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.

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.

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.

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!

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.

Most of you have heard about E-Verify for employers but you may not be paying close enough attention because you don’t think it is something you need to think about.  Well, you might want to think again!  The federal government already requires employer’s with federal contracts to use E-Verify for any employee assigned to the contract. Many states are passing laws requiring employers to use E-Verify and many more state have legislation pending.

As of today, 16 states require E-Verify in some capacity.  Arizona, Utah, South Carolina, and Mississippi require all employers to use E-Verify.  Idaho, Colorado, Nebraska, Minnesota, Missouri, and Georgia require state agencies and employers with state contracts to use E-Verify.  Virginia and North Carolina require state agencies to use E-Verify and several cities and municipalities have passed their own legislation.

E-Verify uses the Department of Homeland Security (DHS) and the Social Security Administration databases to verify employment eligibility to work in the United States.  After signing up to use E-Verify, the employer inputs information gathered on the Form I-9 into the E-Verify system to confirm the work eligibility of an individual in just a few seconds.  Unfortunately, the process of signing up and receiving approval for E-Verify can be cumbersome…but there is a simple solution.

An employer may contract with an E-Verify Designated Agent to utilize the federal database without having to go through the hassle of signing up, taking the training, and passing the mastery test.  An E-Verify Designated Agent is authorized to use E-Verify to check the employees of any company, with their permission of course.

Using a Designated Agent is a good solution for companies that don’t want to spend valuable resources on an administrative task.  It is a great solution for HR departments that are already stretched to the limit and can’t begin to think about adding one more thing to their busy schedules.

I-9 Okay is an E-Verify Designated Agent.  We are able to assist companies, large and small, with all of their E-Verify and Form I-9 compliance concerns.  E-verify has very specific rules of use…what you don’t know could hurt your company. The E-Verify specialists at I-9 Okay are experts in helping employers navigate the complex rules concerning E-Verify requirements and Federal contracts. Contact us today.

USCIS (U.S. Citizenship and Immigration Services) released a new 18 page FAQ report for Federal contractors who are required to use E-Verify under Executive Order 12989. 

Most Federal contracts awarded or renewed after September 8, 2009 contain what is known as the FAR (Federal Acquisition Regulation) E-Verify clause.  Some Federal contracts are exempt from the requirement.  A contract is considered exempt if one or more of the following apply:

• The contract is for fewer than 120 days
• It is valued at less than $100,000
• All work on the contract is performed outside the U.S.
• The contract includes only commercially available off-the-shelf (COTS) items and services (most food and agricultural products fall into the COTS category)

The E-Verify Federal contractor rule requires most Federal contractors to use E-Verify for all new employees, even if the employees are not assigned to the Federal contract.   There are a few exceptions to the rule.  The Supplemental Guide for Federal Contractors has specific information concerning these rules.

Employers with Federal contracts or those who are interested in bidding on Federal contracts must be fully informed concerning E-Verify.  Failure to follow the rules may lead to debarment from being awarded government contracts or being allowed to bid on Federal contracts.   Misuse of the E-Verify system may also subject an employer to discrimination charges.

The E-Verify specialists at I-9 Okay are experts in helping employers navigate the complex rules concerning E-Verify and Federal contracts. Contact us today.

The Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) is actively monitoring potential employer misuse of the E-Verify system.  “Employers can expect more investigations into E-Verify misuse from the OSC,” says Ryan Adair, MSEC, Manager of Immigration Services. “These investigations are time consuming and expensive to defend.”

E-Verify is the online system that allows employers to verify work eligibility of new employees using information gathered on the Form I-9.  The focus of the OSC is to hold employers responsible if they misuse E-Verify.  Employers who misuse E-Verify will face fines, may lose their federal contracts, and may be debarred from the bid process on future federal contracts.

To avoid trouble with OSC employers should use E-Verify only according to the guidelines provided by the program and avoid using E-verify to:

• prescreen job applicants.
• verify work eligibility of current employees (unless a federal contract expressly requires E-Verify usage on existing employees).
• selectively check employee work eligibility based on citizenship status or suspicion that an employee may not be authorized to work in the U.S.

E-Verify states employers may not:

• terminate or take other adverse action based on an E-Verify tentative non-confirmation.
• ask an employee to obtain a printout or other written verification from the Social Security Administration confirming that the employee visited the office.
• ask an employee to provide additional documentation after receiving a tentative non-confirmation for the employee.

Employers should ensure they know the E-Verify rules and follow them. What you don’t know may cost you!

Nearly every day we run across well-meaning hiring managers who are unwittingly breaking the rules of I-9 compliance and E-Verify.  Sadly for these dedicated professionals, “I didn’t know that” will not be an effective defense when Immigration and Customs Enforcement (ICE) agents audit their hiring process.

The most common mistake hiring managers make is using the Form I-9 as a pre-hire screening tool.  This may be considered a discriminatory hiring practice. 

The Office of the Special Counsel for Immigration Related Unfair Employment Practices offers this advice:

In order to avoid any appearance of discrimination, verify work eligibility after you have decided to hire an individual and allow your employee three days to provide the documents.

• Let your employee choose which documents to present, as long as they appear to be reasonably genuine.

• Understand that there are many different documents, with different appearances, that your employee may present. You can find a list of these documents on the back of the Form I-9.

E-Verify also has very specific rules of use and an employer is bound by the Memorandum of Understanding they were required to sign when they registered as an E-Verify user.  Using E-Verify as a pre-screening tool is strictly forbidden. 

How Do You Avoid Discriminatory Hiring Practices?

Treat all people the same when you are announcing the job, taking applications, interviewing, offering the job, filling out the Form I-9, hiring, and firing.

• Avoid “citizens only” hiring policies or requirements that applicants have a particular immigration status, unless required by law.
• Give out the same job information over the telephone and use the same application forms for all applicants.
• Base your decisions about firing on job performance and/or behavior, not on appearance, language, name, or citizenship status of your employees.

Don’t depend on “I didn’t know that” as your defense.  Many hiring managers don’t know what they don’t know about I-9 compliance, E-Verify, and avoiding discriminatory practices during the hiring process.  Always consult an expert for advice and develop standard hiring practices.  Adhere to the same work eligibility policy for every person hired.

The New York Times reported last week that E-Verify cannot detect a person using documents belonging to someone else.  There was an immediate outcry from the usual suspects about the travesty of E-Verify. Anyone who is familiar with E-Verify and has any ability to use reason shouldn’t be shocked.  The system has limitations, it has always had limitations, and going into the future, I’m sure it will continue to have certain limitations.

It should be fairly obvious if a person has stolen the identity of someone who is authorized to work in the United States and has altered the documents to appear as though they belong to the person being hired, E-Verify will not be able to detect the error unless the photo-match feature is activated.  It doesn’t take a rocket scientist to figure out how to use documents that won’t trigger the photo-match tool in E-Verify.

The question is, should we throw out the baby with the bath water and scrap the whole E-Verify system?  The truth is that E-Verify is still the best tool currently available to help employers verify the identity and work eligibility of the people they are hiring.  It is required for most employers who have contracts with the Federal government.  Many states also require its use.

Work Eligibility and Document Verification

Employers must understand that the law requires they make a good faith effort to verify the identity and the work eligibility of every person they hire – period.  The law does not require an employer be a forensic document expert so as to be able to identify any fraudulent document no matter how the document appears when presented by the employee.  In fact, when the employer signs the certification on the Form I-9, he/she is attesting that “…the document(s) appear to be genuine and to relate to the employee named….”

As an employer, the very best way to develop a good faith defense concerning I 9 compliance is to accurately complete the Form I-9 for every person hired.  As part of the Form I-9 process, the employer must inspect the documents presented by the employee, record the document information in the lists in Section 2 of the I-9 form, and sign the certification attesting to the inspection of those documents.

At this time, there is no one good source for viewing “sample” documents so that an employer may compare what they are accepting with what a “real document” looks like.  There are a few resources available however, there have been so many versions of documents issued, it is unreasonable to believe most hiring managers would be able to spot a sophisticated fake document.

A Good Faith Defense in Case of an I 9 Audit

When Immigration and Customs Enforcement (ICE) conducts an I 9 audit, the employer must be able to prove they took the necessary steps to fulfill their responsibility to verify the identity and work eligibility of every person they hire.  If an employer can prove they have done that, they should have a good faith defense against penalties for hiring undocumented workers.

The very best way to prove a good faith defense is to complete the entire Form I-9 process completely.  Unfortunately, most employers fall well short of I 9 compliance and will not be able to enjoy the good faith defense allowed under the law.