If you have been following their press releases, complaints, and settlement agreements over the past several months, the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has announced a number of settlements under the general heading of “document abuse” or “citizenship discrimination.”These settlements, touted along with the amounts of fines OSC has collected span multiple industries from janitorial (Commercial Cleaning Systems, Master Klean Janitorial) to food service (El Rancho Corp., SK Food Group) to construction (Potter Concrete). The settlements and their accompanying press releases are virtually identical, right down to the pro forma quotes from OSC officials. As the OSC website shows, settlements of these immigration-related unfair employment practices are nothing new, but the settlement agreements also share one other common thread: all of the settling parties participated in E-Verify and OSC initiated its investigations in almost all of these cases when a branch of the U.S. Citizenship and Immigration Service (USCIS) referred the matters to OSC.
It appears that the USCIS’s Verification Division Monitoring and Compliance (“M&C”) Branch is the source of these referrals. The USCIS created the M&C Branch in 2009 to ensure that the E-Verify operational requirements mandated by Congress are being met. In creating the M&C Branch, the USCIS cited an increased ability to monitor private employers through the E-Verify system, media reports, complaints from affected individuals, or tips from law enforcement agencies. The M&C Branch does not have authority to fine employers itself, but does refer cases of suspected misuse, abuse, and/or fraud to the OSC and to Immigration and Customs Enforcement (ICE), as some of OSC’s notices explain.
Some of the non-compliant behaviors the M&C Branch monitors include:
- Fraudulent use of alien number and Social Security number by E-Verify users;
- Failure to create an E-Verify case within the third day after the employee started work for pay;
- Verification of existing employees (as opposed to new hires);
- Verification of job applicants, rather than new employees;
- Selectively using E-Verify for verifications based on foreign appearance, race/ethnicity, or citizenship status;
- Failure to print the Tentative Non-Confirmation Notice (now called “Further Action Notice”) when triggered by the E-Verify system; and
- Failure to use E-Verify, consistently or at all, once registered; and
- Unauthorized use of E-Verify information.
The M&C Branch also uses algorithms to detect patterns of potential E-Verify misuse. As part of its compliance tracking, the M&C Branch provides information and guidance to E-Verify participants by emails and phone calls as well as through participation in a desk review or site visit. Participants selected for a desk review provide M&C Branch with E-Verify employment-related documents, such as copies of TNC notices, referral letters, and electronic copies of human resources procedures for processing I-9 forms and E-Verify cases. The M&C Branch reviews and analyzes these documents and then typically advises the employer on how to correct any problems, though it can also simply refer the matters to ICE or OSC. During a site visit, the M&C Branch provides compliance assistance by discussing its observations on how the E-Verify participant processes their cases and it advises on how to properly follow E-Verify policies and procedures.
E-Verify is a voluntary system that allows employers to verify the employment authorization of newly hired employees. Enrolling in E-Verify does not replace the I-9 form, but rather adds additional responsibilities (and potential liabilities) for employers enrolled in the program. The M&C Branch’s increasingly active role in worksite enforcement underscores the need for employers who enroll in E-Verify to dedicate sufficient resources to ensure that the program and the underlying Form I-9 process are used correctly, that these important employee hiring steps are subjected to regular audits (preferably conducted or overseen by experienced immigration counsel), and that any deficiencies are quickly, accurately and fully resolved.