November 12, 2015

Important Updates for E-Verify Employers

Effective January 1, 2016, E-Verify employers in California face new penalties for misuse of E-Verify. Other updates to E-Verify include a data purge on January 1 as well as system enhancements to assist E-Verify administrators.

What Is E-Verify?

E-Verify is U.S. Citizenship and Immigration Services’ (USCIS) free, Web-based employment verification program. The program is operated by USCIS (part of the Department of Homeland Security (DHS)) and functions in partnership with the Social Security Administration (SSA). E-Verify electronically checks information provided by the employee on his or her Form I-9 against records contained in DHS and SSA databases. Some federal contracts require employers to use E-Verify, and some state laws require private employers to use E-Verify. The use of E-Verify is limited to determining the employment eligibility of new hires only (except in the case of certain federal contracts).

What Happens on January 1, 2016, in California?

California Governor Jerry Brown signed a bill on October 9, 2015, that provides for penalties to employers who misuse E-Verify. Effective January 1, 2016, employers in California face a civil penalty of up to $10,000 for using E-Verify in a manner inconsistent with federal law, among other provisions. Assembly Bill (AB) 622 prohibits employers from using E-Verify in a manner not prescribed by federal law, which includes creating E-Verify cases for job applicants and/or existing workers and failing to provide employees proper notice of a Tentative Nonconfirmation (TNC) issued by E-Verify.

To ensure compliance with both the federal E-Verify program and the new law, California employers must use E-Verify properly, which is limited to:

  • Creating cases for employees who have accepted offers of employment
  • Creating cases for new employees hired after the company has registered for E-Verify
  • Ensuring that employees who receive TNCs are given a full opportunity to contest and follow up with the appropriate agency, maintaining their full employment during the period in which the TNC is outstanding

This is the first legislation that attaches employer liability in connection with using E-Verify in the form of civil penalties. The bill notes, “This section is intended to prevent discrimination in employment rather than to sanction the potential hiring and employment of persons who are not authorized for employment under federal law.”

What Happens on January 1, 2016 for All E-Verify Employers?

In compliance with the National Archives and Records Administration (NARA) records retention and disposal schedule, USCIS is required to purge E-Verify records that are more than 10 years old on January 1 of each year. Employers wishing to retain case information must download and save the “Historic Records Report,” which is only available through December 31, 2015. USCIS recommends that employers annotate employees’ Forms I-9 with the E-Verify case verification number and retain the Historic Records Report with the corresponding Forms I-9. USCIS provided instructions on how to download the Historic Records Report.

What Changed on October 25, 2015?

On October 25, 2015, E-Verify released enhancements to the system that include the following three enhancements:

  • TPS (Temporary Protected Status) Auto Extension: Improves the verification process for TPS beneficiaries whose employment authorization is automatically extended
  • Case Details Page Redesign: Reduces case details to fit on one printed page
  • Updated Further Action Notices and TNC (Tentative Nonconfirmation) Emails: Include “myE-Verify Case Tracker” information so employees can check the status of their own E-Verify case

How Is I-9 Central Different?

In addition to a generally improved and more attractive layout, the I-9 Central site provides a better “Acceptable Documents” Web page with clear examples of List A, List B and List C documents to accompany a Form I-9. Although not comprehensive, this is a good resource for employer administrators getting started with completing and reviewing Forms I-9. Furthermore, the “I-9 Central Questions and Answers” page has a more user-friendly layout, and there are several on-demand webinars now accessible through the site.

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