E-Verify – Coming to a State Near You

Thus far in 2011, seven more States have jumped on the E-Verify bandwagon, bringing the number of states requiring employers to use the government database to 17.  Many cities and local municipalities are requiring E-Verify.  There are several bills pending, including one at the Federal level, that would require the use of E-Verify by almost every U.S. employer.

This is a list of the 17 States currently requiring E-Verify.  The information was provided by the National Conference of State Legislatures.

As part of your employment eligibility verification compliance plan, you should have a mechanism in place to monitor your state’s E-Verify requirements so you ensure you remain fully compliant.  At the Federal level, employers found guilty of violation may, depending upon the number of offenses committed within a 3 year period, lose their business licenses.  Each individual state requiring E-Verify will have their own penalties in place for employers who fail to comply with mandatory E-Verify rules.  It often includes fines and debarment from bidding on or receiving State issued contracts.

E-Verify is not a substitute for the Form I-9.  The employer and employee must complete the Form I-9 within 3 business days of the first day of work for pay.  The employer then enters information from the I-9 form into E-Verify.  E-Verify compares the information provided against 455 million records in the Social Security Administration (SSA) database and 80 million records in the Department of Homeland Security’s (DHS) immigration databases. Results are usually returned within a few seconds.

If a query cannot be confirmed instantly by DHS, the employer may receive a tentative non-confirmation (TNC) and will be required to verify the information provided is accurate and give the employee the opportunity to correct any bad data. In order to resolve a TNC, the employee will be directed to visit a SSA office or call a toll-free number to speak to a Department of Homeland Security representative.

For employers who do not have resources to add one more “job” to the on-boarding process, the Department of Homeland Security allows an employer to utilize a Designated Employer Agent.  An Employer Agent is usually a private consultant who is an E-Verify specialist.  The employer contracts with the independent Designated Employer Agent who utilizes the E-Verify system on the employer’s behalf.  This is an excellent solution for employers who are hiring only a few new employees each year or who are working on Federal or State contracts and need E-Verify for that purpose.

Although E-Verify may seem overwhelming, it is here to stay.  There are options for employers to implement it into their organizations.  Contact I-9 Okay, LLC if you have questions concerning E-Verify or need an E-Verify Designated Employer Agent.

It’s All About Your Company IMAGE

The Immigration and Customs Enforcement Mutual Agreement between Government and Employers (IMAGE) is a voluntary partnership initiative between the U.S. government and employers designed to ensure compliance with employment eligibility verification rules and reduce unlawful employment.

To make the program more attractive to employers, ICE recently revamped IMAGE, simplifying program requirements and the participation process. Upon enrollment and commitment to their best employment practices, program participants are deemed “IMAGE Certified” – a distinction the Department of Homeland Security believes will become an industry standard.

If your organization is considering participating in this government program you may want to consider a few things first.

According to the ICE website, employers seeking to participate in IMAGE must agree to:

• Complete a self-assessment questionnaire;
• Enroll in E-Verify;
• Enroll in the Social Security Number Verification Service;
• Adhere to IMAGE Best Employment Practices;
• Undergo a Form I-9, Employment Eligibility Verification audit conducted by ICE; and
• Review and sign an official IMAGE partnership agreement with ICE.

If you do sign up for IMAGE, you are agreeing to allow ICE investigators to audit your company’s I-9s.  The auditors will go through your records with a fine tooth comb examining the I-9 records for ALL members of your workforce.

In an article published in Immigration Law Weekly, former AILA national president Charles Kuck observes,

“Essentially being enrolled in the IMAGE program is like inviting ICE into your HR department, and letting them screen every hire for you…It means you have or will be writing checks to the federal government, regardless of how good you believe your I-9 recordkeeping is.”

IMAGE cannot protect you against hiring individuals who are committing identity theft and there is no assurance from IMAGE that ICE will not investigate your company even if you become an IMAGE Certified employer.

Now don’t get me wrong, I think IMAGE has some good ideas to help employers protect their business by getting training, utilizing a qualified independent auditor, and enrolling in E-Verify and SSNVS.  The truth is however, any employer who takes employment eligibility verification seriously can implement IMAGE Best Employment Practices without involving the federal government and without risking allowing ICE agents free access to their HR department.

By utilizing qualified I-9 specialists or immigration attorneys, your company can implement a plan very similar to the IMAGE program without giving the ICE fox the keys to your HR hen house!   Joining IMAGE is a little like asking the IRS to audit your last 3 years tax returns just to see if they find any problems!   Are you really that confident in your I-9 processes?

We work with many employers to help get them IMAGE ready.  If you are considering the IMAGE program or would simply like to implement the IMAGE Best Practices, I-9 Okay can develop a program specifically for your company to meet or exceed the government’s standard for IMAGE.

E-Verify Self Check Goes Live March 21, 2011

Have you heard about the “new” E-Verify Self Check? E-Verify Self-Check will allow individuals to check their own work authorization status prior to being hired by an employer. The purpose of allowing self-check is to facilitate the correction of errors which might lead to an employer receiving a tentative non-confirmation (TNC) at the time they process a new hire through E-Verify.

USCIS will roll-out “self-check” to users who maintain an address and are physically located in Arizona, Colorado, Idaho, Mississippi, Virginia, and the District of Columbia. This limited trial will allow for feedback and proper testing before E-Verify Self-Check is available nationwide. Click here to see the DHS published info about self check.

One has to ask the question, “Who does this benefit?” The current E-Verify process already allows for the possibility that a new hire’s information may be incorrect in government databases and has a very specific procedure the employer must follow if they receive a tentative non-confirmation (TNC) from E-Verify.

In the case of a TNC, the employer must give the employee the opportunity to correct erroneous information with the government and may not take any adverse action against the employee until they have been given the opportunity to correct that information. The employer must allow the employee to continue to work until the TNC has been resolved.

So why would an individual need to run a “self-check” before applying for a job? While some people may want to use E-Verify Self Check to satisfy their own curiosity, the only “real” reason I can think of is to check one’s FAKE or STOLEN DOCUMENTS to see if E-Verify will verify work authorization before taking the chance of presenting those fraudulent documents to an employer – which constitutes a felony!

To date, one of the most common objections to E-Verify is it encourages document fraud. In the case of identity theft, E-Verify often cannot discern if the documents presented by a new hire actually belong to that individual. This is a loop-hole that is getting smaller but is still a valid concern for employer’s who are using E-Verify.

From my perspective Self-Check creates many more problems than the “enhancement” it is designed to resolve.  If an unauthorized worker wants to check to see if the fake documents he purchased are going to pass muster with an E-Verify employer, all he needs to do is use Self-Check.

We already know based on past performance that E-Verify is not an effective tool in recognizing cases of identity theft so again, I ask the question – who does this benefit? For me, the answer is obvious.

Employment Verification Laws

The times they are a changin’….

As President Obama pushes to reform the current immigration system, employers are under increasing pressure to follow Federal law requirements concerning hiring authorized workers while at the same time carefully monitoring State employment eligibility law as well.  Many people are following the debate about Arizona’s new immigration legislation while in South Carolina, one of the toughest employer sanctions laws in the country has slid in under the radar and gone mostly unnoticed by anyone not doing business in the state.

Employers across the country should be paying very close attention to Form I-9 requirements and E-Verify laws.  In just the last few months, several significant changes have taken place that impact how employers verify the identity and work eligibility of the people they hire.

• A newly redesigned Green Card (Permanent Resident Card).
• Changes to the Employment Authorization Document to increase document security have been implemented.
• E-Verify has been redesigned and new tools have been added.

E-Verify and the “Hire Date”

Perhaps the most significant change is what is being termed the “Thursday Rule” which now gives employers until the 4^th business day to utilize E-Verify.  Until recently the directive has always been 3 business days from the date of hire.

Amid this flurry of change, the Office of the Special Counsel for Immigration Related Employment Discrimination (OSC), had been actively investigating complaints against employers accused of improper use of the Form I-9 and/or E-Verify during the hiring process.  Morton’s Restaurant, Garland Sales, and even Macy’s department store have been accused of identity document abuse by asking new hires to produce more documents than are required for the completion of the Form I-9.

What once seemed to be just one more piece of paper to keep on file is now an albatross around every employer’s neck.  Failing to give the I-9 the attention it demands is costing businesses thousands of dollars.  Many employers mistakenly believe it is enough to have an I-9 on file for every employee.  These employers will ultimately pay the price. Since April 2009, ICE (Immigration and Customs Enforcement) has fined employers over $17 million for non-compliance based on technical and clerical errors on the Form I-9.

Many of these errors could have been identified prior to the ICE inspection had the company obtained an independent 3^rd party audit by a qualified I-9 specialist. An independent 3rd party audit is one of the best tools an employer can utilize to insure complete Form I-9 compliance.  By using an expert independent 3^rd party auditor, a business can take a proactive approach to correcting costly errors, identifying areas of non-compliance, and protecting their business against claims of discriminatory hiring practices.

It is time for every employer to wake up and realize the Form I-9 requires the same attention that tax forms and other legal and compliance issues require.  Failing to use an experienced Form I-9 specialist to assist your company in obtaining 100% compliance is putting your business at unnecessary risk of huge financial penalties as well as a public relations nightmare.   Don’t let the negative results of an ICE inspection of your company be the lead story on your local news!

What Every Employer Needs to Know About the People You Hire

The immigration debate is a hot topic.  Arizona recently passed controversial legislation causing an outcry from both sides of the debate.  Racial profiling, unlawful search and seizure and discrimination are just a few of the terms being bantered about.   Why should this matter to anyone who doesn’t live in Arizona?

It is hard to argue the current immigration system is not broken and I hope people a lot smarter than me are working on solving the problem.  For now, we must live with and work with the system that is in place.  A large piece of the illegal immigration puzzle is the Form I-9, Employment Eligibility Verification.

Using the Form I-9, every employer has the responsibility under the law to verify both the identity and work authorization of every person they hire regardless of that person’s citizenship status. This means filling out the I-9 form for every person hired and inspecting ID and work eligibility documents provided by the new employee.

Of course when the original Form I-9 process was developed in 1986, the ability to easily, quickly, and cheaply produce fake documents was not a huge concern.  However, in the current environment, technology is readily accessible to produce authentic looking documents in a very few minutes.

How Can an Employer Be Sure About the Work Eligibility of Who They Are Hiring?

The answer is “they can’t be sure” – and the law does not require that they are sure.  In fact, there are consequences for employers who refuse to accept documents if they appear to be genuine.  There are also penalties for employers who require certain employees to provide more documents than are required by the I-9 process.  Anti-discrimination laws protect employees from employers who may treat them differently because they sound or look foreign or have a foreign sounding name.

The government is providing more tools for employers to use to help them avoid hiring mistakes.  E-Verify for employers is an electronic verification system run by the Department of Homeland Security in cooperation with the Social Security Administration.  It is free to all employers.  Using information provided on the Form I-9, the employer can access the E-Verify system and check the work authorization of new hires.  Results are returned within a few seconds.

Of course, no system is perfect and E-Verify does not recognize identity theft in about 50% of the cases.  If someone has stolen another person’s identity, E-Verify only “knows” that identity is authorized to work – it cannot determine the person sitting in front of you is not that person.  For the system to work more perfectly, it would need to maintain a current photo of every person in the U.S. and match that information to the employee.  It is doubtful we will see that in the near future.

What Should a Well Intended Employer Do About Employment Elibigility Verification?

• Complete the Form I-9 at the time of hire for every new employee.
• Be sure the employee completes Section 1 carefully and accurately.
• Use the List of Acceptable Documents from the I-9 and carefully inspect the documents provided by the employee.  Record the document information accurately and completely in the document lists in Section 2.
• Use E-Verify for every new hire.
• Treat every person you hire the same, regardless of their name or appearance.

Proper completion and maintenance of the Form I-9 is the best tool currently available to employers to help them hire a legal work force. It isn’t perfect by any stretch of the imagination but it is what we have and it is the law.