Check out the current Compliance News Flash with blurbs about:

  • The continuing partial government shutdown;
  • E-Verify (still shutdown);
  • The Federal Trade Commission (also shutdown);
  • Government background investigations and the NBIB (not shutdown);
  • The California Consumer Protection Act; and
  • A recent merger in the background screening industry.

In honor of MLK Day tomorrow:

“Darkness cannot drive out darkness: only light can do that. Hate cannot drive out hate: only love can do that.” Martin Luther King

Happy New Year!

Here are two editions of the AGG Compliance News Flash covering the following topics:

  • E-Verify;
  • California’s Consumer Privacy Act;
  • Ban the box and salary history restrictions in the hiring process;
  • Investigation by the Department of Justice into hiring practices;
  • The Fair Credit Reporting Act and who qualifies as an “employee”; and
  • News about the Consumer Financial Protection Bureau.

Click here for the 12/21 edition of the Compliance News Flash.

Click here for the 1/4 edition of the Compliance News Flash.

I have previously written about this (click here), but it is worth mentioning again.  If you have been using E-Verify for more than 10 years, read on.  On January 1, 2015, E-Verify will delete transaction records older than 10 years.  Which means employers who use E-Verify must download case data created on or before December 31, 2004 in the new “Historic Records Report” or it will be gone…forever.  The information you will be saving in an excel worksheet will include employee name and E-Verify confirmation number.  Important stuff.

See the Fact Sheet and Instructions for downloading the report.

Reports must be downloaded by December 31, 2014.

Happy New Years!

Admittedly, this is a bit wonky, but for those you tracking this sort of thing I have news to report.  The E-Verify program, which was due to expire (gasp!) at the end of this month, has been extended.  Congress got its act together and passed a three year extension (or re-authorization) of the E-Verify program.  This means employers using the E-Verify program will be able to continue using the program until September 30, 2015

Initially the legislative language would have permanently reauthorized the E-Verify program.    However, with no agreement, Congress settled for three years.  The Senate approved the bill in early August and the House approved it this month.  Now off to the President for signature.   If you would like to read the text of the legislation, the bill number is S. 3245.  The official title of the bill is, “A bill to extend by 3 years the authorization of the EB-5 Regional Center Program, the E-Verify Program, the Special Immigrant Nonminister Religious Worker Program, and the Conrad State 30 J-1 Visa Waiver Program.”  In addition to extending the life of the E-Verify program, the legislation extends other programs like the Conrad 30 program for foreign physicians in medically underserved areas.

Department of Homeland Security (DHS) Secretary Janet Napolitano testified recently before the House Judiciary Committee regarding DHS’ efforts with respect to the enforcement and administration of our nation’s immigration laws.  Secretary Napolitano testified about criminal aliens, prosecutorial discretion, detention reform, enforcement along the borders, comprehensive immigration reform and of course, worksite enforcement, which in her written testimony has the header — “Deterring Employment of Aliens Not Authorized to Work”.

Highlights of Secretary Napolitano’s testimony regarding worksite enforcement:

  • DHS has eliminated high-profile raids of employers regarding their compliance with forms I-9.
  • DHS is instead promoting compliance with worksite-related laws through criminal prosecutions of egregious employer violators, form I-9 inspections, civil fines, and debarment, as well as education and compliance tools.
  • Since January 2009, Immigration and Customs Enforcement (ICE) has audited more than 8,079 employers suspected of knowingly hiring workers unauthorized to work in the United States, debarred 726 companies and individuals, and imposed more than $87.9 million in financial sanctions.
  • Employer enrollment in E-Verify, the electronic employment eligibility verification program managed by U.S. Citizenship and Immigration Services (USCIS), has more than doubled since January 2009, with more than 385,000 participating companies representing more than 1.1 million hiring sites.
  • More than 17 million queries were processed in E-Verify in Fiscal Year 2011, allowing businesses to verify the eligibility of their employees to work in the United States.

U.S. Citizenship and Immigration Services (USCIS) is soliciting comments on its electronic employment eligibility verification program — E-Verify.  

Users of E-Verify, here’s your chance to share your ideas and comments on how the government can improve upon the system.  E-Verify Listens is now live and its applicable to current users of the system as well as potential users.  Note that this is a public forum and specific issues regarding an account or case should not be posted on this site, rather you should work directly with E-Verify Customer Support regarding those matters.

 

Two reports have been released regarding customer satisfaction with the E-Verify program as well as the government’s view of E-Verify.

The first was a private customer survey which evaluated the following aspects of the E-Verify program — registration, tutorial, ease of use, technical assistance and customer service. The program scored high in all categories and the overwhelming majority of users were likely to recommend E-Verify to other employers. The government, naturally, issued a glowing statement about E-Verify and the results of the survey.

The second, a 2010 Government Accountability Office (GAO) report states that “USCIS data indicate that E-Verify immediately confirmed about 97.4 percent of almost 8.2 million newly hired employees as work authorized during fiscal year 2009, compared to 92 percent from fiscal year 2006 to the second quarter of fiscal year 2007.” However, the same report finds that there are still problems with E-Verify. Including the fact that differences in how an employee’s name is recorded can lead to a Tentative Non-Confirmation (TNC) (which is why it is so important that individuals consistently record their names on documentation), as well as identity theft and fraud concerns, and privacy concerns in the sense that employees face procedural challenges in correcting erroneous personal information in Department of Homeland Security (DHS) databases.

The bottom line however is that the E-Verify program is a good program. It’s not perfect, but overall it is a good program. Employers have to individually assess their participation and in doing so should consult with immigration counsel. I often speak with employers about whether they should enroll in E-Verify or not, as there are pros and cons to doing so. It is worth noting for all employers who aren’t currently enrolled in E-Verify, as Glenn Reid sings…”Honey, your time is coming soon enough.” It is just a matter of time before either a state mandates your participation in E-Verify or the federal government does. As the report states, both DHS and the Social Security Administration are taking steps to prepare for mandatory participation in the program. They aren’t there yet, but they are taking steps to do so.

It’s almost time Georgia employers.  For what you ask?  To enroll in E-Verify of course.  You can thank Governor Deal for signing House Bill 87, also known as the Illegal Immigration Reform and Enforcement Act of 2011, which was passed during the 2011 session of the Georgia General Assembly and was signed by the Governor on May 13, 2011.  The first wave of private employers required to enroll in E-Verify in Georgia occurred on January 1, 2012, when employers with 500+ employees had to enroll.   Compliance with the Georgia law is tied to a company’s ability to apply for, or renew, their business license, occupational tax certificate or any other document required to operate a business in the Peach State.  The Georgia Attorney General’s office has posted online the affidavit employers will need to sign confirming their participation in E-Verify pursuant to the deadlines spelled out in section 36-60-6(d) of the Official Code of Georgia Annotated.

Private employers in Georgia with 100 to 499 employees must enroll in E-Verify, the electronic employment eligibility verification program run by U.S. Citizenship and Immigration Services (USCIS), by July 1st.  Enrollment is free, takes less than one hour (conservative estimate) and requires those who will be using the program to take and pass a tutorial about how to use it.  The enrollment process is described on the USCIS website, and employers will be required to sign a Memorandum of Understanding with the Department of Homeland Security (USCIS is a part of the Department of Homeland Security).

 Quick Tips:
  • Private employers in Georgia must enroll in E-Verify by July 1st, 2012 if you have 100 – 499 employees.
  • E-Verify is used in conjunction with completion of the Employment Eligibility Verification form (Form I-9) — so don’t stop completing the Form I-9 as you will take information from that form and enter it into E-Verify.
  • Use E-Verify only for new hires.
  • Because E-Verify requires that you photocopy certain documents presented by new hires, consider a policy where you photocopy the document(s) presented by new hires effective upon your enrollment in E-Verify.
  • Consider an internal audit using outside immigration counsel of your Forms I-9 as well as your policies and procedures with respect to your compliance with federal and state immigration laws.  I am happy to have that discussion with you.

 A federal district court in Missouri issued a preliminary injunction blocking the enforcement of a voter-approved law that would have required businesses in Springfield, MO to use E-Verify to confirm the work authorization of all employees. The law requires the city’s Finance Department to enforce its provisions by penalizing businesses for noncompliance. The city government has agreed to the injunction, and City Manager Greg Burris has said that the city has, “known all along there are portions of the ordinance that are both un-enforceable and illegal.”   The push for mandatory E-Verify began with the Ozarks Minutemen, who initially pushed a petition through the Springfield City Council demanding that all private employers use E-Verify to check individuals’ work authorization.  

Who knew that the birthplace of Route 66 and other famous historical events is now also at the center of the immigration debate with voters seeking mandatory E-Verify?!  But, employers aren’t entirely out of the woods in Missouri.  There is a state law mandating use of E-Verify if you are a public employer or are a business with a state contract or grant in excess of $5,000 or any business receiving state-administered or subsidized tax credit, tax abatement or loan from the state to participate in E-Verify or other federal work authorization program.

Representative Lucille Roybal-Allard (D-CA), joined by 38 congressional members, sent a letter to U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas calling for the creation of a review process that would enable workers to effectively challenge E-Verify errors. The letter claims that U.S. citizens and lawful immigrants currently have no way of challenging a final declaration of ineligibility to hold employment. By that they mean challenging a Final Non-Confirmation issued by the Department of Homeland Security.

Now might be a good time to point out some tips/remainders regarding E-Verify and Tentative Non-Confirmations (TNCs). First, employers must follow the prescribed process when they receive a TNC for an employee, meaning they must, among other things notify the individual and allow them to challenge the TNC. Second, employers cannot take any adverse action against an employee who is challenging a TNC or during the pendency of the challenge. As the Brits would say, Keep Calm and Carry On until you have case resolution.