowledge. However, OCAHO admits in Occupational Resource Management (ORM), that its “case law respecting constructive knowledge has not been fully developed.” On one hand, OCAHO case law does show that an employer cannot cultivate “conscious disregard” or “deliberate ignorance” with regards to employees’ employment eligibility. Generally, when an employer receives specific information that casts doubt on an employee’s work authorization and continues to employ the individual without taking adequate steps to reverify his or her employment eligibility, OCAHO may find the employer had constructive knowledge.

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E-Verify is a predominantly voluntary online service for U.S. employers to confirm new employees’ eligibility to work. More than 500,000 companies are now enrolled, according to a USCIS Press Release on January 23, 2014. This is a large milestone for the service, which was established in 1996.

“Since it was established, E-Verify has experienced exponential growth, increased accuracy and high customer-satisfaction ratings,” said Lori Scialabba, Acting Director of USCIS. “Participation in E-Verify is largely voluntary, so the fact that half a million companies have signed up demonstrates significant confidence in the program. Employers using E-Verify find it helps them maintain a legal workforce in a quick, secure and accurate way.”

USCIS boasts that 98.8% of work-authorized employees are confirmed instantly or within 24 hours, requiring no further action from the employer or employee.

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On December 2, 2013 USCIS published revised versions of its E-Verify Participation and Right to Work posters. The revisions came after USCIS received feedback on the posters on its E-Verify Listens website. USCIS explains the purpose of the revisions as to require less ink to print.

The release of these revised posters do not change the fact that it is mandatory for all E-Verify employers to display the E-Verify Participation and Right to Work posters. Each E-Verify employer must display both posters, and both are available in English and Spanish.

Previous versions are still acceptable; this is true for already established E-Verify employers as well as newly enrolled employers. Any E-Verify employer who displays the previous versions is still in full compliance. However, an employer is free to print and post the revised versions.

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On December 8, 2013, E-Verify will release new and revised Memorandums of Understanding (MOUs). These MOUs have two primary enhancements: (1) they are tailored to each access method and (2) they are easier to read and understand.

There will now be a total of six MOUs. The three standard MOUs for E-Verify browser users have been retitled and revised-these are for the access methods for Employer, E-Verify Employer Agent, and Corporate Administrator. The fourth existing access method for Web Services has been expanded into three new MOUs for Web Services users and developers.

The purpose of each MOU is to set forth the points of the contractual agreement between the Department of Homeland Security and the Employer regarding the Employer’s participation in the E-Verify program. Each MOU explains certain features of the E-Verify program and enumerates specific responsibilities of DHS, the Social Security Administration, and the Employer.

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One of the key responsibilities of an employer during I-9 and E-Verify employment eligibility verification is to avoid discrimination. The anti-discrimination provisions of the Immigration and Nationality Act (INA) §274B, 8 U.S.C. §1324b, prohibit four types of conduct:

(1) Citizenship or immigration status discrimination (actual or perceived)

(2) National origin discrimination (actual or perceived)

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On November 18, 2013, USCIS announced a new safeguard to protect against identity fraud in E-Verify. Taking a cue from successful safeguards established in the credit card industry, E-Verify can now lock social security numbers (SSNs) that appear to have been fraudulently used. Like credit cards, fraudulent use of SSNs often occurs when an SSN was stolen, borrowed, or purchased from another individual; if an SSN is misused, it is possible that the same SSN will be misused again. By locking an SSN, USCIS can protect against further potential misuse within the E-Verify system.

USCIS states that E-Verify will use a combination of algorithms, detection reports, and analysis to identify patterns of fraudulent SSN use. Thus far, USCIS has not provided any more details on the standard, procedures, and methods it will use in its determination to lock an SSN.

statue-of-liberty-2-1420901-m.jpgIf a previously locked SSN is entered into E-Verify, a Tentative Non-Confirmation (TNC) will be generated. Just like with any TNC, the employee will be given the opportunity to contest the finding at a local Social Security Administration (SSA) field office. If an SSA field officer confirms the employee’s identity correctly matches the SSN, the TNC will convert to “Employment Authorized” status in E-Verify.