international law quarterly
spring 2017 • volume XXXIII, no. 2
Worksite Enforcement, continued
(MOU), which is a contract between the employer and the DHS.38 The contract is quite detailed and non-negotiable, and lists the responsibilities of the contracting parties. By signing, the employer agrees to “cooperate with DHS and SSA in their compliance monitoring and evaluation of E-Verify, which includes permitting DHS, SSA, their contractors and other agents, upon reasonable notice, to review Forms I-9 and other employment records and to interview [the company] and its employees regarding the Employer’s use of E-Verify, and to respond in a prompt and accurate manner to DHS requests for information relating to their participation in E-Verify.”39 The employer also agrees to use E-Verify for all new employees.40 Before signing the MOU, attorneys should advise employers that “DHS reserves the right to conduct Form I-9 compliance inspections, as well as any other enforcement or compliance activity authorized by law, including site visits, to ensure proper use of E-Verify.”41 E-Verify cannot be used by employers to screen prospective employees, to verify employees with temporary work authorization who require I-9 verification, or to check existing employees.42 Employers enrolled in E-Verify enter the employee’s name, date of birth, social security number (required for E-Verify), citizenship status, hire date, document title, document type, document number, and expiration date, where applicable. Employers must submit the employee’s information online to E-Verify within three days of the employee’s hire date.43 Once the new hire’s information is submitted, most employers will receive employee work authorization verification within seconds, as the information is compared against records contained in DHS or SSA databases. If neither the DHS nor the SSA can confirm work authorization within twenty-four hours, the employer receives a tentative non-confirmation.44 The employee then has eight federal government working days to contest or resolve the non-confirmation finding.45 If he or she does not do so, at the end of the period, E-Verify issues a final non-confirmation notice and the employer must terminate the employee under the terms of the MOU.46 In the Form I-9 context, it is important to note that
E-Verify is not a substitute for the Form I-9 but is a supplementary verification process. Thus, employers are not released from the requirements and liability attached to Form I-9. In fact, the MOU specifically states that although the employer participates in E-Verify, “the Employer has a responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees, or from other requirements of applicable regulations or laws, including the obligation to comply with the antidiscrimination requirements of section 274B of the INA with respect to Form I-9 procedures.”47 There are also some important differences between Form I-9 and E-Verify requirements. Form I-9 is mandatory while currently E-Verify is voluntary for most businesses (unless the employer is the beneficiary of a government contract); Form I-9 does not require a social security number while E-Verify does; Form I-9 does not require photo identification documents while E-Verify does; and Form I-9 must be used to re-verify expired employment authorization while E-Verify specifically states the program cannot be used for that purpose.48 One of the benefits of participating in the E-Verify program, besides the almost immediate confirmation of a new employee’s eligibility to work, is that “When an Employer confirms the identity and employment eligibility of newly hired employee using E-Verify procedures, the Employer establishes a rebuttable presumption that it has not violated section 274A(a)(1)(A) of the Immigration and Nationality Act (INA) with respect to the hiring of that employee.”49 Participation in the program does not immunize the employer from audits or raids. In fact, the employees’ biographic information entered into the database is immediately available and can be shared with ICE or other government agencies for future enforcement action.50 A participating business’s employment records are in plain view of ICE and other government agencies, so enrollment in E-Verify may amplify any Form I-9 errors/violations, such as timeliness issues, procedural errors, or the acceptance of invalid documents. As a result, E-Verify employers may be subject to a higher rate of ICE audits and Notices of Inspection than normal,
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