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Posts Tagged ‘e-verify’

No E-Verify During The U.S. Government Shutdown – What Is An Employer To Do?

Posted on: January 4th, 2019

By: Kenneth Levine

The current government shutdown has ensnared the E-Verify system, which is used by numerous U.S. employers to verify the employment eligibility of new hires. While many operations of DHS and USCIS are maintained through user fees, and therefore unaffected by the shutdown, this does not apply to the E-Verify system. Functions on the E-Verify website which provide valuable information to U.S. employers, such as webinars, myE-Verify accounts, Form I-9 and E-Verify telephone support, are currently unavailable. Only basic E-Verify guidance remains accessible.

Employers that utilize E-Verify should know that the current unavailability of the system does not mean that employee hiring decisions must be delayed. DHS has posted a link to the E-Verify website which provides guidance on how U.S. employer’s should proceed with hiring during the pendency of the government shutdown. In particular, the notice addresses the “three day rule” as follows:

  • The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
  • The time period during which employees may resolve “tentative nonconfirmations” (TNCs) will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
  • USCIS and DHS will provide additional guidance regarding “three-day rule” and time period to resolve TNCs deadlines once operations resume.
  • Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
  • Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

Despite the lack of accessibility to the E-Verify system, USCIS and DHS have made it crystal clear that employers engaged in hiring during the government shutdown must continue to comply with the I-9 employment verification process. Per the E-Verify website notice:

“The lapse in government appropriations does not affect Form I-9, Employment Eligibility Verification requirements. Employers must still complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements outlined in the Handbook for Employers (M-274) and on I-9 Central.”

FMG Immigration Attorneys will continue to monitor E-Verify developments and provide updates as needed.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

What Should I Do If The Government Invites Our Company To Participate In A Program?

Posted on: April 25th, 2018

By: Kenneth S. Levine

The FMG Immigration Section was recently asked to address a client’s question on how they should respond to an emailed “invitation” by the USCIS E-Verify Unit for their company to participate in a quality control program.  First, it is extremely important for clients to be aware that USCIS or ICE agency inquiries/requests are typically not sent by email.  This email turned out to be an exception.

Once we confirmed that the email was in fact legitimate, our focus shifted to the nature of the actual invitation.  In this case, the USCIS E-Verify Unit was inviting our client to participate in a quality control initiative meant to refine and improve the E-Verify system.  The invitation mentioned that participation was not mandatory, and that if our client decided to participate USCIS would then provide a list of corporate documentation to submit.

We advised our client to send a response confirming that the email had been received and that they’ve elected not to participate.  I have yet to run across any situation where it would be advisable for a company to willingly provide internal corporate documents based on nothing more than a government invitation. In fact, a standard rule of thumb is that a company should never provide internal records to a government agency absent a legal obligation to do so.

In the email USCIS sought to characterize their invitation as inconsequential and nothing to be concerned about.  However, the simple act of handing over records to USCIS could easily prompt an investigation if document errors/violations are discovered during the agency’s review.  While it is reasonable to assume that the government would be less aggressive or punitive under these circumstances, there are no guarantees.

Government emails soliciting companies to voluntarily submit their documentation for “quality control purposes” is a new and novel concept.   This type of invitation should always be turned down.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected]

Does E-Verify Participation Increase Your Probability of Being Audited?

Posted on: July 23rd, 2014

By: Kelly Eisenlohr-Moul

Unfortunately, the short answer is “yes.”

Over the last year, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), located within the Department of Justice, has touted numerous settlements for alleged “document abuse” (discriminatory I-9 practices) and/or citizenship discrimination.

Press releases and settlement agreements are publicly available via the OSC’s website.

The employers identified in these press releases occupy a broad range of industries, including several large hospitality and construction businesses, which tend to be targeted due to their employee turnover and perceived likelihood to hire unauthorized workers.

Upon review of the settlement agreements, however, it becomes clear that each of these employers utilized E-Verify, the federal government’s online system for work authorization. The employers were audited based on this usage, through a “referral” from U.S. Citizenship & Immigration Services (“USCIS”).

If your company utilizes E-Verify, this is a concerning trend. The OSC takes an aggressive stance with regards to audits, fines, and administrative proceedings which results in the expenditure of significant time and resources.

The best way to avoid an audit is to take steps to insure that your E-Verify usage complies with federal law by:

• Implementing clear policies regarding Forms I-9 and E-Verify;
• Training each and every person involved in completing Forms I-9 or who uses E-Verify on behalf of the company; and
• Auditing Forms I-9 and E-Verify compliance on at least a yearly basis to correct inadvertent errors.

The bottom line is that E-Verify makes it easier for the federal government to spot potential violations. Take some time to make sure your company is protected from this liability.

Why Every Company Needs Form I-9 Training (P.S. It’s Free!)

Posted on: July 18th, 2014

By: Kelly Eisenlohr-Moul

Over the past two years, many of our clients have felt the effects of a federal enforcement shift: increased form I-9 and E-Verify audits, Office of Special Counsel complaints, and civil lawsuits focused on the alleged suppression of wages caused by the hiring of unauthorized workers.

The root cause of all these actions is the Form I-9. Mistakes or errors in completing an I-9 can result in administrative, civil and/or criminal penalties from various federal agencies. Even worse, an audit from one agency can result in a “referral” to another agency for additional penalties.

Filling out an I-9 is confusing. Until the federal government does a better job of drafting the Form I-9, however, training all employees who will have input into the I-9 process offers the following benefits:

• Reduces the likelihood of ignorant mistakes;
• Educates employees involved in the Form I-9 process about what the federal government is looking for;
• Increases awareness of red flag issues and online resources to address them;
• Places the employer in a more favorable light if an audit occurs.

There is no downside to training, and US Customs & Immigration Enforcement offers free, hour-long webinars on both Form I-9 completion and E-Verify use.

USCIS also offers a resource entitled I-9 Central, which addresses Frequently Asked Questions and provides examples of documents which prove identity and/or work authorization.

E-Verify: Five Tips for Efficient Use

Posted on: July 12th, 2013

By Kelly Eisenlohr-Moul

E-Verify is now mandatory for every Georgia employer with more than ten employees.  Below are five tips addressing the most frequent mistakes made by E-Verify users:

1. Display the mandatory “Notice of Participation” and “Right to Work” posters. Employers enrolled in E-Verify must display the correct English and Spanish posters in a prominent space, visible to employees.

2. Only E-Verify new hires.  E-Verify may not be used to pre-screen potential employees or before Sections 1 and 2 of the Form I-9 have been completed.  Use only for new employees (unless you are a federal contractor).

3. Understand the tentative non-confirmation process.  Employees whose I-9 information does not match that in federal databases must be given at least eight (8) federal working days to contest the TNC.  They must be allowed to work their regularly scheduled hours during this time.  Failure to follow this protocol may result in an I-9 and E-Verify audit by Immigrations and Customs Enforcement (ICE) or the Office for Special Counsel (OSC).

4. Be wary of E-Verify Photo Matching.  E-Verify contains a photo matching tool that is triggered when a potential employee provides permanent resident card (Form I-551), Employment Authorization Document (Form I-766B), or a US passport or passport card.  This applies only if your employee voluntarily provides these documents.  In January of this year, a South Carolina company paid $250,000 in fines for treating work-eligible non-U.S. citizens different from U.S. citizens through use of E-Verify photo matching.

5. Establish a process to double-check all sections of the Form I-9.  Administrative oversights and errors, such as an employee’s failure to sign Section 1, an employer’s failure to complete the Form I-9 no later than 3 days after hire, and the employer’s failure to sign Section 2 have all been deemed “substantive” violations, resulting in stiffer penalties.  Although an employee may be appropriately e-verified, this does not mean that his or her Form I-9 was completed properly.