Tag Archives: E-Verify

The Government is Back For Now… Employers Should Address E-Verify Compliance Over the Shutdown Period

Contributed by Sara Zorich, January 29, 2019 

The US Government was shut down for over a month, and the government’s E-Verify system was down from December 22, 2018, to January 27, 2019. During the shutdown, employers who are E-Verify users were unable to enter any of their newly hired employees into the E-Verify system.  But E-Verify users shouldn’t fret.  USCIS is giving you a grace period to catch up.  The Department of Homeland Security and USCIS have updated the E-Verify website to address the shutdown.

The website states: “Now that E-Verify operations have resumed, employers who participate in E-Verify must create an E-Verify case by February 11, 2019 for each employee hired while E-Verify was not available. You must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If the case creation date is more than three days following the date the employee began working for pay, select “Other” from the drop-down list and enter “E-Verify Not Available” as the specific reason.”

If you have an employee who received a Tentative Non-Confirmation (TNC) during the shutdown (or just before) and informs the employer no later than February 11, 2019 that they want to contest, USCIS has indicated that employers should add 10 federal business days to the date on the employee’s “Referral Date Confirmation” notice, and give the employee the revised notice. Federal business days are Monday through Friday and do not include federal holidays. As written, this statement could be interpreted to mean, for instance, that an employee who received a TNC on December 21, 2018, would originally have had until January 4th (8 federal business days) to visit SSA or DHS.  Adding ten more federal business days would only give a new deadline of January 18th (which is still in the past—and during the shutdown). 

With this in mind, we suggest employers watch the USCIS website for further updates because we expect USCIS to correct this instruction. In the interim, if an employee has chosen to contest the TNC and the employee’s deadline to visit SSA or DHS has passed due to the government shutdown, make sure you inform the employee that they should visit SSA or DHS as soon as possible. Do not terminate the employee until you receive a final non-confirmation from E-Verify.

All of the normal E-Verify deadlines apply to employees hired on or after January 28, 2019.

Court Awards Against National Labor Relations Board for Improper Restriction Regarding E-Verify

Contributed by Michael Hughes and Sara Zorich

On October 30, 2014 in the case of Overstreet v. Farm Fresh Co. Target One LLC, No. 2:13-cv-02358, the Arizona Federal District Court ordered attorney’s fees be paid to Farm Fresh Co. Target One LLC (Farm Fresh) by the National Labor Relations Board (NLRB) due to the NLRB’s demand that Farm Fresh reinstate four employees without following the federal and Arizona state laws governing the use of E-Verify.

In 2013, Farm Fresh was purchased through an asset purchase agreement by a new owner.  The new owner (after receiving advice and guidance from the Dept. of Homeland Security) sought to treat all existing employees as new hires after the company acquisition.  As part of that transition, all employees could be run through E-Verify to confirm their authorization to work in the United States.  On March 1, 2013, it was announced to all employees that due to the acquisition, all employees would be run through E-Verify.  Four days later some employees sought unionization and four employees were terminated.  The employees claimed their termination was in violation of the National Labor Relations Act (NLRA) and an administrative law judge agreed, finding the employees should be reinstated.  Farm Fresh agreed to reinstate the employees but stated that the employees would be required to be run through the Federal E-Verify system which was the process for all other existing and new employees.  The NLRB refused to allow any “conditions” on the reinstatement and sought injunctive relief under Section 10(j) of the NLRA from the Arizona Federal District Court restraining Farm Fresh for the “unconditional” reinstatement of the four employees.  The court, however, sided with the employer and found that the employees, like all other employees of the company, should be treated as “new” employees and processed through E-Verify.  Moreover, the court awarded the company over $55,000 in attorney’s fees under the Equal Access to Justice Act.

Employers should be cautioned that the facts of this case are very fact specific.  In general, employers cannot require employees to go through additional testing or application process when ordered by the NLRB to be reinstated.  It was only because the company through the acquisition was able to treat all employees as “new employees” and process all employees through E-Verify in accordance with federal and Arizona law.  This case shows the important interplay immigration laws can have on both employment and traditional labor disputes.  Further, it highlights that any reinstatement ordered by the NLRB cannot be predicated on terms that are against the law.

E-Verify Update Regarding 10-Year Record Deletion

Contributed by Sara Zorich

Employers who have been using E-Verify for more than 10 years must be aware that as of January 1, 2015, the U.S. Citizenship and Immigration Services (USCIS) will be deleting any transaction records in the E-Verify system that are more than 10 years old.  As of January 1, 2015, employers will no longer have access in E-Verify to any case they created prior to December 31, 2004.  In order to have a record of the cases that are more than 10 years old, employers must download the new Historic Records Report before the December 31, 2014 deadline.  USCIS is encouraging all employers who were using E-Verify on or before December 31, 2004 to download the Historic Records Report and maintain it with the company’s Form I-9’s.  Employers will be advised each year going forward by USCIS when the annual Historic Records Report is available for download.

Immigration Updates

Contributed by Sara Zorich

Since Congress has recessed for the holiday break, no immigration reform bills and/or comprehensive immigration reform bill is slotted for vote in 2013.  It appears that there will be a major push for the topic to be addressed during 2014.  We anticipate that mandatory E-Verify will be a component of any immigration bill passed, thus all employers must be cognizant of pending immigration reform.  We will keep you updated of the developments in 2014.

December has been a busy month for E-Verify updates.  The U.S. Citizenship and Immigration Services (USCIS) issued a number of announcements regarding updates to E-Verify policies and procedures:

  • There is a new page for employers on E-Verify that explains the role of E-Verify Monitoring and Compliance. (http://www.uscis.gov/e-verify/employers/monitoring-and-compliance) Employers should review this information and note that their usage of E-Verify is being monitored.  Suspected misuse or abuse of the program is being referred to appropriate agencies for enforcement.  Misuse/abuse of the program could lead to an employer to incur fines, back wage payments and/or debarment from the program.
  • On December 8, 2013, E-Verify released new Memorandums of Understanding (MOU) for those employers participating in E-Verify.  The revision date noted on the new MOUs is June 1, 2013.  The effective date of the MOU for new users is December 8, 2013.  Existing E-Verify employers/users do not need to execute a new MOU but are bound by the new or revised MOU that applies to their access method.  The effective date of the new MOU for existing users is January 8, 2014.  A copy of the new MOUs can be found at: http://www.uscis.gov/e-verify/publications/memos/publications-memorandums. Employers are encouraged to review the new MOU applicable to them to ensure they are aware of their new and continued obligations under the E-Verify program.
  • The E-Verify participation posters have been modified, requiring less ink while printing.  Employers currently enrolled in E-Verify do not need to print these new posters so long as they printed and have the prior versions posted in their workplace.  New employers signing up to E-Verify will be prompted to download, print and post the English and Spanish Notice of E-Verify Participation and the Office of Special Counsel Right to Work posters after enrollment and completing the online tutorial. Employers can access the posters after logging in to E-Verify.

OSC TAL on Pre-Population of the Electronic Form I-9: Making Life Easier or a Headache?

Contributed by Jacqueline Lentini McCullough

In a Technical Assistance Letter (TAL) dated August 20, 2013 from the Department of Justice’s (“DOJ”) Office of Special Counsel, Deputy Special Counsel Seema Nanda, discourages pre-population of employee information in Section 1 of the I-9 Form by electronic I-9 programs due to potential discrimination concerns. Similarly, the Immigration and Customs Enforcement (“ICE”) has indicated that pre-population of Section 1 is impermissible.

Pursuant to federal law, a person or entity that hires, recruits or refers an individual for employment must verify the identity and employment authorization of each person hired, recruited or referred. The form designated for that purpose is the form I-9. The form I-9 specifies that Section 1 be completed by the employee. If an individual is unable to complete the form I-9 or needs it translated, someone may assist him or her in the preparation. A preparer or translator must read the form I-9 to the individual, assist him/her in completing Section 1 and have the individual sign or mark the form I-9 by a handwritten or an electronic signature attached at the time of the transaction.

The Office of Special Counsel (“OSC”) oversees Immigration Related Unfair Employment Practices. As such, the OSC discourages the practice of an employer pre-populating Section 1 with previously obtained employee information. This practice increases the likelihood of including inaccurate or outdated information in Section 1. Inaccurate or outdated information in Section 1 may lead an employer to reject documents presented or demand specific documents for Section 2 purposes. Furthermore, if an employer uses outdated or inaccurate information to submit an E-Verify query, a mismatch may result because the status or name in government databases conflicts with the employer’s outdated information.

Moreover, from the perspective of the anti-discrimination provision, employers relying on previously gathered employee information may be more likely to overlook that a particular employee has limited English proficiency (“LEP”) because Section 1 has been pre-populated by the employer. As a result, the employer may fail to provide the employee with translation or interpretation assistance in order to ensure the accuracy of Section 1, thereby assisting the employee’s understanding of the request for documents relating to Section 2.

The OSC is now the second governmental agency after ICE to notify the public to avoid pre-population of Section 1 of Form I-9.

New Requirements for E-Verify Employers Pertaining to Employee Email Addresses

Contributed by Sara Zorich

On July 1, 2013, USCIS announced that a new field had been developed in E-Verify to document the email address for any employee who voluntarily provided it on the Form I-9.  The new Form I-9 issued by USCIS in March 2013 contains a new field in which employees can voluntarily provide their email address on the form.  Employers utilizing E-Verify must be aware that as of July 1, 2013 if an employee voluntarily provides his/her email address on the Form I-9, the employer MUST document that email address in the provided field in the E-Verify system when the employer creates an E-Verify case for that employee.

USCIS has indicated that employers are not required to go back and update the E-Verify program for E-Verify cases run prior to July 1, 2013, thus the new rule is only applicable going forward.  Note, employers may not require an employee to provide his/her email address on the Form I-9 as it is completely voluntary for the employee nor can the Employer dictate which email address is used on the form.  It is at the discretion of the employee to provide their email address or not and what address is provided.

USCIS will be using the email addresses entered into E-Verify to notify employees of Tentative Non-Confirmation (TNC) Notices.  In the event a TNC is issued for an employee whose email address is in the system, USCIS will send an automatic email notifying the employee of the TNC.  USCIS may also email the employee regarding a reminder of the pending TNC or the need to visit the Social Security Administration to prevent future TNCs if they have been confirmed as work authorized.

USCIS’s new initiative to email employees regarding TNC’s DOES NOT alter an Employer’s requirements pursuant to the E-Verify manual in addressing an employee designated with a TNC.  Thus, USCIS’s new initiative is solely an additional notification to the employee of the TNC designation and employers should continue to follow the required steps in handling and addressing an employee’s TNC designation pursuant to the E-Verify Manual.

Immigration Reform Bill Revealed and the Debates are On…

Contributed by Sara Zorich

Last week the “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744) was introduced.  Since then, there have been a series of congressional hearings to discuss the provisions of the Act.  It is clear from the hearings that there are strong opinions on the bill from many communities that would be affected.  In general, the bill proposes sweeping reform to the country’s broken immigration system.  A summary of the main sections covered by the bill is as follows:

  • Border Security – improving border security including increased surveillance and patrol
  • Legalization and Legal Immigration – work authorization and path to citizenship for individuals currently in the United States with unlawful status; requirement to pay back taxes as part of the application process
  • Legal Immigration – overhaul of the current system for family and employment based immigration
  • Mandatory E-Verify and Increase/Additional Penalties – all employers would be required to use the E-Verify system for employment verification in addition to the Form I-9 within the required phase in periods; employers with more than 5,000 employees would be phased in within 2 years, employers with more than 500 employees will be phased in within 3 years and all employers within 4 years; significant fines from $3,500 – $7,500 per worker for knowingly hiring or continuing to employ unauthorized aliens and fines for failure to comply with E-Verify use requirements; establishes the potential for an electronic Form I-9 in conjunction with E-Verify
  • H-1B Visa Reform – increasing the current cap for the H-1B visa category, additional regulations aimed to curtail alleged H-1B abusers by requiring “H-1B dependent employers” to pay significantly higher wages and modification of application/posting requirements for all H-1B employers
  • New W-Visa Program for Lower-Skilled Workers – new visa category for foreign workers to perform services or labor for registered employers in registered lower skilled positions; the number of visas in this new category would fluctuate annually and is dependent on unemployment rates, job openings, bureau recommendations and additional data
  • Agricultural Job Opportunities – current undocumented farm workers will have an opportunity to obtain legal status

Employers should be aware that the congressional hearings have begun and nothing in the current bill is set in stone.  The bill is certain to go through rounds of revisions before it is set for any vote before the Senate or the House of Representatives.  However, at least thus far, mandatory E-Verify is a pillar of the bill and its continued inclusion seems certain.

Since, in recent years, the government has only increased its enforcement of I-9 and immigration compliance, employers should consider reviewing their current processes and policies in advance of any implementation of mandatory E-Verify.  Further, as a reminder, employers MUST utilize the new Form I-9 (Rev. 03/08/13)N no later than May 7, 2013.  Starting on May 7, 2013, employers are not allowed to use prior versions of the Form I-9 for employment verification of new employees.