Hints from the USCIS on E-Verify and Forms I-9

On June 1, 2010, the USCIS published its notes from a session it held to gather feedback and input from stakeholders on E-Verify and the Form I-9 program.

There were a few notable points released in this memo:

1)  A self-check initiative will be introduced in December.  This initiative will enable anyone to go to the website and run a verification query on him/himself and determine the accuracy of his/her government record.  Hopefully, this will allow those individuals who have recently changed their name or their immigration status to verify that the system is correct and solve problems before they are given an abbreviated window by the e-verify system to do so.

2) The Verification Division informed stakeholders that it runs monthly reports to see if companies are running checks outside 3 business days of an employee’s hire date.  This statement confirms our suspicion that the USCIS is using the e-Verify tool to police Form I-9 completion.  This monitoring could expand into other areas and also prompt further audits and investigations.

For further information about worksite enforcement activities, please visit our worksite enforcement portal under the “information” tab.

Worksite Enforcement Update

The Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security is charged with investigating entities that unlawfully employ workers without authorization.  In 2009, this agency began focusing its reources on auditing and investigating employers and pursuing criminal penalties.  In fiscal year 2009, ICE worksite investigations resulted in a total of 410 criminal arrests, including 114 management personnel.

On April 21, ICE announced that a San Diego bakery, its owner and manager were indicted on federal charges for hiring undocumented workers.  This case highlights the agency’s reliance on social security “no match letters” as evidence that workers are not authorized to work in the US.  The bakery allegedly paid the workers in cash after receiving the no match letters until the workers produced a new set of employment documents with different social security numbers.  This indictment should serve as a warning to all employers that ICE does pursue criminal charges against managers and owners of establishments in worksite enforcement investigations.

Please refer to the Worksite Enforcement Tab under Information on this website for more information and useful links.

Sonoma Employers Advisory Council Lessons

On March 17, 2010, I spoke at the Sonoma County Employers Advisory Council regarding worksite enforcement and immigration concepts human resource professionals must master when employing foreign nationals.  I had some great questions from the group that I thought I might share from the presentation. 

1)  Can I use e-Verify as a pre-employment inquiry?

No.  e-Verify may only be used after the employee has been offered the position and accepts the position.  The memorandum of understanding (MOU) signed by all e-Verify participants outlines these terms of use.

2)  Can I use the social security verification service as a pre-employment inquiry?

No.  Although there is no direct regulation on the subject, it is probably not a good idea to use the SSNVS system during the hiring process or it could result in a discrimination claim or unfair employment practice. After someone is hired, it is permissible to use this service to ensure that the social security number is valid for wage reporting purposes.

3)  Can I review the Form I-9 for my subcontractors?

Probably not.  Due to privacy laws, your subcontractor will probably not share its Form I-9s with the contractor.  However, it is a good idea to have an indemnification clause in the contract to ensure that the subcontractor maintains sound I-9 practices and will indemnify the contractor in the event of a worksite enforcement action.  In a recent case, Wal-Mart was held responsible for its subcontractor’s failure to maintain proper I-9 records.

If you would like a copy of the power point from this presentation, please e-mail my office directly at info at harms-law and state your organization name and we will send you a copy.  Please refer to the worksite enforcement section of this website for further information and resources.

 Here are some of the topics covered by this powerpoint presentation:

E-Verify, I-9 Compliance and Worksite Enforcement: An Essential Primer for All Employers.  With the new changes to the I-9 and increased worksite enforcement actions, completing and maintaining the I-9 form, once viewed as a simple HR function, has become more complicated and riddled with significant liability.  This presentation will cover the following critical components of the Form I-9, the new e-Verify system as well as some tips for employers to protect themselves in event of a government worksite enforcement action:

1. Recent events in worksite enforcement
2. Possible employer sanctions from a worksite enforcement action: civil and criminal
3. Critical elements of the Form I-9 and common mistakes when completing the Form I-9
4. Changes to the Form I-9 and what these mean to HR professionals
5. E-Verify: What is it and what are the responsibilities involved with this system?
6. Should my employer enroll in e-Verify?  Is my employer required to enroll in e-Verify?
7. Strategies to reduce liability in the event of an audit and critical first steps for employers to follow when government agents arrive at the workplace

USCIS Contractors Don’t Make the Prevailing Wage

The Department of Labor announced that it has recovered more than $1.4 million in back wages for 237 employees employed by a contractor for the US Department of Homeland Security’s US Citizenship and Immigration Services Vermont Service Center at various locations for failing to pay these workers the prevailing wage for their positions. 

When sponsoring individuals for H-1B status (the most common work-authorized work visa), the employer has to prove to the Department of Labor and the Department of Homeland Security’s USCIS agency that it is paying the prevailing wage for the position.  Therefore, I find it highly ironic that the USCIS will hold employers to a higher standard than it holds its own contractors!

Employers Watch Out for Fines for Employing Undocumented Workers

In Washington, two owners of an engine parts company were fined $100,000 for employing workers not authorized to work in the US, as reported by the New York Times.  This report illustrates the penalties that the Department of Homeland Security is imposing on employers with illegal workers on the payroll.  In 2009, Immigration Customs and Enforcement (ICE) has a $3 billion budget for worksite enforcement actions.  In 2008, it made 1103 criminal arrests of people in connection with worksite enforcement, and 5,184 administrative arrests.  In light of the risks of criminal fines and arrests, employers should review their Form I-9s to ensure compliance with the immigration laws.