Labor Immigration Law

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E-Verify Articles

Infosys In $34 Million Settlement for U.S. Immigration Violations

The large Indian technology company Infosys has agreed to pay $34 million in a civil settlement after federal prosecutors in Texas alleged it had committed “systemic visa fraud and abuse” when bringing temporary workers to the U.S. on H-1B and B-1 visas. This kind of settlement is the largest ever in a visa case and while the details are scarce at this point, it shows that the U.S. government is starting to crack down on large scale abuse of some of the most common visa programs.

The Allegations and the Settlement

After an investigation of more than two years, prosecutors are expected to unveil today the settlement after accusations that Infosys knowingly and unlawfully brought Indian workers into the U.S.  on business visitor visa (B-1) dating back to 2008.    Additionally, Infosys is accused of having conducted improper I-9 compliance.   The company has agreed to pay $5,000,000  for civil or administrative forfeiture. It will pay $5,000,000 to the Department of State for Civil or Administrative forfeiture, and $24,000,000 to the U.S. Attorney’s Office for the Eastern District of Texas.

One of the reasons Infosys used the B-1 visa so extensively is that unlike the H-1B work visa (a common alternative), the B-1 has no annual quota and the costs are many times lower than for H-1B.   According to the allegations, Infosys systematically submitted misleading information to U.S. immigration authorities (at the Consulates and at the port of entry)  in order to secure admission to its B-1 business travelers.

For example, the settlement alleges that an invitation letter submitted by Infosys in 2008 stated that the purpose of the B-1 visa trip was for “customer discussions and related business development activities”, when, in fact, as known by Infosys, the purpose of the trip was to engage in activities not authorized under a B-1 visa such as coding, programming, testing, implementing, etc.

The settlement also alleges irregularities with the H-1B/LCA program compliance.   Prosecutors cite instances where Infosys H-1B workers who applied for an H-1B visa stamp were directed by Infosys to inform the U.S. immigration authorities that their actual workplace destination in the U.S. was the same as the workplace described in the Labor Condition Application (LCA) supporting the H-1B petition; however, Infosys and the foreign workers both knew that the foreign nationals have been assigned to work at a different U.S. worksite (not mentioned in the LCA or H-1B documents).

The settlement also alleges I-9 compliance irregularities.   After an investigation, federal authorities are alleged to have discovered significant I-9 compliance irregularities which could have allowed thousands of foreign nationals to continue working in the U.S. even after their visas or authorized status had expired.

Three Lessons from the Infosys Case

Our office is not familiar with the details of this case other than what is being reported in the media.   Over the next few days, more details are certain to come out.   But we would like to focus on the allegations and draw some important lessons for the benefit of our readers and clients.

B-1 Visa and Status Do Not Authorize Work.   The B-1 business visa program is designed to allow foreign nationals to come to the U.S. for a short period of time (less than six months) for the purpose of conducting business — conduct meetings with vendors or partners, visit a production facility, negotiate a contract or financing, training customers or partners, giving a speech or a presentation or similar business-related activity.    The B-1 visa does not allow work in the traditional sense of the word — engaging in a productive work, paid or unpaid.

H-1B and LCA Documents Should be Correct and in Compliance.    When submitting an H-1B visa stamp application or then traveling to the U.S. on H-1B status, both companies and H-1B workers should ensure that their H-1B and LCA documents reflect accurately the terms of the H-1B employment, including the actual H-1B worksite (for third-party placements).     When necessary, a new LCA and, possibly, an H-1B amendment should be processed as quickly as needed and as possible, even if this is after the fact (in other words, late compliance is better than no compliance).

I-9 Compliance Matters.   For employers of all sizes, it is easy to dismiss I-9 compliance activities, especially once an initial I-9 is completed.   But the Infosys settlement proves that the government will do I-9 investigation often in conjunction with another immigration violation, take seriously a number of irregularities and assess significant fines.    For all companies, but especially those who employ at least one foreign national, I-9 compliance and re-verification are becoming very important.

Conclusion

We will continue to monitor and report on additional important details and developments stemming from the Infosys settlement.    At the same time, we hope that the Infosys case will serve as a reminder that it is important to have adequate internal policies to ensure B-1, H-1B/LCA and I-9 compliance.

In addition to handling a number of visa matters, such as B-1 and H-1B, our office has developed a leading practice of I-9 compliance and we are able and happy to provide compliance advice on these issues.  Please feel free to contact us if our office can be of any assistance.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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E-Verify System Available Again – Important Post-Shutdown Notes and Guidance

As an E-Verify designated agent, the Capitol Immigration Law Group handles the E-Verify processing for many employers and we would like to pass on some important post-government shutdown E-Verify information to our clients and to all companies who are working with E-Verify.     Most importantly, USCIS has confirmed that the E-Verify system is now back online and operational.  As a reminder, even though USCIS was largely not affected by the shutdown, the E-Verify system had to be shut down on October 1 as part of the partial government shutdown.   But as the government is not open again, E-Verify is now back online.

Form I-9 Requirements Not Affected By Shutdown

The Form I-9 requirements were not affected during the federal government shutdown. All employers must complete and retain a Form I-9 for every person hired to work for pay in the United States during the shutdown.

E-Verify 3-Day Requirement Extended to November 5, 2013 for Shutdown-Affected Cases

E-Verify requires that an employer create and submit an E-Verify case check within 3 days of hire.   However, due to the shutdown, this was not possible and now USCIS is providing some guidance to those E-Verify cases which were delayed due to the shutdown.

According to USCIS, each employer (or their designated agent) must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013.   If the employer is prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.

Employees who received a Tentative Nonconfirmation (TNC).   If an employee had a TNC referred between September 17, 2013 and September 30, 2013 and was not able to resolve the TNC due to the federal government shutdown, USCIS instructs the employer to add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation.’ Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If there is an employee who decided to contest his or her TNC while E-Verify was unavailable, the employer should now initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.

Employees who received a SSA Final Nonconfirmation (FNC) or DHS No Show Result.   If an employee received a Final Nonconfirmation (FNC) or No Show because of the federal government shutdown, USCIS instructs the employer to close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the Tentative Nonconfirmation (TNC) that led to the FNC result.

E-Verify and Federal Contractors

During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. If your organization missed a deadline because E-Verify was unavailable or if it has an upcoming deadline for complying with the federal contractor rule, USCIS advises the organization to notify their contracting officer.

Employees Afforded Additional Time to Contest Tentative Nonconfirmation (TNC)

If the federal government shutdown prevented an employee from contesting a Tentative Nonconfirmation (TNC), USCIS advises that the employee will be allowed additional time to contact the Social Security Administration (SSA) or Department of Homeland Security (DHS).  If the TNC was referred between September 17, 2013 and September 30, 2013, and the employee was not able to resolve the mismatch due to the federal government shutdown, the employee should add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation’ that the employer provided after the employee contested the TNC. Federal business days are Monday through Friday and do not include federal holidays.   The employee should then contact SSA or DHS by the new date to resolve the TNC.

On the other hand, if an employee received a Final Non-Confirmation (FNC) because the employee could not contact DHS or SSA during the federal government shutdown, or because the employee could not contact DHS or SSA in the first ten days after the government reopened, the employee should contact the employer and request that the employer re-enter the employee’s query.

Conclusion

We hope that these notes and guidance from USCIS on what E-Verify employers and affected employees should do if their case is affected by the shutdown is helpful to our clients and readers.    We should caution that the E-Verify system may experience delays and glitches as a result of the shutdown and the increased usage of the system.

As a designated E-Verify agent, we are able and happy to handle this (and related E-Verify) processes on behalf of our corporate clients.    Please feel free to contact us if our office can be of any assistance or if we can provide an E-Verify services proposal.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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U.S. Federal Government Reopens Today, October 17th – DOL Backlogs Expected

The 16-day long partial U.S. federal government shutdown has ended last night after both chambers of the U.S. Congress passed a (temporary) budget measure (more on this below) and, after the President signed it, reopened the U.S. federal government.  As of today, October 17, 2013, federal workers are expected to be on the job.   However, due to the 16-day shutdown and the late night order to reopen, it is expected that it would take some time (days or weeks in some cases) for federal agencies and operations to resume normal operations.     We have written over the past 2-3 week on the impact on immigration caused by the partial government shutdown and while we are happy to see the government resume operations, we expect that immigration-related services to be, at the very least, heavily backlogged for some time.

Department of Labor Likely to be the Major Cause of Immigration-related Delays

Many U.S. employment-related visas (immigrant and non-immigrant) rely extensively, at least during some portion of the process, on the Department of Labor (DOL) – for example, H-1B work visas require a Labor Condition Application (LCA) to be certified by DOL.   An initial stage of the employment-based green card is the filing and the approval of a prevailing wage determination by DOL, followed by the filing and approval of a PERM Labor Certification.    As we had commented over the past few weeks, DOL was severely affected by the shutdown with the majority of DOL’s workers being furloughed and many DOL electronic systems being shutdown over the past 16 days.

As of the time of publication of this article,  DOL’s electronic systems for LCA and PERM Labor Certification processing were still not operational.  We hope that as DOL IT workers trickle into work this morning, these systems will become operational.   Unfortunately, we also expect that these systems may be overwhelmed with traffic as many employers and their law firms (ours included) will rush to file all of the LCA and PERM Labor Certification applications which were put on hold over the last 16 or so days.   We hope that DOL’s systems will be able to accommodate the traffic and the demand — our general estimates are that there may be many thousands of LCA applications waiting to be filed.    With this in mind, we caution our clients and readers to exercise caution and patience in the first few days after DOL reopens.

In addition to the new rush of filings, DOL is already sitting on a number of applications which were filed and pending as of October 1st when the government closed.   This will only add to the backlog of applications.   All of this is likely to result to dramatic increase (at least and hopefully only short-term) in the processing times for LCA and PERM applications.    Even before the shutdown, PERM applications were experiencing some of the longest processing times for the past few years; the shutdown would not help.

USCIS’s E-Verify System Should be Back Online

The major impact on immigration caused by the government shutdown has been via the shutdown of DOL’s operations, as discussed above.    However, other immigration-related functions were also affected.   Most importantly, the E-Verify system should be back online soon (it was not as of the time of this article) and would allow employers to complete a number of pending (and delayed) employment verification checks.   During the shutdown, USCIS advised E-Verify employers that the ‘three-day rule’ for E-Verify cases will be suspended for cases affected by the shutdown.    Now that E-Verify is expected to go back online at any time,  employers must rush to complete these E-Verify checks.     An important note is that the fact that an employer did not have to do an E-Verify check during the shutdown period, does NOT affect the Form I-9 requirement — employers must still (and should have) completed the Form I-9 no later than the third business day after an employee started work for pay.

Careful Planning and Preparation for Delays and Backlogs Important

In light of what we expect to be delays and backlogs, especially at DOL due to the significant volume of new applications to be filed, we caution employers and applicants to anticipate and plan for delays.   We understand that many H-1B applications (especially extensions for H-1B petitions which are expiring) are held by DOL and it may cause H-1B petitions to expire without an ability to extend.   There are ways to handle a late-filed H-1B petition with USCIS and request a retroactive H-1B approval date due to these extraordinary circumstances.    But there are also cases where H-1B workers desperately rely on the filing (or approval) of a PERM application to be able to continue extending their H-1B beyond the six-year H-1B limit and in those cases, there may not be many options to “fix” the possible damage caused by the delay.

Another Shutdown on the Horizon?

The deal which the U.S. Congress reached last night to fund and reopen the government and raise the U.S. debt ceiling is, unfortunately, a short-term deal.   Under the current agreement, the government is funded through January 15, 2014 and the debt ceiling is lifted until February 2014 or shortly thereafter.    What this all means is that if Congress does not make a budge agreement over the next 2-3 months, it is entirely possible that there will be a similar government funding fight and a possible government shutdown on January 15, 2014, or only three months from now.     We hope this is not the case, but we still would like to caution our clients and readers to this possibility.

Conclusion

Over the past few weeks we have consulted with anxious employers and applicants whose immigration status and processes have been severely impacted by the shutdown.    With this in mind, while we are hopeful that the reopening of the government and DOL, specifically, would be smooth, we caution employers to consider alternatives if they or their employees rely on a time-sensitive action by DOL.    Our office is certainly happy to consult and provide suggestions.    Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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I-9 Compliance – Cleaning Up for the New Year

The start of the new year is a perfect time to assess corporate compliance with U.S. immigration laws.  As Immigration and Customs Enforcement (“ICE”) and the Department of Labor (“DOL”) increase their number of company audits and fines each year, it is important for employers to perform annual audits of their employment law and immigration compliance.  In addition, companies are often financially responsible for any civil and/or criminal fines imposed when their staff does not correctly follow the letter of the law.  Thus, staff training on immigration compliance and employment laws should be a standard part of any business’s regular compliance audit.

Basic I-9 Requirements

Form I-9 is required by all employers to have each employee complete within 3 business days of hiring them, regardless of immigration status or citizenship.

I-9 Retention

A properly completed I-9 should be on file for every current employee.  For former employees, I-9’s should be retained for 1 year after termination or 3 years after start of employment, whichever is longer.

I-9 Storage

These confidential forms should be kept secured with access limited to trained staff only.  I-9’s and supporting documents may be retained electronically or in paper hard copies as long as the company correctly processes and consistently retains I-9’s in the same format.

Accepted Versions of I-9

New I-9’s should be filled out using the latest version of the form (either February 2, 2009 or August 7, 2009).  A new version does not need to be completed for current employees with a previously completed Form I-9.  The Spanish version I-9 may only be completed by employers and employees located in Puerto Rico.

I-9 Supporting Documents

If the employer utilizes e-Verify, e-Verify must be consistently performed and documented for every employee.  For non-U.S. citizens or non-permanent residents, evidence of current and valid employment authorization is required.

Common I-9 Errors

I-9 errors can be costly to employers if identified by the DOL or ICE during an audit.  Some common I-9 errors include:

  • Not timely completed;
  • Employer discrimination by requesting too few, too many, or only specific documents;
  • Incorrectly completed forms, such as incorrect date of birth or wrong box checked, missing social security number, no signature, document list incomplete or incorrect, incorrect form version, etc., as well as inconsistent manner of completion by the various company representatives, including an inconsistent mix of electronic documents and paper documents;
  • Not properly tracking immigration employment authorization expirations and documenting timely renewals or extensions of employment authorization;
  • Improper retention by not timely removing expired I-9’s for former employees or not maintaining I-9’s in a safe and secure manner; and
  • Incorrectly completing or not consistently documenting e-Verify, including situations where no-match letters are received and timely resolved.

Many of these pitfalls can be avoided through regular employee training and annual I-9 audits.

I-9 Auditing

We certainly recommend periodic internal I-9 reviews by companies.  However, such reviews should be done carefully.  It is not uncommon for self-audits of companies, once done incorrectly, to cause additional costly errors; therefore, an I-9 compliance audit by a qualified outside source is strongly recommended.

In addition to auditing actual completed I-9’s and supporting documents, employers are responsible for ensuring their hiring managers, human resources, executive staff, and other responsible employees are trained in employment law requirements, specifically what can and cannot be asked or requested.  For example: not all designated employees know how to avoid discrimination allegations when requesting documents by employees;  not all designated employees know who is authorized to sign I-9’s on behalf of the company, and not all designated employees know (or can easily find out) the difference between employees and contract workers?

I-9 Official Resources

We would like to share some general I-9 resources.

How Can We Help

The Capitol Immigration Law Group can provide various levels internal I-9 compliance audits and on-site employee training as well as training materials and guidance for performing regular audits and training.  We can provide immigration compliance training and auditing to meet an employer’s specific needs.  We encourage all employers to mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance or you have any questions or comments.

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E-Verify Self Check System Now Available to Residents of Five States and DC

As of yesterday, March 21, 2011, the E-Verify Self Check system has been launched and made available to users who maintain an address and are physically located in Arizona, Idaho, Colorado, Mississippi, Virginia or the District of Columbia.

About E-Verify Self Check

E-Verify Self Check is the first online E-Verify program offered directly to workers and job seekers. This voluntary, free, fast and secure service was developed through a partnership between the Department of Homeland Security (DHS) and the Social Security Administration (SSA).  The goal of the system is to allow individuals in the United States to check their employment eligibility status before formally seeking employment.   The system uses Equifax (a credit rating company) to provide identify verification and, through a combination of DHS/SSA records review, can provide evaluation on its users’ employment eligibility.

One of the drives behind E-Verify Self Check is to allow individuals who plan to seek employment to verify their employment eligibility and so that they have an advance opportunity to correct issues relating to their employment authorization records in DHS or SSA systems.

Although the E-Verify Self Check system was launched yesterday along with active PR, the system is essentially a test limited to only a few states plus the District of Columbia and would probably require congressional approval before it is widely deployed.

USCIS estimates that Self Check users will generate about 850,000 to 1 million queries in the first year, with approximately 8 million queries after/when the program is expanded nationwide.   The current plans for expansion are to include 16 states in fiscal year 2012 and roll out nationwide afterwards, if the USCIS budget permits.

Procedures

The E-Verify Self Check process consists of four steps.

  1. First, users would enter identifying information online (such as name, date of birth and address).
  2. Second, users would confirm their identity by answering demographic and/or financial questions generated by a third-party identity assurance service (Equifax, as of now).
  3. Third, the users would enter work eligibility information such as a Social Security number and, depending on citizenship status, an Alien Registration number.
  4. Finally, E-Verify Self Check checks users’ information against relevant SSA and DHS databases and returns information on users’ employment eligibility status.

Concerns

One of the main concerns with E-Verify Self Check is that the results of the program would be shared with employers or would otherwise affect or stay on a person’s credit or background record.  USCIS has assured that E-Verify Self Check query information or results are never shared with users’ employers or prospective employers.  However, using the E-Verify Self Check would result in a “soft hit” on a user’s credit score.  These soft hits are generally not shown to businesses and are not used to calculate credit scores.

Similarly, USCIS prohibits employers from requiring prospective employers submit to E-Verify Self Check as condition of their employment.

Conclusion

Although it is very early to gauge E-Verify Self Check’s success so early, our office has heard concerns that using E-Verify Self Check may impact a user negatively.  Although USCIS strives very hard to allay such concerns, the fact is that the perception that negative information provided by E-Verify Self Check may be used against an employee  still remains.

Workers who have had information consistency problems with DHS or SSA in the past, or have a reason to believe that their records may not be accurate in either of those agencies, would benefit from using the E-Verify Self Check system to ensure that their records are proper and that a subsequent E-Verify check by an employer would likely be a positive one.

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E-Verify Nonconfirmations Issued for Some H-1B Portability Employees

Our office has received confirmation from AILA and from E-Verify that in certain cases, E-Verify would not verify employment authorization for an employee who is working for an employer under H-1B portability and where the employee previously held H-1B status but has since held an intervening status.

For example, an employee holds H-1B status but decides to switch to H-4 or F-1.  Then, while holding H-4 or F-1 status, for example, the foreign national is sponsored by  a new employer for an H-1B change of status.

Previously, E-Verify has issued employment authorization confirmation under the H-1B portability provisions for employees in similar situations where the new H-1B petition has been filed and pending but has not been approved yet.   However, recently, E-Verity has started issuing final nonconfirmations for employees working pursuant to H-1B portability who currently hold another status, such as H-4 or F-1.

The Law

The relevant statutory provision is INA §214(n):

(1) A nonimmigrant alien described in paragraph (2) who was previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) is authorized to accept new employment upon the filing by the prospective employer of a new petition on behalf of such nonimmigrant as provided under subsection (a).   Employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.

(2) A nonimmigrant alien described in this paragraph is a nonimmigrant alien–  (A) who has been lawfully admitted into the United States; (B) on whose behalf an employer has filed nonfrivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and (C) who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.

E-Verify’s Justification

The justification for E-Verify’s denial to issue such employment authorization confirmation is based on interpretation of the statute and USCIS guidance.   E-Verify’s justification has been that, upon advice from the Office of Chief Counsel at USCIS, such employees should be issued a nonconfirmation because “the H-1B Portability Rule does not apply to a nonimmigrant who was in H-1B status at one time, but who is currently in another valid status and for whom a non-frivolous I-129 Petition to obtain H-1B status has been filed.”

Specifically, E-Verify states that:

USCIS guidance dated December 27, 2005, states that “porting under INA §214 does not require that the alien currently be in H-1B status as long as he or she is in a ‘period of stay authorized by the Attorney General.’” That statement serves to clarify the earlier section specifically referring to an “H-1B alien” and should be read in the context of the particular example given: an alien who was in H-1B status and is now in an authorized period of stay based on a timely filed extension of H-1B status petition on the alien’s behalf, and who then seeks to start working for a different H-1B employer upon that employer’s filing of a petition. This interpretation is consistent with USCIS guidance to the public on its website (Nonimmigrant Services, H-1B FAQs, page 61) which states:

Changing employers – An H-1B worker can change employers, but first the new employer must file a labor condition application and then file a new H-1B petition. If the worker is already an H-1B, he or she can then begin the employment as described in the petition without waiting for USCIS to approve the petition. This is called a “portability provision,” and it only applies to someone already in valid H-1B status.

Difference of Interpretation?

AILA has indicated that they would seek to argue the USCIS interpretation, as applied to E-Verify.  AILA’s argument is that the E-Verify protocol is inconsistent with the clear language of the statute.

Conclusion

This E-Verify position and the issuance of nonconfirmations to H-1B portability employees affects a relatively small portion of H-1B employees.   Again, only those who have had H-1B status, have changed to another status (such as H-4 or F-1) and subsequently seek to start working upon the filing of an H-1B change of status application are affected.   Normally, and well before the current E-Verify guidance was issued, we advise employers and employees in similar situation to first secure the H1-B approval (perhaps by filing under premium processing) before starting employment.  This USCIS position and E-Verify guidance validates our practice.

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USCIS to Launch a Redesigned E-Verify Site

USCIS has unveiled a substantial redesign of the E-Verify system website.  The changes are both in terms of design and functionality.   The new E-Verify site will go live on June 13th, and USCIS has advised us that all user accounts will remain valid and active.

Graphic Design

E-Verify’s design has seem to be somewhat of an afterthought for the initial designers.  Not anymore.  E-Verify’s design now features cleaner page elements, better visual clues for case status and other important pieces of information.

Functionality

Some interesting functionality has been added.  Among the most interesting, and most disappointing, is the case alerts feature.  E-Verity can keep track of a work authorization document’s expiration date and provide an alert when such document is about to expire.  However, the disappointment comes after realizing that a user must log into E-Verify to obtain such alerts.  According to USCIS, their “current system doesn’t support automatic “blast” e-mails other than for enrollment-related actions. We’re looking into solutions that would allow us to use e-mail more, but in the meantime, the new case alerts feature represents a big improvement in case management.”

Transition Resources

USCIS has made available some transition resources:

Conclusion

E-Verify’s redesign is a step in the right direction.  Not only visually pleasing, the system starts to add requested functionality.  We encourage USCIS to continue to listen to its constituents and add and improve features as more and more businesses decide (or are required) to adopt E-Verify.

The Capitol Immigration Law Group PLLC is E-Verify Designated Agent, please contact us if we can help your organization with its E-Verify and compliance matters.

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Report Highlights E-Verify Accuracy Problems

USCIS released, on January 28, 2010, a recent report conducted by an outside research firm, Westat, on the accuracy of E-Verify with respect to identifying illegal workers, among other classes of workers run through the   E-Verify system.  The E-Verify evaluation is part of an ongoing effort to evaluate E-Verify’s accuracy.

The Report’s Findings

The report focused on many aspects of E-Verify, but the main number which has drawn attention recently is the fact that according to the Westat report, 54% of the unauthorized workers run through E-Verify result in an authorization to work.  Westat and USCIS attribute this high number to identify fraud – unauthorized workers who use and submit documents of a person who is authorized to work.  However, this high percentage of inaccurate E-Verify authorization has stirred some political and emotional responses.  See Wall Street Journal and Forbes articles.

Overall, Westat found that an estimated 96 percent of all E-Verify initial responses were consistent with the person’s work authorization status:  93.1 percent of all E-Verify cases involved authorized workers who were initially found to be authorized; 2.9 percent of all E-Verify cases involved unauthorized workers who received final non-confirmations.

4.1 percent of the initial responses were inconsistent with employment eligibility status: 0.7 percent of all E-Verify cases involved authorized workers who were not initially found to be authorized to work; 3.3 percent of all E-Verify cases involved unauthorized workers who were found to be employment authorized.

Although the numbers, overall, are positive, the main concern and recent political storm came after breaking down this number relating to the 3.3 percent of all E-Verify cases involving unauthorized workers who were found to be eligible to work.  Put in another way, out of the 6.2 percent of all E-Verify cases in which the workers were not authorized to work, the system failed to discover the unauthorized worker and permitted work 54 percent of the time.

USCIS’ Response

In the summary of the report, USCIS tries to defend this alarming number of inaccurate work authorizations by putting the numbers in context and by showing the high success rate across other categories.  While this is true, one of E-Verify’s main goals was to eliminate unauthorized work.  The Westat report casts shadow on this.   USCIS has taken steps to eliminate or decrease this rate of inaccurate authorizations.  It is USCIS’ claim that most of these false authorizations are due to identity theft – as a result, USCIS is implementing a photo tool as part of E-Verify so that employers can match the photo of the documents submitted, with one in government records, and with the actual employee.  Additionally, USCIS is attempting to integrate additional government databases to be able to provide more accurate and reliable information into E-Verify and increase its accuracy rate.

Basis for the Report

The report was based on several sources of data covering September 2007 to June 2008: USCIS staff and contractor interviews, focus groups, web survey of 2,320 E-Verify employers, in-person interview with 109 E-Verify employers and 424 workers who have received tentative non-confirmations (TNC), review of 1,246 records of workers who received TNCs and review of E-Verify program data.  Additionally, Westat developed models to develop estimates of the numbers of true employment authorizations; models were necessary because the true data is unavailable.

Conclusion

The Westat report is very useful in evaluating the E-Verify program’s current state.  Obviously, the 54 percent inaccuracy rate discussed above is going to be the focal point of discussions related to E-Verify over the near term.  It is worth noting, however, that the Westat report used data which is not at least 18 months old and E-Verify has steadily been improving the accuracy of its data and models.  Additional tools, such as the photo tool, are also helpful in eliminating certain types of work authorization and identify fraud.

We applaud USCIS efforts to improve E-Verify and to engage independent third parties to conduct research and test the accuracy of the system.  As an E-Verify Designated Agent, we have helped many of our clients handle with a number of E-Verify issues and have been happy with the willingness of USCIS to improve the system.

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DHS Reports on Employer Enforcement and Compliance

The Department of Homeland Security (DHS), in a recent symposium, has provides some useful insight into its operations and policies.  We are happy to share some of DHS’s disclosures.

DHS Investigations on Employers to Continue and Increase

Janet Napolitano, the DHS Secretary, has indicated that employer investigations will continue and, possibly, intensify.  In 2009 there were $24 million in employer fines (compared to zero in 2006).  In 2009, 45 businesses and 47 individuals have been debarred while in 2008 only one was debarred.  Immigration and Customs Enforcement (ICE) has issued  over 1,000 I-9 Notice of Inspection (NOI) in 2009 to random employers with another 1,000 announced at the symposium.   I-9 audits, many of which are conducted randomly, may result in civil penalties, and where bad faith is found, lead to criminal prosecution.

DHS has clarified that it would continue under a two-prong approach:  (1) prosecute employers acting in bad faith and (2) work with employers to achieve compliance.

E-Verify Updates

DHS announced that there are more than 170,000 employers in the E-Verify system.  In 2008, there were 8.5 million queries run on new hires.  96.9% of those new hires were authorized by E-Verify within 24 hours; 2.8% are found to be ineligible to work; and 0.3% received tentative non-confirmation but were later confirmed as authorized to work.

DHS announced that the photo tool will be soon made available to designated agents, as well as to employers. The photo tool should also be expanded to include passport photos of U.S. citizens.

E-Verify Usage Issues.  DHS noted several E-Verify usage issues, as reported by a third party engaged to analyze E-Verify usage.

  • It was reported that 16% of the E-Verify employers did not complete the tutorial – which can indicate, according to DHS, sharing of passwords by employers or insufficient training;
  • 16% of the E-Verify employers use the system as a pre-screen, which is a violation of the E-Verify and can be prosecuted;
  • 20% of employers took adverse action against prospective employees who received a tentative non-confirmation, again, in violation of E-Verify rules;
  • 9% of employers received a tentative non-confirmation but failed to give notice to the employee of the election to contest.

FAR

Over 18,000 federal contractors are now enrolled in E-Verify following rules requiring such participation.  9,000 federal contractors have the FAR clause inserted in the federal contracts.

Conclusion

In light of these updates on DHS policies, it is clear that DHS will sharpen its focus on employers and require proper E-Verify participation (for E-Verify employers) and good Form I-9 compliance practices.  The increasing audits, fines and, in some cases, debarments, should serve as a notice to employers to create and follow proper employment authorization and immigration compliance programs.    Please contact us if we can help you evaluate and modify your programs.

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Federal Contractors Required to Use E-Verify Beginning September 8, 2009

There has been quite a bit of legal activity in connection with the Bush administration executive order requiring federal contractors to use E-Verify to check the employment eligibility of all  newly hired employees as well as current employees directly working on a contract.

Rule Goes Into Effect on September 8, 2009

On August 26, 2009, a U.S. District Court struck down the challenges to the E-Verify rule.  As a result, the new rule goes into effect on September 8, 2009.

This means that most federal contracts awarded, as well as solicitations issued after September 8, 2009, must include a clause mandating use of E-Verify for all employees hired during the contract period and all existing employees assigned to perform work under the contract.  The United States Citizenship and Immigration Services (USCIS) has published information and frequently asked questions on its website regarding application of the rule.

E-Verify Compliance

The Capitol Immigration Law Group is an E-Verify designated agent which allows us to handle E-Verify compliance on behalf of our clients.  If you or your company are interested in E-Verify compliance assistance please feel free to contact us.

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