One of the most challenging issues for employers and their counselors during a government I-9 audit is determining how much information is sufficient to produce. While some attorneys advocate a minimalist approach, other attorneys advise providing enough information to enable ICE Audit teams to perform their function. For employers and their representatives, the I-9 audit is likely one of the few instances in which our country’s constitutional guard against unreasonable searches and seizures is fully appreciated. Yet, little has been discussed about E-Verify’s reach into an employer’s records and activities. Today, we discuss the implications of enrolling and becoming an E-Verify employer.

How Far Does E-Verify Monitoring & Compliance Go?

E-Verify employers have, arguably, consented to a waiver of this Constitutional right and have been subjected to a variety of undisclosed searches under Department of Homeland Security’s (DHS) Monitoring and Compliance efforts. Employers must enter into a mandatory, non-negotiable Memorandum of Understanding (MOU) with DHS and agree to Article II, Section C.15, which states:

    The Employer agrees to cooperate with DHS and SSA in their compliance monitoring and evaluation of E-Verify, including by permitting DHS and SSA, upon reasonable notice, to review Forms I-9 and other employment records and to interview it and its employees regarding the Employer’s use of E-Verify, and to respond in a timely and accurate manner to DHS requests for information relating to their participation in E-Verify.

This provision operates in conjunction with Article II, Section C.7, which states:

“DHS reserves the right to conduct Form I-9 and E-Verify system compliance inspections during the course of E-Verify, as well as to conduct any other enforcement activity authorized by law.”

DHS has also claimed authority for its Monitoring and Compliance activities based upon federal statute that allows for the employment verification system to be used for law enforcement purposes when necessary to prevent violations of the Immigration and Nationality Act, and in cases of document fraud, counterfeiting and perjury.

Whether by waiver, statutory authority, or a combination of the two, employers enrolled in E-Verify are subject to a variety of inspections and obligated to cooperate in investigations at any time for a number of purposes, to include law enforcement.

The Privacy Act of 1974 also expands E-Verify as an enforcement tool. E-Verify can be utilized to obtain what DHS has defined as Monitoring and Compliance Information, including:

• Analytic or other information derived from monitoring;
• Compliance activities, including information placed in the Compliance Tracking and Management System (CTMS);
• Complaint or hotline reports;
• Records of communication;
• Other employment and E-Verify related records, documents, or reports derived from compliance activities, in connection with fraudulent or discriminatory use of the E-Verify system; and
• Information derived from telephone calls, e-mails, letters, desk audits or site visits as well as information from media reports or tips from law enforcement agencies.

Monitoring & Compliance Activities Since October 2009

The USCIS Verification Division has actively invoked its authority to review employers’ E-Verify account data and notify them of non-compliant behavior. The USCIS Verification Division reports over 16,000 E-Verify compliance letters were issued in FY 2010. Another 13,000 letters and over 26,000 emails were sent to employers in FY 2011. Finally, another 23,000 e-mails were sent in the first half of FY 2012.

The E-Verify Monitoring and Compliance Teams currently produce monthly non-compliance reports, communicate with employers principally via e-mail, then conduct a 90-day look-back to see if corrective steps have been taken. If needed, additional follow up action may occur.

Non-Compliance Pitfalls Employers Must Beware

There are two primary penalties for non-compliance with the E-Verify program. The first potential penalty is that DHS could prohibit an employer’s continued use of the program. This penalty could be significant for an employer operating within one or several of the numerous jurisdictions with non-federal E-Verify mandates, or for employers subject to the Federal Contractor, E-Verify requirements.

The second penalty includes employer fines ($550-$1,100 per violation) for failure to notify DHS when employers continue to employ individuals who received a Final Non-Confirmation result in the E-Verify system. Given the power of DHS’ “data mining” technologies, there is a possibility that DHS could, with relative ease, generate significant fines for violations of the “failure to notify” DHS provision.

Resources for “Getting E-Verify Right”

Could the sheer volume of letters and emails sent to employers in the last two and a half years by the Monitoring & Compliance teams indicate a substantial, systemic failure to provide meaningful resources to employers? Employers without federal contracts utilizing basic E-Verify accounts have several references such as the M-274, M-1042, and M-775. But have these guides been effective?

The most effective means to improve and maintain compliant use of E-Verify is for employers to partner with competent legal counsel to review documentation and exported data from their E-Verify accounts. Experienced counsel can confidentially, methodically and comprehensively help employers review, analyze and correct records and practices by identifying “red flag” data points, such as failure to verify all new hires, failure to timely submit an E-Verify query, or verifying employees that should not be processed through the system.

DHS’ Recent “Self Assess” Guide

Via blog on July 16, 2012, USCIS delivered a cryptic, two-word message to employers – “Self Assess!” along a new document, titled an “E-Verify Self-Assessment” guide. It is difficult to discern what is intended in the agency’s newfound brevity. The most revealing statement of intent in the guide is that, “Self-assessment demonstrates a company’s commitment to compliance by internally reviewing, detecting and preventing E-Verify misuse.” The blog elaborates a bit more by stating, “The new guides are designed to make it easier for employers … to monitor their use of E-Verify…[and] … offers easy-to-follow checklists that will help users establish their own compliance and training programs.”

Having devoted a significant portion of my practice to E-Verify over the past five years or so, perhaps DHS has identified so much non-compliance generated from its imperfect program and numerous disjointed manual and automated processes that it has figuratively thrown its hands in the air to plead with its 380,000 employer participants to get it right. Or, it may be positioning itself to take action against non-compliant E-Verify employers.

Now, we are left with two 11-page checklists, which are refreshingly concise and useful for employers and their attorneys to assess compliance! While these checklists are not intended to be used as a comprehensive compliance resource, USCIS may have created the most useful publication to date for E-Verify users.

So long as employers continue to participate in E-Verify, they should be aware the government is scrutinizing their every keystroke. DHS’s expectation seems clear: employers need to start getting E-Verify right otherwise consequences will result.

Now, perhaps the authors of these self-assessment checklists could turn their attention to the I-9 Form and M-274 Manual?

By, Mr. Anthony (“Tony”) Weigel is the Principal of Weigel Law Office, LLC