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

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.