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E-VerifyFormerly the Basic Pilot Program

Joseph V. Jones, Interim Asst Vice PresInternational Education & DevelopmentFlorida A&M University305 North Perry-Paige BuildingTallahassee, FL 32337(850) 599-3562Joseph.jones@famu.edu

Mr. David Ware, Attorney At LawDavid Ware & Associates, LLC3850 N. Causeway Blvd., Ste 555Metairie, LA 70002504 – 830 -5900www.david-ware.comDWare@david-ware.com

What is E-Verify?

A.K.A., The BASIC Pilot ProgramA joint program between DHS and the SSA that uses an internet based automated system to verify the employment authorization of all newly hired employees. The system compares information in the employee’s I-9 Form against SSA and DHS databases.

What is E-Verify?

DHS claims 92,000 employers with over 4 million queries in 2009DHS claims

93% are instantly verified; 1.2% are verified after an electronic 24-hour USCIS check w/o notice to employer5.8% initial mismatches5.3% not confirmed as work authorized

Overview of How E-Verify Works

The Employer enrolls via the free website (accessible via both www.uscis.gov and www.dhs.gov).Employer register basic information and designates a point of contact.Employer will be assigned a username and password.

Overview of How E-Verify Works

Four types of access: EmployerDesignated AgentCorporate AdministratorWeb Services

Three types of usersGeneral UserProgram AdministratorCorporate Administrator

Employer must sign a Memorandum of Understanding (MOU) with DHS Employer must post usage of E-verify system in an area where it will be viewed by new hires. Employer must also post anti-discrimination notice.

Overview of How E-Verify Works

Employer submits basic information about the new hire through the website:

Essentially Part 1 and 2 of the I-9Name, DOB, SSN, Document #s, Immigration Status

Overview of How E-Verify Works

Information is submitted in E-Verify After the acceptance of an employment offer by the employee.After the completion of the I-9 Form.No later than three business days after the employee starts work for pay.

Overview of How E-Verify Works

Response from the system is received very quickly (DHS states 3-5 seconds)Three possible responses

Employment AuthorizedTentative Non-Confirmation (TNC)DHS Verification in Process

Will clear or become TNC

Overview of How E-Verify Works

Tentative Non-Confirmation

From SSA or DHSNotify Employee ASAP - print notice from system, provide information to and review with employee.Employee then chooses to Contest or Not Contest the finding.

Tentative Non-Confirmation Non Contested

Employer resolves the case and may terminate employment with no civil or criminal liability.

Tentative Non-Confirmation Contested

Employer must refer the employee to the appropriate agency (DHS or SSA) Employee has 8 federal working days to go to the appropriate agency/officeDuring time to resolve the discrepancy, Employer may not take action against the employeeCheck E-Verify for a change in status. E-verify will automatically send a response.

Tentative Non-ConfirmationContested

E-verify responds with finding:Employment authorizedFinal non-confirmationDHS verification in processDHS tentative non-confirmation (if initial non-confirmation was SSA)DHS Employment UnauthorizedReview and Update – essentially revise and resubmitCase in Continuance

Resolving the Case

Resolved authorized – DHS/SSA came back with employment authorizedResolved Unauthorized/Terminated- employment is not authorized (SSA Final Non Confirmation, DHS Employment Unauthorized, DHS No Show)Self Terminated – Employee quits or terminated for reasons unrelated to verificationInvalid Query – i.e. duplicate requestEmployee Not Terminated – not terminating an employee whose employment is not authorized and who is not contesting.

Why use E-Verify?

Establishes a rebuttable presumption that Employer has not knowingly hired an unauthorized alien.Evidence of good faith compliance with IRCAProtections against criminal and civil liabilities. Reduce risk of employing unauthorized workersEliminates no-match lettersResolves I-9 issues

Reasons Not to Use E-Verify?

Administrative burden to employerDoes not prevent I-9 audit or possibility of a raid – not a “safe harbor”Use of records for enforcement purposes?High rate of ‘false negatives’; SSA estimates 17.8 million records have discrepanciesHave to sign MOU

What is the MOU?

Employer agrees to allow DHS and SSA to make visits, interview employees conducting E-verify and employee’s hired under E-verify. It is arguable that these provisions could be used to circumvent requirements for search warrants, subpoenas, or the 3 days notice requirement to review records.

Do I Have to Use E-Verify?

Executive Order 12989 – June 8, 2008Federal departments and agencies that enter into contracts are required, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of all persons hired during the contract term by the contractor to perform employment duties within the United States, and all persons assigned by the contractor to perform work within the United States on the Federal contract

Do I Have to Use E-Verify?

June 2008 – South Carolina -Employers must verify the identity of employees either with a South Carolina driver's license or the federal E-verify system March 2008 – Mississippi - all employers to use E-Verify to check the employment eligibility status of their employees

Do I Have to Use E-Verify?

Extensions of OPT (work authorization) for F-1 students in STEM fields require the employer to participate in E-Verify to have the 17 months automatic extension.

ResourcesOffice of Business Liaison, DHS Hotline: 1-800-357-2099

DHS – Safe Harbor Information Center which will answer no-match related questions, 1-800-421-7105

www.aila.org – AILA’s Guide to Worksite Enforcement and Corporate Compliance

www.uscis.gov – Handbook for Employers and I-9 Forms

E-verify – www.vis-dhs.com/employerregistration

E-verify – http://www.uscis.gov/portal/site/uscis

E-Verify

Joseph V. Jones, Interim Asst Vice PresInternational Education & DevelopmentFlorida A&M University305 North Perry-Paige BuildingTallahassee, FL 32337(850) 599-3562Joseph.jones@famu.edu

Mr. David Ware, Attorney At LawDavid Ware & Associates, LLC3850 N. Causeway Blvd., Ste 555Metairie, LA 70002504 – 830 -5900www.david-ware.comDWare@david-ware.com