DHS Proposes Changes to E-Verify Program: I-9 Reverifications and FNC Formal Reviews

Foley & Lardner LLP

As employers continue to enroll in the E-Verify program at a high rate, the United States Department of Homeland Security (DHS) is considering various changes to this key program. Some of these changes place additional obligations on the employer. E-Verify is DHS’s internet-based system through which employers may electronically verify the employment eligibility of newly hired employees. Employers do so by opening an E-Verify case and entering the information contained on the Form I-9, Employment Eligibility Verification.

As we discussed previously, DHS is turning its attention to establishing a more robust E-Verify program and achieving greater employer compliance. In just a few years, DHS’s E-Verify Monitoring and Compliance division (E-Verify M&C) has increased its compliance actions with employers from just over 42,000 to nearly 87,000. Compliance actions include telephone calls, e-mails, desk reviews (desk audits), and site visits. In addition, E-Verify M&C has dramatically increased the number of referrals that it makes to other federal agencies to investigate employers. Although DHS refuses to disclose the nature of these referrals, it appears that a significant number have been to the United States Department of Justice’s Office of Special Counsel (OSC) to investigate employers for possible discriminatory application of the E-Verify program. DHS also has acknowledged that it is in the early stages of developing a process to impose sanctions against employers that fail to comply with the E-Verify Memorandum of Understanding (MOU). Each E-Verify employer electronically signs the MOU when enrolling in the program.

This summer, DHS has made other proposals to change the E-Verify program. It is likely that these most recent proposals will be implemented in some form over the next few months. The changes, as currently proposed, include the following:

E-Verify Case Inquiry After Form I-9 Reverification:

  • Under the existing procedures, an employer that is enrolled in the regular E-Verify program opens an E-Verify case inquiry only for newly hired employees, not for existing employees who are subject to Form I-9 reverification (section 3 of Form I-9). (Employers that are federal contractors with FAR E-Verify obligations may be required to open an E-Verify case as to existing employees if they are assigned to the covered federal contract. The FAR E-Verify obligations are broader than are the obligations of employers enrolled in the regular E-Verify.)
  • DHS proposes to expand E-Verify case inquiries to align with the full Form I-9 Employment Eligibility Verification process. DHS will require that the employer complete an E-Verify inquiry when the Form I-9 is reverified because an existing employee’s temporary employment authorization is expiring. The employer will have three business days after completing the Form I-9 reverification to open an E-Verify case inquiry. If a Tentative Nonconfirmation (TNC) is received, the employer must follow the same procedures that apply for TNCs for newly hired employees. Therefore, the employer will meet with the employee and provide the employee with an opportunity to contest the TNC. If the TNC is resolved, the employer may continue to employ the individual. If the TNC is not resolved, E-Verify will issue a Final Nonconfirmation (FNC). The employer then must inform E-Verify of whether the employee continues to be employed. If the employer does not terminate the employee, the employer may be deemed to have knowingly employed someone who is not authorized to work lawfully in America. If DHS audits, the employer also may be fined at a higher rate.
  • The employer must open an E-Verify case on reverification even as to employees for whom the employer has not completed an initial E-Verify inquiry. If a FormI-9 reverification is required, an E-Verify case inquiry must be made regardless of whether there is an existing E-Verify case relating back to the person’s hire.

Final Nonconfirmation Formal Review Process:

  • Under current procedures, the E-Verify program provides a formal process to contest the TNC, but not the FNC.
  • Under a new proposal, DHS will establish a procedure for review of the FNC. The E-Verify system will generate a written notice confirming the FNC. The FNC Notice also will state that the employee may request that DHS or SSA (if SSA is the source of the nonconfirmation) review the evidence and FNC determination. DHS and SSA may ask for additional information from the employee during the review.
  • The employer must provide a copy of this FNC Notice to the employee (if still employed) and also attach the FNC Notice to Form I-9. If the employee has provided an e-mail address in section 1 of the Form I-9, DHS also will e-mail the FNC notice to the employee.
  • The employee may request FNC review even if (1) the employee did not contest the TNC or (2) the employee contested the TNC but failed to visit the SSA or call DHS within the time period allowed.
  • DHS will inform the employer when a FNC review is commenced and of the result of such a review. The employer may choose to terminate the employee after the FNC is received. DHS will not require that the employer wait for the employee to request FNC review or for the agency to issue a decision on the FNC review.

The public may comment to DHS on these proposed changes until August 7, 2015. At a later date, DHS will announce the final changes and the implementation date for those changes. Until that time, E-Verify employers should follow the existing program and E-Verify MOU.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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