You’ve made the decision to join E-Verify (or have been required to join by state law or federal contract): now what? If you think registering and training your human resources staff to use E-Verify means you’re finished, think again. An often overlooked, but important aspect of E-Verify participation is regular compliance auditing. The USCIS Monitoring & Compliance Branch (M&C) of the Department of Homeland Security is monitoring your E-Verify usage for compliance, which means you should as well. So just what does an E-Verify audit entail? How frequently should you conduct one and who should oversee it?
Last summer, USCIS issued the E-Verify Self-Assessment Guide (M-1044) to assist E-Verify employers in conducting compliance audits. Although the guide is helpful, when determining the audit model that works for you, consider the size of your company and number of new hires. And consider these general tips as well.
How Often Should You Audit? At least annually
We recommend that employers add E-Verify compliance to their regular Form I-9 audit schedule – meaning the compliance audit should occur at least annually. The federal government recommends tacking the audit onto the Form I-9 audit schedule as well.
Who Should Conduct the Audit? Human Resources and Experienced Counsel
By this point, most employers understand that immigration-related compliance can be complicated and that best practices change regularly. It is important that you understand the current regulatory landscape and adjust accordingly. Also, because of the myriad restrictions not only on how you complete a Form I-9 or create an E-Verify case, but also on how you rectify any misuse or error, it is important to tread carefully. Penalties for incorrectly correcting an error can surpass those for the original error. Because of these hazards, we recommend you engage experienced counsel in creating your E-Verify auditing procedures and in remedying any E-Verify misuse you uncover.
Depending on your size and available resources, though, once you create the auditing procedures (in consultation with experienced counsel), your E-Verify Corporate Administrator can conduct most of the audit by running and interpreting the results of various reports (most of which can be run through E-Verify).
What Should the Audit Cover?
The following areas should be considered during an E-Verify audit. Although not comprehensive, this list covers key steps in the E-Verify system that should be audited and some pertinent questions to ask during the review:
- Administrative Steps – Has each user completed the requisite E-Verify tutorial? Are the relevant posters drafted in Spanish as well as English, and displayed in plain view at all hiring sites? Does the program administrator regularly review and update users’ information and terminate users’ access once they no longer use the system and/or work for the employer?
- Creating a Case – Is the Form I-9 completed prior to creating a case in E-Verify? Is a new case created for all newly hired employees no later than the third business day after the employee starts work? Is all personally identifiable information safeguarded?
- Photo Matching – Are the required copies of documents maintained? Does the user compare the photo displayed by E-Verify to the photo presented by the employee?
- TNC – Does the user print the TNC notice and privately review it with the employee? Do both the user and employee sign the TNC notice? Does the user periodically check to ensure all TNCs have been contested or not contested? Is the original signed TNC notice kept on file? Does the user choose the correct case closure statement?
- Referrals – Does the user promptly print the referral letter? Does the user review the referral letter with the employee in private? Do both the user and employee sign the referral letter? Is the original signed referral letter kept on file? Does the user correctly choose the correct closure statement?
- Final Case Resolution – Does the user review the case status for those with pending cases with DHS or SSA? Does the user check E-Verify periodically for case resolution? Does the user close all cases using the correct case closure statement once a Final Nonconfirmation is received?
- Final Case Closure – Does the user close every case created in E-Verify? Does the user select the appropriate case closure statement?
- Other Common Issues – Have any E-Verify cases been created for employees hired before November 7, 1986? Have any employees been immediately terminated after receiving a TNC? Were cases created for employees hired prior to E-Verify enrollment? Were relevant acceptable documents reviewed and, if applicable, were copies maintained?
What next? If the audit uncovers misuse, your first step should be to seek assistance from experienced counsel to determine how to remedy any errors. Although detecting misuse is fairly straightforward, remedying the situation is not. Second, you should provide individualized training and feedback for the users implicated by the misuse, to reduce the likelihood of repeat errors. Third, the results of the E-Verify audit should be used in preparing your next annual Form I-9/E-Verify training session.
Finally, repeat this audit process at regular intervals (at least annually).