E-Verify: Enrollment Up, But DHS Is on the Prowl for Misuse

The United States Department of Homeland Security (“DHS”) has been very successful in increasing the number of employers that participate in the E-Verify program. As of late January 2014, over 500,000 employers are enrolled and approximately 1,500 employers enroll each week. E-Verify is DHS’s internet-based employment authorization verification program. Participating employers complete an E-Verify case inquiry after completing Form I-9 with newly hired employees. Certain federal contractors also complete E-Verify inquiries as to existing employees assigned to perform services under a federal contract. For the majority of employers, participation in E-Verify is voluntary. However, in some circumstances, enrollment in E-Verify is mandatory (e.g., certain federal contractors and employers located in states that require E-Verify enrollment).

Following the significant expansion of the E-Verify program, DHS has begun transitioning its primary focus from education and outreach to enforcement. It now has an E-Verify Monitoring and Compliance Branch (“E-Verify M & C”), which seeks to detect and deter the improper use of the E-Verify program. E-Verify M & C may contact an employer initially by telephone or e-mail to inquire about compliance issues. E-Verify M & C then closely reviews an employer’s conduct for approximately the next sixty days. If the employer’s compliance does not improve, E-Verify M & C may commence a desk review and possible site visit.

When the employer’s use of E-Verify suggests an abuse of the system in a manner that may discriminate against certain employees, E-Verify M & C may refer the matter to the Department of Justice’s Office of Special Counsel. If E-Verify M & C makes such a referral, it also will share the data showing the employer’s activities. Examples of such referrals include when E-Verify M & C suspects that the employer is committing document abuse, is terminating new hires before the eight federal working day period has passed, or is otherwise committing unfair, immigration-related employment practices prohibited by federal law. The OSC is acting on these tips. In announcing several recent settlements and case resolutions, the OSC stated that it began the investigations and enforcement actions based upon referrals from E-Verify M & C.

E-Verify M & C also may refer matters to Immigration and Customs Enforcement (“ICE”) for possible investigation. For example, E-Verify M & C may tip ICE when the evidence suggests that the employer is continuing to employ individuals after a Final Nonconfirmation result or is otherwise abusing the E-Verify program. When E-Verify M & C makes referrals to the OSC or ICE, E-Verify M & C does not alert the employer. If the OSC or ICE decline to investigate, E-Verify M & C will contact the employer about the conduct that is considered improper.

Here are some of the top compliance concerns that will draw E-Verify M & C’s attention to an employer:

• Failing to print the Further Action Notice (“FAN”) after receiving a Tentative Nonconfirmation and/or to refer the new employee to DHS or the Social Security Administration as instructed in the FAN.
• Inputting I-9 information that shows certain new hires always present the same type of document (e.g., all or most of the new hires who hold lawful permanent resident status present the List A permanent resident card for I-9 compliance. This evidence may suggest that the employer is requesting the permanent resident card, which is a document abuse violation.).
• Initiating E-Verify cases outside of the required time frame (too early, which may suggest improper screening of an applicant before obtaining an accepted job offer, or too late, which is a failure to comply with a critical requirement of the E-Verify program).
• Initiating an E-Verify case for existing employees when the employer is not a federal contractor enrolled in Federal Acquisition Regulation (“FAR”) E-Verify.
• Initiating multiple E-Verify cases for different employees using the same social security number.
• Failing to close out E-Verify cases.
• Enrolling in E-Verify, but failing to use it.
• Terminating employees before the referral period has expired (i.e., before the eight federal working days has passed).
• Continuing to employ individuals for whom a Final Nonconfirmation has been issued.

E-Verify M & C considers the employer’s overall E-Verify use and looks for patterns of compliance failures. Depending upon the type of mistake, an occasional failure is less likely to trigger scrutiny. For more information about the E-Verify Monitoring and Compliance Branch and its activities, see DHS’s 2013 summary entitled “Role of the Monitoring and Compliance Branch.”