I-9/E-Verify

By: Dave Fowler

The APA Capital Summit was held last week in Washington D.C. During my time in D.C. I had a chance to meet with various individuals responsible for E-Verify and enforcement of immigration laws including the Form I-9. Here is an update on what we all might expect in the coming months regarding E-Verify and information on why improvements can take longer that most of us would like or expect.

1. An E-Verify ICD (Interface Control Document) is a specification that covers the E-Verify web service computer-to-computer interface that E-Verify makes available primarily to Designated Agents (DAs) and to a lesser extent individual employers. The current ICD is version 20, but there will likely be others released within the next 12 months or so. When a new ICD is released DAs are typically given 6 months to implement the new interface. Here are some examples of what we may see.

• Support for ICDs older than version 19 will be discontinued.
• An ICD providing an expansion of the Photo Matching Tool that will include additional documents such as U.S. passport photos.
• An ICD that includes updates supporting the DHS plain language initiative to replace terms such as Tentative Nonconfirmation with something more meaningful to the user.

2. There are many stakeholders involved with E-Verify. Therefore, changes to the program, which, by the way, will remain a pilot program until Congress changes its status, must be reviewed and approved by a variety of groups within the government. For example, a partial list of these groups might include E-Verify, DHS management, DOJ OSC, SSA just to mention a few. Each of these groups have their own legal staffs and E-Verify is just one item on their worklist. So, you can see how it might be somewhat of a challenge getting all these groups and individuals on the same page.

3. Why are there so many different E-Verify manuals? I'll speculate that there are two main reasons for this.

• First, to avoid burdening a user with information that does not apply to them E-Verify has published manuals for each specific user audience.
• Second, government agencies need to comply with the paperwork reduction act to limit the amount of paper documents that are printed. While most E-Verify manuals are published online as PDFs and downloaded by the user, there are a number of users that request hardcopy manuals. So, E-Verify is required to cost justify the publication and printing of any new manuals. Since the publication of manuals doesn't generate revenue or reduce costs, it is much easier for E-Verify to get approval to publish smaller manuals. This might help explain why there is a Supplemental Guide for Federal contractors rather than a larger single manual for Federal contractors.

4. Guidance to simplify and clearly define what is acceptable as the Employment Date in E-Verify as well as what to enter as the Employment Date in Section 2 of the Form I-9. The same guidance must also apply to the Rehire Date entered in Section 3 of the Form I-9. There appears to be disagreement among the various stakeholders involved with the Form I-9 and E-Verify as to how to what the specific definition of these two fields can be and what it needs to be. Therefore, we should not anticipate that any guidance provided in the short-term will provide a simple, clear, and consistent definition of these dates. In my opinion, the guidance should be as simple as:

• The date (Employment and Rehire dates on the Form I-9 as well as what is provided to E-Verify) must be the date applicable section of the Form I-9 is signed or a previous date. The date must not be a date in the future. There is no requirement that the date match any date in the employer's systems.

Unfortunately, the guidance is more likely to be different for E-Verify and the Form I-9. In other words, E-Verify will not accept a future date, but a future date will be acceptable on the Form I-9. This will mean that if the date on the Form I-9 is a future date, the user will be instructed to enter the current date in E-Verify to verify the employee's work authorization. This approach will be confusing to users, limit or eliminate the E-Verify Monitoring and Compliance group from obtaining realistic statistics, it may serve to promote pre-screening, which is not allowed by E-Verify, and it is bad for the E-Verify brand to instuct users to enter information into E-Verify that is not on the Form I-9.

To sign off on a positive not, I will tell you that while there are challenges and enhancements that will make it easier to use and reduce the burden on employers, E-Verify is continuing to improve. So, hats off to the E-Verify team for that! However, we all need to keep the pressure on to push for needed enhancements.

That's it from the Capital.