The Department of Justice (DOJ) recently announced its settlement agreement with a private security services provider. This agreement addressed allegations of the provider discriminating against non-U.S. citizens. 

According to the case, the company violated the Immigration and Nationality Act (INA) when verifying employees’ ability to work in the U.S. via the employment eligibility verification (Form I-9) process. As a result of this case, Assistant Attorney General Kristen Clarke of the DOJ’s Civil Rights Division made the following statement concerning the I-9 process:

“Employers cannot restrict the types of documents workers can use to prove their permission to work. The department continues to ensure that all workers, regardless of citizenship, immigration status or national origin, are allowed to present valid documents of their choice to prove their permission to work.”

The DOJ began its investigation in response to a complaint by a lawful permanent resident. The complaint alleged that the employer had required the worker to present a Permanent Resident Card to complete the Form I-9. Further investigation found reasonable cause to believe that one of the employer’s locations in Concord and Fremont, California, engaged in a pattern of unfair documentary practices against lawful permanent residents. This timeframe spanned from Feb. 3, 2020, to Dec. 20, 2021. The DOJ’s investigation further determined that the employer made similar demands for other noncitizens when verifying work authorization.

Under the INA, employers must permit workers to present any combination of facially valid documentation they choose to meet the I-9 identity and work authorization requirements. This practice disregards the employee’s national origin, citizenship, or immigration status. As such, employees may choose any document from List A or any combination of documents from List B or List C to prove their identity and work authorization. 

This practice also means employers must accept the submitted paperwork as long as it appears genuine. In many cases, non-U.S. citizens may possess documentation similar to U.S. citizens. This case included examples of such documents, including unrestricted Social Security Cards and state ID cards.

Under the settlement, the employer will pay $100,000 in civil penalties to the U.S. government. They must also create a back pay fund of $75,000 in compensation for those allegedly affected by the employer’s actions. Furthermore, the employer must provide its personnel with training on the requirements of the INA, review its policies to ensure compliance and accept additional monitoring by the DOJ.

Disclaimer:

Information provided here is for educational and informational purposes only and should not constitute as legal advice. We recommend you contact your own legal counsel for any questions regarding your specific practices and compliance with applicable laws.

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Jan 12, 2024

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Ohio legislators recently introduced legislation concerning the E-Verify system. According to the legislators, it would require many employers to utilize the federal program when verifying the work authorization of new hires. Affected employers include contractors and larger companies.

A Look at the Legislation

State Representatives Scott Wiggam and D.J. Swearingen introduced this legislation to the Ohio House of Representatives. Due to the recent introduction, the proposition has yet to receive a bill number. As such, it still awaits an assignment to a House committee.

The bill would require certain employers to use the E-Verify system. This system is maintained by the Department of Homeland Security (DHS) and requires employers to sign up to use it. Employers can use this I-9 management tool with E-Verify integration to quickly incorporate E-Verify in their employment eligibility verification process (Form I-9). It allows them to instantly compare the employee’s I-9 information with records from federal databases electronically.

After comparing the information, the system will inform the employer of the employee’s eligibility to work in the United States. Employers must perform this process within three days of the employee’s starting date. In most cases, the system confirms the employee’s eligibility within seconds.

Requirements with E-Verify

Using E-Verify is voluntary for private employers, excluding contractors for the federal government. However, this bill would change this practice. It would require some employers within Ohio to use E-Verify when verifying new hires’ employment eligibility.

The Ohio House of Representatives also commented on the proposed legislation and its effects. According to their announcement, it would require the following:

• “All contractors and sub-contractors on public works construction projects [must] use E-Verify for its project workforce;
• Contractors and subcontractors on all other construction projects [must] use E-Verify for their project workforce, apart from single, double, or triple family residential construction or construction for agricultural purposes and
• Employers of seventy-five or more employees [must] use E-Verify.”

For Now

After its recent proposal, the unnumbered bill will face several hurdles. Legislators expect it will also undergo some modifications before attaining passage. Regardless of the outcome, employers should consider reviewing their I-9 process. They should ensure that it follows existing regulations.

Unfortunately, the complex regulatory requirements and frequent changes can prove challenging for employers. Due to states ‘ differing needs, it has proven especially difficult for many to ensure compliance with state and federal laws. Utilizing an I-9 management system with E-Verify integration has helped many employers. It offers step-by-step guidance, a fully electronic verification process, and reminders when further action is required.

Disclaimer:

Information provided here is for educational and informational purposes only and should not constitute as legal advice. We recommend you contact your own legal counsel for any questions regarding your specific practices and compliance with applicable laws.

The post New Ohio Bill Requires Contractors and Large Employers to Use the E-Verify System appeared first on JDP.

However, the COVID-19 pandemic changed this practice due to the lockdowns and push for remote work. The government enacted temporary flexibilities for qualifying situations during the pandemic. Though these flexibilities have ended, the government created an alternative procedure similar to the temporary flexibilities. This procedure allows employers to inspect I-9 documentation remotely for their new hires.

Alternative I-9 Procedure

Only employers enrolled in E-Verify may utilize the new alternative procedure. E-Verify is a web-based, government-run system that allows employers to verify employees’ work authorization. The system compares the information from an employee’s I-9 documentation to the records available to the Social Security Administration (SSA) and the United States Citizenship and Immigration Services (USCIS). 

The use of E-Verify is optional. As such, employers can choose to use E-Verify only at specific hiring sites or not at all. In such cases, they must review the documentation in person or through a third-party representative.

Qualified employers must follow several steps to use the alternative procedure:

• The employer must review the provided documents (both the front and back) through e-mail or another method and ensure they appear genuine. 
• During the live video interaction, the employer must again examine the documents to ensure they appear genuine. 
• Check the box on Form I-9 to indicate that they used the alternative procedure.
• Keep clear and legible copies of the documentation provided by the employee. Make sure there are copies of both the front and back of the documents.

Using the Alternative Procedure

Employers using the alternative procedure must remain enrolled in E-Verify and maintain good standing. Compliance with all other requirements is crucial to qualify for the alternative method. For example, they must ensure all their hiring sites use E-Verify.

Employers should also ensure employees have clear instructions when making copies of I-9 documents available during the live video interaction. They must also maintain clear communication that complies with discrimination and I-9 regulations. After completing the live video interaction, employers must securely store the employee’s I-9 documentation. They must keep these documents for three years after the employee’s hire date or one year after the employee’s termination, whichever is later.

Disclaimer:

Information provided here is for educational and informational purposes only and should not constitute as legal advice. We recommend you contact your own legal counsel for any questions regarding your specific practices and compliance with applicable laws.

The post A Look at the DHS’s Remote I-9 Verification Procedure appeared first on JDP.

E-Verify and FAR

E-Verify is a federal program the Department of Homeland Security (DHS) runs. It allows employers to verify that their new hires can work in the United States. The Federal Acquisition Regulation (FAR) requires federal agencies to include a clause in contracts and solicitations exceeding $150,000. 

Excluding a few exceptions, the FAR mandates contracting employers to use E-Verify. These exceptions include contracts ending within 120 days or commercially available off-the-shelf items. Another lesser common exception concerns employees working outside the United States.

The GAO report focuses on three agencies: The Department of Defense (DOD), the Department of Homeland Security (DHS), and the Health and Human Services (HHS). The GAO chose these agencies because they represent nearly two-thirds of the contract awards. Furthermore, many of these awards fall under the E-Verify clause-the subject of the GAO’s interest.

GAO’s Report

In its report, the GAO noted that the three agencies had inconsistent policies for enforcing the E-Verify clause. However, the Office of Management and Budget (OMB) stated that it expects the agencies to monitor the E-Verify compliance of their contractors. Despite this claim, the GAO found that the OMB did not clearly communicate this expectation to the agencies.

The report also found that most officials monitoring their contractors’ compliance had relied on quarterly reports. These reports came from the U.S. Citizenship and Immigration Services (USCIS), which identified contractors’ enrollment and use of the system. However, the USCIS ceased producing these reports due to data limitations. Discontinuing this practice provided little information for agencies to use in monitoring contractors’ compliance.

The FAR has explicit instructions for terminated contractor accounts. The DHS must refer the contractor to suspension and debarment officials. They will determine if temporary disqualification or exclusion from government contracting is appropriate. However, the DHS acknowledged that it has not met this requirement.

As a result of these findings, the GAO has issued eight recommendations, including several specifics for the three agencies to resolve these issues. The report also recommended that the OMB clarify the agencies’ responsibilities. Finally, the DHS must implement a process for referring contractors with terminated accounts for further action.

Disclaimer:

Information provided here is for educational and informational purposes only and should not constitute as legal advice. We recommend you contact your own legal counsel for any questions regarding your specific practices and compliance with applicable laws.

The post GAO Reports Issues Monitoring E-Verify Compliance for Federal Contractors appeared first on JDP.

September 26, 2023

According to the U.S. Citizenship and Immigration Services (USCIS), it will release a new version of E-Verify in 2024. The system will prove quite different from the current one, as it would integrate the employment eligibility verification (Form I-9) process with E-Verify. The USCIS calls it E-Verify NextGen.

Employers must complete Form I-9 for all new hires; however, E-Verify is optional. This web-based system is optional and allows employers to verify the employment eligibility of their employees easily. Those using E-Verify input the information from Form I-9s and let the web-based system finish the process. A company’s Human Resources department currently handles much of the E-Verify process. However, the new employees would complete most of the process under the new system.

How NextGen Works 

When using E-Verify NextGen, a new employee will input their biographical details and citizenship or immigration status. Afterward, they must provide identity documents on the secure, personal myE-Verify account. After completing these steps, the system will confirm their details and notify the employer. 

The employer may examine the employee’s documents from here and verify the supplied information. They can review the details remotely using the new alternative verification method. This option requires the employer or a representative to attend a live video meeting with the employee while verifying the documents. After completing and submitting the provided information, the system will create a Form I-9 for the employer to download and retain.

The employee will receive a notification if the system finds issues with their employment eligibility. Resolving these issues must happen before the eligibility verification can continue. Typically, the employer participates in this process. However, E-Verify NextGen will have the employee work directly with the federal government to resolve potential mismatches. This change improves the process’s privacy and security, potentially resolving such cases faster.

Convenient Features

Another feature of the new system allows employees to reuse their verification for new employers. This change improves the current system’s process, which requires employees to create new Form I-9 when changing jobs. It would also remove the requirement for employers to submit new E-Verify cases.

The new system would save the employee’s submitted information in their myE-Verify account for future employers. It would allow employers to utilize a reference code to access the employee’s details, which they and the employer could update as needed. Afterward, the employer and employee could complete the E-Verify NextGen process and move forward with the hiring process faster.

Employers may struggle with the swift changes around Form I-9 and E-Verify. However, using an electronic I-9 management system could ease the process. Those using E-Verify can also find systems with E-Verify integration. This system provides step-by-step guidance and electronic storage for Form I-9s and related documents.

Disclaimer:

Information provided here is for educational and informational purposes only and should not constitute as legal advice. We recommend you contact your own legal counsel for any questions regarding your specific practices and compliance with applicable laws.

The post The NextGen E-Verify Will Bring Many Changes for Employers appeared first on JDP.

Penalties for employment eligibility verification (Form I-9) violations have always posed a significant fiscal risk for employers. Previously, inflation rarely played a role in these issues. However, the Department of Justice’s Office of the Chief Administrative Hearing Officer (OCAHO) announced a decision inciting change.

The OCAHO Decision

The decision has posed the question of what date to use when assessing penalties for Form I-9 violations. Answering this question could signal a change from established practices. It would affect how the U.S. Immigration and Customs Enforcement (ICE) determines the date for assessing civil penalties, causing significantly higher penalties for prolonged cases.

Violating I-9 regulations can result in civil penalties. When enacted in 1986, the law limited the fines to a maximum of $1,000. However, the penalties have increased over time. The most notable increase occurred when the Bipartisan Budget Act of 2015 more than doubled it. The fluctuation is due to Civil Monetary Penalties and Inflation Adjustments. 

The Department of Justice (DOJ) publishes the Adjustments annually, ensuring they follow the general inflation rate. This pace can result in significant changes in maximum fines between years during high inflation. Traditionally, this would have a minimal impact. The minor impact is because the OCAHO established a precedent that locked fines at specific times, depending on when ICE issued a Notice of Intent (NIF). 

The Chief’s Thoughts

According to the Chief Administrative Hearing Officer, “As noted, since 2020, OCAHO decisions by both its ALJs and the CAHO have consistently asserted that the date of assessment for purposes of 28 C.F.R. § 85.5 in cases arising under 8 U.S.C. § 1324a10 is the date DHS serves the NIF on the respondent.”

In the decision to vacate a penalty assessment, the Chief raised several questions. In it, the Chief questioned whether the date that locked in the penalties should occur the day of the NIF’s announcement. He also debated whether it should happen when the OCAHO assesses the penalty. Though the former would prove more favorable, the analysis shows that the decision favors the latter. 

The Results so Far

This result could lead to considerable penalties due to inflation. As such, the Officer vacated the Final Order on penalties. He also remanded the case for further proceedings to make a final decision. As a result, the question of when to assess penalties remains unanswered.

This decision may present a higher risk for employers facing penalties for Form I-9 violations; employers with prolonged cases will feel those risks more than others. As such, employers should continue to comply with all I-9 regulations to prevent such complications. Working with a background check provider capable of electronic I-9 and E-Verify integration systems is one means to ensure compliance.

Disclaimer:

Information provided here is for educational and informational purposes only and should not constitute as legal advice. We recommend you contact your own legal counsel for any questions regarding your specific practices and compliance with applicable laws.

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