On July 1, 2013, USCIS announced its latest “customer service enhancement” to E-Verify. If an employee voluntarily provides his or her email address on the Form I-9, E-Verify will notify the employee directly of a Tentative Non- Confirmation (TNC) at the same time it notifies the employer. Given that E-Verify monitors how an employer complies in a timely manner with its contractual obligations to the Government, employers must review their standard operating procedure to ensure it does not run afoul of the law.
But now that E-Verify is also “deputizing” employees—by notifying them and encouraging them to report alleged discrimination or unfairness —employers MUST ALSO confirm that information being transmitted via E-Verify to the Government mirrors the documents provided by the new hire AND that each employee is treated in a uniform and consistent fashion. Systems may have to be implemented to provide such assurance.
In addition to providing the initial notice of a TNC, E-Verify will send reminder emails to employees if no action to resolve the TNC has occurred within four days of a decision to contest and notify them about the possible need to update a Social Security or Department of Homeland Security record.
Although the agency concluded that neither the employer nor the employee’s privacy would be impacted by the update, that may not be correct. It is one thing for the Government to conclude that because employers already are obligated to maintain verification records, the fact that E-Verify may notify an employee directly of a TNC changes nothing. But potentially encouraging employees to sue their employers by sending them reminders may be quite significant.
If the number of immigration-related employment discrimination claims jump in the coming months, it may signal that this enhancement has impacted employers detrimentally.