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

Transcription

1 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

2 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 1

3 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

4 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

5 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% 2010 Customer Satisfaction Survey 4

6 E-Verify Employer Participants How Many People do you Employ? % % % 399 1,000-9,999 9% 89 10,000+ 2% 23 Number of Respondents 1, Customer Satisfaction Survey 5

7 Frequency of Use 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, Customer Satisfaction Survey 6

8 E-Verify Is Voluntary (except where it is not) Federal contractors and subcontractors State and local requirements ICE agreements STEM extension

9 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 8

10 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

11 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

12 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

13 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

14 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

15 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)

16 Employee data from completed I-9 is submitted to E-Verify via website, appropriate questions answered and photo match completed where necessary Information is compared with SSA database through DHS System Work authorization not confirmed (by SSA s database) Authorized Citizens SSA tentative no confirmation issued Employer Informs employees of the finding Employee contests finding; Must visit SSA local office Authorized Employee does not contest finding or does not resolve issue with SSA local office within 8 days Final nonconfirmation Noncitizens Information is compared with DHS database Authorized Authorized Final nonconfirmation Social Security Administration Department of Homeland Security USCIS Immigration Status Verifier reviews I-9 information and checks other DHS databases Authorized Employee contests finding; Must call DHS Employee does not contest finding or does not resolve issue with DHS within 8 days Employer informs employee of the finding DHS tentative no confirmation issued 57

17 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.

18 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

19 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

20 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: percent do not contest the mismatch percent of employees who receive mismatches and contest are not found work authorized percent of employees who receive mismatches are unresolved because the employer closed the cases as "selfterminated. 19

21 E-Verify Statistics Based on FY 2011 Data 20

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

23 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

24 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

25 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 Nondiscrimination ddonts.pdf

26 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

27 Worker Protection Videos advising workers of rights Workers Rights Self-Check Advocacy and Watchdog groups Employee Hotlines

28 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

29 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 28