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Proposed system modifications undergoing White House review
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Employers' E-Verify accounts will be closed if they are not accessed after nine months, beginning Aug. 1, U.S. Citizenship and Immigration Services (USCIS) announced June 16.
The agency is urging account administrators to avoid deactivation by logging in to E-Verify at least once every 270 days. Companies should also review their accounts and terminate user IDs for administrators who no longer need access to the system.
The announcement was spurred by the agency's work on upcoming enhancements to the system, most recently published in the Federal Register May 20. USCIS proposes to require participating employers to reverify employees whose work authorization has expired, alter the tentative nonconfirmation (TNC) process to apprise flagged employees of their status and allow workers to request a review of their final nonconfirmation (FNC).
The public comment period on the proposed enhancements ended June 20, and the proposal is now at the White House Office of Management and Budget for review, after which the updates will go into effect. The proposals apply only to users of the system, whether through voluntary participation or those required to participate by state law and in their role as federal contractors.
Currently, companies that use E-Verify are not asked to use the system to reverify employees. Under the proposed changes, employers would also be required to use E-Verify to ascertain the eligibility of workers employed prior to the company participating in the program.
"This is an entirely new step for E-Verify, as employers currently only include new employees who are hired after the employer has joined the program," said Sara Herbek, an attorney in the Raleigh, N.C., office of Ogletree Deakins. "This new process would require [an employer] to add the reverified employee to its E-Verify system, significantly increasing employers' administrative burdens and underscoring the importance of having an accurate and comprehensive tracking system."
Employers will have three business days after completing the Form I-9 reverification to open an E-Verify case on the worker. A new E-Verify case must be made regardless of whether there is an existing E-Verify case relating back to the person's hire.
Representing the Council for Global Immigration (CFGI) and the Society for Human Resource Management, Justin Storch, manager of agency liaison at CFGI, submitted comments to USCIS recommending that "should reverification be added to E-Verify, that it should only be effective for employees for whom work authorization has expired and for whom employers have previously created E-Verify records."
The U.S. Chamber of Commerce cited more fundamental problems with the proposed modifications to E-Verify. "USCIS has no authority to require employers to use the E-Verify system to reverify expiring temporary work authorization because the governing statute currently limits E-Verify as a program used in connection with hiring," said Randy Johnson, senior vice president for labor, immigration and employee benefits at the Chamber. For this reason alone, the proposal should be halted, he said.
The Chamber also finds the proposals to be in conflict with the federal acquisition regulation governing the required use of E-Verify by federal contractors. Johnson said that it's not appropriate for USCIS to make changes to E-Verify without going through the process for making changes to the federal acquisition regulation.
The proposed changes to the TNC process would alert the employee of the existence of a TNC and the underlying issue and also provide an eight-day reminder. Currently employers are responsible for promptly notifying workers when they have been flagged with a TNC.
For the new process to work, the employer must put in the employee's e-mail address when the employer opens a case in E-Verify. "By providing employees with direct communication concerning a TNC, this proposed change would fundamentally alter the current dynamic, in which the employer serves as the conduit of such information," said Herbek. "While this change reduces the burden for employers of conveying any information about a TNC, it also results in a situation where the employer could, ironically, find itself playing catch-up after being approached by an employee before the employer has had time to study the situation on their own."
These notices must be carefully constructed to avoid confusion that might cause employees to attempt to resolve a TNC outside of the formal process required by an employer, Storch added.
Unlike the TNC notification process, there currently is no process to contest a FNC. The proposed changes would make a formal notification and review process for FNCs available to employees. Employers would be required to provide a copy of the FNC notice to the employee and also attach the notice to the worker's I-9. In addition, USCIS will e-mail the FNC notice to employees if they have provided an e-mail address on the I-9. Under the proposal, workers may request an FNC review even if they did not contest the earlier TNC.
"Under the new review process, the administrative burdens borne by employers may not end at the conclusion of a TNC or even at the issuance of the FNC, continuing instead through the duration of the new FNC review," Herbek said. "If the employee disagrees with the FNC, it is unclear if the employer may take adverse employment action while the FNC review process is pending."
The Chamber supports the idea of providing an informal review process for FNCs, but believes that it is vital that any FNC review process "explicitly confirm, in a way that both employers and employees understand, that the employer may terminate employment even if the employee appeals the FNC and that any employer who does not terminate employment may face a penalty for continuing to employ the individual," Johnson said.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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