As employers continue to enroll in the E-Verify program at a high rate, the United States Department of Homeland Security (DHS) is considering various changes to this key program. Some of these changes place additional obligations on the employer. E-Verify is DHS’s internet-based system through which employers may electronically verify the employment eligibility of newly hired employees. Employers do so by opening an E-Verify case and entering the information contained on the Form I-9, Employment Eligibility Verification.
As we discussed previously, DHS is turning its attention to establishing a more robust E-Verify program and achieving greater employer compliance. In just a few years, DHS’s E-Verify Monitoring and Compliance division (E-Verify M&C) has increased its compliance actions with employers from just over 42,000 to nearly 87,000. Compliance actions include telephone calls, e-mails, desk reviews (desk audits), and site visits. In addition, E-Verify M&C has dramatically increased the number of referrals that it makes to other federal agencies to investigate employers. Although DHS refuses to disclose the nature of these referrals, it appears that a significant number have been to the United States Department of Justice’s Office of Special Counsel (OSC) to investigate employers for possible discriminatory application of the E-Verify program. DHS also has acknowledged that it is in the early stages of developing a process to impose sanctions against employers that fail to comply with the E-Verify Memorandum of Understanding (MOU). Each E-Verify employer electronically signs the MOU when enrolling in the program.
This summer, DHS has made other proposals to change the E-Verify program. It is likely that these most recent proposals will be implemented in some form over the next few months. The changes, as currently proposed, include the following:
E-Verify Case Inquiry After Form I-9 Reverification:
Final Nonconfirmation Formal Review Process:
The public may comment to DHS on these proposed changes until August 7, 2015. At a later date, DHS will announce the final changes and the implementation date for those changes. Until that time, E-Verify employers should follow the existing program and E-Verify MOU.