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.