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At the NJ Institute of Continuing Ed 11th Annual Immigration Conference last month, speakers Brett Dreyer, Unit Chief, Worksite Enforcement Unit of ICE; Kathy Lotspeich, Deputy Chief, Verification Division of USCIS, and Jennifer Sultan, Civil Rights Division of the Department of Justice, provided an overview of their agencies and goals with respect to employment eligibility verification. The report is that the overall message is one we’ve continued to hear: That we can expect increasing I-9 enforcement, the expansion of E-Verify, and the ever-watchful eye of the DOJ to keep everyone in line.

What did ICE Report?

The agency’s current strategy involves a 2 prong approach: (1) Criminal prosecution against those bad-acting employers who are exploiting unauthorized workers, committing document fraud, tax crimes, etc; and (2) Civil tools, including the Form I-9 inspection. They are also committed to doing outreach and education, which is primarily achieved through the IMAGE program (which promotes 12 best practices, including the use of E-Verify). In addition, ICE is now using the debarment process against companies found to be violating the immigration laws (either criminally or civilly). Debarment essentially involves preventing a company from getting government contracts, loans, grants, insurance etc.

How does ICE select an organization for audit? ICE does not deliberately target specific industries (although low paying, semi-skilled and unskilled industries are affected). So instead, companies are chosen based on leads and intelligence (public, law enforcement, business competitors, etc.)

What did E-Verify Report?

The frequent concern of some employers that E-Verify has been expanding monitoring and compliance functions in an effort to “mine” the data was addressed. The audience was assured that the 35 Monitoring and Compliance staff in Buffalo, NY is primarily dedicated to reviewing E-Verify transaction data to spot potential abuse or fraud. In particular, the M&C branch looks for cases where companies are routinely submitting employees to E-Verify significantly beyond their hire date or show a high number of uncontested TNCs. They also look for the same ID being run through E-Verify at the same time (to look for fraud). In those situations, E-Verify will contact the employer with a compliance letter (essentially a warning). 14,000 of these letters were sent in FY2010 and 5000 thus far this fiscal year. They are also in the process of opening a Nebraska office, which will include 20 additional M&C analysts.

Fraudulent documents and the role of the use of the photo matching process was additionally discussed. In addition, E-Verify will be piloting the verification of state driver’s license data (but not photos) in the near future as well.  More to come on that in the near future.

Lastly, E-Verify has initiated several programs designed to educate and assist the employee in this process. In particular, they setup an employee hotline, produced several “how to” videos, and are now working closely with the OSC to address cases where employees have alleged some form of discrimination in the E-Verify process.

OSC Update:

OSC enforces the anti-discrimination provision of the Immigration and Nationality Act, which prohibits discrimination in hiring, firing, or recruitment or referral for a fee that is based on an individual’s national origin or citizenship status. The statute also prohibits unfair documentary practices during the Form I-9 process (known as document abuse), and retaliation or intimidation.

OSC will get involved when employers are not using E-Verify in a clear/consistent manner. For example, if an employer fires an employee after receiving a TNC, the OSC will often work with the employer and employee so it doesn’t reach the level of a discrimination charge. To see a few examples of this, you can check out the summary of hotline E-Verify interventions on the OSC web site, which also includes the OSC’s E-Verify best practices.

Further, OSC is also working closely with USCIS to obtain E-Verify transactional data in the event an investigation is warranted. Similarly, OSC will refer accidental misuse of the E-Verify system to USCIS for their compliance objectives. Lastly, the presenter touched upon potential discrimination issues for employers that receive notification of social security mismatch (see guidance here).

To discuss this topic further or to discuss your I-9 compliance concerns, please contact our office and refer to our Employer Resource Center at I-9Audits.com.

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1. You’ve had a turnover in the HR position(s) charged with the responsibility of handling and processing I-9 Forms
2. None of the staff charged with the I-9 process has been formally trained
3. You already know that you have I-9 document violations, errors and unintentional mistakes
4. You have recently gone through a corporate reorganization, merger or acquisition
5. You know you have an on-boarding process that is complex, such as multiple jobsite locations where the I-9 process takes place
6. When you haven’t documented your I-9 Form policies and procedures in a policy statement or procedures manual
7. If you have a large volume of foreign worker I-9 forms
8. If you do not have a tickler system for re-verification or terminated employee retention
9. If you do not have a centralized I-9 recordkeeping process
10. If you are photocopying documents presented during the I-9 process for some and not for others
11. You participate in government contracts and have been asked to perform an I-9 audit
12. You’ve never performed a self-audit nor had any outside provider perform an I-9 audit
13. You do not know how to make corrections to the I-9 form
14. You’ve received SSA No Match Letters
15. Your industry is being targeted by ICE
16. You don’t know that new I-9 guidance was released by USCIS this year

Immigration Compliance Group regularly represents clients from all industries to develop effective I-9 policies and compliance programs.  By establishing and maintaining effective corporate policies and procedures, many of the above-mentioned warning signs can be addressed proactively in an audit before the government does one for you.

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E-Verify works by comparing the information employees provide on the Employment Eligibility Verification form (Form I-9) against millions of government records. Generally, if the information matches, the employee receives an "Employment Authorized" response in E-Verify. If the information does not match, the employee is given an opportunity to resolve the problem. The employers must understand and follow the proper procedures in E-Verify, which are designed to ensure fair treatment and due process for all employees.

In some cases, the information from an employee's Form I-9 does not match government records and E-Verify will display a temporary case status that may require additional action. In these cases, E-Verify will return a response called a "Tentative Nonconfirmation (TNC)." A TNC response means that the Social Security Administration (SSA) and/or the U.S. Department of Homeland Security (DHS) could not confirm that the employee's information matches government records. It does not mean an employee is unauthorized to work or is an illegal immigrant as there are legitimate reasons why an employee may receive this result.

There are several types of TNCs, and the type displayed in E-Verify depends on which government agency is involved and the cause for the mismatch:

• SSA Tentative Nonconfirmation: This response indicates that the employee's information could not be verified by SSA. The employee must be notified of the TNC response and referred to SSA. Click on the link for the process to resolve the SSA TNC.
• DHS Tentative Nonconfirmation: There are two types of "DHS TNCs." The first type means that DHS was unable to verify employment eligibility and the employee is instructed to call DHS to find out how to resolve the discrepancy. The second type is caused by a photographic mismatch, meaning the employer indicated that the photograph displayed by E-Verify did not match the photograph on the employee's document. If the employee contests this type of TNC, the employer must either scan and upload an image of the document or send a copy of the document via express mail at the employer's expense.

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It has been reported that the Social Security Administration has resumed sending "no match" letters that tell employers that employees social security numbers do not match the number in the SSA database. There are a few differences from past no-match letters. First, language warning employers that failing to act on a no-match letter can be considered as constructive knowledge of an employee working without authorization, is no longer included. Also, letters will list only one employee in each letter rather than multiple workers.

The letters remind employers that they should not take adverse action against a worker strictly on the basis of a no-match letter. SSA is advising employers to first check their records and if the problem is not with the employer, then the employer should instruct the employee to contact SSA. The notice states that it can take two months or longer to get a new or replacement Social Security card.

If an employer is unable to resolve the issue because the employee leaves the employer or is unable to provide a new card, the employer should document its efforts and keep the documentation for four years. The Department of Justice's Office of Special Counsel is advising employers not to terminate unless a "reasonable period of time" has passed for the worker to resolve the problem. What is "reasonable" is not defined though AILA (The American Immigration Lawyer’s Association) notes that E-Verify problem resolutions can be continued for up to 120 days.

It is highly recommended that employers develop a standard operating procedure to address the receipt of No-Match letters. It is best to be proactive: document efforts to assist the employee AND determine what contingencies the employer may consider during the resolution process.

ICE will definitely request these SSA letters during any worksite investigation. Employers must be prepared to not only produce the letters, but also produce any evidence they have that identifies that they attempted to resolve the mismatch.

Homeland Security has been very clear that an employer’s failure to act upon receipt of a no-match letter can be used in conjunction with other evidence to build a case against the employer that it had constructive knowledge that its employees were unauthorized to work in the United States.

SSA No-Match FAQ’s from The Department of Justice

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Immigration Compliance Group provides employer compliance consulting services on proper I-9 (Employment Eligibility Verification) management, auditing and training. We regularly represent clients from all industries in developing effective I-9 policies and compliance programs that illustrate good faith attempts to comply with all relevant immigration laws and instill a climate of corporate compliance, before one of the five government agencies involved with enforcement knocks on your door. We additionally specialize in complex business visas for investors, multinational managers, specialized professionals and outstanding individuals in the areas of Information Technology, Healthcare, Arts and Entertainment, amongst most other industries.

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Disclaimer/Reminder: This newsletter does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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