On February 17, 2021, U.S. Citizenship and Immigration Services (“USCIS”) announced that it will dispose of any E-Verify records older than 10 years on May 14, 2021. On May 19, the E-Verify Records Disposal Date was extended to June 4, 2021. This notice provides a reminder to employers that participation in E-Verify requires ongoing maintenance;
What’s New in the New Year? Initial I-9 Musings & Treasures from 2020
By Dawn Lurie
With a new Administration moving into Washington D.C. amidst tension and confusion, immigration compliance remains top of mind for employers. I know that because I hear from H.R. leadership, General Counsel’s offices, administrators running small family businesses, and shift managers at local pizza places across the country. Some companies tell me they continue to “work from home,” some never left the workplace, and others are operating in a hybrid model. Whatever the industry, wherever the location, and no matter the size, we are witnessing a significant shift in the onboarding process to produce outcomes similar to those achieved in-person; how we complete the Form I-9 is no exception.
The COVID-19 pandemic continues to disrupt technological barriers that prevented remote work in the past. In doing so, it is forcing changes to the onboarding process while simultaneously addressing health and safety concerns. Employers facing these vexing Form I-9 compliance issues and ongoing confusion are hungry for more explicit directives from the government, and in turn, the government is trying to keep pace. I am hopeful that the new administration, along with the hardworking career government corps, will recognize these challenges and partner with companies as they create effective and safe processes that meet the challenges of 2021, including those hurdles presented in 2020.
Below, we travel back into 2020 in order to flag concerns and frame various I-9 issues for employers, including a slightly updated set of Form I-9 Examples Related to Temporary COVID -19 Policies posted on I-9 Central’s Temporary Policies Related to COVID-19 page, as well as an October 2020 update to the M-775, E-Verify User Manual, concerning Tentative Non Confirmation (TNC) practices.
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New COVID-19 Q&As Related to Form I-9 and E-Verify
Late Friday afternoon, April 3, 2020, the Department of Homeland Security posted the following questions and answers in response to stakeholders queries on Form I-9 obligations in the midst of COVID-19. We applaud the U.S. Citizenship and Immigration Services (USCIS) for taking the lead on coordinating these responses and anticipate they will continue to be responsive to employer queries. The Q&A reiterates the original Immigration and Customs Enforcement (ICE) guidance, including confirming a hard deadline on timing- three days to complete the I-9 initially via a virtual/remote method and then three days to update with an in-person inspection once the business resumes normal operations. The Q&A also provides clarification on how to complete a Form I-9 with an expired driver’s license (sneak peek: use the actual expired date and write COVID-19 on the Form). Curiously the Q&A references electronic systems that don’t offer an additional information box field but suggests attaching a note to the I-9. The Q&A also confirms our suggestion, the person who views the documents in -person should enter their name and date in the Additional Information Box.
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SSA Office Closures and the Impact on SSN Issuance For Foreign Nationals
With the closure of Social Security Administration (SSA) offices in the wake of COVID-19, we are receiving questions concerning the impact on work authorization for individuals who may have recently entered the U.S. in a temporary work authorized visa status, i.e. H-1B, L-1, TN, E etc.
While the Social Security Number (SSN) is used and required, in a variety of areas, it is not mandatory to be presented as proof of work authorization. …
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E-Verify COVID-19 Guidance on Expired Driver’s Licenses and State IDs
Seyfarth Synopsis: E-Verify has offered guidance to employers to address concerns with expiring State Drivers’ Licenses and Identification Documents. The guidance, though, fails to address the situation where states have not granted temporary Driver’s Licenses or IDs extensions.
In response to queries sent by Seyfarth and other groups, E-Verify provided additional guidance addressing the COVID-19 National Emergency. We expect E-Verify to release a full FAQ in the next week. Today’s guidance addresses the expiration of State Drivers’ Licenses and Identification Documents where employees are unable to renew these documents because of closures or limited services at Department of Motor Vehicles (DMVs). In light of the National Emergency many states have extended the validity of these documents.
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E-Verify Thawed: The Government Reopens but Guidance is Messy
By: Dawn Lurie
Seyfarth Synopsis: The government has temporarily been reopened and E-Verify is back in business, at least until February 15th. The President and Congress have until that time to provide long term funding for the Department of Homeland Security (DHS). Our friends over at the Verification Division of U.S. Citizenship and Immigration Services (“USCIS”) have been very busy preparing for the onslaught of E-Verify activity that began early this morning, after the very long 35-day government shutdown. USCIS issued E-Verify guidance yesterday, January 28, 2019, outlining what employers need to do and when they need to do it. We expect additional guidance to be posted today in an effort to clarify some of the confusion caused by the government’s initial directives.
With all of those E-Verify queries sitting in cyberspace or on your desk, let’s start with the basics. Be warned – if you sleep easily at night without thoughts of E-Verify invading your dreams, this blog post is likely not for you.
Hopefully, during the 35 day shutdown you were able to follow the advice provided in Seyfarth’s previous blog Government Shutdown = E-Verify Shutdown. If so, your company has been stockpiling E-Verify queries while completing and retaining Forms I-9 in the requisite time frames. For those companies using electronic I-9 providers, your vendor should have been doing the same through their systems. Your vendor should also now be providing guidance on how to process those E-Verify queries queued up in their system, and should also be addressing the likely delays, backlogs and TNC related issues.
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Government Shut Down= E-Verify Shut Down
Over the past few days, I’ve received a large number of emails and calls from stressed out clients asking about the lack of access to E-Verify. Do not panic, employers will not be penalized as a result of the E-Verify operations shutdown.
E-Verify is the U.S. Citizenship and Immigration Service’s (USCIS) internet-based system that compares information from an employee’s Form I-9 to Department of Homeland Security (DHS) and Social Security Administration (SSA) records to confirm employment eligibility.
Since E-Verify is not fee based, the current lapse in appropriated government funding affects the program. Employers will not be penalized for any delays in creating E-Verify cases. However, employers are reminded that they must continue to complete I-9s in compliance with the law, and when E-Verify becomes available, create cases in the E-Verify system. We expect USCIS to issue guidance—as they have during prior shutdowns— suspending the “three-day rule” which mandates creating a query within three day of starting work for pay, for any case affected cases. Historically, employees caught in the Tentative Nonconfirmation (TNC) process were also provided an extended period to resolve any issues; the same is expected this time.
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More than a Makeover: E-Verify Boast a New, Modernized Look Inside and Out
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.…
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