Evaluating E-Verify: One Question at a Time
by John Fay
Earlier this week, the United States Citizenship and Immigration Services (USCIS) published a revised notice in the Federal Register seeking public comment on the E-Verify program. If you’re a frequent reader of the Federal Register (don’t worry, I won’t tell anyone), then you know that these types of notices are issued all of the time without much fanfare. But since this is the “I-9 and E-Verify Blog,” I thought it might be worthwhile to discuss this particular notice and offer some ideas on how you might actually evaluate the E-Verify program at your own organization. You might be a fairly new user of E-Verify, a seasoned veteran, or one of the many employers on the fence – waiting for a reason to jump or perhaps a good shove from your federal procurement officer or state legislator. Regardless, this blog should hopefully arm you with enough questions to write a really insightful comment to the USCIS or plan some much-needed changes to your own processes or procedures. So let’s begin!
This is actually not the first notice about the E-Verify program that we’ve seen this summer. Previously, USCIS had issued a notice on July 13th requesting comments on the E-Verify Memorandum of Understanding (MOU), which was apparently in error. This week’s notice clarifies that USCIS is seeking comments on the E-Verify program in general, and more specifically on “the burden for enrolling in E-Verify (and modifying an ID/IQ contract if applicable), inputting information directly from Form I-9, Employment Eligibility Verification into the E-Verify web interface, and performing initial and secondary queries (for example: referring and resolving tentative nonconfirmations).”
How do I go about evaluating the E-Verify program?
While the USCIS notice does not specifically address how an employer would go about critiquing the E-Verify program, I have a few suggestions which may be helpful (or at the very least, add fuel to your fire). Many of the questions below were derived from the USCIS E-Verify satisfaction report as well as other third-party reports which have been issued during the past year. At the onset, it’s important to note that USCIS is specifically requesting information on the burdens of the “E-Verify web interface” which inherently has more steps and necessary tasks than what is required in a well-designed electronic I-9 software solution.
As part of the enrollment process (for those not working with an E-Verify Employer Agent), you’ll need to provide E-Verify with some basic information, determine your access method, select your organization designation, review and electronically sign the MOU and a few other tasks as well. Much of the work surrounding enrollment actually occurs before you get to this process – such as determining which locations will participate, who will be responsible for managing the E-Verify process, changes to I-9 policies, etc. Here are some questions that you can ask yourself about your enrollment experience to generate some comments for the USCIS:
Employers using the web version of E-Verify are very familiar with the built-in tutorials which provide a fundamental overview and detailed instructions on using the E-Verify system. While the E-Verify tutorial has received good marks as of late, some employers are still frustrated by the “mandatory” nature of the tutorial or feel its lacking in specificity. Here are some questions to ponder when thinking about the tutorial:
The E-Verify interface itself has changed quite a bit over the past few years in an effort to enhance usability, simplify terms, and make the process more intuitive. By and large, they’ve done an excellent job in “modernizing” the look of E-Verify, but what about the flow and functionality? Think of these questions as you decide whether using E-Verify through the web is as efficient as you might like it to be:
The TNC process
When we think of E-Verify burdens, the first thing that always springs to mind is the tentative nonconfirmation process. Steeped in mystery (at least to the uninitiated), the TNC might seem like just a minor “glitch” or a “big deal” in the grand scheme of verifying your employee’s right to work. Regardless, you’ll want to make sure that you go through all of the necessary hoops to resolve the TNC (if contested) and ensure that your employee is treated fairly. In that vein, here are some questions about the E-Verify web TNC process to mull over:
An analysis of “burdens” would not be complete if we didn’t consider the potential and actual costs of using the system from an employer perspective. There have been several excellent studies on this recently, including reports from the Center for American Progress, Bloomberg, and the National Foundation for American Policy to name a few. Each one of these reports describes (in some detail) the various costs associated with setting up the E-Verify program, including ensuring proper training, investing in the necessary people/equipment, and seeking advice/counsel as needed. While these factors are not directly related to the E-Verify interface, here are some questions you should be asking yourself in thinking about the E-Verify program in general:
As I’ve mentioned in prior blog posts, I think the USCIS has been doing an excellent job in advancing the E-Verify program through an abundance of outreach initiatives, user interface enhancements and overall simplification of the process. Despite these efforts, however, the E-Verify experience can still be quite burdensome – especially for larger employers that cannot change their practices/processes on a dime. These employers need to make a coordinated effort to successfully manage their E-Verify program which includes close consultation with immigration counsel, an effective communication plan, and the use of smart tools which combine both the I-9 and E-Verify steps into one seamless process. As E-Verify continues to evolve and gain even more traction at both the state and federal levels, employers should make sure to utilize these resources and tools to ease E-Verify burdens and ultimately save costs down the road.Originally published by Law Logix Group, Inc Reprinted by Permission.
John Fay is an experienced corporate immigration attorney and I-9/E-Verify blogger with a unique background in designing and advising on case management technology. While practicing immigration in New York City, John designed and managed his firm’s proprietary web-based immigration management system, which featured a fully multilingual interface for international organizations. In his current role, John serves as Vice President of Products and Services and General Counsel at LawLogix, where he is responsible for overseeing product design and functionality while ensuring compliance with rapidly changing immigration rules.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.