By Dawn M. Lurie and Greg Morano
In mid-April, United States Citizenship and Immigration Services (USCIS) introduced long awaited enhancements to the program as part of the new “modernized E-Verify system”. In fact, the overhaul is enormous in scope, the new system is entirely separate from the previous itineration of E-Verify. From a data storage location shift to reinforcement of the old infrastructure, the bones of the system are being reinforced. Employers will continue to maintain access to their old data while being able to open cases in the new system. The updates demonstrate USCIS’ continued focus on improving the system, which makes perfect sense in the face of a possible, nationwide, E-Verify mandate.
What is E-Verify
E-Verify is an internet based system that compares information from an employee’s Form I-9 to the Department of Homeland Security (DHS) and Social Security Administration (SSA) records to confirm employment eligibility. Continuously improving, but not perfect, the system struggles with cracks in its armor especially when it comes to ensuring identity. However, one of the key benefits of E-Verify is that employers are provided a rebuttable presumption that there has been no violation of the statute, with regard to the knowing hiring of an unauthorized worker, if the employee’s information has been confirmed by the system. This is important in the context of a Form I-9 inspection.
Enhanced Usability Features
For many E-Verify users, E-Verify has created a functionality to search cases by last name. USCIS also expanded features in an attempt to lower the number of Tentative Nonconfirmations (TNCs) by improving user friendliness. The system now includes more helper text and added visuals about the data fields and acceptable documents. More importantly, E-Verify will provide real-time feedback on possible errors to allow users to quickly correct data entry errors; once spotted, users can now edit case information without changing pages.
E-Verify has streamlined its case creation and management to augment the system’s speed and accuracy. In another move to reduce TNCs, E-Verify modernized how it matches employee data to government data, and created an, “Are You Sure?” alert to assist users in identifying any data points that may lead to a TNC. Additionally, the entire TNC process has been streamlined, which may require training and process changes. USCIS combined Department of Homeland Security (DHS) and Social Security Administration (SSA) TNCs—E-Verify now sends cases to SSA and DHS simultaneously. If both agencies issue a TNC, the user will see a dual TNC, rather than two separate ones. In turn, the employee will receive a combined SSA and DHS Further Action Notice to respond to the TNC with the employee now having ten days to address both issues at the same time.
Data Integrity and System Compliance
Companies with concerns regarding the integrity of E-Verify data will be happy to know that this update improves on many areas. If you have become accustomed to seeing all cases in your E-Verify reports, this update administratively closes cases that have not been accessed in 365 days or more. The update also improves photo matching features and now allows for mobile uploads. One change that will require employers to update their E-Verify processes is that users now must enter a reason as to why an employee continues to work after receiving a Final Nonconfirmation (FNC). While E-Verify indicates that the change “allows for better record keeping for FNCs retained by an employer”, companies should carefully consider all FNCs and confer with counsel prior to allowing any individual with a FNC case result to continue to work for pay.
Web Services Participants (electronic I-9 users)
E-Verify participants accessing the system through their own software, or via a vendors’ software, will need to ensure their vendor is updating its electronic I-9 capabilities pursuant to guidance that the USCIS Verification division will likely release in the next few weeks. The new Web Services Interface Control Agreement (ICA) documents the information used to develop and test the software interface. Vendors generally have six months to update their system and test the new ICA scenarios. Companies are urged to ensure their vendor is on top of these changes, has the resources to deal with the changes and will be in compliance in terms of the necessary updates.
Due to the considerable efforts USCIS undertook to start the E-Verify modernization process, growing pains are a guarantee. Some employers have already identified issues with the new system, including concerns over identifying the three day period in which to complete E-Verify timely. USCIS is currently providing employers who have an issue completing a case in the new system an extra 10 business days to submit it. To take advantage of this, USCIS requests that users contact E-Verify at email@example.com with “Employer Name – E-Verify Modernization Issues” in the subject line.
Seyfarth will continue to update employers as USCIS pushes updates and work out the kinks in the new system.