Understanding E-Verify: What is It, What Are Employer’s Obligations, and What Does Your Data Tell the Government

December 20th, 2013

E-Verify is a free, Web-based program that allows employers to verify the employment eligibility of their new hires and certain other workers electronically. Operated as a partnership between DHS and the Social Security Administration (SSA), the program is administered by USCIS.  The program was established to reduce unauthorized employment, reduce employment-verification-related discrimination, reduce the burdens on employers, and protect employers from civil and criminal penalties related to claims of hiring unauthorized workers. While the program is mostly voluntary, some employers are required to use the program to ensure their employees are work authorized. Those required to use E-Verify include most federal contractors and subcontractors who enter into or continue contracts with federal executive departments and agencies for all new hires and/or all persons performing services for certain federal contracts. In addition, some states require E-verify for their contractors, and Arizona requires it for all of its employers. There is little doubt that E-Verify will become mandatory for all employers as part of any comprehensive or even piecemeal immigration reform that is enacted in the future. In the meantime, employers considering registering for the program now should understand the requirements that attach to their participation and some of their potential liabilities:

Employers who use E-verify have a number of obligations that commence after an employer registers and signs an electronic E-Verify Memorandum of Understanding (MOU), which explains the terms and conditions. Under the MOU, the employer agrees to: (1) use E-verify only after new hires have accepted employment offers and completed their Form I-9s, Employment Eligibility Verification; (2) use E-Verify within three days of their new hire’s actual start date; (3) use E-Verify  only for new hires, not existing workers, unless otherwise required; (4) use the data obtained on Form I-9 to enter information into the E-Verify system; (5) display federal notices for E-Verify at their workplace; and (6) accept only “List B” identification documents with photographs as part of I-9 procedures.  Employers who use E-Verify also agree to comply with other responsibilities related to record-keeping and response procedures when information provided by the new hire does not match federal records. This includes reviewing “tentative nonconfirmation” (TNC) responses issued by SSA with their employee and reporting back to SSA/DHS with details on resolving the TNC. Participating employers also agree to permit DHS or SSA to make periodic visits to review its E-Verify records and share information with other government agencies.  During those periodic visits, DHS or SSA officials are permitted to interview employees directly. Employers who participate in E-Verify can terminate the program but only after giving 30 days notice.

In early December, E-Verify released new and revised MOUs that bind existing users and new users to changes made to the program. Most of these changes are not substantive but instead appear to reflect improved language and organization, as well as some enhanced privacy protections and instructions for reporting privacy and security breaches. While existing users do not need to execute new MOUs, they are bound by these changes. The effective date for existing users is January 8, 2014.  For new users, the effective date of the revised MOUs is December 8, 2013.

A new feature of E-Verify is that the system now can lock Social Security numbers (SSNs) that appear to have been used fraudulently, like a credit card company can lock a credit card that appears to have been stolen. If an employee attempts to use a locked SSN, a TNC will be generated.

As mentioned above, participating employers agree to governmental information sharing. Three years ago, DHS formalized such information sharing and entered into an agreement with the Department of Justice’s (DOJ) Office of Special Counsel (OSC), the division in DOJ that prosecutes claims of discriminatory hiring practices. Under the agreement, DHS shares with OSC citizenship status and documentation data, which initially was to be used to identify trends that may indicate an employer’s discriminatory practices. However, once the DHS/OSC information sharing program was up and running, OSC began using this data to initiate investigations of employer discrimination, even in the absence of employee complaints.  And, such investigations are on the rise.

With more and more employers enrolling in E-Verify — either because they want greater confidence in the validity of the documents presented by their employees and less risk of fines for making mistakes, or because they are now required to do so — it has become increasingly important for employers to understand all aspects of the program and ensure that their staff are well versed and trained in the program’s requirements. For starters, employers who use E-Verify are strongly encouraged to review and familiarize themselves with the new or revised MOU that applies to them. Employers should also adopt best practices, which include preparing a policy-and-procedure manual for I-9 and E-Verify compliance; providing annual and mandatory training for all individuals who complete the company’s I-9s; and periodically auditing and reviewing the company’s processes to ensure that they are being followed properly.

Comment » | Immigration and Customs Enforcement, Worksite enforcement policies

The American Public is Adamant: We Need Comprehensive Immigration Reform Now

December 5th, 2013

As House leaders continue to reject the broad framework of the Senate immigration bill, the American public remains strong in its support of comprehensive immigration reform. The source of its determination: empathy for the people affected by a broken immigration system.

As 100 children marched on the Capitol last month, they met up with members of the 1963 Children’s Crusade to share stories of family members being arrested and deported right before their eyes. Each group had experienced firsthand the effects of the broken immigration system, and echoes of the civil rights struggle proved a powerful backdrop to the children’s call for a real solution.

Outside of Washington D.C., protesters continue to gather at a number of public locations to support the reform effort; often risking arrest just to have their voices heard. When asked why they do this, many of the protesters say they are fighting for others, including friends, families and aspiring citizens.

Perhaps most revealing, however, is the public’s ongoing support of the pathway to citizenship, one of the most controversial points of the Senate’s bill. According to a recent report from the nonpartisan Public Religion Research Institute, nearly 63% of Americans across all religions and parties support the pathway, including 60% of Republicans. While on the opposite end of the spectrum, only 18% of Americans favor a tougher enforcement strategy of identifying and deporting illegal immigrants.

As tiring representatives begin to consider a divided legislation, perhaps they should look closer at what the American public is actually saying. Immigration laws don’t need a few small fixes, or to be drawn out over months or years, they need comprehensive reform and they need it now. Otherwise, millions of immigrants and citizens alike will continue to suffer under the burden of a broken system.

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 » | Immigration reform

Think Massive Deportation is Keeping America Safe? Think Again.

November 5th, 2013

In response to the horrifying September 11 attacks, the U.S.Congress created the Department of Homeland Security (DHS), whose purpose is to help protect the nation from terrorism and other potential hazards. But the relentless deportation of nonviolent immigrants has some accusing Immigrations and Customs Enforcement (ICE) — a division of DHS —of ripping apart families across America.

America has a broken immigration system — that’s no secret. But the absence of serious reform has effects that extend far beyond hard-to-get visas and bumpy paths to citizenship. Take the following into consideration:

  • Over the past two years, 180,897 parents of U.S. citizens have been deported.
  • 5,100 children have been placed in foster care because their parents were deported.
  • 429,247 foreign nationals are detained in immigration jails each year.

And why? We’re told it’s for our protection. But if the deported are nonviolent, noncriminal offenders, why is ICE so insistent on tearing apart their families?

To combat this problem, ICE issued new guidelines designed to ensure that immigration officers would prioritize enforcement — seeking to detain individuals who pose a threat to public safety or national security before detaining immigrants with no criminal background. But a new report from the Transactional Records Access Clearinghouse (TRAC) calls into question whether or not officers are actually changing their behavior. According to the government’s own data, detainers were placed on fewer individuals with criminal convictions since ICE issued its new guidelines.

Unfortunately, TRAC’s report makes one fact crystal clear: ICE has failed to adequately address their problematic policies. And until they do, immigrant families and communities will continue to pay a hefty price.

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.

Comment » | Immigration and Customs Enforcement, Immigration reform

Remaining an Optimist on CIR Is Becoming Harder and Harder Even After House Democrats Introduce a Comprehensive Reform Measure

October 15th, 2013

In an effort to jumpstart stalled comprehensive immigration reform deliberations, the Democratic leadership in the House of Representatives introduced their version of a comprehensive immigration reform bill on October 2. “The Border Security, Economic Opportunity, and Immigration Modernization Act,” is modeled after S.744, the Senate bill that passed that chamber in late June. The introduction of the H.R.15 was part of an orchestrated series of events, including marches and vigils that took place across the country to remind the public that immigration reform is among the many pieces of business that remain unfinished while Congress is in fiscal lockdown. While perhaps more symbolic than realistic – the bill is unlikely go anywhere given the Republican House members’ preference for piecemeal legislation and a refusal to vote for any measure that includes a pathway for citizenship for the undocumented – it is at least an important step toward keeping immigration reform in the conversation. Nevertheless, the stalemate on immigration continues, as does other important legislative matters.

To recap where we are on immigration reform: In late June, the Senate passed a comprehensive immigration reform (CIR) bill, a sweeping and long overdue overhaul of the nation’s immigration laws. For months since its passage, the House of Representatives dragged its collective feet to consider the bill.  Instead, four piecemeal bills were approved by House committees, but have yet to be sent to the full House of Representatives for a floor vote, and none addresses legalization. Then, in mid September, two House Republicans who had been trying to draft a comprehensive immigration package dropped out of bipartisan negotiations. Texas Republican Representatives John Carter and Sam Johnson said that they had “reached a tipping point” in the talks and could no longer continue working on a broad approach to rewrite the country’s immigration laws. Their leaving basically dismantled the so-called Gang of Seven bipartisan group in the House that has struggled to draft legislation.   H.R. 15 has no Republican sponsors.

Meanwhile, Rep. Bob Goodlatte (R-VA), chairman of the House Judiciary Committee,  has promised action on immigration reform legislation and has been working on four separate bills in addition to the four already approved by the committee.  Optimists note that a piecemeal approach could result in House approval of a series of bills that could lead to negotiations with the Senate on a compromise immigration reform bill.  Pessimists, on the other hand, point to the remarks of House Speaker John Boehner, who has expressed reluctance to bring the bill to a vote.  The refusal appears to be an acknowledgment of the so-called “Hastert Rule,” a principle used to limit voting to only those bills supported by a majority of the majority party. This is the same rule that has prevented a vote in the full House of Representatives on a “clean” continuing resolution to keep the government open from going forward.

Finding congressional common ground on the various immigration reform bills seems formidable – it always is – but a bigger obstacle may be the full agenda still awaiting lawmakers, including the budget and debt ceiling. According to one insider, the chance of CIR becoming law in 2013 is zero percent; the chance of enactment in 2014 is greater than zero.

Comment » | Immigration reform

Immigration Policy: The Challenges of Attracting A Global Talent Pool

October 2nd, 2013

When it comes to attracting the best and the brightest to lead innovative industries in the science, technology, engineering and mathematics (STEM) fields, the United States is no longer the first choice on everyone’s list.  The supply and demand for these top-tier workers is growing by leaps and bounds. The 34 countries of the Organization for Economic Co-Operation and Development (OECD) are now competing for the very same talent we are every day.

A new report from the Migration Policy Institute (MPI) explains that OCED countries realize attracting individuals from this talented global talent pool can propel both firms and economies into a higher level of worldwide competition and growth. And that’s not our only challenge. As developing countries continue to grow, their immigration policies become less bureaucratic, which opens up even more destinations for those looking for top-paying, international careers.

As the rest of the world is welcoming international talent with open arms, what does this mean for the United States?  Trouble.  Our current immigration system is frozen and inert.  Because Congress has not made any significant changes for the past 20 years, our innovation economy has stopped attracting and retaining skilled workers from the global talent pool. In addition to the necessary internal immigration policy changes needed for our nation to become an inclusive and welcoming country, we must also design policies that pinpoint the immigrants who have the best chance for success and determine ways to encourage them to remain.

The MPI report explains, “The role of employees in both attracting and selecting immigrants is crucial.  Immigration policy is not a two-way relationship between governments and immigrants, but a three-way interaction in which employers are front and center.”  U.S. employers create the jobs and opportunities for a skilled global workforce and must be included in the discussions leading to immigration policy change.

Because global competition is only becoming more cutthroat, our immigration policy needs to become nimble, straightforward and accountable.  We are putting our competitive advantage in peril as a world leader if we don’t work to bring our immigration system into the 21st century.

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 » | Immigration reform

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