Category: E-Verify


Victory for Equal Justice and the Rule of Law: Court of Appeals Enjoins Enforcement of Arizona’s Anti-Immigrant Law (SB 1070)

April 18th, 2011 — 3:35pm

On April 11, the U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction against key and controversial provisions of Arizona’s SB 1070, the law enacted nearly a year ago that requires police to demand proof of immigration status from anyone who they have a “reasonable suspicion” of being in the country illegally. The court thus denied Arizona’s appeal of a U.S. district court’s July ruling that prevented segments of the law from going into effect because it was likely that the law violated the U.S. Constitution. Moreover, and significantly, the decision signals that the appeals court believes that the Department of Justice (DOJ) is likely to succeed in its challenge to the law’s constitutionality.

SB 1070 is the draconian state immigration law that was signed into law on April 23, 2010, after Arizona state legislators argued that they needed their own immigration enforcement tools to stem the tide of undocumented immigration into the state. Federal efforts, the state argued, were not enough. The law immediately sparked nationwide boycotts and protests as an unconstitutional attempt to usurp the federal government’s right to enact and control immigration law and as a way to set the stage for abusive and illegal police activity, including profiling. DOJ sued and won an injunction on June 29, 2010, the day before the law was originally set to go into effect.

In its ruling, the Ninth Circuit rightly rejected Arizona’s claim that state police have “inherent authority” to enforce federal immigration laws; in fact, the court held that Arizona’s attempt to drive immigrants from the state interferes with the federal government’s exclusive authority to enforce immigration law. Congress, the court held, intended state officers to “aid in immigration enforcement only under the close supervision of the Attorney General,” which was not the case here. The court also recognized that the SB 1070 has negatively impacted U.S. foreign relations and reflects the dangers of allowing states to enact a patchwork quilt of conflicting laws and regulations. In the immediate aftermath of SB1070’s enactment, a number of states considered or introduced copycat bills, but most states have now backed away from these measures.

While the fate of SB 1070 is likely to be decided by the Supreme Court, for now the court’s decision is a victory not only for the Obama Administration in its ongoing effort to halt the Arizona law, but also for equal justice and the rule of law.

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

Connect with us today to learn how we can help you further your hiring goals.

Comment » | Department of Homeland Security, E-Verify, I-9, Immigration Policy Center

E-Verify Self Check Goes Live on March 18, 2011

February 20th, 2011 — 3:40pm

The United States Citizenship and Immigration Services (USCIS) has published a notice in the Federal Register announcing that the new E-Verify Self Check feature will go into effect on March 18, 2011. As previously reported, the E-Verify Self-Check initiative will enable individuals to check their work authorization status prior to being hired and facilitate correction of errors in the federal databases which E-Verify utilizes. Self Check was developed primarily to address concerns with the current employer-focused E-Verify process, where employees have very limited ability to identify, access or correct information that may ultimately lead to a tentative nonconfirmation (TNC). Self Check promises to provide an easy method for individuals to check their own employment eligibility status outside of the normal E-Verify process, and thereby reduce the likelihood of TNCs.

How will Self-Check work?

E-Verify Self Check will involve two broad steps (with a few others underneath): (1) Identity authentication of the individual and (2) an E-Verify query to confirm the individual’s current work authorization status. Here’s how it will work:

Step 1 – Identity Check

After browsing to the website, the individual will be asked to enter some basic identifying information, including name, address of residence, date of birth, and Social Security number (optional). After the information is entered by the individual, it will be submitted to a 3rd party identity assurance service (IdP) to generate a minimum of 2 “knowledge-based” questions that only the individual would be able to answer. If the individual is able to answer the questions, his or her identity is “authenticated”, and a pass indicator is sent to E-Verify (proceed to step 2).  If the individual is unable to answer the questions or if there is not enough commercial identity verification information from financial institutions, public records, and other service providers to generate the questions, the individual’s identity cannot be authenticated and he will not be able to continue through E-Verify Self Check.

Step 2 – E-Verify Query

Once the individual has successfully completed the identity proofing quiz, he or she will be able to run an employment eligibility query to determine work eligibility status. The name and date of birth provided in Step 1 will be pre-populated and cannot be changed (for security reasons). The individual will then be required to enter additional information based on the documentation the person would present to an employer for the Form I–9 process. The additional information collected from an individual depends on citizenship status and could include: Alien Number (if non-citizen); passport number; Form I-94 number; and/or lawful permanent resident card or work authorization document (EAD) number. Sound familiar? That’s because  this is the same information that is collected for the Form I-9 process and the basic E-Verify query.

E-Verify Self Check will then contact the E-Verify system through a web service connection and will present one of three results: (1) Work Authorization Confirmed; (2) Possible mismatch with SSA Information or (3) Possible mismatch with Immigration Information. If the individual receives the SSA or Immigration mismatch, E-Verify Self Check will prompt the individual whether he or she 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 an 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.

Security and Privacy Concerns

When Self-Check was first announced, many organizations expressed concerns over the security and privacy of the individual’s personally identifiable information (PII) which is transmitted during the process. To address some of these concerns, the DHS system of records for Self-Check includes the following safeguards:

  • The questions asked by the IdP and the answers provided by the individual are not provided to USCIS.
  • If an individual fails the identity authentication portion of E-Verify Self Check and therefore is unable to proceed to an actual query in E-Verify, none of the information listed above is provided to or retained by E-Verify Self Check.
  • Only the transaction number, the reason for failure, the date and time of the transaction, and error code are retained by the IdP to facilitate troubleshooting and system management.

It’s worth noting, however, that there are many other “routine” disclosures of this information which could be made outside of DHS.

Employer Concerns

While the launching of Self Check has the potential to reduce the number of TNCs, it still remains to be seen whether individuals will choose to use it, and if they can easily correct inaccuracies in the government databases. In addition, there is also a concern that some employers may be tempted to require their employees to use self-check prior to applying for a job. This would almost certainly constitute pre-screening, which would run afoul of the anti-discrimination provisions of E-Verify. Therefore, it’s important for employers to remember that E-Verify can only be used for new hires (or existing employees pursuant to FAR rules) once an offer has been extended and accepted and an I-9 form has been completed. As always, implementing training and clear policies are vital to ensure compliance with these changing rules.

Comment » | Department of Homeland Security, E-Verify, I-9, Immigration and Customs Enforcement, Worksite enforcement policies

United States Citizenship and Immigration Services Publishes Updated I-9 Employment Eligibility Verification Handbook with Important Changes

January 27th, 2011 — 3:46pm

All U.S. employers must complete an I-9 Employment Eligibility Verification Form for each new hire, regardless of immigration status or citizenship.   U.S. Citizenship and Immigration Services (USCIS) publishes a Handbook for Employers with instructions and guidance directed to employers on how this form should be completed for foreign nationals.   A copy of the Handbook can be accessed at the USCIS website at http://www.uscis.gov/files/form/m-274.pdf.

The newly published guide offers revisions and clarifications on appropriate documentation for lawful permanent residents, refugees and asylees, and work authorization documents for foreign nationals in temporary protected status (TPS).  The Handbook provides detailed guidance on completing I-9 forms for individuals in J-1 exchange visitor status and F-1 and M-1 student status.  Additionally, the Handbook explains how to complete the I-9 for F-1 students who are changing status to H-1B and are eligible for a “cap-gap” extension of status and employment authorization.

In a helpful revision to previous policy, the Handbook now states that an employee in valid H-1B status who changes (“ports”) to a new employer can begin to work with the new employer upon filing an H-1B petition with USCIS, rather than upon receipt of the I-797 Receipt Notice, which can take weeks to arrive in the mail.

The revised Handbook includes specific instructions on how U.S. employers should document employees’ I-9 files, as well as requirements for electronic records.  For example, an employer must maintain and make available upon request complete descriptions of the electronic generation and storage system and the indexing system that permit the identification and retrieval of documents and records maintained.

For federal contractors, the revised Handbook provides additional guidance on responsibilities under the amended Federal Acquisition Regulation (FAR) related to employment eligibility verification.   These clarifications make it easier for employers to properly complete I-9 forms for its employee’s that have unique situations.

Comment » | Department of Homeland Security, E-Verify, I-9, Immigration and Customs Enforcement, Worksite enforcement policies

Supreme Court and Undocumented Workers: Another Arizona Law Being Tested

December 21st, 2010 — 3:52pm

The Supreme Court heard oral arguments in early December on a controversial 2007 Arizona law that would revoke the business license of companies who knowingly hire undocumented workers. The legislation, known as the Legal Arizona Workers Act, is being challenged by a coalition of business groups who argued that the law intrudes on the exclusive jurisdiction of the federal government over immigration. While both sides agree that the federal government, through the 1986 Immigration Reform and Control Act (IRCA), preempted states from enacting legislation that would use employer sanctions to control immigration, Arizona has argued that a parenthetical clause in IRCA allows states to act “through licensing or similar laws.”

The case, while important in its own right, also is being watched closely because it could give some indication on how willing the Justices are to allow states to pass legislation to curb undocumented immigration. In particular, it may serve as a bellwether for a Supreme Court challenge to the high-profile Arizona law passed earlier this summer requiring local law enforcement officials to check the immigration status of anyone they suspect of being in the country without legal status. That law — S.B. 1070 — garnered extensive, national media attention and spurred protests across the country when Governor Jan Brewer signed it into law in May. S.B. 1070 is currently moving through the courts as the Obama Administration challenges its constitutionality. It is expected to reach the Supreme Court during the 2011 or 2012 term.

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

Connect with us today to learn how we can help you further your hiring goals.

Comment » | Department of Homeland Security, E-Verify, I-9, Immigration and Customs Enforcement, Worksite enforcement policies

Back to top