EmployeeScreenIQ Blog

It’s been fairly smooth sailing for the E-Verify, the government program that allows employers to check the legal right to work status of an employee in the United states, since it was made mandatory for federal contractors last year.  That is until now, where it is being reported that this system is failing to catch more than half of all illegal workers.  The technology is not the problem, nor are Social Security Administration’s or Department of Homeland Security’s databases.  The issue lies in its inability to detect identity fraud.  In other words, if the employee fills out their I-9 Form and presents documents that contain valid information (such as a social security, passport or drivers license number), the system simply can’t tell that they belong to someone else.

I suppose this is a better problem to have then the system regularly spitting our tentative non-confirmations for legal workers, but still something that will have to be addressed in some fashion.

Report: E-Verify Misses Half of Illegal Workers

By SUZANNE GAMBOA, Associated Press Writer – Thu Feb 25, 3:09 am ET

WASHINGTON – The system Congress and the Obama administration want employers to use to help curb illegal immigration is failing to catch more than half the number of unauthorized workers it checks, a research company has found.

The online tool E-Verify, now used voluntarily by employers, wrongly clears illegal workers about 54 percent of the time, according to Westat, a research company that evaluated the system for theHomeland Security Department. E-Verify missed so many illegal workers mainly because it can’t detect identity fraud, Westat said.

“Clearly it means it’s not doing its No. 1 job well enough,” said Mark Rosenblum, a researcher at the Migration Policy Institute, a nonpartisan Washington think tank.

E-Verify allows employers to run a worker’s information againstHomeland Security and Social Security databases to check whether the person is permitted to work in the U.S. The Obama administration has made cracking down on employers who hire people here illegally a central part of its immigration enforcement policy, and there are expectations that some Republicans in Congress will try in coming weeks to make E-Verify mandatory.

E-Verify correctly identified legal workers 93 percent of the time, Westat said. However, previous studies have not quantified how many immigrants were fooling the E-Verify system. Much of the criticism of E-Verify has focused on whether U.S. citizens and legal immigrants with permission to work were falsely flagged as illegal workers.

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I found the article,  Official: E-Verify changes in the works on NextGov.com and felt compelled to weigh in on the future of E-Verify.

Yes, the E-Verify program is set to expire at the end of this month if is not renewed. With the new Federal Contractor Rule finally in place, there is no chance of this happening. E-Verify will absolutely be extended.

What does the future hold for E-Verify? In my opinion, the contractor rule is a primer for future legislation which requires all U.S. employers to confirm workers’ employment eligibility status through E-Verify. But I don’t believe that E-Verify is ready to handle that type of capacity now or any time in the near future. Further, both the Social Security Administration and theDepartment of Homeland Security need to clean up their databases a bit more to be ready for “primetime”.

Are biometrics likely to be used in the future? Sure, eventually we might get there, but considering the time and cost involved, we are a long, long way off.

Conclusion:
Get used to E-Verify. It’s not going away. It’s going to expand and sooner, rather than later it will affect your organization if it hasn’t already.

Also, if you haven’t yet, check out our E-Verify podcast with Stu Lawrence from Form I-9.

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I recently spoke with Stu Lawrence from our channel partner, Form I-9 Compliance to discuss the federal mandate that all federal contractors must utilize E-Verify to confirm their employee’s right to work status in the United States.  This mandate is set to take effect on September 9, 2009.

Check out our podcast with Stu (below).

For more information on I-9 forms and the Electronic Employment Eligibility Process, please visit us at http://employeescreen.com/employmenti9.asp

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This is a reminder that all Federal Contractors are mandated to use E-Verify to confirm employee’s right to work status in the United States, effective September 8, 2009.

How to Comply
Employers must establish an account with the Department of Homeland Security by completing a Memorandum of Understanding. An account can be set up directly with DHS or through an approved channeling agent. Once the MOU has been approved, access to the E-Verify database will be activated. The employer must then have the employee complete an I-9 form and query the database within the first 48 hours of a new hire’s start date to determine if they have a legal right to work in the United States.

There are only two possible results of the query: Confirmation of the person’s legal right to work or a Tentative Non-Confirmation. In the event of a Tentative Non-Confirmation, employees are given 8 business days to resolve the issue with the Social Security Administration and, or DHS.

See July 8, 2009 release from the Department of Homeland Security

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The following is being reported to us via the National Association of Professional Background Screeners (NAPBS)

On August 19th the below Proposed Rule (provided in part) was published in the Federal Register announcing the rescission of regulations which would have placed onerous requirements on employers relating to the receipt of no-match letters from the Social Security Administration and the Department of Homeland Security. Essentially, under the amendments proposed by DHS, receipt of a no-match letter may have been sufficient, by itself, to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be work- authorized.  Employers should note however that DHS’ rescission of these regulations is because instead they will focus on immigration compliance through E-Verify, IMAGE and other verification programs.

Safe-Harbor Procedures for Employers Who Receive a No-Match Letter: Rescission

SUMMARY: The Department of Homeland Security (DHS) proposes to amend its regulations by rescinding the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters. Implementation of the 2007 final rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.

DATES: Comments must be submitted not later than September 18, 2009.

What led up to the Rescission of the Rule?
As stated in the Federal Register. Over the years, employers have inquired of the former Immigration and Naturalization Service, and now DHS, whether receipt of a no-match letter constitutes constructive knowledge on the part of the employer that he or she may have hired an alien who is not authorized to work in the United States. On August 15, 2007, DHS issued a rule describing the legal obligations of an employer following receipt of a no-match letter from SSA or a letter from DHS regarding employment verification forms. See 72 FR 45611. The rule also established “safe-harbor” procedures for employers receiving no-match letters.

On August 29, 2007, the American Federation of Labor and Congress of Industrial Organizations, and others, filed suit seeking declaratory and injunctive relief in the United States District Court for the Northern District of California. AFL-CIO, et al. v. Chertoff, et al., No. 07-4472-CRB, D.E. 1 (N.D. Cal. Aug. 29, 2007). The district court granted plaintiffs’ initial motion for a temporary restraining order against implementation of the August 2007 Final Rule. AFL-CIO v. Chertoff, D.E. 21 (N.D. Cal. Aug. 31, 2007) (order granting motion for temporary restraining order and setting schedule for briefing and hearing on preliminary injunction). On October 10, 2007, the district court granted the plaintiffs’ motion for preliminary injunction. AFL- CIO v. Chertoff, 552 F.Supp.2d 999 (N.D. Cal. 2007) (order granting motion for preliminary injunction).

The court raised three issues regarding DHS’s rulemaking action implementing the No-Match final rule: Whether DHS had (1) supplied a reasoned analysis to justify what the court viewed as a change in the Department’s position–that a no-match letter may be sufficient, by itself, to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be work- authorized; (2) exceeded its authority (and encroached on the authority of the Department of Justice (DOJ)) by interpreting the anti- discrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, 100 Stat. 3359 (1986), INA section 274B, 8 U.S.C. 1324b; and (3) violated the Regulatory Flexibility Act, 5 U.S.C 601 et seq., by not conducting a regulatory flexibility analysis. DHS subsequently published a supplemental notice of proposed rulemaking (SNPRM) and supplemental final rule to clarify certain aspects of the 2007 No-Match final rule and to respond to the three findings underlying the court’s injunction.. See e.g. 73 FR 15944 (Mar. 26, 2008), 73 FR 63843 (Oct. 28, 2008). Neither the SNPRM nor final rule, however, changed the safe-harbor procedures or applicable regulatory text. The implementation of the rule remains enjoined.

Basis for the Administration’s Policy Change?
As stated in the Federal Register notice.  On January 20, 2009, President Barack Obama was sworn into office. Shortly thereafter, on January 21, 2009, Janet Napolitano was sworn in as the Secretary of Homeland Security. Following the transition, the Secretary conducted a review of existing programs and regulations to determine areas for reform or improved efficiency. Pursuant to this review, DHS has determined that improvements in U.S. Citizenship and Immigration Services’ (USCIS) electronic employment verification system (E-Verify), along with other DHS programs, provide better tools for employers to reduce incidences of unauthorized employment and to better detect and deter the use of fraudulent identity documents by employees. As discussed below, DHS therefore has concluded that rescinding the August 2007 No-Match Rule and 2008 Supplemental Final Rule will better achieve DHS’s regulatory and enforcement goals.

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The Wall Street Journal is reporting that the U.S. Department of Immigrations and Customs Enforcement (ICE) is stepping up their efforts to audit U.S. employers who hire illegal workers.  According to John Morton, the new chief of of ICE, 654 companies are currently being audited with many more notices to follow.

These efforts are in stark contrast to the lax auditing practices of the previous administration.  And the fines are significant.  So employers, beware.  Make sure you have I-9’s in place with a process to ensure you are receiving valid identification.  Many employers now have started to use E-Verify and other electronic employment eligibility systems to help with compliance in this regard.

U.S. Intensifies Audits of Employers- Wall Street Journal

LOS ANGELES — A senior U.S. immigration official said Monday that his agency will intensify a crackdown on employers of workers in the country illegally as part of the Obama administration’s new immigration strategy.

John Morton, the new chief of U.S. Immigration & Customs Enforcement, a unit of the Department of Homeland Security, said that the agency is set to increase the number of companies it will audit and systematically impose fines on violators. Violations could also lead to criminal charges, he said.

On July 1, Homeland Security Secretary Janet Napolitano announced an audit of employers to verify whether their employees were eligible to work. Mr. Morton said that 654 companies are currently being audited and that many more employers will be notified soon that they also will be under scrutiny by the government.

“You are going to see audits regularly and on a larger scale,” Mr. Morton said during a two-day visit to southern California, his first since being appointed four months ago. “You will see the resuscitation of…civil fines.”

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The Department of Homeland Security has again delayed enforcement of the requirement that mandates federal contractors use the E-Verify system to check the eligibility of their employees to work in the U.S. until at least September 8, 2009.

This mandate was originally scheduled to take effect of January 15, 2009 but was pushed back to February 20, 2009 due to a federal lawsuit filed by the U.S. Chamber of Commerce and other business groups. The parties then agreed to extend the deadline to May 21, 2009.

According to WashingtonTechnology, the rollback is to allow President Obama’s administration more time to complete its review of the rule.

“It would be the fourth time DHS’ U.S. Citizenship and Immigration Services agency has delayed the controversial rule. Under former President George W. Bush’s executive order, about 168,000 federal contractors were to begin using E-Verify in January. The order applies to contracts of more than $100,000 and subcontracts of more than $3,000.”

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On Friday Congress passed the massive American Recovery and Reinvestment Act of 2009.  President Obama will sign this bill into law on Tuesday February 17th in Colorado. The $789 billion package is said to create and/or save more than 3 million jobs.  According to the Society for Human Resource Management (SHRM) the bill will have a considerable impact on its members.

A few areas that will affect Human Resources:

- E-Verify – All provisions for E-Verify were removed from the final version of the Bill.

- Unemployment and Health Care Coverage – A nine month extension of a program that offers an additional seven weeks of unemployment benefits.

- Health Care Technology – Almost $20 billion will be spent to improve the nations health care information technology.

- Trade Protection for Jobs – A provision was added that would extend Trade Adjustment Assistance benefits for at least 160,000 more workers who lose their jobs because of increased imports or because workers move those jobs offshore.

- Executive Compensation – A controversial provision limits compensation packages for businesses receiving TARP funds can offer their executive teams.

There are sure to be more areas of the 1,100 page bill that will impact Human Resources but these will have the most immediate.  Background screening companies were looking forward to the E-Verify provision as it allows us to enhance our automated I-9 Services.  The program is still available but voluntary for much of the country.  Stay tuned for more information in the coming weeks.

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The Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) has delayed the implementation of a new rule and new Form I-9 (Employment Eligibility Verification) governing the types of acceptable identity and employment authorization documents that employees may present to their employers.

The rule and new form were scheduled to go into effect today (February 2), but USCIS pushed back the effective date until April 3, 2009.

Unless the rule is delayed again, employers must use the revised Form I-9 for all new hires and to reverify any employee with expiring employment authorization beginning April 3. The current version of the Form I-9 (dated 06/05/2007) will no longer be valid as of April 3.

Under the new rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9. Under previous rules, a U.S. passport and all List B documents are acceptable for the Form I–9 even if they are expired.

The new rule will also add to List A of the Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI).

The rule makes other, technical changes to update the list of acceptable documents.  The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A.

The department says the delay will provide the agency with an opportunity for further consideration of the rule and also allows the public additional time to submit comments. USCIS has reopened the public comment period for 30 days, until March 4, 2009.

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This just in from NAPBS Lobbyist Montserrat Miller, of Counsel – Greenberg Traurig LLP.

According to Montserrat: Earlier this month, the litigants in the court challenge to the FAR Council’s regulations, mandating a modified version of the E-Verify/Basic Pilot program, reached an accord in which the government agreed to suspend applicability of the rule until February 20, 2009. Today, the litigants agreed to extend the applicability date to May 21, 2009, and asked  the court to stay the proceedings to allow President Barrack Obama’s Administration an opportunity to review the rule.

On January 20, 2009, Rahm Emanuel, President Barrack Obama’s Chief of Staff, issued a memorandum to the heads of all executive departments and agencies governing issuance and possible suspension of regulations. The memorandum stated that agencies should “[c]onsider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect.”

Under the new applicability date, which is expected to appear in Friday’s Federal Register, any solicitations that occur prior to May 21, 2009, would not contain the contract clauses that the rule would impose. As previously reported, the rule mandates on most federal contractors and subcontractors a modified version of the E-Verify/Basic Pilot program—requiring reverification of the workforce and creating vicarious liability for subcontractors.

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