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.

System Streamlining

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.

Next Steps

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 enrmod-projectteam@uscis.dhs.gov 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.

Seyfarth Synopsis: Following the wave of Notices of Inspection (NOI) at 77 Northern California businesses last month, Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) agents are continuing to spread the cheer with NOIs targeting businesses in Southern California this week.  Serving NOIs throughout the greater Los Angeles area, the inspections appear industry agnostic.  The NOIs delivered by HSI agents and auditors notify businesses that they must produce their employees’ Forms I-9, Employment Eligibility Verifications within 72 hours.  The notices often include a list requesting additional company information and documents as well.

Local HSI offices are keeping ICE’s Deputy Director Thomas Homan’s promise of increasing its activities not just across the nation but more specifically targeting sanctuary cities and states like California.  It is important to note that businesses receiving the NOIs are not all within the service, manufacturing, agriculture, or traditional “infrastructure” sectors. Employers across industries should take a look at their Form I-9s and overall immigration compliance – the time to figure things out is not during the 72 hours after a NOI is issued.

Continue Reading California Continues to Shine Under ICE’s Spotlight

By Dawn M. Lurie and Alexander Madrak

True to its word, last week Immigration and Customs Enforcement (ICE) agents issued Notices of Inspection (NOIs) at seventy-seven Northern California businesses. ICE’s Homeland Security Investigations (HSI) agents spread out across northern California, serving NOIs in Sacramento, San Francisco, and San Jose at the end of January. No employees or employers were arrested at the time; instead, HSI agents notified businesses that they are being audited and provided seventy-two hours to produce their employees’ Forms I-9, Employment Eligibility Verifications.

The worksite actions follow ICE’s Deputy Director Thomas Homan’s comments that ICE would increase its activities in California after designating itself an official sanctuary state for undocumented immigrants following the passage of AB 450. With Homan’s nomination to be the Director of ICE, these and other comments by Homan indicate ICE may very well follow through on its promises—both that enforcement will increase by “four to five times” this year and that California may bear a disproportionate brunt of the action.

Employers across industries should proactively prioritize addressing immigration compliance by:

  1. conducting careful internal assessments;
  2. conducting Form I-9 audits (with the assistance of competent counsel);
  3. reviewing and/or establishing procedures to ensure employees are prepared to deal with visits from ICE;
  4. creating and updating immigration compliance polices; and,
  5. providing training and resources in order to ensure the Form I-9 process is captured correctly.

Prioritizing immigration compliance today will prevent problems and minimize exposure tomorrow.

As part of the Trump Administration’s extreme vetting efforts, certain visa applicants will now be required to complete a rigorous supplemental questionnaire prior to visa issuance. The information requested in the new, supplemental questionnaire is extensive, and includes the applicant’s full travel history for the past 15 years, including locations visited, dates, and source of funds for the visit; all passport numbers; names and dates of birth of all siblings, children, and spouses/partners; complete address and dates of residence for the past 15 years; employment history for the past 15 years; and all social media handles, phone numbers and email addresses for the past five years.

The supplemental questionnaire will not be required of all visa applicants. As part of the visa application interview and screening process, Visa Officers will decide when the individual visa applicant’s background warrants additional security checks. Previous travel by the visa applicant to areas controlled by terrorist groups is expected to make it more likely that the supplemental questionnaire will be requested. The U.S. Department of State estimates that approximately 65,000 people (less than 1% of 13 million visa applicants worldwide) may be requested to complete the supplemental questionnaire each year.

Continue Reading Extreme Vetting Measures To Include Questionnaires Asking for Detailed Travel History and Social Media Information

At a program held today at Seyfarth Shaw’s offices in Chicago, partners Jim King and Leon Rodriguez discussed rapidly developing changes in business immigration in the first 100 days of the Trump administration.  King serves as co-chair of the Business Immigration Group and Rodriguez is the most recent director of United States Citizenship and Immigration Services.

King and Rodriguez identified changes flowing from a series of executive orders issued by President Trump since inauguration which direct changes in areas including arrival of foreign travelers in the United States, screening of visa applicants and immigration enforcement in the interior of the United States.  King and Rodriguez also discussed possible policy changes that could operate to change and possibly restrict the availability of employment-based visas to the United States.

Continue Reading SEYFARTH BUSINESS IMMIGRATION GROUP PARTNERS JIM KING AND LEON RODRIGUEZ DISCUSS IMMIGRATION TRENDS BEFORE CHICAGO AREA BUSINESS LEADERS

On March 17, Secretary of State Rex Tillerson issued a cable to all diplomatic and consular posts worldwide calling for the immediate implementation of heightened screening of visa applications.  Through the cable, Secretary Tillerson instructed consular posts to undertake additional screening measures based on the conclusions of the interagency working groups mandated by the President’s Executive Order.  Visa processing screens at U.S. consular posts will be more invasive and time-consuming for certain individuals, particularly those from the countries listed in the President’s most recent Executive Order and those from Iraq.

Continue Reading New Department of State Cable Implements Extreme Vetting Measures