INTERPLAY: E-VERIFY & I-9 COMPLIANCE

Ilana J. Drummond, Norman C. Plotkin, & Daniel C. Horne800.780.2008

www.jackson-hertogs.com

Side-by-Side Processes

• E-Verify does not trump I-9 process• E-Verify is not always consistent with I-9 process• E-Verify requires that the employee:

1. have an SSN and 2. present a picture ID

• E-Verify participation creates a two-step– Complete the I-9; and – Use that I-9 step to complete E-Verify.

• By complying with E-Verify, is the employer requiring over documentation in the I-9 context? – NO, because its roots are in IIRAIRA, a statute.

• If employer participates directly in E-Verify, then must use the photo tool

• If employer uses a 3rd party vendor, then the photo tool is not currently available– But does not negate requirement of photo ID

• Even if you use a 3rd party provider, employer still party of the MOU (Memo of Understanding among DHS, SSA and Employer)

Photo Tool

• Allows representatives from DHS to visit the worksite at any time (with reasonable notice) to review I-9s and speak with employees handling I-9s

• Due process waived?• Also, MOU creates presumptions for enforcement

under IRCA• E-Verify query

– “Yes” response: • Presumption individual work authorized;

– If final non-confirmation, must terminate the employee or notify the USCIS that employer will continue employment

• Rebuttable presumption that the person lacked work authorization

Memorandum of Understanding

• Who will enroll and at what corporate level?• Who will be responsible to ensure

compliance?– Risk is not just from ICE, but debarment

from government contracts– Who understands what the tentative non-

confirmation process requires?– Who handles?– Who answers questions?– Do you have enough knowledge?

To Enroll or not to enroll…

• How do you participate? – Directly? – Through an outside provider?

• Who will have authority to sign the MOU – This binds the company to the MOU

• Need to identify all users who will be enrolled;

• Does a collective bargaining agreement prevent enrollment without union consent?

Enrollment options

• FAR is the “federal contractor” E-Verify rule• E-Verify requirement delayed until May 21, 2009

– Future uncertain pending litigation• Will employer E-Verify entire work force?

– Or, will employer only query existing covered employees and all new hires?

• Contract award date triggers 30 day countdown to enroll in E-Verify and 90 day countdown to query existing employees– New hires must be run through E-Verify within 3 days of

employment (unless no SSN then ASAP);– If opt to verify entire work force, then 180 day

countdown to query all employees starts on date of enrollment

• must update registration if already registered

Federal Acquisition Regulation

• Requirements– Identification of covered contracts

• $100,000 or more for not off the shelf products• Subcontracts of $3000 or more

– Identification of covered current employees• Does not include “support” personnel

– Methods of tracking• E-Verify status of employees• New and/or expiring covered contracts• New assignments for current employees• Covered sub-contracts?

• Special union workforce concerns?– Some union contracts may prevent employer from using

E-Verify without violating contractual provisions

FAR continued…

• Work through your implementation and nonconfirmation processes before you enroll

• Establish an audit process for nonconfirmation tracking and resolution– there are currently no ticklers in the E-Verify system!– there are ticklers in 3rd party employment verification

software that handshakes with E-Verify (see Ombudsman’s report)

• Before enrolling in E-Verify– change your I-9 process and audit I-9s– train staff who will be responsible for I-9/E-Verify

compliance– set up audit procedures and continue to periodically

audit I-9s

Other Considerations…

• New Form I-9 effective April 3, 2009 – See Federal Register dated January 30, 2009, notifying of

extension

• Section 1 revisions – new classifications for workers Citizen of the US Noncitizen national of the US Lawful permanent resident Alien authorized to work . . .

• Caveat: If E-Verify-enrolled, and individual has no SSN (e.g., application pending), – employer must complete the Form I-9, noting lack of SSN

within 3 days and then run through E-verify when SSN issued

– instruction is in the FAQs

I-9 Issues – New Form

• No expired identity documents are acceptable– E.g., expired US passport no longer acceptable

• Must continue to let employee decide what documents to present– However, if E-Verify-enrolled, document

containing a photo ID is mandatory– This means E-Verify-enrolled employer may be

forced to reject once-suitable employment verification documents

Changes to Acceptable Documents

Thanks for coming!

Questions?