As more employers enroll in E-Verify, consider enrolling, or may be required to enroll as a Federal Contractor, it becomes increasingly important that they understand all of the nuances that participation in E-Verify entails. In 2010, the U.S. Department of Homeland Security (“DHS”) entered into an agreement to provide the Department of Justice’s Office of Special Counsel ("OSC") with information gathered in E-Verify, including citizenship status and documents provided to complete Section 2 of the Form I-9. While the initial goal of the E-Verify system was to confirm the validity of documents presented by workers to provide identity and work authorization, the OSC uses their access to E-Verify data to identify trends that may indicate discriminatory practices on behalf of the employer. The OSC has used this data to initiate investigations of discrimination by E-Verify participating employers, some in the absence of any employee complaints. Unfortunately the use of limited data, in the absence of other important context, can create misleading results. While the agreement between DHS and the OSC has been in place for some time, with the increase in participating employers, we are seeing an increase in these investigations.
In its early stages, E-Verify focused on supporting users and generating participation rather than regulation, but eventually DHS began using the data in E-Verify to monitor compliance and started by issuing “Desk Memos” to employers for data patterns indicating that Tentative Non-Confirmations ("TNCs") are not being followed up on timely or cases are not being closed. Much of this was due not to neglect, but user errors. For example, this can easily occur when new cases are created to correct data-entry errors rather than closing out the existing cases. Later, when the Form I-9 was updated to include e-mail address, DHS issued the edict that if an employee voluntarily provides their e-mail address on the Form I-9, the provided e-mail address MUST be entered into E-Verify. This was soon followed by E-Verify using this e-mail address to contact your employee directly if a TNC is issued, notifying them that their employer should have provided this information to them. If their employer did not provide this, or if they had any other complaints about their employer, the memo includes contact information in order to report their complaints. Long gone, clearly, are the Pollyanna days of the Pilot Program when E-Verify appeared to provide employers with a sense of confidence in the validity of the documents provided by their employees without the risk of fines for any errors, if they followed the prescribed process to the letter. Many employers felt as though they were being “extra compliant” with the employment eligibility verification rules of IRCA if they were using E-Verify. This may have created a false sense of security in matters related to I-9 and E-Verify practices. While ICE may be satisfied that an employer’s workers are eligible to work in the United States, the OSC may still have concerns that an employer is engaging in discriminatory practices by requiring specific documentation to prove employment authorization. Whether OSC concerns are well-founded or not, a government investigation can create a major disruption for employers and erode the trust and confidence employees have in their employer. Ultimately, it is common for employees to assume that the employer must have done something wrong if they are being investigated. The E-Verify Memorandum of Understanding (“MOU”) signed by all participating employers, gives the government permission to share information with other government entities and to interview its employees directly. In addition, participating employers already agree in the MOU to participate in any investigations regarding its compliance with E-Verify rules.
So what can employers do to help prevent or prepare for these investigations?
- Put your policy and procedures for I-9 and E-Verify Compliance in writing. Include the employee’s responsibility to support these efforts.
- Include a separate document in the I-9 process for employees to certify that they reviewed the list of acceptable documents for the Form I-9 and were given the opportunity to choose the documentation they provided to prove identity and employment authorization in Section 2 of the Form I-9.
- Train all individuals completing the Form I-9 on behalf of your organization at least annually , and any time there are changes. Training should be performed by an expert and attendance documented.
- Establish an effective audit and review process to ensure that policy and process are being followed properly and document all findings.
- Communicate to your employees at least annually regarding your compliance practice and solicit their feedback regarding their experience and concerns.
Should an employer be subject to an investigation by OSC, we recommend you engage immigration counsel immediately to:
- Explain the scope of the interviews to employees
- Assist in preparation of communications to address employee questions and concerns about the investigation.
- Ensure employee interviews are attended by counsel to provide support for your employees during this stressful process and ensure that the scope of questioning is appropriate to the investigation.
- Keep the scope of the investigation within the parameters of IRCA compliance.
Mandatory E-Verify for all employers seems a likely addition to any immigration reform that may be passed in the near future. With the growing enforcement within E-Verify as well as I-9 compliance, Maggio + Kattar clients are advised to review their current employment eligibility verification practices with their Maggio + Kattar attorney and develop processes and procedures to help ensure compliance and prepare for audits.