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Labor & Employment

Wednesday, September 4, 2013

Immigration Roundup: E-Verify Changes on the Horizon


Ahead of a likely legislative requirement that the E-Verify electronic employment eligibility verification system be made mandatory for all U.S. employers, the National Immigration Law Center recently released a report warning that the way the system works now could mean that hundreds of thousands of work-authorized individuals might face problems from mismatches between their information and what’s contained in government records, also known as tentative nonconfirmations (TNCs).

Right now 404,295 employers are enrolled in E-Verify, only about 7 percent of all U.S. employers. But both the comprehensive Senate-passed immigration bill (S. 744) and legislation (H.R. 1772) passed by the House Judiciary Committee would require all employers to use the system.

NILC’s report said that while the most recently calculated error rate for TNCs is 0.3 percent, erroneous TNCs are much more common for lawful permanent residents and other work-authorized foreign nationals than for citizens. Also, a 0.3 percent error rate among all employees in the U.S., as would be the case under either bill, might mean that somewhere between 150,000 and 500,000 people would have to correct a problem with either the Social Security Administration or the Department of Homeland Security.

And even though employers that use E-Verify are required to inform employees of TNCs and how to contest them, NILC said many employers don’t, and in several cases take some kind of adverse job action against employees with a TNC even though E-Verify rules prohibit such action. The report added that some employers also violate E-Verify rules by using the system to pre-screen job applicants.

NILC attributed a portion of erroneous final nonconfirmations (FNCs)—a determination by E-Verify that an individual isn’t authorized to work—to employers’ failure to inform employees of TNCs. But U.S. Citizenship and Immigration Services, which administers E-Verify, is taking some steps in an apparent attempt to alleviate that problem.

For example, in early July the agency announced that if employees voluntarily provide their email addresses on the new I-9 employment eligibility verification form, TNC notices can be sent directly to the employee’s email, and the employee won't have to rely on his or her employer to provide that information.

USCIS more recently announced that, beginning Sept. 8, the TNC Notice and Referral Letter will be replaced with a Further Action Notice and a Referral Date Confirmation.

The new Further Action Notice will inform employees of a TNC, give them the option of contesting it with SSA or DHS, and tell them how to do so, the agency said. Once an employer refers a TNC case to SSA or DHS, E-Verify will produce a Referral Date Confirmation that the employer must give the employee. That confirmation will contain the deadline for the employee to contest the TNC.

In Other News:

  • The Labor Department Aug. 30 issued a final rule delaying indefinitely its 2011 H-2B wage rule to accommodate both the recurring legislative ban on its implementation and consideration of an interim wage rule jointly issued with DHS in April in response to a court order preventing DOL from using its 2008 wage rule.
  • The Republican National Committee Aug. 16 adopted a resolution calling for special work permits for undocumented immigrants currently in the country that would not provide a pathway to citizenship, a break from the party’s 2012 platform in which it expressly disavowed “amnesty” for individuals without lawful immigration status.
  • The U.S. Court of Appeals for the Ninth Circuit Aug. 6 decided that a $173,250 fine against a Washington state drywall company for failing to complete I-9 forms was justified in light of the circumstances, including that the company didn’t hire anyone trained on completing the Form I-9 until 2006—20 years after the Immigration Reform and Control Act made the forms mandatory.


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