U.S. Citizenship and Immigration Services (USCIS) recently announced its intention to expand not only its E-Verify communication services but also implement new obligations for employers that participate in the E-Verify program (either voluntarily as a federal contractor or as required by state law). E-Verify is a USCIS sponsored, Internet-based system that compares information from an employee’s Form I-9 to data on file at the U.S. Department of Homeland Security and the Social Security Administration (SSA) to confirm employment eligibility. Several of these changes could create complications or increase potential burdens for employers that use the program. USCIS announced its intention to amend aspects of the program by publishing 80 Fed. Reg. 32408, 32408 (June 8, 2015) (amending 48 C.F.R. § 52.222-54) and providing the following summary:
- Three proposed enhancements:
- Final Nonconfirmation (FNC)—Allows employees to contest FNCs that they feel have been issued in error. A new process that allows the employees to request a review of their FNCs will replace the current manual review process.
- Reverification—Requires employers to use E-Verify to reverify employees whose work authorization has expired. These include employees who were hired before the employer signed the E-Verify Memorandum of Understanding (MOU).
- Updated MOUs—Revisions have been made to the E-Verify MOUs to support the proposed business processes.
- Streamlined Tentative Nonconfirmation (TNC) Processes
To provide employees with greater access to E-Verify information, USCIS has simplified the TNC process to streamline the notice that an employer provides to the employee. USCIS has also designed new email messages to communicate directly with the employee regarding Social Security Administration and Department of Homeland Security TNC notices.
This overview will start with the most straightforward changes and end with the most burdensome.
- Updated MOUs
If the proposed changes occur, employers that participate in E-Verify would not need to take any action regarding the previously signed MOUs. However, employers would need to carefully review the procedural updates and, ultimately, ensure compliance with them. If implemented, the burden would be for the company to align its new E-Verify procedures with the effective date of any change.
- Streamlined TNC Process
The proposed changes to the TNC process would keep the employee and the employer apprised of the TNC review and status. For the employee to participate in this new, streamlined communication service, the employee’s email must be included when the employer completes E-Verify. The E-Verify email communication would not only advise the employee of the existence of a TNC and the underlying issue from either USCIS or SSA, but would also provide an eight-day reminder. By providing employees with direct communication concerning a TNC, this proposed change would fundamentally alter the current dynamic, in which the employer serves as the conduit of such information. While this change reduces the burden for employers of conveying any information about a TNC, it also results in a situation where the employer could, ironically, find itself playing catch-up after being approached by an employee before the employer has had time to study the situation on their own.
- Final Nonconfirmation (FNC)
The proposed changes to the FNC would make a formal review process available to an employee who disagrees with a FNC finding. This proposed review process would include notifying the employer and employee of the FNC finding. The employer must provide the employee’s email address when completing E-Verify for the employee to receive notifications. It would also allow the SSA to update the E-Verify system with its findings, an option that is currently unavailable. This change introduces some new burdens and potentially sensitive issues for employers. Under the new review process, the administrative burdens borne by employers may not end at the conclusion of a TNC or even at the issuance of the FNC, continuing instead through the duration of the new FNC review. As with current processes, if a FNC is issued that finds an employee is not authorized to work in the United States, the employer has the choice to continue employment or separate from the employee. However, if the employee disagrees with the FNC, it is unclear if the employer may take adverse employment action while the FNC review process is pending.
The most significant proposed change would be to require employers to reverify employees in the E-Verify system (e.g., nonimmigrant foreign nationals with H-1B work authorization). Currently, employers are only required to reverify employees on the Form I-9. This proposal would apply the Form I-9 reverification requirements to E-Verify. Taking it one step further, employers would also be required to add employees who were not originally E-Verified by the company. This is an entirely new step for E-Verify as employers currently only include new employees who are hired after the employer has joined the program, but do not include employees who were employed prior to the employer’s participation in E-Verify. This new process would require employers to add the reverified employee to its E-Verify system, significantly increasing employers’ administrative burdens and underscoring the importance of having an accurate and comprehensive tracking system.
The proposed procedure would require employers to reverify the necessary employees within three days of work authorization expiration. Further, the employer is not allowed to reverify until the work authorization has expired. Absent from this proposed process is whether the E-Verify system would issue any notification after three days for employees who are entered into the system. If this proposed process is implemented, employers would need to update their current processes upon the effective date. The importance of following this process is paramount as the federal government will now have real-time data regarding whether reverification has been completed.
Another important factor in reviewing these proposed changes remains: any changes to the E-Verify program would not impact or relieve an employer of its I-9 obligations. In addition, these proposed changes could be indicative of a step toward transitioning from Form I-9s to E-Verify as the primary method and process of verifying an employee’s identity and work authorization.
According to the USCIS notice, the public will have 60 days to submit comments on the proposed changes to the E-Verify program. Instructions for submitting comments are included in the Federal Register notice.
In the end, if these changes are implemented, employers will have new obligations in complying with E-Verify. Employers will need to implement new processes to align with these changes, including ensuring that the company’s reverification notices are accurate. Along with these new processes, employers will be required to notify and train its employees who are responsible for completing Form I-9s and E-Verify.