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Participation in E-Verify may lead to I-9 Fines

Douglass A. Hass of the firm Franczek Radelet PC has reported  in a blog post that the "Department of Justice's Office of Special Counsel for Immigration RElated Unfair Employment Practices (OSC) has announced a number of settlements under the general heading of 'document abuse' or 'citizenship discrimination'". Hass points out that these settlements come from varied companies across multiple industries such as food service, construction, and janitorial. However, Hass notes, there is a common thread that ties them together: they all participated in E-Verify and the OSC opened investigations when referred by USCIS. Hass explains that the Monitoring & Compliance (M&C) branch of USCIS is responsible for monitoring private employees through the "E-Verify system, media reports, complaints from affected individuals, or tips from law enforcement agencies". And while the USCIS branch doesn't have the authority to fine the employers, they do often refer cases to the OSC. M&C, therefore seems to be the source of these many referrals. Additionally, M&C uses algorithms to find patterns of abuse in the E-Verify system. Hass includes a list of behaviors that M&C references when detecting potential E-Verify abuse, which we have included here: 

  • Fraudulent use of alien number and Social Security number by E-Verify users;
  • Failure to create an E-Verify case within the third day after the employee started work for pay;
  • Verification of existing employees (as opposed to new hires);
  • Verification of job applicants, rather than new employees;
  • Selectively using E-Verify for verifications based on foreign appearance, race/ethnicity, or citizenship status;
  • Failure to print the Tentative Non-Confirmation Notice (now called “Further Action Notice”) when triggered by the E-Verify system; and
  • Failure to use E-Verify, consistently or at all, once registered; and
  • Unauthorized use of E-Verify information.

Hass writes "E-Verify is a voluntary system that allows employers to verify the employment authorization of newly hired employees. Enrolling in E-Verify does not replace the I-9 form, but rather adds additional responsibilities (and potential liabilities) for employers enrolled in the program".  Companies who enroll in the E-Verify program should be aware of these issues and consult with an experienced immigration attorney on how best to move forward. 

Source:
"USCIS branch quietly turning E-Verify mistakes into DOJ, ICE enforcement actions" by Douglass A. Hass.  http://www.lexology.com/library/detail.aspx?g=46f3f702-0a97-442b-9925-16e6b993074b.