I-9/E-Verify

By: Dave Fowler

I don’t know about you, but I can’t believe it's February already!

I just received guidance from USCIS in response to the following question.

When can an E-Verify case be created when a replacement receipt is used for Form I-9?

I understand this question was recently discussed at an AILA (American Immigration Lawyers Association) get together and the consensus was that an E-Verify case should be created when Form I-9 is completed, even when a replacement receipt is used for Form I-9.

How would you answer this question?

The guidance from USCIS is that an E-Verify case should NOT be created prior to updating the Form I-9 with the employee’s actual document for which the replacement receipt was presented.

What’s the explanation?

As you know, the E-Verify Memorandum of Understanding (MOU) instructs an employer to run E-Verify queries “upon completion of the Form I-9.”  In other words, Form I-9 must be completed (per USCIS definition of completed) before an E-Verify case can be created. According to USCIS, the presentation of a replacement receipt does NOT complete the Form I-9 process and thereby freezes the three-day period for completing Form I-9. During this period, the employee continues to work while his or her Form I-9 is being completed. (i.e., resolved) The E-Verify case should be created within three days from when the employee presents the actual document for which the replacement receipt was presented. So, the core issue is the definition of when a Form I-9 is completed. According to USICS, a Form I-9 is not completed until a replacement receipt presented by the employee is updated with the employee’s actual document for which the replacement receipt was presented.

Why not create the E-Verify case earlier?

Well, creating an E-Verify case for a Form I-9 completed with a replacement receipt can be problematic with E-Verify.

·         E-Verify requires the employee to present a photo ID for Form I-9. Not all replacement receipts contain a photograph. Therefore, creating an E-Verify case without a photo ID is contrary to the requirements of the MOU.

·         If the replacement receipt is for a document subject to E-Verify photo matching, the employer is not able to attest that the photograph displayed by E-Verify matches the photo on the employee’s document. If E-Verify does not return a photograph, employers are instructed to indicate that the photo on the employee’s document matches. However, the E-Verify instructions do not address the situation where E-Verify returns a photograph, but the employee’s document does not contain a photograph. Therefore, completing the photo matching requirement without a document that matches the photograph presented by E-Verify is contrary to the requirements of the MOU.

·         If the employer indicates that the photos do not match, the employer does not have a document that can be forwarded to DHS to resolve the E-Verify case if the employee contests the photo matching result. Not being able to process a referral for a photo matching DHS TNC is contrary to the requirements of the MOU.

So, while your employees may not routinely present replacement receipts for Form I-9, you should protect yourself by ensuring your internal procedures as well as your electronic Form I-9 and/or E-Verify solution is compliant.

I-9/E-Verify

By: Dave Fowler

Happy New Year and welcome to 2012. There will be many exciting things happening this year such as new State laws requiring E-Verify, immigration reform discussions, and the Super Bowl. Oh yeah, there is also an election this fall too. Not to be out done USCIS has expanded their website with some new information that can be very helpful to employers.  Here is a summary of what is now available at the USCIS website.

E-Verify Blog

The Beacon is the official blog of USCIS. Check it out at:

Employees from El Salvador with Expiring EADs May Still Be Authorized to Work

Employees from El Salvador who have Temporary Protected Status (TPS) have had their employment authorizations automatically extended until September 9, 2012, even if the employees have not yet obtained a new Employment Authorization Document (EAD). Please visit I-9 Central What's New section for detailed information.

I-9 Central What’s New

Visit the I-9 Central What's New section to learn about updates published by USCIS.

I-9 Central Updated Questions & Answers

Helpful information on how Form I-9 covering topics such as:

• Who Needs to Complete Form I-9?
• How to Complete Form I-9
• Is This Document Acceptable?
• Self Audits Q&As
• Storing Form I-9 Q&As
• Electronic Form I-9 Q&A

The TALX I-9 Compliance Bulletin for October discussed a pair of federal bills would create a nationwide requirement for all employers to use E-Verify. The bills appear to have little chance of passing but demonstrate the rising tide of interest in imposing E-Verify requirements. Neither bill would offer relief from the patchwork of state bills with E-Verify requirements: Both expressly permit states to use their authority over business licensees to create penalties for failure to use the new E-Verify system.

Read the bulletin now.

Subscribe to future bulletins.

The latest TALX I-9 compliance bulletin talks about U.S. Department of Justice lawsuit over Alabama’s strict new immigration bill. The suit seeks to strike down various sections of Alabama’s House Bill 56, but doesn’t go after Section 9, which requires contractors to the state to use E-Verify, or Section 15, which requires the use of E-Verify starting April 1, 2012.

The bulletin also discusses DOJ fines aimed at employers for discriminatory I-9 practices, including an employer in the food industry forced to paid a fine of $290,400 after the DOJ found one of its plants had required non-citizens to produce a “List A” document during the I-9 process.

Read the bulletin now.

Subscribe to future bulletins.

I-9/E-Verify

By: Dave Fowler

IMAGE (ICE Mutual Agreement between Government and Employers) is an Immigration and Customs Enforcement (ICE) program designed to partner with employers to improve compliance with U.S. immigration laws. The IMAGE group within ICE has the responsibility to grow the employer membership in IMAGE, which is at its core a sales effort. In the past, the requirements for participation were so burdensome that employers weren’t buying, unless of course they were ‘encouraged’ to join as a result of an ICE workforce enforcement audit of Forms I-9. So, to help the sales effort and grow IMAGE membership ICE has softened the requirements for an employer to become an IMAGE member. This is consistent with a change in strategy for ICE regarding worksite enforcement. ICE is no longer conducting raids on employers looking for illegal workers. Instead, ICE is taking more of an outreach approach and focusing on training and education when it comes to Form I-9 compliance. Therefore, rather than focus worksite enforcement efforts on certain industries ICE uses its resources to identify and stop egregious employers from violating immigration laws. As a result, ICE typically issues Notices of Inspection (NOI) to employers who;

a)    appear to be violating immigration law on a significant scale (ICE does not have the resources to follow-up on every tip so they focus on the larger opportunities), and,

b)    are involved or associated with critical infrastructure (ICE recently issued NOIs to 1,000 of these employers) to the country (e.g., communications, transportation, energy, shipping, etc.)

To promote the new, revamped IMAGE program ICE is sponsoring free forums being held around the country this summer. Any employer interested in learning more about ICE and the IMAGE program should attend one of these free forums. One of the most popular sections of the training you will receive is an in depth look at how to identify fraudulent documents and some of the various security features used. It is very interesting session and gives employers helpful tips on how to spot fraudulent documents, which improves Form I-9 compliance. Having attended the two-day IMAGE training session held last year in D.C. on which these forums are based, you will not be sorry you attended.

ICE IMAGE FORUM SCHEDULE

• July 26 - Seattle
• August 11 - Dallas
• August 23 - Atlanta
• September 1 - Denver
• September 8 - Phoenix
• September 20 - New York City
• September 29 - San Diego

For more information visit the IMAGE web site.

To participate in the new revamped IMAGE program employers must agree to:

·         Complete the IMAGE Application Form

·         Enroll in the E-Verify program within 60 days

·         Establish a written hiring and employment eligibility verification policy that includes an internal Form I-9 audits at least once a year

·         Submit to a Form I-9 Inspection

·         Review and sign an official IMAGE partnership agreement with ICE

Upon enrollment and commitment to DHS' best employment practices, program participants will be deemed "IMAGE Certified" – a distinction DHS believes will become an industry standard. The results of the IMAGE program will guide DHS in shaping future worksite enforcement policy and legislation.

One of the primary reasons employers are reluctant to participate in the program is that IMAGE is not offered as a safe harbor. Therefore, employers do not want to increase their risk of being fined and/or punished based on the Form I-9 inspection required to participate in the program. ICE cannot offer IMAGE as a safe harbor that eliminates fines and punishment to avoid the program being used by egregious employers to avoid prosecution. However, ICE recognizes that the potential of fines is a huge impediment to their sales efforts. How many employers would be interested in participating in IMAGE if every employer was fined or imprisoned? The answer is none. To help ease employers’ concern in this area ICE is limiting any fines recommended as a result of an IMAGE participant’s Form I-9 inspection to be at the lowest applicable rate. At the end of the day, IMAGE is an outreach and training program. It is not a program designed to get employers to turn themselves in.

Employers should consider participation in IMAGE as part of any comprehensive corporate compliance program.

Our I-9 Compliance Bulletin for July covered three new state laws related to E-Verify.

South Carolina’s E-Verify law was modififed to remove the option to use a driver’s license to confirm work eligibility for new hires. All employers in the state must now use E-Verify.

North Carolina will require employers with 25 or more employees to use E-Verify, with the requirements phased in starting Oct. 1, 2011.

Louisiana now provides a safe harbor for employers who use E-Verify. Employers using E-Verify are protected from penalties for violating the state’s law against hiring unauthorized workers.

Read the July bulletin now.

Subscribe to future bulletins.

The TALX I-9 Compliance bulletin for June covered new developments at the state level. The bulletin also talks about ICE I-9 audits, a topic covered by Dave Fowler in a separate blog posting.

Here are the headlines from the latest bulletin:

• ICE inspects I-9s at an additional 1,000 employers
• Alabama mandates E-Verify
• Tennessee law requires use of E-Verify or other documentation for new hires

I-9/E-Verify

By: Dave Fowler

In today’s Wall Street Journal, an article by Miriam Jordan, More ‘Silent Raids’ Over Immigration, tells us that ICE, a unit of the Department of Homeland Security, has issued Notices of Inspection (NOI) to 1,000 ‘critical infrastructure and key resources’ companies across all 50 states, including food production, information technology, financial services, and construction.

ICE auditors and special agents will inspect the Forms I-9 (employment eligibility verification forms) of these employers for errors as well as workers not authorized to work in the United States.

Since October 1, 2010, ICE has now issued 2,338 NOIs which is already greater than the 2,196 issued in the prior year and this year is not over until the end of September.

Unfortunately, many employers are not prepared for an ICE audit. Surprises are not easy to prepare for, but employers should periodically self-audit their Forms I-9, create a Standard Operating Procedure (SOP) manual covering company practices regarding Form I-9, E-Verify, and SSA No-Match Letters, and regularly train the staff that completes Forms I-9 on the contents of the SOP manual. Employers should also document when the training sessions are held and attendees.

Employers can take additional steps such as considering joining the new updated IMAGE program from ICE. ICE has relaxed the program’s requirements to lessen the burden on employers and promote participation in the program.

I-9/E-Verify

By: Dave Fowler

Tom Ahearn, ESR News Editor for Employment Screening Resources, a leader in employment screening, posted the following excellent summary of the new E-Verify enhancements for June 2011. Since there is no reason to re-invent the wheel, here is Tom’s post, which you will find at his blog. Thanks Tom!

US Citizenship and Immigration Services Deploys E-Verify Enhancements for June 2011

Posted June 15, 2011 — By Tom Ahearn, ESR News Editor

In the ongoing effort to improve the federal E-Verify electronic employment eligibility verification system, the U.S. Citizenship and Immigration Services (USCIS) has deployed several enhancements to the E-Verify system beginning June 12, 2011. The existing E-Verify user IDs and passwords will still be valid and all cases will be available when users log in. The first time E-Verify users log in on or after June 12, 2011, they will be required to take a short tutorial to learn about the changes to the E-Verify system. To learn more, click here.

In 2010, the USCIS redesigned the E-Verify Web interface to enhance its usability, security, accuracy, and efficiency. The June 2011 upgrades to E-Verify include:

·         Driver’s License Verification

·         U.S. Passport and Visa Number Entry

·         Password Change

·         Add User

·         Hire Date

·         Help Text

·         Case Details

·         E-Verify Employer Agent Interface Enhancements

Driver’s License Verification

E-Verify has expanded its information sources to include driver’s license records, which strengthens the integrity of the program. Starting June 12, 2011, E-Verify will collect driver’s license information for employees who present a state-issued driver’s license as a “List B” document. Also, the list of Form I-9 documents displayed in E-Verify will be expanded to include “List B” and “List C” documents consistent with Form I-9.

U.S. Passport and Visa Number Entry

While most U.S. Passport numbers are nine digits and most U.S. visa numbers are eight digits, some are not. As part of the June 2011 upgrades, E-Verify users need to know:

·         U.S. Passport numbers must be between six and nine alphanumeric characters (letters and numbers).

·         The “C” that precedes a U.S. Passport Card number is no longer case sensitive.

·         U.S. visa numbers must be exactly eight alphanumeric characters (letters and numbers). Entering a visa number is still optional, though if an employee provides one, employers are encouraged to enter it to prevent a tentative nonconfirmation (TNC).

Password Change

The U.S. Department of Homeland Security (DHS) policy sets strict password standards for E-Verify. While loosening the password requirements is not an option, the USCIS has improved the error messages for when E-Verify users enter an unacceptable password. If E-Verify users enter a password that does not meet DHS requirements, they will be told which requirements they did not meet and what they need to do to create an acceptable password. For more information, E-Verify users should read DHS 4300A Sensitive Systems Handbook, pages 154-155 for address password standards.

Add User

E-Verify users will no longer need to provide a new user with his or her user ID and password. E-Verify will send new users a confirmation email that includes the user ID, temporary password, E-Verify login website address, and steps for getting started.

·         When adding a new user, E-Verify users will still be able to accept the suggested user ID or create their own.

·         E-Verify will send the confirmation email to the email address entered when the new user was added.

·         Since there is no way to resend the email, if the new user deletes the email or never receives it, the new user’s password must be reset and the new user must be provided with the new user ID and password created.

Hire Date

The USCIS has modified the hire date in E-Verify so that it matches the Section 2 “Certification” date on Form I-9. As of June 2011, E-Verify users may select a future hire date and use the Section 2 “Certification” date from the employee’s Form I-9 as the hire date in E-Verify. This modification also enables USCIS to better accommodate E-Verify users in Guam, who have had to ensure an additional workaround because Guam is a day ahead of the continental United States. E-Verify users need to know:

·         The hire date is the date the employee began (or will begin) work for pay. E-Verify users should use the Section 2 “Certification” date from the employee’s Form I-9 as the hire date in E-Verify.

·         E-Verify users may select a hire date that is up to 365 calendar days in the future.

·         The ability to select a future hire date does not change the rule that prohibits prescreening. A prospective employee MUST have accepted an employment offer before E-Verify users may complete Form I-9 and create a case in E-Verify. Selecting a future hire date simply eliminates a confusing workaround in cases where E-Verify is used after an employee accepts an employment offer, but before he or she begins work for pay.

·         If E-Verify users rehired an employee and completed Section 3 of Form I-9, they should use the “Date of Rehire” from Section 3 of the employee’s Form I-9 as the hire date in E-Verify.

·         If the employee’s hire date changes after E-Verify users have created the case in E-Verify, no additional action is required in E-Verify as you cannot change the hire date once a case is created. E-Verify users must, however, make a correction to the Section 2 “Certification” date on the employee’s Form I-9 if the employee’s hire date changes.

Help Text

E-Verify users can find help while logged in to E-Verify by simply clicking on any blue question mark icon. E-Verify help text offers instructions on selecting documents, entering employee information, case status, and more. The USCIS has focused on improving guidance within E-Verify, and the June 2011 upgrades feature more than 30 new and revised help text items.

Case Details

The USCIS has upgraded the “Case Details” screen available to E-Verify users to improve reporting capabilities. Users will now be able to easily locate detailed information for each case created in E-Verify. The added fields include:

·         List A Document

·         List B Document

·         List C Document

·         Employer Case ID

·         Three-day rule exception reason

E-Verify Employer Agent Interface Enhancements

The USCIS has upgraded several aspects of E-Verify for E-Verify employer agents as a result of studies done with E-Verify employer agents over the past two years to improve their E-Verify experience. The June 2011 upgrades include:

·         All program administrators will now receive emails confirming the enrollment of new clients. This improvement takes all the guess work out of determining when users may begin creating cases for new clients.

·         The list of client companies is now sorted alphabetically increasing the efficiency of the case creation process for all E-Verify employer agent users.

·         E-Verify will evaluate the “Organization Designation” of the applicable client company when users create cases. This will determine whether or not the three-day rule exception reason “Federal Contractor with FAR E-Verify Clause verifying an existing employee” is listed.

An E-Verify employer agent such as Employment Screening Resources (ESR) – a nationwide background screening provider accredited by The National Association of Professional Background Screeners (NAPBS®) – can assist employers with E-Verify compliance and help them avoid government audits and penalties for non-compliance. To learn more about E-Verify services from Employment Screening Resources, visit http://www.esrcheck.com/formi9.php.

About Employment Screening Resources (ESR): Founded in 1997 in the San Francisco area with a mission to help employers and employees maintain safe workplaces, Employment Screening Resources (ESR) is accredited by The National Association of Professional Background Screeners (NAPBS®) and provides industry leading technology, legal compliance, service, turnaround, and accuracy. ESR also wrote the book on background checks with ‘The Safe Hiring Manual’ by founder and President Lester Rosen. For more information about ESR, visit http://www.ESRcheck.com.

Source:
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=d1e8d3cd89f60310VgnVCM100000082ca60aRCRD&vgnextchannel=d1e8d3cd89f60310VgnVCM100000082ca60aRCRD

I-9/E-Verify

By: Dave Fowler

The following information is from the Department of Homeland Security website.

Effective May 23, 2011, the Department of Homeland Security (DHS) extended the designation of Haiti for Temporary Protected Status (TPS) for 18 months, from the current expiration date of July 22, 2011 to January 22, 2013.

Employment Authorization Documents (EADs) set to expire on July 22, 2011 will be automatically extended for six months until January 22, 2012. U.S. Citizenship and Immigration Services (USCIS) will issue new EADs with a January 22, 2013 expiration date to eligible TPS beneficiaries who timely re-register and apply for an EAD. For more information regarding the 18-month Haiti TPS Extension, please click here, refer to 76 FR 29000 (Extension Announcement), 76 FR 29777 (EAD Extension) or call the USCIS TPS Hotline at 1-202-272-1533 (not a toll free number).

• To determine if an EAD is affected by this automatic extension, look at the “Category” section on the expiring (or expired) EAD. If either A12 or C19 is listed, then the employee is a TPS beneficiary. Next, look at the expiration date of the EAD. If the expiration date on the EAD is July 22, 2011, then the bearer is a TPS beneficiary from Haiti and his or her employment authorization has been automatically extended. If a different category or expiration date is listed, then the employee is not a TPS beneficiary from Haiti, and the usual reverification rules apply.
• For information about completing or updating Form I-9 for a TPS beneficiary whose EAD has been automatically extended, consult the Handbook for Employers: Instructions for Completing Form I-9 (M-274),  I-9 Central, or the Federal Register Notice.

I-9/E-Verify

By: Gordon Middleton, Esq.

More lawmakers and regulators and putting their weight behind E-Verify, the federal system for electronically verifying the identity and employment eligibility of newly hired employees.

Here are a few recent developments we've covered in our Compliance Bulletins:

The U.S. Supreme Court upheld Arizona’s law that revokes the business licenses of employers who knowingly employ undocumented workers.

Indiana passed a law requiring contractors to state or local governments to use E-Verify.

In the same bulletin linked above, we talked about a White House report on immigration reform that includes a show of support for the E-Verify system.

I-9/E-Verify

By: Dave Fowler

You may have heard that RIDE is a new feature that will allow E-Verify to validate driver’s license information to improve validations. The RIDE initiative is designed to increase the effectiveness of E-Verify by automating motor vehicle document verification between Motor Vehicle Agencies (MVAs) and the E-Verify user. Participation is voluntary for MVAs. For those MVAs that participate, the RIDE program will allow E-Verify employers to verify a driver’s license, permit, or state-issued ID with the issuing U.S. jurisdiction. So, if the employee presents a driver’s license to the employer (participating in E-Verify) to complete Section 2 of Form I-9 that is issued by a participating MVA, E-Verify will execute the data verification and only respond to the E-Verify user whether the submitted information matches with the MVA data or not.

Information for this posting was obtained from an article published on the American Association of Motor Vehicle Administrators (AAMVA) website.

I-9/E-Verify

By: Dave Fowler

From a previous entry on this blog you are already aware of the new DHS I-9 Central website. You may not be aware of the chart that DHS has published indicating which acceptable Form I-9 documents pertain to different categories of individuals based on the individual’s attestation in Section 1 of Form I-9 as to the individual’s citizenship status. Based on the DHS chart below an individual attesting to a specific category in Section 1 should then present documentation from the corresponding list to the employer for Section 2. To help prevent employers from accepting the documentation from a different list, an electronic Form I-9 system may limit the employer to selecting only documentation corresponding to an individual’s category.

The information below is from the DHS I-9 Central website.

For guidelines on which documents on Form I-9 are issued to which categories of individuals, see the chart below.

*Unrestricted Social Security cards that are acceptable List C documents are only issued to:

·         U.S. citizens

·         Noncitizen National of the United States

·         Lawful permanent residents

·         Refugees

·         Asylees

·         Citizens of the Republic of Marshall Islands, the Federated States of Micronesia, or the Republic of Palau admitted under a Compact of Free Association

·         Canadian-born American Indians

·         Mexican-born Kickapoo Indians

I-9/E-Verify

By: Dave Fowler

This just in…May 31, 2011.

Updated May 26, 2011. ICE is going to postpone this event due to the holiday week. It will likely be rescheduling for later in the summer, perhaps early August. ICE will be posting information shortly.

Director John Morton, U.S. Immigration and Customs Enforcement (ICE), is pleased to invite you to an unveiling of a new brand protection and compliance program. The unveiling will take place on Tuesday, May 31, 2011 from 2:00 – 6:00 PM at the Omni Berkshire Hotel, 21 East 52nd Street at Madison Avenue, Julliard Ballroom, New York, New York 10022.

I-9/E-Verify

By: Dave Fowler

As summarized in a publication on the Seyfarth Shaw LLP website, Georgia Governor Nathan Deal last week signed into law the Illegal Immigration Reform and Enforcement Act of 2011 that takes effect July 1, 2011.

The new Georgia law mimics many of the provisions in Arizona’s law, including the requirement that most employers in the state use E-Verify. The law also allows, under certain circumstances, local law enforcement to investigate individuals’ immigration status.

Some of the key provisions of the law include:

1.      E-Verify Required for All Employers with More Than Ten Employees

a.      Require any business with 500+ employees to use E-Verify for employees hired after January 1, 2012.

b.      Require any business with 100 to 499 employees to use E-Verify as of July 1, 2012.

c.       Require any business with 10 to 99 employees to use E-Verify as of July 1, 2013.

2.      Suspects to be Questioned about Immigration Status

a.      The law allows local law enforcement officers to question suspects about their immigration status.

b.      The Arizona law and similar legislation in Utah have resulted in expensive legal challenges and boycotts.

Civil rights groups are concerned that the Georgia law will result in discrimination based on physical appearance. Business groups fear the loss of business that will result from anticipated boycotts and from the hostile environment created by the new law.

I-9/E-Verify

By: Dave Fowler

As summarized in a recent alert posted by Mariana Richmond on the Barnes & Thornburg website, Indiana Governor Mitch Daniels signed a new immigration bill into law on May 10, 2011 that goes into effect July 1, 2011.

The new law will impact businesses operating in Indiana and those companies doing business with state and local governments.

Some of the key provisions of the law include:

1.      State and local governments are prevented from entering into new contracts or renewing existing contracts unless the contractor uses E-Verify.

2.      State and local governments MUST use E-Verify.

3.      Prohibits Indiana business owners who knowingly hire illegal immigrants from deducting expenses associated with that employee in the calculation of their state income taxes. A safe harbor is provided to employers use E-Verify.

4.      State agencies and local governments cannot award a grant of more than $1,000 to a business not using E-Verify.

5.      Authorizes state agencies or local governments to terminate a public contract without penalty if the contractor knowingly employs illegal immigrants.

6.      A subcontractor employed under a public contract MUST certify to the contractor that it uses E-Verify.

7.      An agency or political subdivision must verify the eligibility of individuals older than 18 who apply for federal, state, or local public benefits, such as health-care services, college scholarships, grants and financial aid.

8.      Requires the Indiana Department of Workforce Development (DWD) to verify citizenship before determining eligibility for unemployment benefits, and authorizes DWD to file civil action to recoup unemployment benefits from employers who knowingly employ illegal aliens.

9.      Prohibits so-called "sanctuary" cities.

I-9/E-Verify

By: Dave Fowler

There is an E-Verify Enhancements link on the DHS/USCIS E-Verify website.

E-Verify Enhancements

DHS, in an ongoing effort to improve E-Verify, is deploying several more enhancements to the E-Verify website on June 12, 2011. These enhancements are NOT going to be available on June 12, 2011 in the E-Verify Web Services interface used by E-Verify Employer Agents (EA) such as TALX. At some point in the future, DHS will provide EAs the specifications for the updated Web Services interface along with a notification letter indicating by when EAs should support the new interface. DHS typically provides EAs six months to implement a new interface to allow EAs time to incorporate the new interface requirements into their development schedules. It is anticipated that this new interface will be identified version 23 since the current interface is version 22.

Until the specifications are made available, EAs do not know what, if any, user interface updates or E-Verify closure codes will be required to support these enhancements..

If you use the E-Verify website, your existing user ID and password are still valid and all of your cases will be there when you log in. The first time you log in on or after June 12, 2011, you will be required to take a short tutorial to learn about the changes.

June 12, 2011 Upgrades

Driver's License Verification

E-Verify has expanded its information sources to include driver’s license records, which strengthens the integrity of the program.

If you select that the employee presented a driver’s license, you will need to provide the document number. Driver’s licenses include all types of licenses and permits that grant driving privileges, including learner’s permits, commercial driver’s licenses and motorcycle licenses.

I-9/E-Verify

By: Dave Fowler

There are now new Web pages posted on the DHS/USCIS website that are devoted to the proper completion, retention, and processes for Form I-9. This new area is called I-9 Central.

These USCIS Web pages on Form I-9 will help you learn more about:

I-9/E-Verify

By: Dave Fowler

This posting is in response to the May 2, 2011 posting of “To Copy or Not to Copy: Is that the Question?” by Gary Endelman of Fong & Associated LLP on the LawLogix Group blog.

Gary is correct that people are divided on the practice of copying employee documents for Form I-9. For instance, there are Coke people and Pepsi people, cat people and dog people, and then there are copy people and non-copy people. In the end, the value of copying supporting documents for Form I-9 depends on the perspective of the individual making the decision.

There are a few areas that need to be considered when making a decision to copy or not to copy.

1.      Do I copy documents for every employee who completes Form I-9?

2.      Do I copy documents as required by State law (i.e., Colorado)?

3.      Do I copy documents as required by E-Verify?

4.      Do I attach document copies to Form I-9?

5.      Do I have the necessary equipment to copy documents at the hiring location?

6.      Is there a ROI to offset the cost of copying documents?

7.      Do I accept more risk if documents are not copied for every employee?

Do I copy documents for every employee who completes Form I-9?

The Handbook for Employers (M-274) published by the U.S. Citizenship and Immigration Services (USCIS) bureau of the U.S. Department of Homeland Security (DHS) states the following:

“You may choose to copy or scan documents an employee presents when completing Form I-9, which you may, but are not required to, retain with his or her Form I-9.”

“If you choose to retain copies of an employee’s documents, you must do so for all employees, regardless of national origin or citizenship status, or you may be in violation of anti-discrimination laws.”

Copying documents for Form I-9 can demonstrate a good faith effort. That’s a good thing. However, be aware that copying documents can also demonstrate that you knew or should have known that a document was fraudulent. Gary correctly indicates that having a copy allows you to show that you did not accept a fraudulent document. However, the other side of that argument is that having a copy can also show that you accepted a fraudulent document. Ask yourself a few questions before deciding to copy documents. Do you audit your Forms I-9 regularly? (If not, why not?) How many errors do you find when you do audit? Are you confident that copies will be attached to Form I-9 for all employees? Do you use E-Verify? Is your greatest risk with copying or not copying documents?

Security is another big concern when copying documents. If you decide to copy documents, make sure you carefully consider how the copies will be made. When making paper copies to retain or scan later, make sure unused copies are disposed of in a secure manner. Don’t allow copies to be mixed in with the general trash. When you scan documents make sure they do not remain resident on a computer. Engage your security team to make sure you have a tight process that prevents any unauthorized access to documents.

Do I copy documents as required by State law (i.e., Colorado)?

Yes. You should copy documents for employees hired in Colorado. Since this would be done to comply with a state law rather than a federal requirement, you may want to consider storing these copies in a separate file along with the affirmation form to avoid any conflict between the state law and federal regulations that require you to copy documents for all employees if you copy them for any employees.

Do I copy documents as required by E-Verify?

Yes. If you use E-Verify, you must copy documents subject to Photo Matching. These documents should be attached to Form I-9. Remember, you are copying these documents to comply with E-Verify, not Form I-9 requirements. Therefore, you are not obligated to copy documents for all employees if you only copy documents subject to E-Verify Photo Matching.

Do I attach document copies to Form I-9?

The M-274 states the following:

“USCIS recommends that employers who choose to retain copies of employees’ documentation keep those copies together with their Forms I-9.”

However, before deciding to attach a copy to the Form I-9 you have to consider your reason for making the copy in the first place. If you are making the copy because you make copies for all employees completing Form I-9, to comply with E-Verify Photo Matching, or to comply with Colorado law? If you are making the copy because you copy for all employees completing Form I-9, then you should attach the copy to the Form I-9. If you are making a copy to comply with E-Verify Photo Matching, then you should attach the copy to the Form I-9. However, if you are making a copy to comply with Colorado law, then you may want to retain the copy and the Colorado affirmation form in a separate file and not attach them to the Form I-9.

Why do I say this? Well, the M-274 states that if you make copies for one employee you must make copies for all employees. The Form I-9 is a federal form, not a state form. Therefore, complying with the Colorado law could put you out of compliance with Form I-9 requirements. For example, attaching copies to Forms I-9 for employees in Colorado, but do not making copies for employees in other states does not comply with the M-274 requirement above.

Do I have the necessary equipment to copy documents at the hiring location?

This is a component of the copying decision that you need to carefully consider. Many large employers in distributed work environments just don’t have the equipment in place to copy or scan documents. The cost of purchasing, installing, maintaining, and supporting such equipment must be considered when making your copying decision.

Is there a ROI to offset the cost of copying documents?

You may want to consider copying documents to be part of an insurance decision. You need to understand the potential risks to the organization in terms of time, fines, penalties, employees, and morale as well as the potential damage that may be done to your brand if you are audited by ICE and determined to be employing unauthorized workers. The decision may come down to the value of copying as an additional cost to the other actions you must take such as internal audits, training. Make sure you create a Standard Operating Procedures (SOP) manual covering your Form I-9 and E-Verify processes. If you can only do three things to improve your Form I-9 process, do the following:

1.       Create a SOP, update it regularly, and provide copies to employees completing Form I-9.

2.       Create training materials that support your SOP and train employees regularly.

3.       Conduct self-audits of your Forms I-9 every year, take appropriate actions to correct mistakes, and document your actions.

Do I accept more risk if documents are not copied for every employee?

If you decide to make copies for every employee, make sure it happens. This will require more frequent and in depth internal audits. You might also find it difficult to obtain missing copies from existing employees (e.g., remote workers) and from terminated employees. Not making copies for all employees can be considered a discriminatory practice and could increase your risk of penalty.

In the end, when making a decision to copy or not copy you must a variety of factors such as:

1.       Your chances of being audited by ICE,

2.       Your costs and what steps you are willing to take to achieve 100% compliance,

3.       Your confidence in your documentation and practices,

4.       Your employees and their dedication to compliance,

5.       Your past experiences.

Meeting with Congressional Staff on I-9 and E-Verify, April 7, 2011

On Thursday April 7th, I had the opportunity to accompany members of the American Immigration Lawyers Association, (AILA), on their National Day of Action and met various members of the Congressional Staffs of our Missouri Senators and Representatives.  The goal was to bring the employer message that something needs to be done on the Federal level regarding immigration in general, but more specifically, to alert the Federal legislators that they need to deal with E-Verify on a national level to stunt the proliferation of state laws and bills regarding the topic.  As of last week, there had already been some 165+ bills introduced in 38 states dealing with E-Verify in this session alone.

These meetings were generally with one or two staffers and one AILA immigration attorney from Kansas City.  The staffers engaged were the people who were responsible for legislative and/or immigration issues for their respective Representative or Senator.  The immigration attorney, (Anthony Weigel), generally opened these advocacy sessions by talking about immigration issues in general, and the need for the Federal Government to pass sweeping reforms that would create a clear path for those currently in the country illegally to gain citizen status.   In espousing the employer viewpoint, it was explained to each member that TALX was a Missouri employer, with around 1,800 employees in the state and that we were agents of some 330 clients—many of which are large national employers-- who made use of our electronic I-9 and E-Verify services.

The real rub for employers, as earlier explained, is the fact that there are so many bills floating through the various legislatures that deal directly with E-Verify.  It was explained that this is a minefield for employers—especially those who have a nationwide presence.  They have ICE, with their ramped up enforcement efforts on one side, and the various state regulatory bodies on the other, waiting to pounce on those who run afoul of the law, regardless of any intent, or lack thereof which may be involved.  This situation is an untenable one for employers, and needs to be eradicated.  The way they—Congress—can make that happen is to pass a law that essentially wrests control of the issue from the states, and reaffirms their lack of standing to deal with immigration in general.

The TALX message was met with a good degree of enthusiasm, although the staffers were somewhat preoccupied with the budget wrangling of last week.  When we asked point blank when and if something might get done, we were met with shrugs and uncertainty.
However, this exercise was invaluable, in that not only were we  able to get our views across directly to those with sway on the issue, but we were able to gain key contacts within the staffs of our House and Senate representatives, as well as insight into how things get done behind the scenes regarding such issues. 

We will continue to keep this issue at the forefront of the minds of our members of Congress, and as many of those with sway that we can gain access to.  We make every attempt to be an effective advocate for our employer clients, and we will continue to work diligently in this effort.

Gordon Middleton
TALX Legal Compliance Specialist for Employee Services

I-9/E-Verify

By: Dave Fowler

Assuming there is no government shutdown; the new E-Verify Self Check feature will begin a pilot on March 21, 2011 in certain states (Arizona, Colorado, Idaho, Mississippi, Virginia) plus Washington, D.C. If you do not currently maintain residency in one of these locations you will not be able to use Self Check during the pilot.

USCIS (United States Citizenship and Immigration Services) was directed by Congress to implement E-Verify Self Check to allow anyone to check their employment eligibility in the United States.

USCIS has posted an E-Verify Self Check Interactive Preview on its website. Individuals must complete four steps to use Self Check. To use Self Check you must verify your identity by answering personal questions. A third party service is used to complete this identity process and then only notifies Self Check that your identity has been confirmed. Your information is not shared with the federal government.

Individuals can use Self Check to identify data mismatches that may need to be resolved to facilitate government benefits such as Social Security payments or get a job with a company using E-Verify. Being confirmed by Self Check does not guarantee that you will be verified by E-Verify. However, it can indicate mismatch issues so you can resolve them before being submitted to E-Verify.

Good luck!

I-9/E-Verify

By: Dave Fowler

As you know, Congress is trying to work through budget issues and provide funding for the federal government to continue operating. It has been confirmed with DHS that in the event of a government shutdown, E-Verify will be impacted by a shutdown and will not operate until the shutdown is resolved.

If a shutdown occurs and E-Verify becomes unavailable, employers must continue to complete Forms I-9 in compliance with the law and then submit the information to E-Verify when E-Verify is again operational. Employers using the TALX I-9 service need not worry. Employers using E-Verify Employer Agents (formerly Designated Agents) should contact the supplier.

Hopefully, a government shutdown will be avoided and E-Verify will continue to process. Just thought you all should know in advance so you can plan.

Good luck!

I-9/E-Verify

By: Dave Fowler

As E-Verify users know, the Photo Matching feature requires employers to make and retain copies of employee documents subject to Photo Matching. For many E-Verify employers work locations are not equipped with copiers, scanners, and or fax machines to allow them to make copies of employee documents subject to E-Verify Photo Matching. Purchasing, installing, training, supporting, and maintaining such equipment is a significant burden on these employers, especially when the employer has hundreds of locations. This unexpected expense for a large E-Verify employer can run into hundreds of thousands of dollars.

At an August 2010 ICE training conference held in D.C. one of the topics of several side discussions was having the employee provide copies of their Section 2 documents subject to E-Verify Photo Matching. The employee would need to provide two copies of a Photo Matching document; one to be retained by the employer and one to potentially be sent to DHS for verification in the event of a DHS Tentative Non-confirmation resulting from a photo mismatch. ICE indicated that they were comfortable with this approach provided the employer inspected the employee’s original documentation and confirmed that the copies were of the same documentation.

The only open question was approval of the practice by USCIS. The proposal was sent to E-Verify after the training session and on October 8, 2010 E-Verify provided the following response.

**********

The following information has been provided by our Policy Team.

The E-Verify MOU requires employers to photocopy certain types of original documents an employee presents for Section 2 of Form I-9.  While an employer may request that an employee provide a photocopy of his or her document(s), an employer may not require the employee to do so, especially if the employee refuses.  Employers may need to allow additional time for employees who do not have access to a copier to provide copies, and should not penalize employees who refuse or are unable to provide copies of Form I-9 documentation.

The employer may not delay or deny employment, fire, or take any other adverse action against the employee for failing to provide a photocopy of an original document.

If the employer requests that any newly hired employee provide a photocopy of an original document, the employer must request that every new employee provide photocopies of original documents, regardless of citizenship status or national origin.  The employer is still required to view the original document and complete Section 2 of the Form I-9 after viewing the original document.

When completing Section 2 of Form I-9, the employer may not require that the employee provide specific document(s) or may not reject documents that are otherwise acceptable for I-9 purposes, based on an employee’s citizenship status or national origin.

If the employee is unable or refuses to provide a photocopy of the original document he or she presented for Form I-9, the employer is required to make a photocopy of the original document.

We hope this information has been helpful to you.  If you need help with any other E-Verify issues, please do not hesitate to contact E-Verify at 888.464.4218 or email us at E-Verify@dhs.gov.  You may speak to a representative Monday – Friday from 8:00 am to 5:00 pm Local Time.

Thank you for allowing us to serve you!

Cordially,

The E-Verify Team

**********

This information is not currently published on the USCIS or E-Verify web sites. Today, E-Verify approved release of this information.

Good luck!

I-9/E-Verify

By: Dave Fowler

USCIS has posted a notice in the federal register indicating that the E-Verify Self Check system will go live on March 21, 2011. E-Verify Self Check is voluntary and available to any individual who wants to check his own work authorization status prior to employment and facilitate correction of potential errors in federal databases that provide inputs into the E-Verify process. When an individual uses E-Verify Self Check, he will be notified either that:

1.       His information matched the information contained in federal databases and he would be deemed work-authorized, or

2.       His information was not matched to information contained in federal databases which would be considered a “mismatch.”

If the information was a mismatch, he will be given instructions on where and how to correct his record(s).

E-Verify Self Check is a secure portal designed to maximize reliability and ease of use. Upon successful identity authentication, an individual will be able to query E-Verify directly. If the information provided by the individual matches the information contained in federal databases (SSA, DHS, DoS) a result of “`work authorization confirmed” is displayed. If the information was a mismatch, E-Verify Self Check will provide the individual a result of “Possible mismatch with SSA” or “Possible mismatch with Immigration Information.” E-Verify Self Check will also provide the individual instructions on how to request correction of these potential errors in records contained in these federal databases should the individual choose to do so prior to any formal, employer run E-Verify query process. In rare cases, an individual may still receive a potential mismatch during a normal E-Verify query because the record cannot be changed. The individual is not required to correct the record mismatches that were identified by E-Verify Self Check.

E-Verify Self Check involves a two-step process:

1.       Identity authentication of the individual; and

2.       an E-Verify query to confirm the individual's current work authorization status.

The first step utilizes a third party Identity Proofing (IdP) service to generate knowledge-based questions based on commercial identity verification information, collected by third party companies from financial institutions, public records, and other service providers. The information accessed by the IdP may include information, such as the individual's commercial transaction history, mortgage payments, or past addresses. An individual must correctly answer these knowledge-based questions generated by the IdP in order to authenticate his identity and enable him to use E-Verify Self Check. In order to generate these knowledge-based questions, the IdP service collects basic personally identifiable information (PII) from the individual including name, address of residence, date of birth, and optionally the individual's Social Security number (SSN). Each individual will be asked a minimum of two and a maximum of four knowledge-based questions. If there is not enough commercial identity verification information from financial institutions, public records, and other service providers to generate two questions, the individual's identity cannot be authenticated and he will not be able to continue through E-Verify Self Check. The fact that an individual was unable to use the IdP service will be sent to E-Verify, but no other information. Neither the questions asked by the IdP service nor the answers provided by the individual are retained by the IdP. The Fair Credit Reporting Act (FCRA) requires the IdP to retain the fact of an inquiry. The IdP maintains the time/date stamp and inquiry type (credit check, identity check, etc.) so that the inquiry is noted in the individual's credit record and can be audited at a later date. The E-Verify Self Check inquiry is an identity check, and therefore will not affect an individual's credit score.

Once authenticated, the individual will be required to enter additional information based on the documentation he would present to an employer for the Form I-9 process. The additional information collected from an individual depends on his citizenship status and the document chosen to present for work authorization. This could include: citizenship status; Alien Number (if non-citizen); passport number; Form I-94 number; and/or lawful permanent resident card or work authorization document (EAD) number. This represents the same information that is collected for the Form I-9 process and the basic E-Verify query.

E-Verify Self Check will present either an indication that an individual's information matched government records and that E-Verify would have found the individual work-authorized or that the information is a possible mismatch to government records. If the individual receives a “possible mismatch with SSA/Immigration Information” response, E-Verify Self Check will provide guidance on how to correct potential errors in the records. The individual will be asked whether they would like to resolve the mismatch or not. If the individual chooses not to resolve the mismatch, E-Verify will close the case. If the individual chooses to resolve the SSA mismatch, a form will be generated that contains the individual's first and last name, the date and time of the E-Verify query, the E-Verify case number, and detailed instructions on how to resolve the mismatch. If the individual decides to resolve an Immigration Information mismatch, E-Verify Self Check provides instructions to contact E-Verify Customer Contact Office (CCO) to assist in the correction of immigration records 72 hours after the initial query to speak with a status verification representative. If the representative is unable to correct the record, the individual will be advised of actions necessary to correct the error.

The main benefit of E-Verify Self Check is to facilitate the identification and correction of potential errors in federal databases that provide inputs into the E-Verify system thereby improving the E-Verify process for both the employee and the employer. Prior to the introduction of E-Verify Self Check, an individual did not have the ability to identify potential issues associated with his work authorization status until after receiving adverse notification from employers. E-Verify Self Check provides a vehicle for an individual to proactively check work authorization status prior to the employer conducting the E-Verify inquiry.

I don't believe E-Verify Self Check will create or retain a login for an individual. This means that each time an individual wishes to use E-Verify Self Check they will need to complete the authentication process. An individual may wish to use Self Check again after an initial mismatch to verify that the government's records have been updated correctly. Also, an individual may wish to use Self Check with different Form I-9 documents, if the individual's citizenship status or name has changed, or if there has been an update to existing documents.

I-9/E-Verify

By: Dave Fowler

On February 18, 2011, the Wall Street Journal reported that ICE will soon make public up to 1,000 more companies will be notified of worksite enforcement audits for Form I-9 compliance. ICE just opened a new compliance center and they appear ready to start using it right away.

Read the WSJ article.

I-9/E-Verify

By: Dave Fowler

Updated E-Verify statistics show 98.6% of cases are confirmed as authorized to work.

See the new statistics on the USCIS web site.

I-9/E-Verify

By: Dave Fowler

On February 7, 2011, USCIS began issuing an Employment Authorization Document (Form I-766) to certain employment-authorized aliens that includes a new notation: “Serves as I-512 Advance Parole.” The new card, with this endorsement, will serve as both employment authorization and a travel document. An employment authorization document (EAD) with the new notation is an acceptable EAD under List A for Form I-9, Employment Eligibility Verification. This card is only available to individuals who have a pending Application to Register Permanent Residence or Adjust Status, Form I-485. The new card is generally valid for one year. See the USCIS Update for more information.

According to E-Verify, as stated during the February American Payroll Association GATF Immigration Subcommittee meeting, for Form I-9 purposes the new duel use EAD (Form I-766) is treated as a List A document, which is how the EAD is currently specified on Form I-9.

See questions and answers regarding new duel use Form I-485.

I-9/E-Verify

By: Dave Fowler

ICE has posted a new I E-Verify public service announcement video on YouTube. Check it out at I E-Verify: 2011 Public Service Announcement.

I-9/E-Verify

By: Dave Fowler

The law firm of Ogletree Deakins USA recently released a very good summary of some of the Form I-9 questions answered in the recently updated USCIS Handbook for Employers (M-274).

Some Form I-9 questions answered in updated USCIS Handbook:

·         An employer should not begin the Form I-9 process until the individual has accepted a job offer

·         The three business days the employer has to complete Section 2 of Form I-9 does not include the employee’s first day of work

·         Extended discussion of “special” hiring categories

·         How to handle employee name changes

·         Guidance on interruptions in employment

·         New chart for calculating I-9 retention periods

·         Electronic I-9 system requirements

·         Expanded “FAQ” section

However, the posting also states that there are still many unanswered questions and that confusion is still possible in the “simple” process of completing Form I-9.

Some Form I-9 questions unanswered in updated USCIS Handbook:

·         Can an employee use a P.O. Box as Section 1 address?

·         Which documents apply to each citizenship status in Section 1?

·         Do weekends and holidays count towards 3 days after hire? If so, what is the rule?

·         Does retaining copies of employee documents for E-Verify or state (i.e., Colorado) purposes require the employer to retain copies of documents for all employees?

ICE continues to increase Form I-9 audits of employers. Employers must conduct self audits and make it a top priority to stay compliant with Form I-9 records. Even though unanswered questions remain, the new Handbook for Employers is an improvement, provides valuable information to employers, and is an essential reference tool those persons responsible for Form I-9 compliance.

I-9/E-Verify

By: Dave Fowler

If you have ever wondered if the employee can use a P.O. Box as their address in Section 1 of Form I-9 or tried to find the answer in Form I-9 documentation, read on. The Handbook for Employers (M-274) document was just updated and published by USCIS and it includes a number of helpful clarifications. However, I don’t understand why this clarification was not included. I recommend that USCIS include this clarification in the next update of the M-274 and Form I-9. In the interim, the clarification should be included in the FAQs on the USCIS web site.

1: Can an employee enter a P.O. Box as their address in Section 1 of Form I-9?

ANSWER: No. The employee must enter a physical address in Section 1 of Form I-9 and should not use a P.O. Box.

2: Where can you find this answer in Form I-9 documentation?

ANSWER: You can’t. This information is from the policy team within USCIS and unfortunately is not included in any Form I-9 manual or guide.

3: How are employees and employers supposed to know that a P.O. Box is not acceptable as the address in Section 1?

ANSWER: If you look at Section 1 of Form I-9 it indicates in the address box that the employee should provide a street name and number.

I-9/E-Verify

By: Dave Fowler

On January 20, 2011 ICE announced that Tyson Foods Senior Vice President and Chief Human Resources Officer Ken Kimbro and ICE Director John Morton signed the IMAGE or "ICE Mutual Agreement between Government and Employers," agreement during a ceremony at ICE headquarters. Tyson Foods, Inc., which employs almost 100,000 people at locations throughout the United States, is the first major food company to become a full member of ICE's IMAGE program.

 During today's signing ceremony, Director Morton also announced the creation of an employment compliance inspection center in Crystal City, Va. This center will be home to 15 auditors who will support ICE's worksite enforcement strategy by helping agency field offices around the country expedite Form I-9 audits of businesses selected for inspection by ICE. Form I-9 audits are one of the most powerful tools the federal government has to ensure that businesses are complying with U.S. employment laws. From fiscal year 2009 to date, ICE has initiated Form I-9 inspections against 3,769 businesses across the nation.

Read the ICE press release.

I-9/E-Verify

By: Dave Fowler

The Wall Street Journal, January 20, 2011

Read the article.

The Obama administration plans to intensify a crackdown on employers of illegal immigrants with the establishment of an audit office designed to bolster verification of company hiring records.

In an interview, John Morton, chief of U.S. Immigration and Customs Enforcement, a unit of the Department of Homeland Security, said the Employment Compliance Inspection Center would 'address a need to conduct audits even of the largest employers with a very large number of employees.' The office would be announced Thursday, he said.

Mr. Morton said that the center would be staffed with specialists who will pore over the I-9 employee files collected from companies targeted for audits.

In the fiscal year that ended Sept. 30, 2010, ICE conducted audits of more than 2,740 companies, nearly twice as many as the previous year. The agency levied a record $7 million in civil fines on businesses that employed illegal workers.

Enforcement activity during the Bush administration focused on high-profile raids in which thousands of illegal immigrants were arrested and placed in deportation proceedings. Relatively few companies and their executives were prosecuted.

In contrast, the Obama administration has made employers the center of its immigration policy with 'silent raids.' Critics say the policy has penalized small employers while failing to target larger employers.

Mr. Morton said the new center would have the 'express purpose' of providing support to regional immigration offices conducting large audits. 'We wouldn't be limited by the size of a company,' he said.

'Ultimately, it is in a company's best financial interest to proactively comply with the law now rather than to face potential fines or criminal prosecution for noncompliance in the future,' an ICE spokeswoman said.

Mr. Morton said ICE was also seeking to expand a program enabling businesses to work with the federal government to ensure they are employing people authorized to work in the U.S. Called IMAGE, or ICE Mutual Agreement between Government and Employers, the voluntary program includes training and assessments to help a company guard against hiring illegal employees.

I-9/E-Verify

By: Dave Fowler

USCIS has posted detailed information in the Federal Register about the upcoming Self Check feature of E-Verify and provided release information in response to a recent GAO report. USCIS plans to deploy Self Check in Spring 2011 through a phased pilot implementation and USCIS will consider expanding to more users as early as 2013. Questions such as ‘How many users will be in the initial pilot?’, ‘How will users be selected?’, and ‘How will Self Check be communicated to the public?’ remain to be answered.

Read GAO’s report.

Read the USCIS response to the GAO report.

Read the Self Check information in Federal Register.

I-9/E-Verify

By: Dave Fowler

The United States Citizenship and Immigration Services just posted results of a new survey of employers not using E-Verify. The following excerpt is from the survey’s executive summary.

Past surveys of E-Verify users have shown high levels of satisfaction. However, as of 2009, less than 3 percent of all employers in the United States participate in E-Verify. Many policymakers have looked for ways to reduce unauthorized employment, including State law mandates to participate in E-Verify for all employers (in Arizona and Mississippi) or selected groups of employers (in 11 states and in the Federal government, which requires participation by certain Federal contractors). This study was designed to determine why employers do not participate in E-Verify, what factors they desire in E-Verify, and what they think about a mandatory program.

This report presents the results of a nationwide survey of nonusers—i.e., companies that have never signed a Memorandum of Understanding (MOU) to participate in E-Verify. The response rate was too low to provide reliable national estimates; however, several broad patterns can be detected from the 511 respondents if the survey is treated as a case study. Therefore, this report treats the results as a case study and supplements the survey of nonusers with results from focus groups of additional nonusers.

The principal barrier to participation in E-Verify appears to be a lack of awareness of the Program. Among the case study participants, 63 percent were not familiar with E-Verify. Case study participants were often positive about the characteristics of E-Verify, and among the 101 who answered a question concerning their future plans, 23 percent definitely planned to participate in E-Verify in the future (while 32 percent would not participate unless mandated to do so). For those employers who have heard of E-Verify, the information often came from nongovernmental sources such as professional organizations.

The other primary reasons for not participating were not perceiving a benefit from participating, and thinking it would be too costly or time-consuming to participate. The perception of burden is based in part on employers’ reported negative experiences with other government Internet-based programs (such as the Social Security Administration/Business Services Online Website).

The case study participants supported many program changes to E-Verify, with the most popular including the increased use of technology to identify fraudulent documents and to verify identity, allowing a formal appeal by an employer and/or employee of a final case finding, and allowing verification of job applicants before a job decision is made.

Read the entire report.

I-9/E-Verify

By: Dave Fowler

New Florida Governor Rick Scott signed Executive Order 11-02 minutes after being sworn in to office. The order requires state agencies to use E-Verify for new and existing employees. This immediately raised compliance questions since only federal contractors with a federal contract containing the FAR (federal acquisition regulation) E-Verify clause are authorized to verify existing employees. So, TALX emailed the Governor’s office asking for clarification. We were quite impressed with the response time from the new Governor’s staff. Here is the information we received.

A State of Florida Organizational Chart can be obtained online at http://www.oppaga.state.fl.us/government/storgchart.asp.  Please note, some agencies are executive agencies under the Governor's administration and other agencies are administered by members of the Florida cabinet who are statewide elected officials. For some agencies the Governor shares administrative authority with members of the cabinet and other agencies are legislative agencies under the authority of the Florida Legislature.

Information about the Governor's legal and constitutional responsibilities can be found in The Florida Constitution and the Florida Statutes online at www.leg.state.fl.us. A wide range of information for residents, tourists, the Florida business community, and access to links for Florida Government can be located at www.myflorida.com.

To assist you, I shared your concerns with the Governor's legal staff and I am informed that all state agencies and state contractors affected by Executive Order 11-02 are expected to utilize the E-Verify system in accordance with any applicable state or federal guidelines. Those who have a contract with a state agency, or anticipate entering into a contract with a state agency should contact that agency directly for more specific guidance regarding how Executive Order 11-02 may impact them.

I-9/E-Verify

By: Dave Fowler

A recent customer satisfaction survey validates what U.S. Citizenship and Immigration Services (USCIS) has long asserted – that the Obama administration’s commitment to building the E-Verify system is the right investment in building a viable tool to ensure a legal workforce in the United States. Additionally, a report about E-Verify – just issued by the Government Accountability Office (GAO) – cites improvements in the reduction of mismatch rates, ensuring employer compliance, and establishing better safeguards for employees’ personal information.

The customer survey evaluated key aspects of the E-Verify program such as registration, tutorial, ease of use, technical assistance, and customer service. E-Verify received an exceptionally high overall customer satisfaction score – 82 out of 100 the American Customer Satisfaction Index scale – compared to the government’s overall satisfaction score. One of the aspects of E-Verify that respondents liked the most was its customer support, which received a score of 89 – based significantly on enhancements to the system made under the Obama administration. Other key findings of the survey revealed that the overwhelming majority of users were likely to recommend E-Verify to other employers, were confident in E-Verify’s accuracy, and were likely to continue using the program.

Read the USCIS press release.

Read GAO’s report.

Read USCIS’s response to the GAO report.

I-9/E-Verify

By: Dave Fowler

In compliance with AFFIRMATION OF LEGAL WORK STATUS

Colorado Employment Verification Law § 8-2-122, C.R.S. requires employers to affirm the legal work status within 20 days of hiring a new employee for work in Colorado. The employer must complete the Affirmation of Legal Work Status Form to affirm the following:

·         The employer has examined the legal work status of the new employee;

·         The employer has retained file copies of the documents required by 8 U.S.C. sec. 1324a (commonly referred to as "Form I-9 identity and employment authorization documents");

·         The employer has not altered or falsified these documents;

·         The employer has not knowingly hired an illegal alien.

Employers may create their own affirmation form which meets the requirements of the law (outlined above), or they may use the sample affirmation form provided on the state’s web site.

This Colorado state law is completely separate from any Federal law and/or regulation regarding the Form I-9 as well as E-Verify. The use of E-Verify including the E-Verify Photo Matching feature, which has its own copy and retention requirements for certain employee documents is not a substitute for and does not satisfy the Colorado law. The employer must complete the Colorado affirmation form and satisfy the other requirements listed above to comply with the Colorado law, which applies to every employee hired for work in Colorado on or after January 1, 2007.

I have heard that the Colorado Department of Labor intends to initiate random employer audits with regard to this process. The state is looking for employers to show a good faith effort at compliance, which includes employers going back and completing the affirmation form for employees currently working in Colorado that were hired on or after January 1, 2007. If affirmation forms were not completed or have been lost for employees subject to this law, employers should note on the affirmation form the reason for the later date of completion. This also means that employers not retaining copies of employee documents will need to ask the employee to bring in the documents they used to complete Form I-9 so they can be copied and retained with the affirmation form.

I-9/E-Verify

By: Dave Fowler

United States Citizenship and Immigration Services (USCIS) has posted notification on the E-Verify case processing site that the Social Security Administration will perform routine system maintenance that will affect E-Verify users during the following time:

Saturday, February 5, at 9 p.m. Eastern time until Sunday, February 6, at 8 a.m. Eastern time

During this time period, users won’t be able to create cases in E-Verify or take action for cases with statuses of ‘Review and Update Employee Data’. There is no impact to other E-Verify functions. USCIS appreciates your understanding and regrets any inconvenience.

I-9/E-Verify

By: Dave Fowler

United States Citizenship and Immigration Services (USCIS) has published a new version of the Handbook for Employers: Instructions for Completing Form I-9 (M-274) and it is now available on the USCIS website. The updated handbook, revised January 5, 2011, includes expanded guidance on several topics.

The M-274 – Handbook for Employers is a Form I-9 guide for employers. The M-274 now contains new information regarding applicable regulations, new regulations for electronic storage and retention of Forms I-9, and it addresses public comments and frequently asked questions. It also clarifies how to process an employee with a complicated immigration status. The prior M-274 revision was 7/31/2009.

According to a message from Director Alejandro Mayorkas posted on the USCIS web site, some of the many improvements, new sections, and tools included in M-274 are:

·         New visual aids for completing Form I-9

·         Examples of new relevant USCIS documents

·         Expanded guidance on lawful permanent residents, refugees and asylees, individuals in Temporary Protected Status (TPS), and exchange visitors and foreign students

·         Expanded guidance on the processing of employees in or porting to H1-B status and H2-A status

·         Expanded guidance on extensions of stay for employees with temporary employment authorization

The new M-274 also includes information for employers in the Commonwealth of the Northern Mariana Islands (CNMI) who must verify their employees’ employment authorization on Form I-9 CNMI and it highlights information about documents CNMI employers may accept from their employees.

I-9/E-Verify

By: Dave Fowler

Two new governors followed through on campaign promises regarding E-Verify with opposite actions.

Florida Governor Rick Scott signed an executive order minutes after being sworn in that requires all state agencies to use E-Verify. Florida joins a list of 13 other states that have mandatory E-Verify laws or executive orders in place.

Executive Order No. 11-02 requires state agencies to use the E-Verify system verify employment eligibility of state employees and contractors.

·         All state agencies under the direction of the Governor must use E-Verify system to check employment eligibility of their current and prospective employees.

·         Requires state agencies under the direction of the Governor to include in all state contracts a requirement that contractors utilize the E-Verify system to verify the employment eligibility of:

o   all persons employed during the contract term by the contractor to perform employment duties within Florida; and

o   all persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract with the state agency.

Executive Order 11-02 cites the reasons for the order as the Federal law requires employers to employ only individuals eligible to work in the U.S.; and the U.S. Department of Homeland Security’s E-Verify system allows employers to verify employee eligibility in an efficient and cost-effective manner.

Read more.

Less than 24 hours after his swearing-in as Rhode Island’s 58th Governor, Lincoln D. Chafee today fulfilled a fundamental promise of his campaign in signing a repeal of the so-called Executive Order on E-Verify, which former Governor Donald L. Carcieri signed into law in March 2008. Governor Chafee also directed the Rhode Island State Police (RISP) to withdraw from its memorandum of agreement (MOA) with Immigration & Customs Enforcement (ICE), the federal immigration enforcement body. RISP Superintendent Col. Brendan P. Doherty has agreed to support and uphold the Governor’s directive.

 “This repeal of all parts of the Executive Order on E-Verify will effectively turn the clock back to March 26, 2007, the day before then-Governor Carcieri signed it into law,” Chafee said. “This re-set will allow us to engage in a comprehensive dialogue with our immigrant communities, law enforcement agencies, and all interested parties. This is an opportunity to reach a consensus on how best to enforce the law.”

In Executive Order  11-02 Governor Chafee cites the reasons for repealing Executive Order 08-01 (the “Illegal Immigration Control Order”) that mandated E-Verify as not effectively addressing the state’s fiscal or unemployment problems; and the order has been an agent of divisiveness, incivility, and distrust among the state’s citizens.

Governor Chafee signed the Executive Order before an audience of more than 150 at Providence’s International Institute, a non-profit institution that provides educational, legal, and social services to immigrants and refugees throughout Rhode Island and southeastern New England. Lieutenant Governor Elizabeth H. Roberts and Secretary of State A. Ralph Mollis were among the observers.

Read more.

E-Verify now reports that 0.3% of verifications show false negatives (employees confirmed as work authorized after E-Verify initially reported a mismatch between the employee’s information on Form I-9 and the government’s databases) and 97.4% of employees are automatically confirmed work authorized.

What would life be like if all Federal government programs were this effective and improving?

Happy New Year!

I-9/E-Verify

By: Dave Fowler

On November 2, 2010, the USCIS Verification Division and Office of Public Engagement (OPE) hosted a stakeholder engagement regarding the Form I-9 (Employment Eligibility Verification). USCIS indicated at the opening of the session that the agency is in the early stages of drafting a Notice of Proposed Rulemaking (NPRM) for the Form I-9 and wanted to host an engagement in order to give individual stakeholders an opportunity to comment on the Form I-9 process. USCIS was particularly interested in hearing from stakeholders on the different sections of the form, the list of acceptable documents, the Form I-9 verification process, and potential educational resources. The session was for USCIS to listen to the views and information of individual stakeholders.  The session was not used for the purpose of obtaining group or consensus advice.

See the full posting on the USCIS website.

I-9/E-Verify

By: Dave Fowler

Click here for a special message to you, our clients, from TALX.

Merry Christmas, Happy New Year, and have a wonderful holiday season!!!

I-9/E-Verify

By: Dave Fowler

In their Immigration Insights publication for November 2010 the law firm of Dinsmore & Shohl LLP announced that the Department of Homeland Security (DHS) is creating a Form I-9 audit center. The announcement can be found on their web site at http://www.dinslaw.com/immigration_insights_november_2010/. The following is the text of the announcement.

"Soon, the Department of Homeland Security (DHS) will announce the creation of an I-9 Audit Fusion Center. This center will be staffed by approximately 20 forensic auditors who will assist local DHS offices executing I-9 audits for large employers. With the creation of this new center, employers can expect DHS to ramp up enforcement and conduct I-9 audits of larger employers. It is more important than ever for employers to ensure their I-9s are in good order, provide I-9 training for employees handling I-9 completion and compliance, and, for those larger employers, to ensure that there is a consistent company-wide policy in place for the treatment of I-9s and the increased possibility of an I-9 audit."

I have been unable to find any confirmation on any of the DHS web sites and I don't know where or how Dinsmore & Shohl LLP obtained the information. However, if true, this may signal that ICE has plans on stepping up worksite enforcement efforts again in 2011. And this time, the targets may be larger employers.

Based on discussions, I can tell you that ICE Special Agents cringe when DHS announces a Form I-9 audit blitz. The agents to not look forward to collecting paper Forms I-9, copying them and any supporting documentation, putting the copies in evidence bags to maintain the chain of custody, returning the paper forms to the employer, and then auditing each Form I-9, including documenting every error found. It is a painstaking process and isn’t something agents look forward to. Personally, I’d prefer to see these agents catching bad guys rather than reviewing paperwork.

Perhaps this is an opportunity for DHS to consider using knowledgeable third parties to assist with Form I-9 audits. Any fines assessed could be used to offset third party costs. This would expand the government’s coverage and free up agents to catch more bad guys. Just a thought.

Anyway, this announcement should be a warning to all employers who have not been focused on the compliance quality of their Forms I-9 to make this a priority! It is no fun going through a Form I-9 audit and it can be expensive, even if there are no fines. You will probably have an outside attorney involved to assist your internal staff in responding to the audit. Even if there are fines involved, that may not be the worst of it. The priority must be protecting your brand. Ending up on the front page of the paper for immigration violations does not generate revenue, reduce cost, or improve the stock price.

Get your Forms I-9 in shape now and prepare for an audit. One of the most important steps you can take is to create a Standard Operating Procedure (SOP) manual covering your hiring practices, including the Form I-9 and, if used, E-Verify. Provide the SOP to your staff and train them on the proper procedures to use. This will go a long way in letting ICE know that you are serious about doing things the right way.

This will be the last Form I-9/E-Verify entry for 2010. Thank you all for reading this and other TALX blogs over the last year. Let us know your thoughts on the value they bring as well as how we can improve this service to you.

Have a wonderful holiday season, Merry Christmas and Happy New Year!

I-9/E-Verify

By: Dave Fowler

Information, misinformation, and gossip travel quickly over any industry grapevine and the world of immigration is no exception. Sometimes the information on the grapevine is correct and sometimes it’s not. It’s difficult to discern.  Here is some grapevine fodder to consider regarding the recent $1 million fine assessed on clothing retailer Abercrombie & Fitch for violations of the employer's obligation to verify the employment eligibility of its employees. According to the grapevine, a faulty audit trail for electronic Forms I-9 may be to blame.

The final electronic Form I-9 rule does not require the employer to retain audit trails of each time a Form I-9 is electronically viewed. However, the employer must retain an audit trail when a Form I-9 is created, completed, updated, modified, altered, or corrected. Generally, an audit trail is a record showing who has accessed a computer system and the actions performed within or on the computer system during a given period of time. The employer must ensure that whenever the electronic Form I-9 record is created, completed, updated, modified, altered, or corrected, a secure and permanent record is created that establishes the date of access, the identity of the individual who accessed the electronic record, and the particular action taken.

The kicker is that, according to the electronic I-9 rule, the employer must establish the authenticity and integrity of the Forms I-9 such as audit trails and insufficient or incomplete documentation (e.g., a non-compliant audit trail) is a violation of section 274A(a)(1)(B) of the Act. So, according to the grapevine, the issue may have been that since the audit trail was not compliant, all Forms I-9 completed electronically were considered invalid and therefore, the employer was deemed to have violated the regulations by not having Forms I-9 on file for the employees.

So, when developing your own electronic Form I-9 process or evaluating a third-party product, take the time necessary to evaluate all aspects of the product to make sure it complies with the final regulation regarding electronic Forms I-9.

October 12, 2010 Update:

I-9/E-Verify

By: Dave Fowler

The final electronic Form I-9 rule published in the federal register by ICE (Immigration and Customs Enforcement), part of the U.S. Department of Homeland Security, became effective on August 23, 2010. Here are some clarifications that may be helpful to you.

Three Day Rule – This rule is now being referred to as the 'Thursday' rule. Every new hire must complete Form I-9 within three business days, not calendar days, of the first day of work for pay. The final rule clarifies the three days as business days. For example, if an employee is hired on Monday, Section 1 of Form I-9 must be completed on or before Monday. Section 2 of Form I-9 must be completed no later than the close of business on Thursday. Prior to this guidance clarification employers counted the employee’s first day as day 1. With this guidance clarification the employee’s first day of work is ‘free’ and the employee’s second day of work counts as day 1. In the example above, as the employee’s first day of work Monday does not count. Tuesday is day 1. Wednesday is day 2. And Thursday is day 3.

Weekends – At the recent IMAGE training conducted in Washington, D.C. by ICE on August 9-10, 2010 the inclusion of weekends  in the three day rule was discussed. The position taken by ICE is that if the employer is open for business on the weekends, but HR (Human Resources) staff, usually responsible for completing new hire paperwork including Form I-9, does not work weekends, then weekends are not counted for the three day rule. Employers must evaluate their operations and consult with counsel to determine if weekends are to be included in the employer's compliance practices for the three day rule. Every employer should maintain a SOP (Standard Operating Procedure) manual.  Employees should be fully trained on the SOP and the SOP should clearly document the employer’s overall hiring practices including the completion of Form I-9, E-Verify, if used, and the implementation of the three day rule.

Have a great holiday weekend!

By: Dave Fowler

IMAGE (ICE Mutual Agreement between Government and Employers) is program in which ICE (Immigration and Customs Enforcement) partners with employers to promote the employment of a legal workforce. On August 9-10, 2010 ICE held the 2010 IMAGE Employer Training Conference in Washington, D.C. I attended this conference and also met with representatives at E-Verify so, I thought I’d share some of the information.

First, there were about 100 attendees along with ICE leadership, special agents, and subject matter experts. The speakers included notables such as Alonzo Pena, ICE Deputy Director, Jim Spero ICE Deputy Assistant Director, and Brett Dreyer, Worksite Enforcement Unit Chief. Other speakers included representatives from the Executive Office of Immigration Review (EOIR), Office of the Chief Administrative Hearing Officer (OCAHO); the US Attorney’s office; the Office of Special Counsel; Office of Principal Legal Advisor; Forensic Document Laboratory; SSA; and E-Verify.

• ICE’s top priorities are to penalize employers who knowingly hire illegal immigrants, deter employers from hiring illegal immigrants, and take advantage of compliance tools.
• ICE I-9 audits are no longer random but primarily driven by leads and other information.
• ICE prioritizes opportunities and will address the largest offenses first.
• ICE is increasing outreach programs to educate employers on such things as properly completing I-9s and hiring best practices.
• ICE is increasing its capacity to do more I-9 inspections.
• ICE Worksite Enforcement focuses on:

1. Critical infrastructure protection
2. Egregious employers (illegal immigration is part of the business model)
3. Compliance inspections
4. Outreach and education (IMAGE)

• ICE is not responsible for enforcing E-Verify.
• ICE has increased the number of I-9 auditors and has dropped the term ‘forensic’ from their title. Auditors are instructed to be reasonable and focus on compliance.
• ICE and DOL will be signing a MOU to cooperate regarding illegal immigration.
• Copies of employee documents for the I-9 can be retained on paper or electronic format.
• Hardcopy document copies must be able to be presented with the I-9s upon inspection. (The employer cannot hand the auditor a stack of documents for the auditor to match to the I-9s.)
• If an employer is audited, the employer should work with the ICE Special Agent in charge and not the auditor. The auditor is not a law enforcement officer and has no law enforcement powers.
• An effective compliance program is very important to avoiding penalties and prosecution. Having a formal compliance program with documentation and adhering to it can show Good Faith.
• SSA processes 240 million W-2s per year.

1. 10% of W-2s don’t have a name and SSN that match (24 million).
2. 5% of the mismatched W-2s get fixed by SSA (12 million).
3. 12 million W-2s per year cannot be matched by SSA.

• June 25, 2011 – Randomization of SSNs starts. SSA is running out of SSNs in certain parts of the country. The first 3 digits identify where the SSN was issued. With randomization the first 3 digits will no longer identify where the SSN was issued.
• 216,700 employers use E-Verify.
• E-Verify Case Statistics

1. FY2008 – 6.6 million E-Verify cases
2. FY2009 – 8.7 million E-Verify cases
3. FY2010 – 13.4 million E-Verify cases since October 2009

• Passports will be incorporated into the Photo Matching tool in September 2010. E-Verify Employer Agents (formerly Designated Agents) will have 6 months to implement the E-Verify Web Services version (anticipated to be version 22) into their applications.
• E-Verify will be releasing new versions of their documentation in September 2010.
• The E-Verify Self Check application will not be released in December 2010. The timeframe is now sometime during the winter, which may be sometime in Q1 2011.
• E-Verify will provide speakers for free to groups of 30 or more attendees.
• Three quarter view photos were the first biometric feature on cards. A person’s ears are fully developed in terms of shape by the age of 5 and only change in size as the individual gets older. Safe crackers used to put their ear next to the tumblers to crack a safe and they left ear prints.
• Create and follow a SOP (Standard Operating Procedure) document for I-9, E-Verify, and hiring.
• Use a UV (ultra-violet) light/flashlight to check a drivers’ license for fraud. Under UV light there is a seal in the middle of the front of the document that jumps out brightly.
• A flashlight placed behind an EAD/PRC document will show red. (There is a red layer of plastic in the center of the card.)
• There will be a notice of proposed rulemaking regarding Form I-9 published in the Federal Register (www.regulations.gov) and open for comment in 2011 sometime after the first of the year.
• There are two general types of immigration cases.

1. Civil – prosecuted by OLPA
2. Criminal – prosecuted by Assistant US Attorney

• Civil Cases

1. Notice of Inspection (NOI) issued to the employer
2. ICE I-9 audit
3. Special Agent in Charge (SAC) oversees the audit and the auditor
4. SAC sends the Notice of Intent to Fine (NIF) to OSC office of chief counsel
5. NIF served on the employer
6. Employer can pay the fine or request a hearing, the employer has 30 days to request a hearing
7. Settlement agreement
8. Final order on hearing (there is no statute of limitations on a hearing, it could be years before the employer is notified of a hearing)
9. Hearing

• There is one judge who hears the civil cases brought by ICE.
• Three-day rule violations have a statue of limitations of 5 years. After 5 years, there can be no penalty.
• Other violations are considered continuing violations up until the time they are corrected. (Fix your I-9 errors as soon as you find them!)
• The retention period for copies of employee documents made for the I-9 is the same as the retention period for the I-9.
• E-Verify is reviewing a request by the American Payroll Association’s Immigration Subcommittee to allow the employee to provide copies of documents subject to the E-Verify Photo Matching tool.
• Employers can use the USPS to send a copy of an employee’s Photo Matching document to DHS provided the photo is received in a timely manner and sufficiently prior to the 8 government workdays the employee has to contact DHS.
• In addition to English and Spanish E-Verify now provides notices and letters in Chinese, Haitian-Creole, Japanese, Korean, Russian, Tagalog, and Vietnamese. If the employee does not fully understand English, and speaks Spanish, Chinese, Haitian-Creole, Japanese, Korean, Russian, Tagalog, or Vietnamese, you must provide the employee with the notice or letter in one of these languages. In addition, you must give a copy of the notice or letter in English to the employee and retain a copy of the English notice or letter with the employee’s Form I-9.

I-9/E-Verify

By: Dave Fowler

The US Department of Homeland Security, Immigration and Customs Enforcement (ICE) approved the Electronic Signature and Storage of Form I-9, Employment Eligibility Verification final rule July 21, 2010 and published the rule in the federal register July 22, 2010. The final rule is effective August 23, 2010 and may be found in the Federal Register at www.regulations.gov.

I have reviewed the final rule and found nothing to concern users of the TALX I-9/E-Verify service. The final rule makes minor changes to the interim rule of June 6, 2006. However, some of the changes do provide helpful clarifications. For example:

1. The final rule confirms that the Form I-9 must be completed within 3 business days not calendar days after the employee’s first day of work for pay. USCIS posted guidance on their web site regarding this Form I-9 requirement. Make sure the employee completes Section 1 on or before their first day of work for pay.
2. Employers may use electronic systems or a combination of paper and electronic systems to complete and store Forms I-9. This was how we interpreted the interim rule, but based on comments they received ICE decided to clarify the rule.
3. The audit trail retained for an electronic Form I-9 does not need to include each time a Form I-9 is electronically viewed. The audit trail need only contain a record of when the Form I-9 was created, completed, updated, modified, altered, or corrected. Our audit trail currently tracks views of an electronic Form I-9 and it will continue to do so.
4. Employers may provide or transmit a confirmation of a Form I-9 transaction, but are not required to do so unless the employee requests a copy. Due to the sensitive personal information that may be on a receipt, we do not transmit employee receipts.
5. Only the page of the Form I-9 containing employer and employee-entered data needs to be retained. The pages of the Form I-9 containing instructions and the list of acceptable documents do not need to be retained. We only retain only the Form I-9 page containing employer and employee-entered data.
6. The search criteria are changed. In the interim rule there was a conflict on this point. In one statement the interim rule stated that the electronic storage system must be able to be searched by every data field on the Form I-9. In another statement the interim rule stated that the storage system was compliant if it was consistent with a paper-based filing system. The final rule deletes the search language from the interim rule and replaces it with language stating that the storage system must permit the identification and retrieval for viewing or reproducing of relevant documents and records maintained in the electronic storage system.
7. The employer must be able to provide the requesting agency of the United States the resources (e.g., appropriate hardware and software, personnel, and documentation) necessary to locate, retrieve, read, and reproduce (including paper copies) any electronically stored Forms I-9, any supporting documents, and their associated audit trails, reports, and other data used to maintain the authenticity, integrity, and reliability of the records. This means that an auditor will want the employer to provide any and all of these records or provide the auditor with direct access to the records.
8. If the employer makes a copy or electronic image of employee documentation it must either be retained with the Form I-9 or stored with the employee’s records, and be retrievable and printable. This allows the employer to retain paper and/or electronic copies of employee documents.
9. Employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations.

I-9/E-Verify

By: Dave Fowler

There is new information that all users of the E-Verify Web Services interface MUST pay attention to!

1. E-Verify Designated Agent name changed to E-Verify Employer Agent
2. Deadlines to upgrade to the most current version of the E-Verify Web Services interface
3. Photo Matching
4. E-Verify Notices and Letters in Other Languages
5. The Department of Homeland Security certifying E-Verify Employer Agents

E-Verify Designated Agent name changed to E-Verify Employer Agent

The name has changed for E-Verify Designated Agents. They are now referred to as E-Verify Employer Agents. This was done to clarify that the EA is providing the E-Verify service to the employer, which was not communicated by the term 'designated agent.'

Deadlines to upgrade to the most current E-Verify Version

• December 6, 2010 - version 20 of Web Services must be used by this date
• December 17, 2010 - version 21 of Web Services must be used by this date

IMPORTANT! Users should contact their E-Verify EA to discuss the rollout of the new version of E-Verify.

Unless there are typos in the dates, the timing of the upgrades doesn't really make much sense since there are only 11 days between the required upgrade dates. Therefore, you might expect EAs to skip version 20 and move directly to version 21.

Photo Matching

Some employers may wish to implement Photo Matching sooner to avoid changes during the holiday hiring season. Other employers may wish to delay implementation until December to avoid having to use Photo Matching for the majority of their seasonal hires.

IMPORTANT! E-Verify has provided the following information regarding the methods available to send a copy of an employee's document for a DHS Tentative
Nonconfirmation (TNC) due to a photo mismatch.

"You can either attach and submit a digital copy of the photo document in E-Verify or send a paper copy to DHS via an express shipping carrier of your choice. Do NOT send through regular United States Postal Service (USPS) mail."

It is unclear why E-Verify does not allow employers to use the USPS. From a business perspective you would think the government would try to help increase revenue for the USPS since it needs to increase revenue and would probably like to take advantage of the $0.02 postage reate increase they have requested.

BTW - ever notice how postage rates increase in January (tax season) and not in December. This way employers are charged more to mail 1099s and W-2s, but voters are not subject to the increase during the Thanksgiving and Christmas holidays.

E-Verify Notices and Letters in Other Languages

With version 21, employers are now required to provide E-Verify notices and letters to employees in other languages if the employee does not read or understand English. The notices and letters in othere languages are ONLY for informational purposes. The employer and the employee MUST sign the English version with a copy being given to the employer and a copy retained by the employer. This is a change from the current practice that provides notices and letters in English and Spanish. The reason the English version must be provided to the employee and retained by the employer is because there is no guarantee that multi-lingual representatives will be available at DHS or SSA to assist the employee or by ICE during an audit.

• DHS JobLock Photo Referral Letter - If the employee cannot read, you must read this Referral Letter to the employee. If the employee does not fully understand English, and speaks Spanish, Chinese, Haitian-Creole, Japanese, Korean, Russian, Tagalog or Vietnamese, you must provide the employee with this Referral Letter in one of these languages.
• DHS Photo Referral Letter - If the employee cannot read, you must read this Referral Letter to the employee. If the employee does not fully understand English, and speaks Spanish, Chinese, Haitian-Creole, Japanese, Korean, Russian, Tagalog or Vietnamese, you must provide the employee with this Referral Letter in one of these languages.
• DHS Photo TNC Notice - If the employee cannot read, you must read this TNC Notice to the employee. If the employee does not fully understand English, and speaks Spanish, Chinese, Haitian-Creole, Japanese, Korean, Russian, Tagalog or Vietnamese, you must provide the employee with this TNC Notice in one of these languages.
• SSA Referral Letter - If the employee cannot read, you must read this Referral Letter to the employee. If the employee does not fully understand English, and speaks Spanish, Chinese, Haitian-Creole, Japanese, Korean, Russian, Tagalog or Vietnamese, you must provide the employee with this Referral Letter in one of these languages.
• SSA TNC Notice - If the employee cannot read, you must read this TNC Notice to the employee. If the employee does not fully understand English, and speaks Spanish, Chinese, Haitian-Creole, Japanese, Korean, Russian, Tagalog or Vietnamese, you must provide the employee with this TNC Notice in one of these languages.

DHS Does NOT Certify E-Verify Employer Agents

Be careful of E-Verify Employer Agents who claim to be certified by DHS or E-Verify. There is no certification provided by DHS or E-Verify for any E-Verify Employer Agent. The following statement is included in the release information for version 21.

"The Department of Homeland Security does not offer certification of companies who offer services related to the use of E-Verify or employment verification."

There is a testing process that an E-Verify Employer Agent's software must successfully complete before they are allowed to connect to the production E-Verify system. However, neither DHS nor E-Verify certifies:

• An E-Verify Employer Agent is a valid company
• The EA's software application
• The EA's business processes
• The EA's security practices
• The EA's understanding of Form I-9 or E-Verify regulations
  

I-9/E-Verify

By: Dave Fowler

Due in part to the negative security experiences of the State of Minnesota has had with an E-Verify Designated Agent (DA), USCIS is taking steps to enhance the security of E-Verify. As part of the privacy initiative being taking by the U.S. Citizenship and Immigration Services (USCIS), you may find that which most of these steps are good, one of them can cause difficulties for employers who are federal contractors/subcontractors and E-Verify Designated Agents serving federal contractors/subcontractors.

Good News

As of June 2, 2010 E-Verify is using commercial data from Dun and Bradstreet (D&B) to:

1. Prevent duplicate registrations - identify an existing duplicate or similar registration for the employer in E-Verify.
2. Validate employer - if the employer data matches the D&B records allow the employer to register in E-Verify. If the employer data does not match, E-Verify personnel review and assess employer validity for registration.

This is good news because this updated registration process, as described in the DHS Privacy Impact Assessment (click USCIS) "will help ensure that only valid employers enroll in E-Verify thereby establishing a level of identity assurance of the employer and thus minimizing the changes of fradulent employers using E-Verify to confirm personal information for illegal purposes."

Bad News

The E-Verify User Audit Report, which can be exported as an Excel file, used to contain the full SSN of the employee that was submitted to E-Verify. This report was very helpful to a federal contractor using E-Verify (via the E-Verify web site or a DA) with a federal contract that includes the FAR E-Verify clause. This report could be used to determine which existing employees had been submitted to E-Verify and how each E-Verify case was closed. This information is very helpful because

1. The employer must submit some or all existing employees to E-Verify, and
2. Existing employees already verified by E-Verify should not be submitted to E-Verify more than once.

So, using the User Audit Report with the full SSN made it very easy to uniquely identify existing employees who were determined to be Employment Authorized by E-Verify as well as any existing employees with E-Verify cases that did not confirm authorization to work in the U.S. This way, employers could not submit authorized employees to E-Verify again and any existing employees not authorized by E-Verify could be submitted again and verified as employment authorized.

Since the report now only includes the last 4 of SSN, anyone using the report must now do more work to uniquely identify the employee related to each E-Verify case. This can be difficult because there is no long a single unique identifier for the employee. Users of the report must use a combination of variables to try and determine the unique identity of the employee which can be difficult due to things such as name changes (e.g., marriage and divorce), lack of complete data (e.g., date of birth), and employees with the same last 4 of SSN.

Therefore, your algorighm to link an employee to an E-Verify case should match the following fields to identify the employee:

1. Last 4 of SSN
2. Date of Birth
3. Last Name
4. First Name
5. Hire Date

There is additional information in the User Audit Report, but it is not typically readily available in the employer's HR/Payroll system to match to the employees. Based on the experience in Minnesota and E-Verify's desire to increase the security and privacy features of E-Verify, the SSN in the User Audit Report will continue to be masked to the last 4 digits. So, update your matching algorithms and be prepared to manually identify at least a few employees.

I-9/E-Verify

By: Dave Fowler

Finding Form I-9 and E-Verify manuals on the U.S. Citizenship and Immigration Services (USCIS) used to be a little hit-and-miss. The best way to find the current version of such manuals was to us the search feature of the USCIS web site at www.uscis.gov. At the APA's GATF Immigration Subcommittee meeting held in D.C. in May, a suggestion was made to the Verification Division responsible for E-Verify that all manuals be posted on one page. It appears this suggestion has already been implemented and we should all than E-Verify for this. You can now find Form I-9 and E-Verify manuals on a single web page. That's the good news!

The not so good news is that USCIS has fallen short in providing specific requirements for determining the hire date, employment date, rehire date, or whatever term you use to refer to the date the employee began work on the Form I-9. Part of this has to do with there not being specific requirements in the Form I-9 law for determining what this date should. As you know, E-Verify will not accept a future date as the hire date. The issue here is that there is a law governing the Form I-9, but E-Verify is still a pilot program. It just doesn't look good for a pilot program to be defining requrirements for a law, does it? Therefore, USCIS has issued guidance on their web site re: What's the Hire Date. Unfortunately, the guidance misses the mark and makes no sense for either the Form I-9 or E-Verify.

You can create an E-Verify case for a new employee as soon as they have accepted an offer of employment and completed Form I-9. The Form I-9 law does not prohibit the hire date in Section 2 or the rehire date in Section 3 from being a future date. How a signer can attest to a future event is beyond me since there is no guarantee the employee will even show up much less actually start on the date entered on Form I-9. Anyway, even if you put a future hire date on the Form I-9 you can still create an E-Verify case for the employee as soon as Form I-9 is completed. This sets up an interesting situation since you must enter the hire date into E-Verify and E-Verify does not accept a hire date that is in the future. So, what do you do? Why you are instructed to lie to E-Verify, of couse. If the Form I-9 contains a hire date that is in the future, you should enter today's date as the hire date in E-Verify. If the employee's hire date is today or a date prior to today, enter the hire date on the Form I-9 in E-Verify.

Gee, what's the purpose of entering a date in E-Verify that is not on the Form I-9? USCIS claims it has to do with the three-day rule for E-Verify purposes. What do you think employers are really going to do if they realize that the Monitoring & Compliance group within the USCIS Verification Division is looking for E-Verify cases created by non-FAR (non-federal contractors) beyond the three-day period? Right, the employer is simply going to enter today's date as the hire date to avoid submitting the new hire to E-Verify after the three-day period. E-Verify won't know that the case was created late because E-Verify can't verify the hire date.

So, rather than clarifying what is an acceptable hire date and rehire date on Form I-9, USCIS has opted to create more confusion, ask employers to enter a date into E-Verify that is not on the Form I-9, and make it even more difficult for the Monitoring & Compliance group to identify employers who intentionally create E-Verify cases late or use E-Verify for pre-screening, which is prohibited.

Wouldn't it make more sense for USCIS to simply define the hire and rehire dates as the earlier of the employee's first day of work for pay or the date Section 2 (or Section 3) of the Form I-9 is signed?

I-9/E-Verify

By: Dave Fowler

As the chair of the American Payroll Association’s Government Affairs Task Force Immigration Subcommittee, I have the opportunity to meet monthly with a wide variety of employers as well as representatives from the ICE (Immigration and Customs Enforcement) and USCIS (United States Citizenship and Immigration Services) organizations within the U.S. Department of Homeland Security. Once a year, the subcommittee meets at the APA Annual Congress. This year Congress was held in Washington, D.C. The subcommittee meeting was last Thursday, May 27, 2010.

The subcommittee advised USCIS to very careful about this since having the federal government ask these kinds of questions can scare individuals and, quite frankly, freak them out. The approach just sounded a little too Big Brother-ish to the subcommittee. It was suggested that members of the subcommittee meet with the USCIS self-check team to discuss experiences and alternatives.

I-9/E-Verify

By: Dave Fowler

One of the key lessons to be learned from the State of Minnesota's experience with a Bellaire, Texas-based electronic I-9/E-Verify service provider is that the primary factor is selecting a supplier is data security and not price. Price is a consideration, but data security is the first priority when selecting a supplier to house sensitive data for you and your employees. When it comes to price, the sky is not the limit. The price must be fair for both parties and the vendor needs to be willing to accept responsiblity for their actions, should those actions result in a breach. A low price doesn't mean much if your data is not secure.

The other key lesson is that corporate security should be involved in the selection of any supplier that will house sensitive data. Make sure your supplier has a proven track record as well as technology, processes, and procedures in place to secure your data. Your corporate security department should discuss this with your supplier and sign off on the supplier before you sign a contract.

Sensitive personal data is required to complete a Form I-9 and an E-Verify case. The value of the security your supplier provides should not be compromised for a low price.

To support this position here are some excerpts from the April 21, 2010 article by Sasha Aslanian of Minnesota Public Radio "Audit critical of state's handling of private data". (In the excerpts below the supplier's name is removed and clarifications in () are added.)

• On Wednesday, Nobles (Minnesota's legislative auditor Jim Nobles) published a chronology showing how the state picked a vendor one staffer described as "too good to be true" when it came to price, and signed a contract absolving the vendor of all security risk:

  "The selection of the vendor, the management with the vendor, the agreement with the vendor just never was on solid ground and I think the principle reason is the people doing it just didn't take into consideration data security issues that were involved," he said.

• In the rush to implement the federal Department of Homeland Security's E-Verify program, state internet technology staff consistently were not adequately involved at the outset or as problems popped up along the way, Nobles found.

• Chris Buse, the state's chief information security officer, told Nobles he didn't learn about the problems with (the supplier) until well after the fact.

  "The thing that surprised me was that I didn't learn about it from within the organization," Buse said. "I learned about it from the legislative auditor's office. And that was the thing that bothered me about this particular situation is that we need to have better ways to engage the central security office and that's what our 'enterprise incident management standard' really does."

• From Nobles' reading of the contract, the state didn't protect itself very well.

  "Somebody that's out there running a business, offering the kind of services that (the supplier) was offering, should have provided better security but frankly, they told state up front in their service agreement, in black and white they would not be responsible for state data," Nobles explained. "Even the data that was encrypted. The data that was not public data. They told state in their service agreement that they would not take any responsibility for it, and the state signed the agreement anyway."

We all have an obligation to protect our data and the data of our employees. Your supplier must provide the level of data security your corporate security department requires. A rush to judgement based on price can increase your security risks and may result in a very bad day for you, your company, your employees, and your customers. Look at data security as proactive insurance. Insurance protects you if something bad happens. Data security bad things from happening. Like I tell my kids, don't take unnecessary risks because sooner or later something bad will happen. The same is true when it comes to data security. Don't give up security for a few bucks! In the end, it's just not worth it!

I-9/E-Verify

By: Dave Fowler

In December 2009 the E-Verify Photo Tool was released to E-Verify Designated Agents (DAs) using the E-Verify web site. Many DAs, including TALX, provide an electronic I-9 service that communicates with E-Verify using a sedure computer-to-computer connection referred to as the E-Verify Web Services Interface. E-Verify supports several versions of this interface. The current release is version 20 (v20) and it supports the Photo Tool. DAs recently received instructions to upgrade to v19 by July 23. While v19 supports some of the Photo Tool data fields, it does not provide all the necessary functionality needed for DAs to support the Photo Tool in their electronic I-9 services. DAs have not received notification from DHS regarding when v20 must be implemented.

The lack of v20 notification is a good thing at this time since many DAs and employers are working through supporing and complying with the Federal Acquisition Regulation (FAR rule) that requires Federal contractors with covered contracts to verify new and existing employees with E-Verify. The other reason this is good news is that later in 2010 (perhaps in the fall) another Photo Tool update (v21?) will probably be released to add U.S. passport photos. Currently, the Photo Tool only provides photos when an employee presents a EAD card or a LPR card to complete the Form I-9. By delaying the requirement for DAs to upgrade to v20, employers will only have to train hiring managers one time on the use of the Photo Tool. If DAs were required to upgrade to v20 and then 6 months later to v21 (if that is the version that supports passport photos), employers would be required to train hiring managers twice on the Photo Tool. This would most likley increase confusion, result in noncompliant practices that increase risk, and additional employer costs. It would be better for those employers hiring seasonal workers this fall to not be burdened with implementing a new E-Verify feature such as the Photo Tool.

After the release of v21 there will likely be another release (v22?) that will be the first installment of updates as part of the plain language initiative. This project is to make the language of E-Verify more understandable to users of the service. The first release will change such technical terms as Tentative Nonconfirmation so they are clearer and describe the actions the hiring manager and employee must take to resolve the issue.

Again, it is good for employers for the release of v22 to be delayed until after the seasonal hiring season is over so hiring managers and employees don't have to be taking training and learning new terms during a peak hiring season.

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.

I-9/E-Verify

By: Dave Fowler

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UPDATE: February 4, 2010

The Illinios Department of Labor has now posted the attestation form on their website at http://www.state.il.us/Agency/idol/forms/pdfs/attest.pdf. This new attestation form clarifies the requirements for employers utilizing an E-Verify Designated Agent.

IMPORTANT! The information in the new attestation form makes at least some of the information in the original blog post irrelevant.

Regarding the E-Verify Computer Based Training (CBT) requirement, the attestation form says the following:

Under penalty of perjury, I attest that:

(b) Employer submits employment eligibility verification queries (EEVQs) via a Department of Homeland Security-approved Designated Agent, pursuant to a Memorandum of Understanding (MOU) among Employer, the Designated Agent and DHS.

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Some of the information for this entry was taken from a blog entry posted January 11, 2010 by Ogletree Deakins, one of America's leading labor and employment law firms, at the Lexology website. The blog entry titled "New E-Verify law goes into effect" and covers the IL law.

Did you ever wonder if our elected officials and their staffs ever bothered to take the time to understand how something works or doesn't work or how things could be made better before they pass a law? In the case of the new Illinois law that imposes requirements on employers who use E-Verify and penalties on employers who violate the requirements, the answer is a resounding YES!

Keep in mind as you read this that when IL passed a law prohibiting its employers from using E-Verify, they were sued by the U.S. Department of Justice and the law went away.

The recently passed law amending the Illinois Right to Privacy in the Workplace Act places statutory obligations on employers that use E-Verify.

As of January 1, 2010, Illinois employers now are required to complete an attestation at the time of E-Verify enrollment. Employers are required to attest to the following:

1. The employer and all its employees using E-Verify have received the E-Verify training materials and completed the online computer-based tutorial (CBT) training provided by the Department of Homeland Security (DHS).
2. The employer has posted the required notice from DHS indicating that the company is enrolled in E-Verify in a place that is clearly visible.
3. The employer maintains the original signed attestation form, as well as all CBT certificates of completion and makes them available for copying and inspection at the request of the Illinois Department of Labor.
4. The employer has posted the required anti-discrimination notice issued by the Office of Special Counsel for Immigrant-Related Unfair Employment Practices (OSC) in a place that is clearly visible. Employers already enrolled in E-Verify must sign the attestation before January 30, 2010.

This sounds easy enough, right? Posting the notices are already required by the E-Verify MOU (Memorandum of Understanding) that the employer signs to enroll in E-Verify. However, compliance with the other two requirements is more difficult and burdensome for the employer.

1. The CBT training is only available to employers who use the E-Verify website. DHS does NOT make the training available to employers who use an E-Verify Service Provider (i.e., Designated Agent or DA) to submit E-Verify queries for them. Therefore, employers who use a DA will have trouble completing the CBT. DHS is working on a ppt deck for employers using a DA, but there are no plans to make the CBT available. So, the only way an employer using a DA can comply with the CBT requirement is to enroll to use the E-Verify website, take the training, and then not use the E-Verify website for submitting E-Verify queries. This is not a good solution for anyone.
2. The employer can maintain the signed attestation form, but DHS does not really providee a 'Certificate of Completion' for the CBT. The only thing provided is a web page at the end of the training that says you passed and gives your score. So, this is just more paper an employer needs to retain for an audit that may never come unless IL is really going to spend the money to audit employers operating in the state.

So, how is an IL employer who uses a DA's electronic I-9/E-Verify service supposed to comply with the IL law since DHS does not make and has no plans to make the CBT available to these employers?

1. Signup to use the E-Verify site and have your IL employees signing I-9s complete the CBT and print the completion page. Then only use the DA's I-9/E-Verify system to complete I-9s and E-Verify cases.
2. Use a tool like Live Meeting and show your IL users the CBT, have them write down the answers, score the answers, and print out completion pages for those that pass and write their name on it.
3. Screen capture the CBT, create a ppt, and require the test to be given and scored locally. Keep a printout of the completion page for those that pass.
4. Finallly, you can opt to take the position that the requirement only applies to users who are actually using the E-Verify system (i.e., website) and that the law does not apply to users accessing E-Verify through a DA's third-party system.

THE ABOVE DO NOT REPRESENT RECOMMENDATIONS FROM TALX OR EVEN OPTIONS THAT MAKE SENSE FOR EMPLOYERS SINCE THEY MAY CAUSE MORE PROBLEMS THAN THEY SOLVE. EMPLOYERS MUST MAKE THEIR OWN DECISIONS ON WHAT TO DO REGARDING THE IL LAW.

The new law also prohibits employers that are enrolled in E-Verify from:

1. Failing to display the notices supplied by DHS and OSC in a place clearly visible to both prospective and current employees.
2. Allowing an employee to use the E-Verify system prior to having completed the CBT training.
3. Allowing employees that have not taken the CBT training to use the E-Verify program under an employee's user identification or password that has taken the training.
4. Using the E-Verify program as a pre-screening mechanism for prospective employees.
5. Terminating an employee prior to that employee receiving a final non-confirmation notice from the Social Security Administration or DHS.
6. Failing to notify the employee, in writing, of the employer’s receipt of a tentative nonconfirmation notice and of the employee’s right to contest that tentative non-confirmation letter.
7. Failing to safeguard the information contained in the E-Verify program database.

These are all prohibitions that are already prohibited by the federal E-Verify laws and regulations so what's the point?

The law also prohibits an individual from falsely posing as an employer to enroll in E-Verify, and prohibits an employer from using E-Verify to access information regarding someone who is not an employee of the employer. This is a good thing. As I've pointed out before, DHS needs to have a credentialing process for employers and DAs to make sure employers are legitimate and DAs are qualified to serve as an agent for DHS and E-Verify.

Employees and applicants now have a private right of action based on an employer's violation of the Act. Here is an example of a state promoting unnecessary lawsuits. DHS already provides for an employee to contact the U.S. Department of Justice, Office of Special Council if they feel their rights have been violated by the employer. Under the IL law if an employee or applicant believes the Act has been violated they must:

1. File a complaint with the Illinois Department of Labor.
2. Under certain conditions, file a lawsuit in state court.
3. The court may award $500 plus costs, attorney's fees, and actual damages.
4. If the employer doesn't pay the employer can be held in contempt and=, found guilty of a petty offense, which carries a maximum penalty of $1,000.

The IL Department of Human Rights has been granted the power to investigate such claims under the IL Human Rights Act when an employee or applicant believes that the employer refused to hire the applicant or to promote, renew employment, or discharged, or disciplined the employee without following E-Verify procedures.

Visit the IL Department of Labor website for more information on the law.

A more cynical writer or reader might twist this new IL law into some kind of attempt by IL to 'get even' for being sued by the USDOJ for trying to prohibit the use of E-Verify? But, as everyone knows our elected officials would never do that. That would be a waste of the people's time, money, and resources. Our elected officials are there to protect us from those that would do us harm. They would never engage in playground politics like this. Would they?

I-9/E-Verify

By: Dave Fowler

Updates: July 6, 2010 - from comments submitted to the blog post.

1. USCIS has issued guidelines for the hire date to be entered on the Form I-9 as well as in E-Verify and these dates can be different.
2. Question:
1. Does the employee signature date in Section 1 have to match the hire date in Section 2?
2. Answer: The employee signature date in Section one should be the same or prior to the hire date in Section 2 unless you are completing a new Form I-9 for an existing employee because the original Form I-9 was lost or damaged, or if a Form I-9 was not completed for the employee at the time of hire.
3. Question:
1. Can the certification date be a later date than the employee's signature date in Section 1?
2. Answer: Yes. This happens frequently because the Form I-9 can be completed prior to the employee's first day of work for pay. If the employee is being hired today and completing the Form I-9, but won't start working until next week, the employee signs Section 1 today and, as many employers do, the hire date will be the date the employee starts work next week.

I have it on good authority that after much discussion at USCIS around the employment and rehire dates on the Form I-9, USCIS has formulated new guidance that will be published in updated documentation due out in a few months. The guidance is consistent with the postion that has been taken by TALX, other E-Verify Designated Agents, professional associations such as the American Payroll Association, and other government agencies. This is good news since this guidance will put the issue to rest and provide employers, E-Verify Designated Agents, and auditors with definitive rules around correctly entering hire dates on Form I-9.

The guidance will essentially include the following.

• The employment date in Section 2 must be the date the employer signs Section 2 or a prior date.
• The employment date in Section 2 must not be a future date. A future date is not acceptable by E-Verify.
• The rehire date in Section 3 must be the date the employer signs Section 3 or a prior date. The rehire date in Section 3 must not be a future date.
• There is no requirement that the employment date in Section 2 or the rehire date in Section 3 match any date in the employer's systems. Since the Form I-9 can be completed prior to the employee's first day of work for pay, the employment date in Section 2 (or rehire date in Section 3) of the Form I-9 may be a date prior to the employee's first day of work for pay and it may be a date prior to the date the employee qualifies for benefits from the employer.

This is a very good thing. Thank you USCIS for stepping up and providing this guidance. Having this documented will clarify the employment date rule or all stakeholders. Hopefully, USCIS will continue to provide updated guidance to clarify other rules regarding Form I-9. Anyway, for now kudos to USCIS. We all appreciate your efforts and can't wait for the updated documentation to be published.

I-9/E-Verify

By: Dave Fowler

A recent Minnesota Public Radio (MPR) news story regarding a security breach at an E-Verify Designated Agent's (DA) website highlights the need for the Department of Homeland Security (DHS) to credential all E-Verify DAs. Such credentialing must confirm, among other things, that the DA is a real company, has security practices and technology in place to prevent unauthorized access to personal data, and delivers software and services that comply with the requirements of E-Verify. The story points out that there are more than 13,000 E-Verify DAs registered with DHS.

In addition to the MPR story, there are a number of other employers that could share their stories of security and compliance issues encountered with E-Verify DAs, their software, and services. Since these stories reflect poorly on E-Verify and those DAs providing secure and compliant services, it is up to the DAs to pressure DHS for a comprehensive DA credentialing program.

DHS is working on a credentialing program to verify that companies enrolling in E-Verify are legitimate. However, there needs to be a more rigorous process for DAs since they provide access to E-Verify for multiple employers. Now is the time for DHS to establish a DA credentialing program before E-Verify becomes required for the roughly 50 million employees hired annually in the United States by over 6 million employers.

Employers currently using or considering an electronic I-9/E-Verify service as well as performing E-Verify queries with a DA should carefully evaluate the security practices, procedures, and safeguards of the DA. At a minimum, DAs should be required to complete a security audit for the employer, provide privacy and security statements on their websites, and maintain a SAS 70 Type II certification. Employers should think long and hard about security before deciding to use or continue to use a DA that does not at least meet these minimum requirements or does not comply with the employer's corporate security standards.

NEW INFORMATION POST - December 14, 2009

The subject of the MPR report referred to above has responded by posting information on their website. There is also a follow-up story published on The Minnesota Independent website.

NEW INFORMATION POST - December 15, 2009

The subject of the MPR report filed suit against The State of Minnesota on December 10, 2009, but did not inform The State of Minnesota at the time the lawsuit was filed.

Word has spread and more stories and opinions are being posted such as:

http://maryturck.wordpress.com/2009/12/15/texas-firm-screwed-up-so-it-sues-minnesota/

http://www.zecurion.com/server-software-blog/2009/12/minnesota-employee-data-exposed-by-lookout-services/

http://www.secretsofthecity.com/mnspeak/how-dare-a-journalist-use-website-data

http://www.databreaches.net/?p=8844

http://www.databreaches.net/?p=8855

NEW INFORMATION POST - December 17, 2009

The saga continues. It is interesting that there are 13,649 E-Verify Designated Agents (DAs) and not one of them has been credentialed by DHS. As the number of DAs grows without any DHS credentialing process so does the potential that employee data will be compromised.

http://www.chron.com/disp/story.mpl/business/6774164.html

NEW INFORMATION POST - December 18, 2009

Others in Minnesota continue to weigh in on the importance of making sure an E-Verify Designated Agent has sufficient security safeguards in place to protect employee data. Minnesota State Legislative Auditor Jim Nobles raised 'significant concerns' in a June report about an E-Verify Designated Agent's ability to protect employee data. The company won the contract and now Nobles wants to determine if Minnesota officials were satisfied that the company had addressed those issues before the state signed a deal with the company in July. He also wants to know if state officials adequately responded in October to complaints that employee information -- including names, dates of birth and Social Security numbers -- was still at risk. The full text of the article that was the source of the information above can be found at:

http://minnesota.publicradio.org/display/web/2009/12/17/lookout-folo/

It seems employers would benefit greatly if DHS would credential every E-Verify Designated Agent (DA) to make sure security and privacy are properly addressed before certifying a company as an E-Verify Designated Agent. DHS should also publish the list of certified DAs on the DHS website.

I-9/E-Verify

By: Dave Fowler

ICE, the Immigration and Customs Enforcement division of DHS, has replaced raids with worksite enforcement actions. Instead of barging in on a work location, disrupting operations, validating work authorizations, and arresting illegal workers, ICE is now becoming more methodical by stepping up worksite enforcement audits. These audits are for the most part 'under the radar' as far as illegal workers are concerned. Auditors contact the employer and provide 72 hours notice before coming onsite and inspecting the employers Forms I-9s. Based on the results of the audit, any illegal workers are processed and the employer faces potential fines and other actions. In addition, ICE is likely to return and audit the employer again to make sure any corrective action has been taken.

In addition to the information below, ICE issued additional Notices of Inspection (NOIs) during Q4 2009 to 1,000 employers across the country associated with critical infrastructure or key resources. These NOIs let business owners know that ICE will audit their hiring records to determine compliance with employment eligibility verification laws. Results of these NOIs should be made available on the ICE website sometime in 2010.

The following information is from the ICE website at: http://www.ice.gov/pi/nr/0911/091119washingtondc2.htm

Protecting employment opportunities for the nation's lawful workforce and targeting employers who knowingly employ an illegal workforce are major ICE priorities, for which ICE employs all available civil and administrative tools, including audits. Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law.

In April, DHS issued updated worksite enforcement guidance emphasizing ICE's major enforcement priorities-specifically focusing on dangerous criminal aliens and employers who cultivate illegal workplaces by breaking the country's laws and knowingly hiring illegal workers. In this strategy, ICE identified form I-9 audits as the most important administrative tool in building criminal cases and bringing employers into compliance with the law.

Statistics since implementation of new ICE worksite enforcement strategy on April 30:

• 45 businesses and 47 individuals debarred;
  • 0 businesses and 1 individual were debarred during same period in FY 2008.
• 142 Notices of Intent to Fine (NIF) totaling $15,865,181;
  • ICE issued 32 NIFs totaling $2,355,330 in all of FY 2008.
• 45 Final Orders totaling $798,179;
  • ICE issued eight Final Orders totaling $196,523 during the same period in FY 2008.
• 1,897 cases initiated;
  • ICE initiated 605 cases during the same period in FY 2008.
• 1,069 Form I-9 Inspections;
  • ICE initiated 503 Form I-9 Inspections in all of FY 2008.

In July, ICE issued 654 NOIs to businesses nationwide in the largest operation of its kind before today - part of ICE's effort to audit businesses suspected of using illegal labor.

Statistics resulting from the 654 audits announced in July:

• ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents - approximately 16 percent of the total number reviewed.
• To date, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are currently being considered for Notices of Intent to Fine (NIFs).
• ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.

For more information, visit http://www.ice.gov/.

This week I saw an interesting article published by Harvard Business Review that considered the emotional drives or needs of employees (link to read the executive summary: http://tinyurl.com/yhlw7om ).  Using surveys from over 300 Fortune 500 companies the researchers were attempting to answer the question—how do you increase employees’ overall motivation?

The synthesis of their research suggested that there are four underlying emotional drives that guide people at work and impact their motivation.  These four drivers also have a distinct organizational influence that can help meet the needs of the driver; Acquire—Reward System, Bond—Culture, Comprehend—Job Design, and Defend—Performance Management.

The "Bond" driver seemed to be the most likely driver where employee services could actually provide a practical and tool to increase organizational Bond through the culture—that feeling of pride in belonging to the organization.  Specific actions where I believe HR services can have a big impact on the culture include:

* Fostering mutual reliance and coworker friendships—Consider what components of social media make sense for your organization and how to connect people through HR service facilities

* Value collaboration and friendship—Show the results of collaboration and how people are working together by giving them the opportunity to share their successes in the marketplace

* Encourage sharing of best practices—Get more visibility on the employee portal for best practices across the organization

The article does point out that the supervisors have just as much importance as the overall organization’s polices and actions.  However, keep in mind that HR services are a powerful tool that can provide a quick way to begin to impact employee motivation.

Mike Smith

I-9/E-Verify

By: Dave Fowler

On November 19, 2009 I attended a DHS symposium in D.C. with about 120 other attendees. The purpose of the symposium was for DHS Secretary Janet Napolitano, along with John Morton, Assistant Secretary of ICE, and Alejandro Mayorkas, Director of USCIS, to announce the new 'I E-Verify' program and to provide updates on immigration-related topics including enforcement efforts and the Form I-9 and E-Verify. Below is the new 'I E-Verify' logo to be used by emloyers to let consumers know that the company uses E-Verify to ensure a legal workforce. DHS considers the 'I E-Verify' program to be good business.

A public service announcement promoting the 'I E-Verify' campaign was also shown.

USCIS provided the following statistics regarding E-Verify and the FAR rule:

• There are currently 170,000 companies enrolled in E-Verify.
• Nearly 2,000 companies per week are enrolling in E-Verify. (Most of this increase is attributed to the FAR rule that requires federal contractors to use E-Verify.)
• To date 9,000 federal contracts have been issued with the FAR E-Verify clause, which represents 1,800 federal contractors.
• E-Verify has processed 8.5 million queries in FY2009.
• 96.9% of E-Verify queries are confirmed as employment authorized.
• 2.8% of E-Verify queries are not confirmed as employment authorized.
• .3% of Tentative Nonconfirmation queries are untimately confirmed as employment authorized.

In 2010, E-Verify will begin verifying companies enrolling in E-Verify and near the end of 2010 E-Verify should be adding passport photographs to the Photo Tool. The Photo Tool will become available to E-Verify service providers (i.e., Designated Agents) by the end of 2009. DAs will have 6 months to implement the Photo Tool.

The USCIS Compliance, Tracking, and Monitoring group, CTMS, will monitor such E-Verify behavior such as:

• The same SSN being submitted multiple times in E-Verify (this may indicate identity fraud/theft)
• No referrals being processed for Tentative Nonconfirmations (this may indicate pre-screening)
• E-Verify queries being initiated more than 3 days after the employment date

USCIS will send letters to employers when such behavior is detected. Through Q4 of FY2009 USCIS has sent 1,000 such letters.

In Spring 2010 USCIS anticipates providing duplicate SSN detection on the E-Verify website.

In Summer 2010 USCIS anticipates rolling out a new user interface for the E-Verify website and will add features such as reverification notices to employers.

There was spirited discussion throughout the afternoon between the presenters and attendees. Some of the other points of interest that came out during the discussions included:

• 16% of E-Verify users did not complete the tutorial (password sharing)
• 16% of E-Verify users pre-screen applicants (illegal activity)
• 20% of employers took adverse action on a Tentative Nonconfirmation (TNC)
• 9% of employers don't give the TNC notice to the employee
• 7% of employers encourage employee not to contest a TNC
• SSA can put an E-Verify case in continuance for up to 120 days (new information)
• ICE has 26 Special Agent offices in the U.S.
• 85 employers are currently in the IMAGE program
• ICE sent 654 Notices of Inspection (NOI) in July 2009
  • 326 employers are in compliance
  • 61 employers received a Notice of intent to Fine (NOF) totalling more than $2 million
  • 200 employer cases are pending
• ICE is sending 1,000 more NOIs on businesses in the following categories (categories are further defined in the Homeland Security Act):
  • Critical infrastructure
  • Key resources
• There are very few cases of ICE penalizing an employer over document fraud
• ICE will re-inspect employers after an audit to confirm behavior correction

The PowerPoints from the symposium will be posted on www.dhs.gov/e-verify.

HAPPY THANKSGIVING!!!

I-9/E-Verify

By: Dave Fowler

Well, it's been a while since the last posting and many things have happened and continue to happen. Based on conversations with DHS and others in the industry, here are a few things to take into consideration regarding the FAR rule.

• Due to the number of comments and suggestions USCIS has received since issuing th E-Verify Supplemental Guide For Federal Contractors on September 8, 2009, USCIS will be issuing an updated version in the near future.
• USCIS also issued an updated E-Verify User Manual For Federal Contractors on September 8, 2009. It is anticipated that an updated version of this document will also be issued to correct errors such as missing sections and poor wording.
• USCIS announced this week on the E-Verify website that the Photo Matching Tool, designed to help prevent document fraud, will be made available to E-Verify Designated Agents (soon to be referred to as E-Verify Service Providers) by the end of the year. The tool is already available to employers using the E-Verify website. Designated Agents will likely have between 6 and 9 months to update their electronic I-9 services to use the new E-Verify web service interface including the Photo Matching Tool.
• There are two groups of existing employees that can be considered exempt from E-Verify for purposes of complying with the FAR rule. However, if you must treat all employees in a group the same to avoid potential discrimination. If you submit one employee with an HSPD-12 background check, then you must submit all employees in the group. These groups include:
  • Employees with an active confidential, secret, or top secret security clearance
  • Employees with credentials issued as a result of an HSPD-12 (Homeland Security Presidential Directive 12) background check.
• Any existing employee who has already been submitted to E-Verify may not be submitted again unless they have been rehired since last being submitted to E-Verify. If you have used E-Verify for any existing employees you should generate the User Audit Report from the E-Verify website. This gives you an Excel file of the employees already verified by E-Verify so you can avoid submitting them more than once.
• Be careful when deciding to verify all existing employees or only those assigned to a FAR contract. Once you make this decision you can't change it.
• Employers have the ability to consider the legal entity that signed the contract as the contractor and bound by the FAR rule. NOTE: Consult your legal counsel to determine if certain subidiaries and affiliates are part of the legal contracting entity.
• Finally, based on feedback from many employers, industry organizations, and off-the-record discussions with DHS the best practice for verifying existing employees is to submit ALL existing employees to E-Verify by creating a new I-9 for each existing employee. For many employers verifying all existing employees is the lesser of two evils. NOTE: You must retain the employee's original I-9. Here are some reasons why verifying all existing employees is being considered the best practice.
  • This is a one-time event. If you decide to only verify employees working on a FAR contract, then you have an ongoing, never ending obligation to continue to verify existing employees transferred to an existing FAR contract or assigned to a new FAR contract.
  • Once you are finished you will only need to verify all new hires.
  • You have one process used uniformly across the entire organization.
  • You will have to complete new I-9s for at least some of your employees. This is because an I-9 must comply with E-Verify. Since a new I-9 was issued April 3, 2009 that now includes 4 citizenship options in Section 1 and no longer allows expired documents to be used to complete Section 2, all of your existing I-9s will not comply with E-Verify. By completing new I-9s for all existing employees you avoid having to manually audit your I-9s to determine which ones comply with E-Verify and which ones don't. For those that don't comply, you will have to complete a new I-9 anyway. Since most of your existing employees were probably hired prior to April 3, 2009, you will have to complete new I-9s for most of your employee anyway.

In closing, compliance with the FAR rule is causing employers to really consider moving to an electronic I-9 with E-Verify. This will reduce the hassle, eliminate errors with real-time error checking, promote your GREEN initiatives, automatically receive notifications for employees with expiring work authorizations (reverifications), reduce liability by automatically purging old I-9s for terminated employees once the I-9s have satisfied Federal retention requirements, and provide enhanced compliance reporting.

NOTE: For TALX clients already using The Work Number employment verification service from TALX, we already have the data we need for I-9 compliance reporting.

I-9/E-Verify

By: Dave Fowler

Well, my speculation was way off! This one surprised me and, I'm sure, many others.

The Administration has decided to move forward with the FAR rule requiring federal contractors to use E-Verify. In a press release dated July 8, 2009 the Department of Homeland Security Secretary Janet Napolitano announced that "After a careful review, the Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009." Click here for the full press release. I interpret the term full implementation to indicate that the rule will be implemented as it currently stands, which includes a verification requirement for existing employees. No mention was made in the press release of the lawsuit filed against the rule by the U.S. Chamber of Commerce and others.

I-9/E-Verify

By: Dave Fowler

The direction provided in the instructions for the Form I-9, the Handbook for Employers (M-274), and the E-Verify User Manual for the employment date in Section 2 could provide more specific. Consequently, there are different interpretations used by entities such as employers, E-Verify Designated Agents, electronic I-9 service providers, ICE, USCIS, and OFCCP. Wouldn't it be nice if everyone used the same definition!

I propose that the rule for the employment date in Section 2 should be the following:

The employment date in Section 2 may be the current date (the date Section 2 is signed) or a prior date, but it cannot be a future date.

Here is the rational for this definition.

1. The language in the cerfication statement in Section 2 says 'that the employee began employment on (month/day/year)                  '  Words have meaning and this language says began rather than will begin. Therefore, the language indicates that the date should be the current date or a prior date and not a future date.
2. Since the signatory is attesting that the information in Section 2 is accurate, using a future date requires the signatory to attest to an event that has not yet occurred. Since there is no way to guarantee the employee will actually start work on a future date, it does not make sense to attest to a future event by entering a future date in Section 2.
3. E-Verify will not accept an employment date that is in the future. Since E-Verify, the government's free system that employers can use to verify a new hire is authorized to work in the U.S., does not accept a future date, it makes sense to not enter a future date in Section 2 of the Form I-9.
4. There are basically two reasons for entering a prior date in Section 2 of the Form I-9.
   1. The employer has three work days do complete Section 2 of the Form I-9 for a new hire. Therefore, the employment date could be prior to the Section 2 signature date.
   2. If the employer identifies that an employee is missing a Form I-9, the employer should complete a Form I-9 as soon as possible. In this situation, the employment date in Section 2 will be more than three days prior to the Section 2 signature date.

One other point, there is really no relationship between the Section 1 and the Section 2 signature dates. However, the Section 1 signature date must be the same or prior to the Section 2 signature date. The employee should complete Section 1 before or at the same time the employer completes Section 2.

By the way, the employment date in Section 2 MUST be completed when the employer signs Section 2. The Form I-9 instructions state that employers must record in Section 2 the date employment begins. Some employers, especially in the staffing industry, leave the employment date blank and when the employee is placed in a position the employment date is entered. This is not compliant and is a very dangerous practice that would likely be considered to be a substantial violation in the event of an ICE audit. Substantial violations have a high likelyhood of resulting in penalties against the employer. This practice also results in the employment date in Section 2 being a future date since the date would be after the Section 2 signature date.

If you use the rule proposed above you should have compliant employment dates in Section 2 of your Forms I-9.

Good luck!

Dave Fowler

but I wish we were being smarter.

• Why lend money to someone with no income, no job, and no assets? Isn't that how we got into the current economic situation?

• Who signs the largest contract ever had without reading it? Isn't this what the Congress did with the bailout?

• Who would make largest purchase ever and not track the money went and what was received? Isn't this what the government is doing with the TARP funds?

• Isn't it just common sense to only use stimulus money to hire legal workers?

• Why increase pork barrel spending and drive up the deficit in tough economic? That's not how we handle our family budgets, is it?

• Why don't we put politics aside and do what’s right for the country? Aren't we allowing people to use the economic downturn for personal and political gain?

• Why don't those in power take responsibility and be accountable rather than blame others?

• Do smart people really raise taxes and increase spending when cash is tight? Shouldn't we stop ineffective spending and only invest to increase revenues and reduce costs?

• What happened to using plain common sense?

Let's use what we already have to solve the problems we face. For example:

• E-Verify works. Let’s use it and improve it. E-Verify gets negative press because IT WORKS. If the government can punish an employer for hiring an illegal worker, then the government has an obligation to provide a way for employers to verify that a worker is legal. As with any software product, there are specific situations that need to be fixed. However, as a software product E-Verify:
  • 96% – works perfectly
  • 3.5% – detects invalid users
  • 0.5% – results in data correction that benefits the employee

• The administration is starting discussions on immigration reform next week. Here are some ideas for resolving the bickering over immigration reform:
  • Allow illegal immigrants who are already here to stay, unless they are a criminal. It is not feasible to force these individuals to leave the country.
  • Require illegal immigrants to register with the government. Give them 1 year to do so. If someone does not register, they are arrested, jailed, and deported when caught.
  • Illegal immigrants can never vote, hold public office, or be appointed to a position where they can change our laws. This would eliminate the politics from the process since both major political parties consider illegal immigrants to be new voters.
  • Secure the borders to stop the flow of illegal immigrants and human smuggling
    
    
• Don’t restrict capitalism by unfairly and unnecessarily burdening employers. Be patient and let the system work. The current economic climate will pass. Do things that encourage employers and employees and be true to our core values.
  
  
• Focus on the big, important, and urgent things first. Demonstrate a smart approach to the world.
  
  
• Experts estimate that it would cost $10 billion to solve the world’s clean water problem. Allocate $10 billion of the stimulus money to solve this problem. This will help restore our standing in the world community.
  
  
• America’s first priority is to protect our freedom and the freedom of others. Freedom built our country and it will continue to do so if we let it.

 Again, maybe it's just me...

I-9/E-Verify

By: Dave Fowler

July 9, 2009 - Well, my speculation was way off! This one surprised me and, I'm sure, many others.

The Administration has decided to move forward with the FAR rule requiring federal contractors to use E-Verify. In a press release dated July 8, 2009 the Department of Homeland Security Secretary Janet Napolitano announced that "After a careful review, the Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009." Click here for the full press release. I interpret the term full implementation to indicate that the rule will be implemented as it currently stands, which includes the a verification requirement for existing employees. No mention was made in the press release of the lawsuit filed against the rule by the U.S. Chamber of Commerce and others.

Based on what is happening in the administration and with other interested parties such as the U.S. Chamber of Commerce, here is a hypothetical timeline that has a chance of happening.

June 1, 2009 - U.S. Chamber of Commerce releases a statement that the FAR rule for federal contractors is going to be delayed again (this is the 5th time) until September 8, 2009.

June 1, 2009 - Center for Immigration Studies releases a statement that President Obama will begin meeting with Congress on June 8, 2009 regarding immigration reform. Update from Aaron Blake of The Hill (see article below): The White House had planned the meeting for June 8 originally and rescheduled it for June 17. It is being rescheduled for next week, according to a White House official. "The meeting will happen soon and a new date is being set," the official said. The meeting is set to include a small number of senators and members of Congress and is acting as a kickoff for the administration’s efforts on immigration.

June 2009 - DHS Secretary Janet Napolitano announces that there will be changes to the FAR rule that will resolve the lawsuit filed by the U.S. Chamber of Commerce and others.

July 8, 2009 - On or before this date a new FAR rule removing the requirement to submit existing employees to E-Verify and possibly other technical changes will be published in the Federal Register with a 60 day comment period.

September 8, 2009 - the FAR rule will take effect and federal contractors with covered federal contracts will be required to submit all new hires to E-Verify.

This is just speculation, but, who knows, it could happen. Stay tuned.

Updated 6/26/09: Rahm Emanuel says votes not there for immigration reform (BACKGROUND ON MEETING WITH MEMBERS OF CONGRESS TO DISCUSS IMMIGRATION REFORM) - http://blogs.suntimes.com/sweet/2009/06/rahm_emanuel_says_votes_not_th.html. (6/25/09)

Updated 6/25/09: United States: Immigration Alert: USCIS Announces Further Delays In E-Verify Implementation, Article by Mintz Levin Immigration Practice Group - http://www.mondaq.com/article.asp?articleid=81810. (6/24/09) 

Updated 6/16/09: NumbersUSA says - Obama Administration and DHS to Gut E-Verify Executive Order. (6/12/09)

Updated 6/16/09: Frank Davies of the Mercury News Washington Bureau writes - Obama, Congress flirt with tackling immigration reform. (6/14/09)

Updated 6/16/09: Aaron Blake of The Hill writes - White House puts off immigration meeting again.

I-9/E-Verify

By: Dave Fowler

Welcome to the TALX blog focused on the Form I-9 and E-Verify. As you may know there are many changes occurring with the I-9 and E-Verify in 2009. On April 3, 2009 the new I-9 form went into effect. With this new form there are some big changes such as:

• The U.S. citizen and national citizenship statuses have been separated so there are now four citizenship statuses instead of three.
• Expired documents may not longer be used to complete the I-9.
• E-Verify is updated to not accept expired documents.

It is important to note that to update or reverify an I-9 completed on a previous Form I-9, you must complete a new I-9 using the new form.

The second major change scheduled to go into effect May 21, 2009 is the FAR rule that requires Federal contractors with a covered Federal contract to use E-Verify for all new hires and existing employees assigned to the contract. There is an option for the Federal contractor to submit all existing employees hired after November 6, 1986 to E-Verify. This option is very useful for employers who a) cannot easily track which employees work on covered Federal contracts and/or b) want to avoid employee tracking altogether and simply verify all existing employees and be done.

Here are some links for more information and to be kept up to date on changes to the Form I-9 and E-Verify. It is very handy to subscribe to the email notifications from these sites.

• http://www.dhs.gov/e-verify - This will take you to the U.S. Citizenship and Immigration Services site. Here you can sign up for email updates, access documentation about E-Verify, and read the FAQs.
• http://www.cis.org – This will take you to the Center for Immigration Studies site which covers immigration issues. You can sign up for email updates and read blogs.
• http://www.google.com – Sign up for email updates at Google News. You can use E-Verify as your key word to be kept up on E-Verify news and blogs.