EmployeeScreenIQ Blog

On July 22, 2010 the Department of Homeland Security published a final rule on the acceptance of electronic signatures and storage of the Form I-9.  The rule, scheduled to take effect August 23, 2010, allows employers to prepare, sign, scan and store the form electronically as long as certain criteria is met.  See below.

In this final rule, DHS makes minor modifications to 8 CFR 274a.2 to clarify certain provisions that:

• Employers must complete a Form I-9 within three business (not calendar) days;
• Employers may use paper, electronic systems, or a combination of paper and electronic systems;
• Employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations;
• Employers need not retain audit trails of each time a Form
• I-9 is electronically viewed, but only when the Form I-9 is created,completed, updated, modified, altered, or corrected; and
• Employers may provide or transmit a confirmation of a Form I-9 transaction, but are not required to do so unless the employee requests a copy.

SHRM’s Allen Smith, J.D. writes that, “Several commenters on the interim final rule requested guidance on the storage of ancillary documents used to verify an employee’s identity and eligibility to work in the United States. DHS clarified that employers may, but are not required to, copy or make an electronic image of a document used to comply. It cautioned, though, that employers should apply consistent policies and procedures for all employees to avoid discrimination.

DHS noted that the Form I-9 and verification documentation may be stored in a separate Form I-9 file or as part of an employee’s other employment records. In addition, only the pages of the Form I-9 containing employer- and employee-entered data need be retained. Other pages of the current form are instructions for completing the Form I-9 and need not be retained.

DHS agreed with comments that suggested that it is unnecessary to require an audit trail to record every time a Form I-9 is simply viewed or accessed but not modified. When the Form I-9 is created or modified, though, a secure and permanent record must be created establishing the date of access, the identity of the individual who accessed the electronic record and the particular action taken.

In response to comments, DHS also amended the interim final rule to require an employer to provide or transmit a confirmation of the transaction only if an employee requests it. Several commenters had objected to the interim final rule’s requirement that a printed transaction record be given to the employee even absent a request.
One commenter noted that some companies process thousands of new employees annually; another noted that in the modern work environment many employees work off site. These commenters expressed concern that requiring paper receipts could be a significant burden to businesses. DHS officials did not think the requirement was unduly burdensome but amended the interim final rule in response to the comments.

If requested, a receipt when completing an electronic record should be provided within a reasonable period of time, but it need not be provided at the time of the transaction.

But DHS cautioned that providing the option of electronic preparation and storage does not alter the requirement that the employer physically examine any documentation provided by the employee in the presence of the employee prior to completing the Form I-9.”

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Utah-based employers with 15 or more employees should take note that effective July 1, 2010 they must use a “status verification system” to verify the employment eligibility of new employees. Utah S.B. 251 makes mandatory the use of the government’s E-Verify portal which determines legal right to work status through the Social Security Administration and Department of Homeland Security.

For more information on the Electronic Employment Eligibility process, please visit us at http://employeescreen.com/employmenti9.asp

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There has been a lot of negative news about E-Verify since the program has been launched.  Most recently, we told you that the program designed to weed out illegal workers was in fact missing 50% of all illegal workers because it couldn’t detect identity fraud.

But before you give up on the program, I think it is important to weight both sides of the equation.  Check out DHS’ response.  In our experience with the Electronic Employment Eligibility process, we find that while at times flawed greatly improves an organization’s ability to hire legal workers and comply with federal guidelines.

Recently, some media reports have used statistics that appear to call into question the effectiveness and accuracy of E-Verify. I’d like to set record straight. A report by the independent research firm Westat, using a sample from a three month period in 2008, concluded that E-Verify was accurate 96 percent of the time. Since then, the Obama administration has taken significant steps to further improve E-Verify.

Read the report for yourself here.

What else did this report tell us about E-Verify?

• 93.8 percent of workers screened by E-Verify were authorized for employment—and the system instantly and accurately confirmed more than 99 percent of these eligible workers.
• The remaining 6.2 percent were not eligible for employment. Out of this estimated 6.2 percent, approximately half were told they are work authorized when they were not—just 3.3 percent of the overall population screened by E-Verify.

To be clear, this means that only an estimated 3.3 percent of all workers screened by E-Verify were incorrectly told they were work authorized.

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It’s been fairly smooth sailing for the E-Verify, the government program that allows employers to check the legal right to work status of an employee in the United states, since it was made mandatory for federal contractors last year.  That is until now, where it is being reported that this system is failing to catch more than half of all illegal workers.  The technology is not the problem, nor are Social Security Administration’s or Department of Homeland Security’s databases.  The issue lies in its inability to detect identity fraud.  In other words, if the employee fills out their I-9 Form and presents documents that contain valid information (such as a social security, passport or drivers license number), the system simply can’t tell that they belong to someone else.

I suppose this is a better problem to have then the system regularly spitting our tentative non-confirmations for legal workers, but still something that will have to be addressed in some fashion.

Report: E-Verify Misses Half of Illegal Workers

By SUZANNE GAMBOA, Associated Press Writer – Thu Feb 25, 3:09 am ET

WASHINGTON – The system Congress and the Obama administration want employers to use to help curb illegal immigration is failing to catch more than half the number of unauthorized workers it checks, a research company has found.

The online tool E-Verify, now used voluntarily by employers, wrongly clears illegal workers about 54 percent of the time, according to Westat, a research company that evaluated the system for theHomeland Security Department. E-Verify missed so many illegal workers mainly because it can’t detect identity fraud, Westat said.

“Clearly it means it’s not doing its No. 1 job well enough,” said Mark Rosenblum, a researcher at the Migration Policy Institute, a nonpartisan Washington think tank.

E-Verify allows employers to run a worker’s information againstHomeland Security and Social Security databases to check whether the person is permitted to work in the U.S. The Obama administration has made cracking down on employers who hire people here illegally a central part of its immigration enforcement policy, and there are expectations that some Republicans in Congress will try in coming weeks to make E-Verify mandatory.

E-Verify correctly identified legal workers 93 percent of the time, Westat said. However, previous studies have not quantified how many immigrants were fooling the E-Verify system. Much of the criticism of E-Verify has focused on whether U.S. citizens and legal immigrants with permission to work were falsely flagged as illegal workers.

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I recently spoke with Stu Lawrence from our channel partner, Form I-9 Compliance to discuss the federal mandate that all federal contractors must utilize E-Verify to confirm their employee’s right to work status in the United States.  This mandate is set to take effect on September 9, 2009.

Check out our podcast with Stu (below).

For more information on I-9 forms and the Electronic Employment Eligibility Process, please visit us at http://employeescreen.com/employmenti9.asp

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This is a reminder that all Federal Contractors are mandated to use E-Verify to confirm employee’s right to work status in the United States, effective September 8, 2009.

How to Comply
Employers must establish an account with the Department of Homeland Security by completing a Memorandum of Understanding. An account can be set up directly with DHS or through an approved channeling agent. Once the MOU has been approved, access to the E-Verify database will be activated. The employer must then have the employee complete an I-9 form and query the database within the first 48 hours of a new hire’s start date to determine if they have a legal right to work in the United States.

There are only two possible results of the query: Confirmation of the person’s legal right to work or a Tentative Non-Confirmation. In the event of a Tentative Non-Confirmation, employees are given 8 business days to resolve the issue with the Social Security Administration and, or DHS.

See July 8, 2009 release from the Department of Homeland Security

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The following is being reported to us via the National Association of Professional Background Screeners (NAPBS)

On August 19th the below Proposed Rule (provided in part) was published in the Federal Register announcing the rescission of regulations which would have placed onerous requirements on employers relating to the receipt of no-match letters from the Social Security Administration and the Department of Homeland Security. Essentially, under the amendments proposed by DHS, receipt of a no-match letter may have been sufficient, by itself, to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be work- authorized.  Employers should note however that DHS’ rescission of these regulations is because instead they will focus on immigration compliance through E-Verify, IMAGE and other verification programs.

Safe-Harbor Procedures for Employers Who Receive a No-Match Letter: Rescission

SUMMARY: The Department of Homeland Security (DHS) proposes to amend its regulations by rescinding the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters. Implementation of the 2007 final rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.

DATES: Comments must be submitted not later than September 18, 2009.

What led up to the Rescission of the Rule?
As stated in the Federal Register. Over the years, employers have inquired of the former Immigration and Naturalization Service, and now DHS, whether receipt of a no-match letter constitutes constructive knowledge on the part of the employer that he or she may have hired an alien who is not authorized to work in the United States. On August 15, 2007, DHS issued a rule describing the legal obligations of an employer following receipt of a no-match letter from SSA or a letter from DHS regarding employment verification forms. See 72 FR 45611. The rule also established “safe-harbor” procedures for employers receiving no-match letters.

On August 29, 2007, the American Federation of Labor and Congress of Industrial Organizations, and others, filed suit seeking declaratory and injunctive relief in the United States District Court for the Northern District of California. AFL-CIO, et al. v. Chertoff, et al., No. 07-4472-CRB, D.E. 1 (N.D. Cal. Aug. 29, 2007). The district court granted plaintiffs’ initial motion for a temporary restraining order against implementation of the August 2007 Final Rule. AFL-CIO v. Chertoff, D.E. 21 (N.D. Cal. Aug. 31, 2007) (order granting motion for temporary restraining order and setting schedule for briefing and hearing on preliminary injunction). On October 10, 2007, the district court granted the plaintiffs’ motion for preliminary injunction. AFL- CIO v. Chertoff, 552 F.Supp.2d 999 (N.D. Cal. 2007) (order granting motion for preliminary injunction).

The court raised three issues regarding DHS’s rulemaking action implementing the No-Match final rule: Whether DHS had (1) supplied a reasoned analysis to justify what the court viewed as a change in the Department’s position–that a no-match letter may be sufficient, by itself, to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be work- authorized; (2) exceeded its authority (and encroached on the authority of the Department of Justice (DOJ)) by interpreting the anti- discrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, 100 Stat. 3359 (1986), INA section 274B, 8 U.S.C. 1324b; and (3) violated the Regulatory Flexibility Act, 5 U.S.C 601 et seq., by not conducting a regulatory flexibility analysis. DHS subsequently published a supplemental notice of proposed rulemaking (SNPRM) and supplemental final rule to clarify certain aspects of the 2007 No-Match final rule and to respond to the three findings underlying the court’s injunction.. See e.g. 73 FR 15944 (Mar. 26, 2008), 73 FR 63843 (Oct. 28, 2008). Neither the SNPRM nor final rule, however, changed the safe-harbor procedures or applicable regulatory text. The implementation of the rule remains enjoined.

Basis for the Administration’s Policy Change?
As stated in the Federal Register notice.  On January 20, 2009, President Barack Obama was sworn into office. Shortly thereafter, on January 21, 2009, Janet Napolitano was sworn in as the Secretary of Homeland Security. Following the transition, the Secretary conducted a review of existing programs and regulations to determine areas for reform or improved efficiency. Pursuant to this review, DHS has determined that improvements in U.S. Citizenship and Immigration Services’ (USCIS) electronic employment verification system (E-Verify), along with other DHS programs, provide better tools for employers to reduce incidences of unauthorized employment and to better detect and deter the use of fraudulent identity documents by employees. As discussed below, DHS therefore has concluded that rescinding the August 2007 No-Match Rule and 2008 Supplemental Final Rule will better achieve DHS’s regulatory and enforcement goals.

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Federal contractors be advised. It appears that the government is finally ready to follow through on its mandate to have all federal contractors use E-Verify to confirm employment eligibility on all workers. After several delays since the rule was supposed to take effect in January, 2009, DHS sent out this release this morning.

Department of Homeland Security

Release Release Date: July 8, 2009

For Immediate Release Office of the Press Secretary Contact: 202-282-8010

Department of Homeland Security (DHS) Secretary Janet Napolitano today strengthened employment eligibility verification by announcing the Administration’s support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. The declaration came as Secretary Napolitano announced the Department’s intention to rescind the Social Security No-Match Rule, which has never been implemented and has been blocked by court order, in favor of the more modern and effective E-Verify system.

“E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” said Secretary Napolitano. “Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce. The rule complements our Department’s continued efforts to strengthen immigration law enforcement and protect critical employment opportunities. As Senator Schumer and others have recognized, we need to continue to work to improve E-Verify, and we will.” E-Verify, which compares information from the Employment Eligibility Verification Form (I-9) against federal government databases to verify workers’ employment eligibility, is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA). The system facilitates compliance with federal immigration laws and helps to deter unauthorized individuals from attempting to work and also helps employers avoid employing unauthorized aliens.

The federal contractor rule extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. After a careful review, the Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009.

On average, one thousand employers sign up for E-Verify each week, totaling more than 134,000 employers representing more than half a million locations nationwide. Westat, an independent research firm, found that 96.9 percent of all queries run through E-Verify are automatically confirmed work-authorized within 24 hours. The figure is based on statistics gathered from October through December 2008. Since October 1, 2008, E-Verify has processed more than six million queries. In an April 2009 American Customer Satisfaction Index Survey of over a thousand E-Verify participants, E-Verify scored 83 out of a possible 100 points—well above the latest federal government satisfaction index of 69 percent. In addition to expanding participation, DHS continues to enhance E-Verify in order to guard against errors, enforce compliance, promote proper usage, and enhance security. Recent E-Verify advancements include new processes to reduce typographical errors and new features to reduce initial mismatches. In May 2008, DHS added access to naturalization database records which increased the program’s ability to automatically verify naturalized citizens’ status, reducing citizenship-related mismatches by 39 percent. Additionally, in February 2009, the agency incorporated Department of State passport data in the E-Verify process to reduce mismatches among foreign-born citizens. Other initiatives underway will bring further improvements to Federal database accuracy; add new tools to prevent fraud, misuse, and discrimination; strengthen training, monitoring, and compliance; and enhance privacy protections.

DHS will be proposing a new regulation rescinding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect. That rule established procedures that employers could follow if they receive SSA No-Match letters or notices from DHS that call into question work eligibility information provided by employees. These notices most often inform an employer many months or even a year later that an employee’s name and Social Security Number provided for a W-2 earnings report do not match SSA records—often due to typographical errors or unreported name changes. E-Verify addresses data inaccuracies that can result in No-Match letters in a more timely manner and provides a more robust tool for identifying unauthorized individuals and combating illegal employment.

As Governor of Arizona, Secretary Napolitano signed legislation mandating all employers in the State use E-Verify. Implementation of this legislation has received high marks from employers across Arizona and the USCIS Ombudsman (in a December 2008 report).

For more information on E-Verify, visit www.uscis.gov/everify.

View Official Release

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The Department of Homeland Security has again delayed enforcement of the requirement that mandates federal contractors use the E-Verify system to check the eligibility of their employees to work in the U.S. until at least September 8, 2009.

This mandate was originally scheduled to take effect of January 15, 2009 but was pushed back to February 20, 2009 due to a federal lawsuit filed by the U.S. Chamber of Commerce and other business groups. The parties then agreed to extend the deadline to May 21, 2009.

According to WashingtonTechnology, the rollback is to allow President Obama’s administration more time to complete its review of the rule.

“It would be the fourth time DHS’ U.S. Citizenship and Immigration Services agency has delayed the controversial rule. Under former President George W. Bush’s executive order, about 168,000 federal contractors were to begin using E-Verify in January. The order applies to contracts of more than $100,000 and subcontracts of more than $3,000.”

View Full Article

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Effective April 3, 2009 all U.S. employers must use the new I-9 Form which was revised earlier this year. Some of the changes include the following:

• The addition of a new citizenship attestation for Noncitizen nationals
• Modifications to the Lists of Acceptable documents;
• No longer accepting expired documents; and
• Other technical changes.

For those currently using or interested in employeescreenIQ’s Electronic I-9 Process, we have already updated this form into our interface with the Social Security Administration and the Department of Homeland Security.

View the New I-9 Form

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