Labor Immigration Law

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.

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.

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:

• Watch the two new “How to” videos, which demonstrate how to create a case and how to respond to a tentative nonconfirmation (TNC).
• Download the new user manuals and quick reference guides to become familiar with how to use E-Verify (updated publications will be available in early June).
• Attend one of our sneak preview Webinars to learn more and get your questions answered.

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.

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.

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.

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.

As an E-Verify designated agent, we provide E-Verify verification services to many small and mid-size businesses and allow them to assure E-Verify participation without the hassle of running E-Verify inside their operations.

An E-Verify designated agent, we work with our E-Verify company clients to ensure that they follow the rules and procesures required by E-Verify.  This is a helpful chart showing some of the major DOs and DON’Ts when it comes to E-Verify.

DOs:

• Use program to verify employment eligibility of new hires;
• Use program for all new employees regardless of national origin or citizenship status;
• Use program for new employees after they have completed the I-9 Form;
• Promptly provide and review with the employee the notice of tentative nonconfirmation (of one is issued);
• Promptly provide the referral notice from the Social Security Administration (SSA) or Department of Homeland Security (DHS) to the employee who chooses to contest a tentative nonconfirmation;
• Allow an employee who is contesting a tentative nonconfirmation to continue to work during that period;
• Contact E-Verify if you believe an employee has received a final nonconfirmation in error;
• Post required notices of the employer’s participation in E-Verify and the antidiscrimination notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC);
• Accept any Form I-9 List B document with a photo from an employee who chooses to provide a List B document;
• Secure the privacy of employees’ personal information and the password used for access to the program;
• Delay running an E-Verify query for an employee who has not yet been issued a Social Security number until the Social Security number is issued;
• Allow an employee who has not been issued a Social Security number to work throughout the period that the employee is waiting for his or her Social Security number to be issued.

DON’Ts

• Use program to verify current employees;
• Use program selectively based on a “suspicion” that a new employee or current employee may not be authorized to work in the U.S. or based on national origin;
• Use program to pre-screen employment (applicants unless you are a State Workforce Agency);
• Influence or coerce an employee’s decision whether to contest a tentative nonconfirmation
• Terminate or take adverse action against an employee who is contesting a tentative nonconfirmation, including denying or reducing scheduled hours, delaying or preventing training, mistreating the employee, requiring the employee to work longer hours, requiring the employee to work in poorer conditions, or subjecting the employee to any assumption that s/he is unauthorized to work during this period, unless and until receiving a final nonconfirmation or no show response;
• Ask an employee to obtain a printout or other written verification from SSA or DHS when referring that employee to either agency;
• Ask an employee to provide additional documentation of his or her employment eligibility after obtaining a tentative nonconfirmation for that employee;
• Request specific documents in order to activate E-Verify’s photo tool feature;
• Run an E-Verify query for an employee who is waiting for his or her Social Security number to be issued until the employee is issued a Social Security number.

If you are an employer and are not already E-Verify participant, we would be happy to discuss the options and the needs of your organization to become part of E-Verify.  Please contact us to set up an E-Verify appointment and evaluation.

The U.S. Citizenship and Immigration Service (USCIS) has proposed a change to the way it monitors how employers use E-Verify, the government’s employment verification system.

The proposed rule, published in the Federal Register on May 22, 2009, exempts portions of the Department of Homeland Security’s Compliance Tracking and Management System from the Privacy Act of 1974 and would allow investigators to track E-Verify transactions better and be able to identify behavior which may run against E-Verify policies and procedures. For example, the proposed rule would allow tracking of attempts to use a single Social Security number for different employees, thereby giving the ability to flag fraudulent employment verification attempts.

The proposed rule could require investigators to contact or even visit employers to look into the issue and to determine if there are systemic problems, which the Verification Division of the USCIS needs to correct.  In addition, the research by the USCIS officials could be used to determine if additional training or outreach for employer compliance is needed or if fraudulent or illegal activities exist.

USCIS has updated Form I-9, Employment Eligibility Verification and the new form is available for us; however, two versions exist. Please note that the version dated 06/05/07 is only available if used BEFORE February 2, 2009. The version dated 02/02/09 will be appropriate for use ON or AFTER February 2, 2009.

UPDATE: the implementation of the updated Form I-9 has been delayed.

The E-Verify program now has 100,000 employer participants, USCIS announced yesterday.  In a press release celebrating the milestone, USCIS also updated some interesting statistics about E-Verify.

Employers have run more than 2 million queries through E-Verify since October 2008, and employers have been able to automatically verify more than 18 million workers’ eligibility since 1997.  As of now, approximately 96.1 percent of qualified employees are cleared automatically by E-Verify, and  99.6 percent of all work-authorized employees are verified without receiving a tentative nonconfirmation or having to take any type of corrective action.

The increase in participating E-Verify employers is not surprising.  While participation in the program is voluntary, this is not entirely the case.  There are 15 states which require certain employers to participate  and comply in some manner with E-Verify.  Also, federal contractors (with some exceptions) are required to use E-Verify.

If you are interested in E-Verify, we at the Capitol Immigration Law Group are an E-Verify designated agent and we can help your company become E-Verify compliant employer.  Please feel free to contact us.