Federal Contractors Must Use E-verify for All Employees or Risk Debarrment and Penalties

E-Verify is an Internet-based system operated by Department of Homeland Security (DHS/U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). E-Verify is currently free to employers and is available in all 50 states. E-Verify provides an automated link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers.

Employers or "Designated Agents" (e.g., payroll companies) must register online and agree to the terms of participation to use E-Verify. [Registration includes agreeing to the DHS/Immigrations and Customs Enforcement (ICE) Memorandum of Understanding (MOU). A discussion of the ICE E-Verify MOU is outside the scope of this post.]

E-Verify will soon be required of all federal contractors. Many state legislatures are also enacting state laws mandating employer use of E-Verify.  Federal (and in many states, state) contractors are now required to participate in the E-Verify program to confirm employment eligibility.  Although E-Verify is an extension of and improvement for the existing I-9 laws all employee, it is also directed at illegal immigrant work authorization.

If you haven't browsed the E-Verify website perhaps you should, or you can just read this post. DHS is now promulgating "final" E-Verify regs. I present an E-Verify overview and update in this post.

How E-Verify Works

The employer enters the employee data from the Form I-9 every new employee must complete. The E-Verify site initial verification almost immediately returns one of 3 results: (1) Employment Authorized; (2) SSA Tentative Nonconfirmation ("TNC"); or (3) DHS Verification in Process.

If the initial verification result is employment authorized the E-verify system provides a Case Verification Number. The employer enters the Case Verification Number on the employee's Form I-9 record.

If the initial verification result is a TNC or DHS verification in process this does not mean the employee is not employment authorized. A TNC with SSA or a DHS Verification in Process merely indicates there is not a data base match. Again, this does not mean the employee is not employment authorized. If the system returns a TNC or DHS verification in process do not start a new case. Generally, DHS will respond to an DHS verification issue within 24 hours.

TNC--Tentative Nonconfirmation. In the event of either an SSA or DHS "Tentative Nonconfirmation" ("TNC"), the employer is required to print out the case details (print out prompted from the website, in either English or Spanish) and review them with the employee. The regs provide that the employee can contest a TNC by either SSA or DHS, or the employee may choose not to contest the TNC in which case it is considered a final nonconfirmation.

The employee has 8 business days to resolve (or start to resolve) the TNC with the Social Security Administration (SSA). The employee should be allowed to work during this 8 -day period s/he has to resolve the TNC.

The employer is not held in limbo waiting for the employee to get back to it concerning the emlpoyee's resolution of the TNC. After 10 business days from the date of the E-Verify initial verification result the employer re-visits its E-Verify account on the web and retrieves the Government's (SSA's) determination of the employee's actions. (The employee chooses either to contest or not contest the TNC. If the employee contested the TNC the results will be indicated. If the employee did not contest the TNC, the nonconfirmation becomes final.)

The employer simply goes to the website and updates the Case Resolution. If the TNC is then final, the employee is not be continue employed.

Photo Screening Tool. If the employee presents either a Permanent Resident Card ("green card") or an Employment Authorization Document ("EAD") as one of the I-9 List A, B or C Documents the DHS system has that photo in its database.

The Photo Screening Tool "Identity Verification" allows the employer to compare the photo on the document with the DHS database photo. The actual EAD or Permanent Resident Card photo that is embedded in the identity document is the photo in the DHS database from which the document was made. There is no discrepancy as to a beard or changed facial features. The ID photo on the document is the exact same digital image in the DHS database, regardless of whether the employee's facial features have changed since the official DHS photo was made.

Employer Responsibilities

E-Verify can only be used for new hires and not current employees. It must be used for all new hires. It can only be used after the employee has completed the Form I-9. (The Form I-9 must be completed within 3 days of the start of employment (initial pay period). An employer who participates in E-Verify must sign the ICE MOU and post two posters: an "E-Verify Participant" poster and an "Anti-Discrimination" poster (both downloadable from the website).

Employee Rights

New hires have the right to contest or not contest a TNC from either SSA or DHS. New hires can contact the department of Justice to report UIREPs (unfair immigration related employment practices) or discrimination based on national origin claims.


Thorny E-Verify Issues with State and Federal Contracts

Who is an employee "assigned" to the contract?

When does an employee "directly perform work" on a contract that subjects the employer to the E-Verify requirement?

How will an employer with multiple worksites handle the logistics of getting all of its I-9s back to its I-9 office in 3 days?

Can a current employee complain that s/he was assigned to a contract because e employer wanted to run him/her through E-Verify, and thereby establish an UIREP or national origin discrimination claim?

How does the contracting entity manage its subcontractors' E-Verify compliance?

State laws variously require contracting employer's participation in E-Verify.

But this year, lawmakers in several states are hesitating to mandate use of the federal screening system. Though both Missouri and South Carolina considered making it obligatory for all employers, in the end Missouri will require it only of state agencies and state contractors, while South Carolina will give businesses a choice: using E-Verify or checking employees’ drivers’ licenses. And Virginia lawmakers flatly rejected demands that they mandate enrollment for any employers.

E-Verify Penalties

E-Verify penalties include:

·     Debarrment from contracts;

·     Monetary fines;

·     Criminal prosecution and penalties, including imprisonment;

·     Criminal monetary fines;

·     Bad Public Relations.

What Should Employers Be Doing Now about E-Verify?

First and foremost employers must clean house NOW!!! Every employer who performs contracts with the Federal Government or who has contracts with a State that requires participation in E-Verify must begin training programs and internal audits of their I-9 compliance.

Employers must establish they follow "best practices" for their I-9 compliance program, including:

·     3rd party audits of subcontractors' I-9 compliance;

·     Review and change subcontract contract language for I-9 compliance;

·     Review and establish SSN no match policies

·     Establish and implement immigration compliance policies and procedures.

My I-9 website offers a "one-stop" thorough presentation of many aspects of I-9 employment eligibility and employment verification, including how to complete the Form I-9, employer UIREPs and unlawful discrimination, E-Verify, Social Security No-Match Letters, ICE enforcement, employer penalties, employer best practices and a monthly Newsletter.