States Jump on the E-Verify Bandwagon

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.

E-Verify releases revised FAQs for Federal Contractors

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.

E-Verify Abuse

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!

Form I-9 and E-Verify Misinformation Can 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.

E-Verify Can’t Detect All Illegal Workers – What a Surprise…

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.