One of the most important questions in the mind of both employer and employee is:  What if information about the employee is wrong – can they fix inaccurate information about themselves in E-Verify?

If E-Verify is unable to automatically verify an individual’s status in order to authorize employment, a Status Verifier will manually review the information and conduct searches of other Federal government databases and, where necessary, will update any underlying information contained within the various DHS databases queried.  After a result is returned on an employment authorization query, E-Verify provides two methods of information correction and redress for employees.  If an employee receives a Tentative Non Confirmation, or TNC, they may correct their information through the Social Security Administration (SSA) or DHS.

After the verification process is complete, individuals have the opportunity to access and correct their information through the Freedom of Information Act (FOIA) or Privacy Act (PA) process.

We link to more E-Verify Privacy FAQs and our I-9 Employer Resource Center

Immigration Compliance Group specializes in business immigration and employer compliance matters related to audits, training and policy development.

The OSC has provided a valuable resource in sharing their letter responses to various employment eligibility verification compliance inquiries from stakeholders. The topics include: Non-Discrimination Practices, Pre-Employment Inquiries, Form I-9  Document Abuse, SS No-Match Letters, Dishonesty/Falsification Issues, using acceptable language for job postings, and much more.

Here are a few citations:

Re:  Question Concerning Re-Verifying Work Authorization when Discrepancies with SS are Discovered: “An employer is only under a duty to investigate further if it knows or has knowledge that would lead a reasonable person to believe that an individual is not authorized to work in the United States.  There are many possible reasons for why an employee’s name and Social Security number may not match.  Therefore, employers should not draw conclusions about an employee’s work authorization status based solely on information indicating that the employee’s name and Social Security number cannot be found in a system of records-whether the records are directly managed by the Social Security Administration or any other private or public entity. Furthermore, the mere receipt of a no-match letter or other no-match notice does not, standing alone, constitute ‘constructive knowledge’ on the part of an employer that the referenced employee is not work authorized. Only the Department of Homeland Security (DHS) is legally authorized to conclusively determine an individual’s authorization to work.  OSC also cautions employers against providing an unreasonably short period of time to clear up a Social Security no-match…” It it strongly recommended that you consult with a qualified attorney in employment-related immigration law before jumping to any conclusions that might possibly escalate into a very unpleasant scenario for all parties concerned.

Question re Modifying the List of I-9 Acceptable Documents:  “Document abuse occurs when an employer either demands that a worker produce more or different documents than those identified in the Form 1-9 process, or refuses to honor documents tendered that on their face reasonably appear to be genuine, based on national origin or citizenship status.  To the extent that an employee either inadvertently or mistakenly indicates an incorrect immigration status in Section 1 of the Form 1-9, the limitation of documents in Section 2 may prevent that employee from presenting valid documents) acceptable for 1-9 purposes. Similarly, if the list excludes one or more documents that an employee of a particular status may possess, the limitation of documents may also prevent that employee from presenting his or her valid documents) acceptable for 1-9 purposes.”  We caution you to discuss issues such as this with experienced counsel in employment-related immigration matters before action is taken.

We trust that you will find this information useful as it relates to the enforcement of the anti-discrimination provision of the INA. Please check out a list of our compliance  services and solutions. Please be reminded that we invite you to contact our office with your employment-related immigration matters (I-9 audits, training, policy development and more).

About the OSC:  The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provision (§ 274B) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b.  his federal law prohibits: 1) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee, 2) national origin discrimination in hiring, firing, or recruitment or referral for a fee, 3) document abuse (unfair documentary practices during the employment eligibility verification, Form I-9, process, and 4) retaliation or intimidation.

The Justice Department has reached a settlement agreement with University of California San Diego Medical Center for $115,000 (one of the higher civil penalties we’ve seen) for a complaint filed on Dec. 6, 2011, alleging that the medical center failed to comply with proper I-9 Form employment eligibility verification processes for non-citizens who are authorized to work in the United States.

Specifically, the DOJ’s complaint alleged that UCSD medical center engaged in a pattern of subjecting newly hired non-U.S. citizens to excessive demands for documents issued by the Department of Homeland Security in order to verify their employment eligibility, but did not require the same of US citizens. The Immigration and Nationality Act’s (INA) anti-discrimination provision prohibits employers from placing unfair documentary burdens on work-authorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin. Clearly put, it is illegal to discriminate against work authorized individuals.  You simply cannot specify which documents are to be presented.  This is considered document abuse.

The medical center has taken appropriate action to ensure compliance with INA’s anti-discrimination provision and has received Department of Homeland Security/U.S. Immigration & Customs Enforcement (ICE) training on the proper use of work authorization documents.  They have also agreed to work with the DOJ to ensure compliance with proper I-9 processes across all University of California campuses, medical centers and facilities.

Under the terms of the settlement agreement, the medical center agrees to implement new employment eligibility verification policies and procedures that treat all employees equally regardless of citizenship status. In addition, the medical center has agreed to pay a civil penalty of $115,000, conduct supplemental training of its human resources personnel on their responsibilities to avoid discrimination in the employment eligibility verification process and work with the department to ensure compliance with proper employment eligibility verification processes across all University of California campuses, medical centers and facilities.

Heightened Enforcement Continues

During the past few years, we have seen unprecedented enforcement and legislative activity relating to Form I-9 and E-Verify worksite compliance.  Since fiscal year 2009, ICE has audited more than 6,000 employers, debarred 441 companies and individuals, and imposed more than $76 million in financial sanctions.  We have also seen an unprecedented increase in the number of enforcement actions brought about by the Department of Justice (DOJ) for discrimination in the I-9 process.  The Office of Special Counsel (OSC) has robustly prosecuted claims of discrimination in the I-9 process resulting in fines and penalties against employers, as well as back pay to injured parties.

What employers need to know

You just cannot presume that the employees charged with  managing your I-9 program are compliant with the law and adhering to anti-discrimination rules and regulations.  If you are not training your employees, then you are turning a blind eye to establishing a compliant workforce, the consequences of which today are severe and expensive – not to mention the bad press that accompanies such an investigation.

Employers cannot request specific documents (such as a green card), reject documents that reasonably appear to be genuine and relate to the employee presenting them, request that employees produce more documents than are required or treat groups of applicants differently when completing the I-9 form. You must examine ANY acceptable document from List A that appears to be genuine and that relates to the worker, or a combination List B plus a List C document, regardless of whether or not

Let’s re-visit ICE’s list of best practices that include the following as a reminder to employers:

• Use E-Verify,
• Use the Social Security Number Verification Service (SSNVS) for wage reporting purposes
• Establish a written hiring and employment eligibility verification policy.
• Establish an internal compliance and training program related to the hiring and employment verification process
• Require the I-9 process to be conducted only by individuals who have received appropriate training and include a secondary review as part of each employee’s verification to minimize the potential for a single individual to subvert the process.
• Arrange for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in theI-9 process.
• Establish a protocol for responding to letters or other information received from federal and state government agencies indicating that there is a discrepancy between the agency’s information and the information provided by the employer, such as SSA “No-Match” letters
• Establish and maintain appropriate policies, practices and safeguards to ensure that authorized workers are not treated differently with respect to hiring, firing, or recruitment or referral for a fee or during the Form I-9, E-Verify or SSNVS processes because of citizenship status or national origin.
• Maintain copies of any documents accepted as proof of identity and/or employment authorization for all new hires.

For more, refer to:

1) DOJ Press Release

2) DOJ Press Release on one of the largest settlements against a major healthcare system

3)  Our list of services and solutions

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About Immigration Compliance Group

For those of you who may be first time readers, Immigration solutions provides US and Canadian business immigration services to employers and individuals and additionally provides a full range of I-9 employment eligibility compliance services for employers that require I-9 audits, training, and compliance policy development.

Here is another example of one of the major blunders made by employers in 2011 which is to require specific work authorization documents (permanent resident cards or employment authorization card) of non-US citizen employees rather than permitting them to choose from the list of acceptable documents on the I-9 form.

The Justice Department announced today that it reached a settlement with BAE Systems Ship Repair Inc., a leading provider of ship repair services, to settle allegations that its subsidiary, BAE Systems Southeast Shipyards Alabama LLC, engaged in a pattern or practice of discrimination by imposing unnecessary and additional document requirements on newly hired permanent residents (green-card holders) when establishing their eligibility to work in the USA by requiring them to present Permanent Resident Cards, a/k/a/ “green-cards,” as a condition of employment.

The investigation was initiated after BAE Southeast Alabama suspended a lawful permanent resident even though he had presented valid documents sufficient under the Immigration and Nationality Act (INA) to establish his work authorization on three separate occasions.

BAE agreed to pay a fine of $53,900. The lawful permanent resident who was suspended was previously reinstated and fully compensated by BAE.  BAE agreed to ensure that the employment eligibility verification policies and procedures of all its subsidiaries comply with the law, to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process, and to produce Forms I-9 for inspection for three years.  We cannot emphasize enough the importance of employers with subsidiary companies and multiple jobsite locations establishing written, uniform policies and procedures concerning employment eligibility compliance matters.  We also recommend that an I-9 Compliance Manager be appointed to oversee adherence to your compliance standard operating procedures for all subsidiary companies at all locations.

The INA requires employers to treat all authorized workers in the same manner during the employment eligibility verification process, regardless of their national origin or citizenship status.  Employees may choose which document(s) they want to present from the list of acceptable documents.  Employers must accept any document from List A or combination of documents (one from List B and one from List C) as long as it the documents reasonably appear on their face to be genuine and to relate to the person presenting them.  To act in any other manner can be an unfair immigration related employment practice in violation of the anti-discrimination provision of the INA.

We frequently are asked:  If an employee writes down an Alien Number or Admission Number when completing Section 1 of the I-9 form, may I ask to see a document with that number?  The answer to this, based upon the above, is “no”.  It is your responsibility to ensure that your employees fully complete Section 1; however, the employee is not required to present a specific document in order to complete this section.  When the employer completes Section 2, you may not ask to see a document with the employee’s Alien Number or Admission Number or otherwise specify which document(s) an employee may present.

Should you wish to communicate with our office regarding audits, training and policy development, please email us at info@immigrationcompliancegroup.com or call 562 612.3996.  Please sign up for our free news and visit our Blog and employer compliance resource center at:  www.I-9Audits.com

Hello:

Headed into a new year, this is a good time to give thought to what as an HR professional you’d like to see implemented at your place of employment where compliance issues are concerned.

Take a minute and go through our survey.  Or, if you prefer, email us and let us know what your top 3 compliance projects or concerns are for 2012 – info@immigrationcompliance group.com

We’d like to hear from you.

The initial launch of E-Verify Self Check was in March of this year. Self Check provides a free Internet portal through which individuals in the USA can check their own employment eligibility status before formally seeking employment.

Today, USCIS announced Self Check is now available in Spanish and accessible to residents in 16 additional states: California, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, Ohio, South Carolina, Texas, Utah and Washington.

From this page you can navigate to the Spanish language version, Director Mayorkas’ Press Conference and an Interactive Preview and Presentation in both English and Spanish.

We have a group on LinkedIn – check us out!

The 2011 California legislative season closed on October 9, 2011, with the Governor signing numerous bills.  We reference in our posts today, the E-Verify and the CA Dream Act Bills (separate post below).

Other Bills that were signed also affect employers and employment law, such as, bills that greatly limit the use of consumer credit reports by employers, expanding the definition of gender under state discrimination laws, requiring employers to pay for health insurance coverage during the entire period of pregnancy disability leave.

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AB 1236 “The Employment Acceleration Act of 2011,” states in part:

Except as required by federal law, or as a condition of receiving federal funds, neither the state nor a city, county, city and county, or special district shall require an employer to use an electronic employment verification system (E-Verify), including under the following circumstances:

1) As a condition of receiving a government contract.

2) As a condition of applying for or maintaining a business

license.

3)  As a penalty for violating licensing or other similar laws.

Article 2.5. Electronic Employment Verification Systems:

2813. For purposes of this article, the following terms have the following meanings:

(a) “Electronic employment verification system” means an employment verification system that allows employers to electronically verify workers’ employment authorization with the federal government. This includes the Basic Pilot Program, enacted by Section 404 of Public Law 104-208 and renamed in 2007 as the E-Verify Program, and other pilot programs for electronic employment eligibility confirmation. The term “electronic employment verification system” does not include the I-9 Employment Eligibility Verification form or any other employment eligibility systems that are required by federal law.

To cite some of the reasons itemized in the preamble of the Bill as the basis for its enactment:

(b)  Mandatory use of an electronic employment verification program would increase the costs of doing business in a difficult economic climate. The United States Chamber of Commerce estimates that the net societal cost of all federal contractors using the E-Verify Program would amount to $10 billion a year, federally.

(c) California businesses would face considerable odds in implementing such a program. Employers using the program report that staff must receive additional training that disrupts normal business operations. If E-Verify had been made mandatory for all employers in 2010, it would have cost businesses $2.7 billion, $2.6 billion of which would have been borne by the small businesses, which drive our economy.

(d) Employers report that the cost, technological demands, and staff time that an electronic employment verification system requires to use and implement come at a time when they are already struggling.

(e) California’s unemployment rate has risen to 11 percent. The state must pursue all avenues in facilitating and incubating job development and economic growth.

(f) It is the intent of the Legislature that the state maintain the intent of federal law by ensuring that private employers retain the ability to choose whether to participate in the electronic verification program.

The Bill will render defunct several city and county ordinances in California.  We link to the bill.  Should you have any questions regarding re-tooling your compliance processes and systems, please do not hesitate to contact our office:  info@immigrationcompliancegroup.com, 562 612.3996.