E-Verify: the Good, the Bad, and the Unresolved

The United States Citizenship and Immigration Services (USCIS) has recently released an independent report of the E-Verify system, highlighting the successes, failures, and remaining challenges that face employers face today.

The Good

USCIS reduced the Tentative Nonconfirmations (TNCs or mismatches) from 8% between June 2004 and March 2007 to almost 2.6% in fiscal year 2009. TNCs result when the information from an employee’s Form I-9 does not match government records and E-Verify indicates the case may require additional action.

Additionally, USCIS data indicates that about 97.4% of almost 8.2 million newly hired employees were immediately confirmed as work authorized by E-Verify during fiscal year 2009, compared to 92% during June 2004 through March 2007.

Conversely, about 2.6% of newly hired employees, or over 211,000, received either a Social Security Administration or USCIS TNC, including about 0.3% who were determined to be work eligible after they contested a TNC, and about 2.3% who received a Final Nonconfirmation (FNC) because their employment eligibility status remained unresolved.

The Bad

Despite the reduction of TNCs overall, it appears that erroneous information is still a way of life. Employee information, like the E-Verify system itself, is constantly being updated and changed. Also, it is not uncommon to have misspellings or other name variations for first or last names. In these instances, TNCs may result because the employer is uncertain how exactly to enter the name into the system. According to USCIS, of the TNCs resulting from name mismatches in fiscal year 2009, approximately 76% were for citizens and 24% were for noncitizens. USCIS has included information on its website to help employers enter various name combinations to reduce some of these TNCs.

The Unresolved

Over the past two years, USCIS has more than doubled the number of monitoring and compliance staff overseeing employers’ use of E-Verify. Apparently, however, the staff still lacks the appropriate technology to discern instances of suspected employer misuse easily. According to senior E-Verify program officials, such capabilities will be addressed by fiscal year 2012, through an estimated $6 million advanced data system. USCIS expects this system, known as the Data Analysis System, to automate about 80% of the Monitoring and Compliance Branch’s workload.

It looks like E-Verify will be with us for the foreseeable future. The fiscal year 2010 DHS Appropriations Act reauthorized the E-Verify program through September 30, 2012, and provided USCIS with $137 million for program operations. Employers must prepare themselves by implementing appropriate policies, procedures, and technology to address the potential pitfalls of an erroneous TNC or FNC, as well as other challenges, such as identity theft and discrimination.
 

Guest Blog by Scott Blaney

The tide of state immigration laws in Arizona appears to have ebbed. On March 17, 2011, the Arizona State Senate voted down five controversial bills aimed at controlling illegal immigration in the state. The Senate’s rejection of the bills came just two days after 50 Chief Executive Officers in Arizona sent a joint letter to Senate President Russell Pearce urging the Arizona Legislature to back off from efforts to regulate immigration at the state level.

The latest bills follow the 2007 Legal Arizona Workers Act (“LAWA”) and the 2010 Senate Bill 1070, both of which put Arizona at the forefront of states seeking to regulate immigration within their borders. The LAWA was one of the first state-level bills to mandate that businesses use the federal E-Verify system to verify work eligibility of all new hires on or after January 1, 2008. Challenges to the law have been unsuccessful to date and the law is currently under consideration by the U.S. Supreme Court.

A federal court blocked the most controversial parts of Arizona’s other high-profile immigration law, the “Support Our Law Enforcement and Safe Neighborhoods Act,” or SB 1070, such as its mandate that police officers check a person’s immigration status while enforcing other laws. See “Arizona Governor Signs Controversial Immigration Bill Into Law.” Passions run high on both sides of the SB 1070 debate and SB 1070 may find its way to the U.S. Supreme Court, as well.

The five bills defeated in March sought to regulate immigration in a number of ways. For example, SB 1405 would have required hospitals to inquire into an individual’s immigration status and notify law enforcement if an immigration violation was suspected. SB 1407 would have required school districts to collect data on the number of illegal immigrant students attending classes. SB 1611 covered a number of different areas, such as access to universities and colleges, and would have made it a state crime for illegal immigrants to drive a vehicle in Arizona.

The effects the rejected bills might have had on the workplace are not as direct as under the LAWA, but the underlying message is clear. Arizona and similar states will continue to seek ways to curtail illegal immigration. Employers must remain both informed of their obligations and vigilant in their compliance efforts.
 

Immigration-Related Relief Individuals Stranded in U.S. Due to Earthquake and Tsunami Devastation

The U.S. Citizenship and Immigration Service has announced that relief will be provided to certain Japanese and Other Nationals from the Pacific who are stranded in the United States due to the earthquake and tsunami devastation that occurred in March. Individuals who have exceeded or are about to exceed the authorized period of stay in the U.S. will be provided up to an additional 30 days to depart, USCIS said in a March 11, 2011, notice.

Visa Waiver Program Travelers

Visitors at an airport who are traveling under the Visa Waiver Program should contact the U.S. Customs and Border Protection.  All visitors traveling under the Visa Waiver Program who are not at an airport should contact a local U.S. Citizenship and Immigration Services office. 

Non-Immigrant Visa Travelers

Visitors traveling under a nonimmigrant visa should also visit a local U.S. Citizenship and Immigration Services office. 

Documentation

The following documents are necessary: your passport, evidence that you are stranded (such as an itinerary for the cancelled flight), and your I-94 departure record.

Additional Immigration Relief Options

The USCIS website’s Special Situations  page outlines additional relief that may be available to individuals from countries impacted by natural catastrophes that affect their  stays in the United States.  The following options may be available, upon request, to those affected by natural catastrophes and other extreme situations:

  • Extensions & Changes of Status

The USCIS says, “We recognize that when affected by a disaster you may, through no fault of your own, fall out of status. When applying for an extension or change in status due to a disaster, we may consider your request if you show how it is directly connected to the disaster.”

  • Fee Waiver

A fee waiver may be obtained from the USCIS.  It provides, “If you are unable to pay the fee for a USCIS service or benefit, you may request that your fee be waived for certain forms by filing a Request for Fee Waiver, Form I-912 (or a written request).”

  • Employment Authorization

Students may obtain employment.  The USCIS says, “As an academic student, you may need to work off-campus if a disaster has affected your ability to support yourself. The disaster may occur in the United States and prevent you from working on-campus or the disaster may occur overseas and affect your economic support. If you can demonstrate that you are from an affected country or region and you have been recommended for such employment by the Designated School Official (DSO), you may be eligible to receive employment authorization when filing the I-765, Application for Employment Authorization.”

  • Document Replacement

The USCIS says, “If you have lost your USCIS-issued documents through no fault of your own, you may show your need for replacing the documents.”

Additional information concerning USCIS humanitarian programs is available at www.uscis.gov or by calling the National Customer Service Center at (800) 375-5283.

 

With news of record-breaking immigration enforcement results and the new Employment Compliance Inspection Center, pressure on employers regarding Form I-9 compliance may seem unrelenting. However, a recently published decision by the Office of the Chief Administrative Hearing Officer appears to give employers greater negotiating power, a glimmer of good news.

The Office of the Chief Administrative Hearing Officer has jurisdiction over cases involving allegations of knowingly hiring, recruiting or referring for a fee or continued employment of unauthorized aliens, and failure to comply with employment verification requirement (completion of Form I-9), in violation of section 274A of the INA (Immigration and Nationality Act). If an investigation by ICE (Immigration and Customs Enforcement) results in a finding of a violation of section 274A, ICE may issue a Notice of Intent to Fine (NIF) to the employer. The NIF details the violations and the fines for those violations. The employer must either pay the fine or request a hearing.

USA v. Snack Attack Deli, Inc., 10 OCAHO no. 1137, arose from an ICE inspection conducted in early 2009 on Snack Attack Deli, a Subway franchisee located in Fayetteville, North Carolina. ICE alleged that Snack Attack had committed 108 violations of section 274A. In Count 1, the agency alleged that Snack Attack hired 11 named individuals from 2006 through February 2009 and failed to ensure that those individuals properly completed section 1 of form I-9 or failed itself to properly complete section 2 or section 3 of the form. Count II alleged that Snack Attack hired 97 named individuals between 2006 and February 2009 for whom it failed to prepare forms I-9 at all.

ICE sought $1,028.50 for each violation, a total fine of $111,078.00. These fines were close to the maximum that ICE could have assessed under the law. Furthermore, a fine of that size would have crippled Snack Attack’s business and likely lead to the loss of jobs for some of its employees. None of the violations involved allegations of knowingly hiring or employing unauthorized aliens. The entire fine was based on Snack Attack’s alleged failure to comply with employment verification requirements by improperly completing or failing to complete Form I-9.

While the administrative law judge (ALJ) granted the agency’s motion for summary judgment as to liability, the ALJ found the fines were disproportionate to the size of the business and that ICE did not properly consider the fact that Snack Attack had no unauthorized workers and no previous violations. Furthermore, the ALJ took into consideration non-statutory factors “such as the depressed economy and the difficulty any displaced employee would have in finding other work.” Therefore, instead of $1,028.50 per violation, the ALJ reduced the fine to $300 for each violation of Count 1 and $250 for each violation of Count II, a total fine of $27,150.00.

This decision is useful for employers facing potential fines from ICE investigations – especially as economic depression and high unemployment continue.

The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) office has told 1,000 employers across the country the agency will audit their hiring records to determine compliance with employment eligibility verification laws. These Notices of Inspection (NOIs) often request not only I-9 documentation, but payroll records, copies of immigration filings, copies of Social Security Administration communications requesting corrections, information on independent contractors, and related information. All documentation normally must be produced within three business days of the employer’s receiving the Notice.

ICE takes the position that such inspections determine whether or not businesses are violating U.S. employment laws by hiring illegal workers and will discourage such hiring practices in the future. According to a statement issue by ICE, the audits are not aimed a particular targets, but “touch on employers of all sizes and in every stated in the nation – no one industry is being targeted nor is any one industry immune from scrutiny.” The agency has not released the names and locations of the businesses targeted in this round of audits. ICE has acknowledged that the 1,000 businesses receiving NOIs were selected by local Special Agents in Charge (SAC) offices.

This latest effort reflects ICE’s focus on increasing I-9 audits as part of a worksite enforcement strategy emphasizing criminal prosecution of employers who knowingly hire individuals without authorization to work in the U.S. In fiscal year 2010, ICE conducted 2,196 I-9 audits (compared with 1,444 in fiscal year 2009), which included at least two major I-9 audit initiatives: one in July 2009 targeting 654 businesses and another in November 2009 targeting 1,000 companies associated with critical infrastructure. The I-9 audit initiative has the support of Department of Homeland Security Secretary Janet Napolitano.

If you receive a Notice of Inspection, immediately contact your counsel. The window for response is short, but, in some cases, experienced practitioners may be able to assist in obtaining an extension of the document production period. It is critical that employers review thoroughly the documents gathered in response to the Notice, that it be well-organized and presented in the best light possible.

Employers who have not received a Notice this time around should take the opportunity to review and audit their records internally. Compliance efforts now will help avert potential fines that can range from $110 – $16,000 per violation, depending on the offense. For more information on how the Global Immigration Practice Group can assist you, see our I-9 Compliance Brochure.
 

USCIS has began accepting the revised version of the Petition for a Nonimmigrant Worker, Form I-129 (dated November 23, 2010). The new version of the form requires employers petitioning for H-1B, H-1B1, L-1 and O-1A nonimmigrants to make specific attestations related to the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR). The regulations control the export of technology and technical data to foreign countries, which includes the disclosure or transfer to a foreign national. Such disclosures or transfers may be subject to export licensing requirements and other restrictions.

Employers filing an H-1B, H-1B1, L-1 or O-1A petition must certify the following:

With respect to the technology or technical data the petitioner will release or otherwise provide
access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration
Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

1) A license is not required from either the U.S. Department of Commerce or the U.S.
Department of State to release such technology or technical data to the foreign person;
or

2) A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

The instructions to the new Form I-129 addressing this new requirement can be found at: http://www.uscis.gov/files/form/i-129instr.pdf.
 

Approximately $50 million in financial sanctions for worksite enforcement violations were imposed by the federal government in fiscal year (FY) 2010, according to Department of Homeland Security (DHS) Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Director John Morton. The agencies announced record-breaking immigration enforcement results that reflect the aggressive stance taken under the Obama Administration to combat the hiring of unauthorized workers. While the government continues to detain and remove unauthorized individuals, Secretary Napolitano emphasized that the Obama Administration also would continue to pressure employers, holding them accountable through I-9 audits, fines and debarment from immigration programs.

ICE has achieved the following in FY 2010:
• Removing 392,000 individuals, including 195,000 convicted criminal foreign nationals
• Bringing criminal charges against a record-breaking 180 owners, employers, managers and/or supervisors — up from 114 in FY 2009 and 135 in FY 2008
• Conducting more than 2,200 I-9 audits — up from a little more than 1,400 in FY 2009
• Imposition of approximately $50 million in financial sanctions
• Debarment of 97 businesses and 49 individuals in FY 2010, up from 30 businesses and 53 individuals in FY 2009

This is a reminder to employers to question and review their I-9 practices and policies. While ICE states that it conducts I-9 investigations of employers based on credible leads (such as complaints from disgruntled employees, tips from the public or cases having national security or public safety implications), they also reserve the right to initiate audits for other reasons, such as referrals from other government agencies that have investigated an employer in an unrelated matter or even randomly targeting industries generally known to have high reports of undocumented workers, such as in construction, hospitality, retail and food production.

To forestall any negative government actions in this area, an employer would be wise to conduct its own internal I-9 audit or engage legal counsel to do so. Start with an overall audit plan and implementation of the plan, and follow through on corrections of identified errors and maintenance of a thorough I-9 compliance policy. For more information on how the Global Immigration Group can assist you, see our I-9 Compliance Brochure. Preparation is key.
 

USCIS has released its new E-Verify User Manuals for Employers, Employer E-Verify Agents, and Federal Contractors. E-Verify is the online verification system that complements I-9 employment eligibility review and allows employers to check the legality of their workforce. The manuals provide guidance for employers enrolled in E-Verify. The new manuals reflect recent changes to the E-Verify website and offer additional guidance and clarification. Employers or their agents who use E-Verify, federal contractors who have the Federal Acquisition Regulation (FAR) E-Verify clause in their contracts, and employers considering using E-Verify should become familiar with the new manuals.

Copies of the new manuals can be found at USCIS.gov.

Despite a marked decrease in H-1B petitions filed to date, USCIS is making little effort to adjudicate its current caseload of H-1B petitions in a timely fashion. The USCIS’s stated processing times for H-1B’s are more than two months off the actual processing times, which are approaching five months and increasing.

The effect of the processing slow down is that some beneficiaries and employers are being forced to move cases into premium processing or risk losing work authorizations. One affected group is the cap-gap student who has an expired Optional Practical Training (“OPT”) work permit, but is permitted to continue working until October 1st under the cap-gap regulations.

To qualify for cap-gap relief, an H-1B petition for a change of status must be timely filed on behalf of an eligible F-1 student. The student must be in authorized status, meaning, within the OPT period, which includes the 60-day post-departure preparation period, commonly known as the “grace period.” Once a timely filing has been made, the automatic cap-gap extension will begin and will continue through September 30th, unless the H-1B petition is denied, withdrawn, or revoked.

Because USCIS is not doing its job of adjudicating petitions, many cap-gap students are now faced with a not-yet-approved H-1B and October 1st approaching. If this situation applies to you, several steps need to be taken:

1. Notify legal counsel immediately. Counsel may be able to request that the case be expedited without premium processing.
2. The student must go on unpaid leave after September 30th, continuing until the H-1B is approved.

Contact legal counsel immediately if you wish to premium process the application. Premium processing is an extra $1,000 filing fee. Even with this payment, you may not get the case adjudicated for 10 business days.
 

Immigration and Customs Enforcement (ICE) has served more than 500 Notices of Inspection (NOIs) to U.S. companies over the past week. According to the agency, allegations that employers are hiring unauthorized workers and paying employees unfair wages or otherwise exploiting workers set off this latest round of inspection notices.

With this move, ICE furthers its stated objective of executing all measures necessary to ensure that lawful employment of all workers is maintained in the workplace, a central objective of the Obama Administration. No doubt this will be followed by additional rounds of mass NOIs. Consequently, this is a reminder to employers of the critical need to ensure I-9 form compliance. Among other activities, employers should take precautions to ensure that they are diligently conducting the employment eligibility verification review process at the time of hire, maintaining documentation, and ensuring proper review on an ongoing basis.

As part of an employer’s diligence, focus should be given to completing internal audits immediately to identify and correct any errors. Upon receipt of a NOI, an employer has only three (3) business days to provide I-9 Forms to ICE (an extension is available under limited circumstances). Therefore, the NOI should not be the primary trigger for a company’s I-9 concerns. A proactive review would provide an opportunity to confirm accurate record keeping, as well as allow an employer to target areas that need procedural development and internal training. The Global Immigration Group can provide assistance in navigating these processes.

An employer can address the retention of I-9s in a number of ways, but the approach selected should be uniform, consistent and, most importantly, in compliance with government rules and regulations. Developing an action plan should be paramount on a company’s to-do list. Take the opportunity to reflect on and assess what your next step should be. We will continue to monitor this and related developments.