By: Kelly Eisenlohr-Moul
Recently, United States Customs and Immigration Enforcement Services (USCIS) announced several updates to its E-Verify system. USCIS has indicated that the upcoming changes are an attempt to address criticism regarding security loopholes and lack of user friendliness.
Initially, E-Verify now has the ability to automatically lock social security numbers (SSNs) which are flagged as “misused.” This feature targets the long-running criticism that E-Verify fails to address identity fraud involving borrowed, stolen, or purchased SSNs. The technology is similar to that used by credit card companies and banks in identifying fraudulent account activity. If a “locked” SSN is entered into the E-Verify system, the user will receive a Tentative Non-Confirmation (TNC) and will be referred to the local Social Security Administration office for follow-up.
USCIS also is attempting to improve user friendliness by simplifying the contract terms governing E-Verify use. Specifically, the Memorandum of Agreement signed by all employers upon enrolling in E-Verify has been revamped to include plainer language, a clearer organizational structure, and instructions for reporting any privacy or security breaches. The modified MOU went into effect for new users on December 8, 2013 and will automatically go into effect for existing users on January 8, 2014.
Although the MOU has been in effect since E-Verify was launched in 1997, it has been treated much like a form credit card or iTunes user agreement, which few employers bother to read or understand before beginning to use E-Verify. This can have serious consequences if the employer is later accused of document fraud or abuse, and is presumed to have knowledge of the terms agreed upon in the MOU. The simplified version, due to aims to foster a better understanding of the terms governing the relationship.
The new MOU also contains the following provisions, which will have important legal implications for employers receiving E-Verify or I-9 audits in 2014:
• E-Verify users now must agree to cooperate with “contractors or agents” of the Department of Homeland Security or Social Security Administration in case of any E-Verify issues or an audit;
• E-Verify software vendors are explicitly identified as “agents” of the employer signing the MOU; and
• Employers must agree to notify DHS immediately in the event of a security breach.
In my opinion, the most notable of these changes is the agency provision. Many employers use vendors such as Automatic Data Processing (ADP) to assist them with the E-Verify process. Under the terms of the new MOU, the employer is now on the hook for any actions taken by ADP or another vendor—even if the employer had no knowledge or involvement in these actions. This is especially concerning in the case of discrimination charges filed with the Office of Special Counsel of the Department of Justice, which are rapidly rising in Georgia, due to mandated E-Verify use.
Given the dramatic uptick in E-Verify usage due to state regulation, employers should expect E-Verify to continue evolving throughout 2014. Subscribe to our immigration blog for bimonthly E-Verify and I-9 compliance updates.