On August 4^th 2011 the United States Citizenship and Immigration Services (USCIS) published a revised notice in the Federal Register seeking public comment on the E-Verify program. If you’re a frequent reader of the Federal Register (don’t worry, I won’t tell anyone), then you know that these types of notices are issued all of the time without much fanfare. But since this is the “I-9 and E-Verify Blog,” I thought it might be worthwhile to discuss this particular notice and offer some ideas on how you might actually evaluate the E-Verify program at your own organization.  You might be a fairly new user of E-Verify, a seasoned veteran, or one of the many employers on the fence – waiting for a reason to jump or perhaps a good shove from your federal procurement officer or state legislator. Regardless, this blog should hopefully arm you with enough questions to write a really insightful comment to the USCIS or plan some much-needed changes to your own processes or procedures. So let’s begin!

The Notice

This is actually not the first notice about the E-Verify program that we’ve seen this summer. Previously, USCIS had issued a notice on July 13^th requesting comments on the E-Verify Memorandum of Understanding (MOU), which was apparently in error. This week’s notice clarifies that USCIS is seeking comments on the E-Verify program in general, and more specifically on “the burden for enrolling in E-Verify (and modifying an ID/IQ contract if applicable), inputting information directly from Form I-9, Employment Eligibility Verification into the E-Verify web interface, and performing initial and secondary queries (for example: referring and resolving tentative nonconfirmations).”

How do I go about evaluating the E-Verify program?

While the USCIS notice does not specifically address how an employer would go about critiquing the E-Verify program, I have a few suggestions which may be helpful (or at the very least, add fuel to your fire). Many of the questions below were derived from the USCIS E-Verify satisfaction report as well as other third-party reports which have been issued during the past year. At the onset, it’s important to note that USCIS is specifically requesting information on the burdens of the “E-Verify web interface” which inherently has more steps and necessary tasks than what is required in a well-designed electronic I-9 software solution.

Enrollment

As part of the enrollment process (for those not working with an E-Verify Employer Agent), you’ll need to provide E-Verify with some basic information, determine your access method, select your organization designation, review and electronically sign the MOU and a few other tasks as well.  Much of the work surrounding enrollment actually occurs before you get to this process – such as determining which locations will participate, who will be responsible for managing the E-Verify process, changes to I-9 policies, etc.  Here are some questions that you can ask yourself about your enrollment experience to generate some comments for the USCIS:

1. Were the instructions provided by USCIS regarding the entire enrollment process clear and understandable? How could they be improved?
2. Did you realize that you were signing a legal agreement (the Memorandum of Understanding) and were its terms/conditions explained thoroughly? Alternatively, did you find the MOU to be too confusing or filled with unnecessary legal mumbo jumbo?
3. Did you understand the distinctions between the different types of employer access methods?
4. Are the E-Verify web user roles and permissions flexible enough to suit your organization or have you had to make compromises?

Tutorial

Employers using the web version of E-Verify are very familiar with the built-in tutorials which provide a fundamental overview and detailed instructions on using the E-Verify system. While the E-Verify tutorial has received good marks as of late, some employers are still frustrated by the “mandatory” nature of the tutorial or feel its lacking in specificity. Here are some questions to ponder when thinking about the tutorial:

1. Does the tutorial adequately prepare you for using E-Verify effectively (i.e., managing cases, resolving TNCs, adopting good policies, etc.)? If not, what more could be done?
2. Do you feel the tutorial is overly burdensome, in terms of the time it takes to complete?
3. Was everything in the tutorial relevant to how you use E-Verify on a day-to-day basis?

Using E-Verify

The E-Verify interface itself has changed quite a bit over the past few years in an effort to enhance usability, simplify terms, and make the process more intuitive. By and large, they’ve done an excellent job in “modernizing” the look of E-Verify, but what about the flow and functionality? Think of these questions as you decide whether using E-Verify through the web is as efficient as you might like it to be:

1. How easy is it to navigate the site generally – in other words, can you easily find what you’re looking for in a hurry?
2. Since using E-Verify on the web necessarily involves typing a lot of information from the paper Form I-9, what do you think of the new case interface? Can you quickly and easily enter information needed for the initial E-Verify query?
3. Has the E-Verify interface helped you prevent careless mistakes (also known as idiot-proofing)?
4. What do you think of the most recent change which requires you to select the List B and List C document chosen during the I-9 process? Helpful or overkill?
5. Has the inclusion of drop-down boxes for the date fields (Date of birth, hire date, expiration, etc.) assisted or hindered your E-Verify processing?
6. Is it clear what number/information you should be entering in a particular field? Do help text prompts assist you?
7. There are many options for “Closing a Case” in E-Verify. Are these clear and understandable?

The TNC process

When we think of E-Verify burdens, the first thing that always springs to mind is the tentative nonconfirmation process. Steeped in mystery (at least to the uninitiated), the TNC might seem like just a minor “glitch” or a “big deal” in the grand scheme of verifying your employee’s right to work. Regardless, you’ll want to make sure that you go through all of the necessary hoops to resolve the TNC (if contested) and ensure that your employee is treated fairly. In that vein, here are some questions about the E-Verify web TNC process to mull over:

1. Has the E-Verify “second chance” screen helped in catching errors which might lead to TNCs? (this is the screen that prompts you to “Check Information” which may be incorrect based on the initial query)
2. The TNC process requires several steps (and clicks) which are presented in a wizard-like format. Is the TNC workflow intuitive based on your experience?
3. Have you had situations where you inadvertently miss a step in the TNC process?
4. Is there sufficient follow-up in the E-Verify web interface to remind you of TNCs which still need your attention?
5. Do the “case details” give you an accurate snapshot of the entire history of an E-Verify case?

Other Considerations

An analysis of “burdens” would not be complete if we didn’t consider the potential and actual costs of using the system from an employer perspective. There have been several excellent studies on this recently, including reports from the Center for American Progress, Bloomberg, and the National Foundation for American Policy to name a few. Each one of these reports describes (in some detail) the various costs associated with setting up the E-Verify program, including ensuring proper training, investing in the necessary people/equipment, and seeking advice/counsel as needed. While these factors are not directly related to the E-Verify interface, here are some questions you should be asking yourself in thinking about the E-Verify program in general:

1. Have you had to hire (or allocate additional resources to) a human resources manager to oversee your organization’s enrollment in E-Verify?
2. How much time do you spend on a monthly (or weekly) basis addressing E-Verify issues or dealing with training?
3. Have you retained legal counsel to review the Memorandum of Understanding (MOU) and any necessary policy changes within your organization?
4. Have your business operations been impacted due to lost time/efficiencies brought on by TNCs of your employees?
5. Have you paid employees for time-off to resolve TNCs?
6. Do you feel the E-Verify system has sufficient safeguards to prevent accidental or deliberate misuse of the system?
7. How much time have you invested to ensure your E-Verify “profile” (as viewed by the government) is squeaky clean?
8. How has the FAR requirement impacted your use of E-Verify, in terms of meeting deadlines, correcting/completing I-9s, and managing the entire process?

Conclusion

As I’ve mentioned in prior blog posts, I think the USCIS has been doing an excellent job in advancing the E-Verify program through an abundance of outreach initiatives, user interface enhancements and overall simplification of the process. Despite these efforts, however, the E-Verify experience can still be quite burdensome – especially for larger employers that cannot change their practices/processes on a dime. These employers need to make a coordinated effort to successfully manage their E-Verify program which includes close consultation with immigration counsel, an effective communication plan, and the use of smart tools which combine both the I-9 and E-Verify steps into one seamless process. As E-Verify continues to evolve and gain even more traction at both the state and federal levels, employers should make sure to utilize these resources and tools to ease E-Verify burdens and ultimately save costs down the road.

In the meantime though, don’t forget to let USCIS know what you think of the E-Verify program. They really do listen! Instructions for sending your comments (due September 12, 2011) are included below.

Interested parties should send written comments and/or suggestions to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Products Division, Office of the Executive Secretariat, 20 Massachusetts Avenue, N.W., Washington, DC 20529-2020. Comments may also be submitted to DHS via facsimile to 202-272-0997 or via e-mail at USCISFRComment@dhs.gov.When submitting comments by e-mail, you should make sure to add OMB Control Number 1615-0092 in the subject box.