E-Verify: Between A Rock And A Hard Place
As of this writing, the Department of Homeland Security [DHS] has made the E-Verify program mandatory for most federal contractors [effective 9/8/2009.] It has also been a voluntary program for all employers since 1997, which DHS is now utilizing aggressively, along with other enforcement measures.
What is E-Verify?
E-Verify is an electronic employment eligibility verification system that is a companion to Form I-9 employment verification. The system is operated jointly by DHS and the Social Security Administration [SSA.] It is an outgrowth of the 1986 Immigration Reform & Control ACT [IRCA], making it illegal for employers [hereinafter "ER(s)"] to "knowingly" employ unauthorized workers.
DHS Enforcement Goals and Tools
U.S. Immigration & Customs Enforcement [ICE] has recently stated: "ICE is committed to the aggressive investigation and criminal prosecution of ERs who knowingly hire unauthorized aliens. ICE believes that criminal prosecution, seizure of assets, and imposition of meaningful civil penalties are the most effective means of combating the unlawful employment of aliens."
DHS/ICE inspections and audits, which have increased dramatically, may include issuances of a Notice of Suspect Documents, Notice of Technical or Procedural Failures and Notice of Intent to Fine. (Subpoenas may also be issued, but only after the initiation of a civil action.)
Investigations by ICE also employ the following tools and resources: I-9 audits, tax returns, use of EEs as informants, No-Match SS letters, IMAGE program (mandating strict ICE requirements,) Department of Labor audits, local police reports (identity theft issues) and insurance companies' reports (work injury data and SS mismatches) create red flags, and the Social Security Number Verification Service [SSNVS.] The integration of government agencies and their databases has produced an unprecedented juggernaut of enforcement.
Problems with E-Verify
One problem with E-Verify is that voluntary participation offers no "safe harbor." There have even been instances of audits of E-Verify ERs. Additionally, there are flawed federal databases, and frequently legitimate data discrepancies. These errors can cause wrongful termination, Privacy Act charges, discrimination claims, and result in thousands of citizens and legal residents losing their jobs. A December 2006 report by U.S. Citizenship and Immigration Service [USCIS] and SSA found a 4.1% error rate, translating into 17.8 million recorded discrepancies, 13 million of which belonged to U.S. citizens. Moreover, the additional labor, resource and personnel costs can be unduly burdensome. E-Verify requires review of an entire work force for compliance, verifying new hires, training compliance EEs and resolving data errors.
DHS Test for a Determination of "Constructive Knowledge"
In its final rule, effective 11/6/2009, DHS stated that "the totality of the circumstances" determines the ER's "constructive knowledge" in a given case. The final rule also rescinded the safe harbor provision for ERs who received SS No-Match Letters. DHS guidance rests largely upon an example. "[R]eceipt of a No-Match Letter and an employer's response to … [it], in the totality of the circumstances, may support a finding of 'constructive knowledge.' [Therefore,] it may be used as evidence of a violation…." Further, the final rule recommends that "A reasonable employer would be prudent, upon receipt of a No-Match letter, to check their own records for errors, inform the employee of the [N]o-[M]atch letter, and ask the employee to review the information."
So, employer and counsel beware. Once ICE has contacted an employer, the new constructive knowledge standard opens a Pandora's box of potential fines and criminal penalties. Even the previously safe receipt of a No-Match letter could now spark further investigation.
Recommendations for ER
- (ER enters the new employee's [hereinafter "EE"] personal identification information within three (3) days of hire.
- DHS checks the information against SSA and DHS databases. If employment eligibility cannot be confirmed, E-Verify sends a "tentative non-confirmation" of employment status to the ER.
- ER must then inform the EE of the "tentative non-confirmation," giving the EE eight (8) business days to refute it.
- If the EE contests the determination, SSA or DHS must review the employment status within ten (10) federal working days. If that review fails to verify work eligibility, a "final non-confirmation" is issued. A "final non-confirmation" is also issued if the EE does not contest the "tentative non-confirmation."
- A "final non-confirmation" means the EE must be fired.
Given the database errors, aggressive government perusal of company forms and information, DHS silence on "good faith efforts," and no safe-harbor provisions, immigration counsel, thus far, have recommended that ERs not participate in E-Verify. The one exception is if ER has been contacted by ICE. ER is then advised to sign up for E-Verify to demonstrate good faith compliance.
- Encourage proactive defense measures before a government audit or notice letter.
- Review all I-9s for accurate completion and possible red flags re: unauthorized employment. This can be as seemingly innocent as overlooking the expiration date on an employment authorization document and failing to re-verify. There is an increase in I-9 audits, which is the government's frequent method of getting its very large foot in your client's door.
- Discover if ER has received SS No-Match letters, and advise accordingly. While SS No-Match letters have not been issued since 2006, old SS No-Match letters and ER responses to them are taken seriously.
- Help ER establish company-wide compliance protocols.
- Advise ER to respond to all potential enforcement catalysts, even to 3rd party actions, both governmental and private.
- Once ER is contacted, prepare ER to expect DHS/ICE to request, among other items; all I-9s, list of all EEs terminated within the past 6 months, tax ID number(s), all SSA correspondence, quarterly wage and hour statements, and tax returns. Moreover, ICE will request the documents within three (3) days. Although ICE is only entitled to the I-9s within 3 days, it is wise to provide more, and request an extension to produce the rest of the documents. Work together with the ICE inspector, and make good faith efforts to comply.
About The Author
Norine F. Krasnogor is the resident partner of Krasnogor & Krasnogor, LLP.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.