If hearing the term "E-Verify" made you cringe last week, I can only imagine how you will be feeling after reading this post. The United States Citizenship and Immigration Services (USCIS) has proposed changes to the E-Verify program that would place on employers additional burdens. Before I get into the details, lets recap a few (important) facts about E-Verify:
- All Federal Contractors are required to participate in the E-Verify program, regardless of what state(s) they work in. If you are unsure whether you are a Federal Contractor, go here.
- In North Carolina, all employers with 25 or more employees must participate in E-Verify for all new hires. This law went into effect in 2013 so is (hopefully) not news.
- When required, employers must E-Verify employees within 3 days of being hired. This should sound familiar because its the same for completing the Form I-9.
- Using E-Verify is always in addition to filling out a Form I-9. THEY ARE NOT THE SAME THING.
- Surprise! The USCIS made you a guide! You can find it here for employers and here for federal contractors.
The two biggest proposed changes to E-Verify involve a reverification process and a challenge process for a final non confirmation notice (FNC). Let's discuss these two proposals:
Reverification (Not to be confused with Section 3 of the Form I-9)
Under the proposed change, employers would be required to reverify employees whose work eligibility expires during the course of employment. Sound familiar? Currently, this is required under Form I-9 regulations in certain circumstances (such as a temporary work visa expiring during employment). By essentially making the I-9 reverification required for E-Verify, employers would have to open up a new case and input new data on the employee. Not only is it an additional step for employers but it may be problematic since other documents used for the I-9 may be expired- which could lead to a tentative nonconfirmation (TNC)- and since many document renewals take months to receive.
Challenges to FNCs
Under the current rules, once a final nonconfirmation (FNC) is received, the employer must terminate the employee at issue (or face the wrath of ICE and similar agency audits like this one). The proposed rule change would put in place a system in which employees could challenge the FNC result. (Currently there exists an appeals process for tentative nonconfirmations only). Employers would then be faced with a massive gray area regarding whether or not they can keep the employee during the FNC challenge and if not, what its obligations may be if the FNC is found to be incorrect. Once again, a huge burden on employers.
If these changes go into effect, employers will want to consider re-training their staff on E-Verify or at least offer training on the changes. This is all assuming, of course, that E-Verify gets reauthorized by Congress in the next month. Based on the current program legislation, E-Verify is only funded through September 30th.
We'll keep you updated as we learn more. In the meantime, if you have questions or concerns about I-9s or E-Verify, you know where to find us.