Articles Posted in E-Verify

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On March 20, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of flexibility in rules related to Form I-9  Employment Eligibility Verification compliance due to COVID-19. The original guidance was set to expire on May 19. Due to the continued precautions related to COVID-19, DHS has extended this policy for an additional 30 days.

For more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9, please see the original guidance. The original guidance including eligibility requirements can be found here.

This provision only applies to employers and workplaces that are operating remotely.

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U.S Citizenship and Immigration Services (USCIS) announced on May 6, 2020, that it recently migrated to Microsoft 365 and that, as of April 24, it is unable to receive and answer emails sent to and

Per USCIS’s notice, if you sent an email to these addresses on or after April 24 and have not received a response within 48 hours, please resend your message to the email addresses below:

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E-Verify, the U.S. Department of Homeland Security website that allows businesses to determine the eligibility of their employees to work in the United States, has resumed operations following the temporary re-opening of the government. All E-Verify features and services are now available.  Employers who participate in E-Verify must create an E-Verify case by February 11, 2019 for each employee hired while E-Verify was unavailable.

Although E-Verify Form I-9 support representatives were unavailable during the government shutdown and E-Verify service was disrupted, employers were still required to complete and retain Form I-9, Employment Eligibility Verification, for every person hired for employment in the U.S. during that time, as long as the person works for wages or other remuneration.

Due to the large volume of accumulated cases, delayed processing times are expected. Longer than normal delays and response times for E-Verify Support requests are also expected.

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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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