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Presentation given to HR Star conference Attendees in Atlanta, GA on 5/14/10 on the topic of E-Verify and Immigration Compliance.

Presentation given to HR Star conference Attendees in Atlanta, GA on 5/14/10 on the topic of E-Verify and Immigration Compliance.


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  • 1. Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net The Shifting World of E-Verify and Employment Verification Charles H. Kuck Kuck Immigration Partners LLC [email_address] 404-816-8611
  • 2. What’s Happening with E-Verify? Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
    • New DHS rules on SSN “no-match” letters?
    • Federal Contractors Required to Use E-Verify on 6/30/2009
    • States unilaterally enforcing federal laws.
    • Will electronic I-9 verification be required?
    The Obama DHS stands Firm on FAR E-Verify Rule 47 Different States pass conflicting laws on E-Verify USCIS Issues constantly changing E-Verify FAQs
  • 3. The “No Match” Regulations
    • Virtually requires copies of all docs use to verify employment
    • Requires extensive follow up on No Match Letters
    • SSA STILL NOT issuing No Match letters for 2007 or 2008 or 2009 or 2010, But the IRS Is!
    • Obama Administration moving forward on E-Verify as the Lynchpin for Enforcement/Reform
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 4. ICE APPROACH TO “AUDITS”
      • Focus on industries that historically employ unauthorized aliens
      • Determine that large majority of workers have fraudulent SS numbers (old No Match Letters)
      • Select jurisdictions amenable to prosecuting individuals using fraudulent documents
      • Look for employers where assets could potentially be seized
      • All Lead Driven
      • ICE Hiring a multitude of “auditors, not agents.
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 5. EMPLOYER RESPONSE TO AUDITS OR SITE VISITS
      • Carefully review any Subpeona served on the employer-determine the scope and immediately call your Lawyer
      • Document the name and numbers of all ICE officers or lead agents in charge of the operation
      • Cooperate with ICE but document proceedings
      • Trust No One (Other than your Lawyer).
      • Offer to have staff accompany ICE to sensitive areas in case of a “raid” or site visit
      • Maintain a list of all employees who “disappear” after an audit in order to arrange for payment of wages/disposition of employment records
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 6. ASSESSING EMPLOYER VULNERABILITY TO AN AUDIT
      • Conduct a audit of Forms I-9 (using an outside auditor)
        • Identify errors and correct errors (that are correctable)
      • Review job applications/personnel records
        • Determine potential existence of unauthorized aliens
        • Determine if applications completed for all employees equally
        • Look for indicators of discrepancies between I-9, application and personnel record
      • Review hiring practices and determine compliance by HR staff
        • Determine if HR staff has access to policies/procedures manuals
        • Observe HR staff
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 7. NEXT STEPS IN THE “AUDIT”
      • Call in employees when necessary to correct I-9 errors
      • Interview employees when I-9, job application and other personnel records do not correlate
      • Conduct interviews to fill in gaps in job application and other personnel records
      • Determine if company policy requires termination if the employee provided false information
      • Consult with legal counsel on terminating employees who declare to be unauthorized or provide false information
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 8. EVALUATE AVAILABLE PROGRAMS
    • “ E-VERIFY”
        • Pros & Cons
        • https://e-verify.uscis.gov/enroll/
    • I-9 Storage and Maintenance Systems
    • Outsourcing I-9 Program to Vendors
    • Electronic I-9 Forms
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 9. E-Verify Program goals
    • Reduce unauthorized employment
    • Minimize verification-related discrimination
    • Be quick and non-burdensome to employers
    • Protect civil liberties and employee privacy (yeah right).
    • Beware—READ THE MOU!
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 10. E-VERIFY Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 11. E-Verify: How it Works
    • Users submit information provided on the Form I-9
    • System queries databases of:
      • Social Security Administration
      • Department of Homeland Security
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 12. Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 13. Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 14. Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 15. E-Verify: How it Works (Continued)
    • Initial Verification will return one of 3 results within seconds:
      • Employment Authorized The employee is authorized to work.
      • SSA Tentative Non-Confirmation There is an information mismatch with SSA.
      • DHS Verification in Process DHS will usually respond within 24 hours with either an Employment Authorized or DHS Tentative Non-Confirmation.
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 16. Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 17. E-Verify: Case Resolution
    • If Employment Authorized , the employer records the system-generated verification number on the Form I-9.
    • If Tentative Non-confirmation , the employee can contest the finding and then:
      • Social Security Number mismatches are resolved with SSA
      • Non-citizen status mismatches are resolved with DHS
    • If the employee chooses not to contest , it is considered a Final Non-confirmation and the employer may terminate the employee and resolve the case.
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 18. Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 19. E-Verify: Tentative Nonconfirmation (TNC)
      • Inform the employee and print and review the TNC notice with the employee.
      • The employee chooses to “ contest ” or “ not contest ” the TNC.
      • Refer the employee to the appropriate agency if the TNC is contested.
      • The employee has 8 Federal Government workdays from the date of referral to visit or call the appropriate agency to resolve the discrepancy.
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 20. Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 21. Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 22. E-Verify: TNC Case Resolution (Continued)
    • Employee continues to work while the case is being resolved.
    • Once the employee resolves the discrepancy in his or her records, they should inform the employer.
    • With both an SSA TNC and a DHS TNC , a response is automatically sent to the employer through the system. The employer should check E-Verify periodically for the response.
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 23. E-Verify: TNC Case Resolution
    • The employer should check the system periodically for a response from SSA or DHS.
    • The employer will receive one of three results:
      • Employment Authorized
      • Final Non-confirmation
      • Review and Update Employee Data then Resubmit
    • The employer then resolves the case in E-Verify.
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 24. Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 25. Employer Responsibilities
    • E-Verify can only be used to verify new hires (except for federal government contractors under FAR) , and must be initiated after the employee accepts the position (hire date) and within 3 days of the employee’s actual start date.
    • Are you a government contractor or subcontractor?
    • E-Verify procedures must be applied to ALL new hires , regardless of citizenship status.
    • Staple Copy of E-Verify Confirmation printout to Form I-9 (if you are keeping physical copies)
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 26. Employer Responsibilities
    • Employer must post a notice in an area visible to prospective employees that it is a E-Verify Participant .
    • Employer must post an Anti-Discrimination Notice issued by the Office of Special Counsel for Immigration – Related Unfair Employment Practices, Department of Justice (DOJ) in an area visible to prospective employees.
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 27. E-Verify: Registration
    • Register online: https://e-verify.uscis.gov/enroll/
    • Three access methods:
      • Employer – perform verification queries for your own employees (most common)
      • Corporate Administrator – oversight of all hiring sites using E-Verify
      • Designated Agent – perform verification queries for a client company
    • Sign a Memorandum of Understanding with DHS and SSA
    • Read the User Manual
    • Complete an online tutorial before performing queries
    • Understand that USCIS and ICE will “monitor” E-Verify Usage and investigate “anomalies”
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 28. Photo Screening Tool
    • The E-Verify photo tool currently enables employers to match the photo on an employee’s Employment Authorization Document (EAD) or Permanent Resident Card (“green card”) to the photo that USCIS has on file for that employee.
    • Assist employers to detect instances of document fraud.
    • Photo tool was incorporated into E-Verify for all employers in September 2007.
    • What about US Citizen Photos?
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 29. Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 30. E-Verify Usage Statistics
    • Over 120,000 participating employers (out of 11 million!)
    • Nearly 6.6 million queries run in FY 2008
    • 96% of verification queries are instantly verified
    • Top Industries Using E-Verify:
      • Doctors, Lawyers, CPA
      • Administrative and Support Services
      • Professional, Scientific, and Technical services
      • Food Services, Clothing and Accessories Stores
    • All Enrollees/Users can be found online at
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net E-Verify Usage Statistics
    • Over 200,000
    • Nearly 6.6 million queries run in FY 2008
    • 96% of verification queries are instantly verified
    • Top Industries Using E-Verify:
      • Doctors, Lawyers, CPA
      • Administrative and Support Services
      • Professional, Scientific, and Technical services
      • Food Services, Clothing and Accessories Stores
    • All Enrollees/Users can be found online at http://www.numbersusa.com/content/enforcement/workplace-verification.html
  • 31. Using E-Verify — Best Practices
    • Provide standardized ongoing training for all E-Verify users;
    • Providecore I-9 training for all E-Verify users;
    • Organize E-Verify as part of the I-9 process rather than housing it elsewhere;
    • Share E-Verify basic compliance manual with all E-Verify users;
    • Task an authorized employee to run reports on E-Verify use on a regular basis to observe any trends and patterns, as well as to ensure all cases are resolved appropriately;
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 32. Using E-Verify – Best Practices
    • Consider self-reporting when appropriate (under attorney advice);
    • Have outside auditors and legal counsel review the process to assess exposure and concerns on a yearly basis
    • Establish and maintain safeguards to prevent use of the E-Verify process for unlawful discrimination;
    • Create and implement standardized protocol when USCIS’s Verification Division contacts the employer, involving immediate company-wide attention, referral to legal counsel, and focus on potential problems;
    • Abideby appropriate document retention policies; and
    • Conduct annual I-9 and integrated E-Verify internal audits, with trained auditors.
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 33. Electronic I-9s
    • Is it time to consider an electronic solution?
    • YES!!!
    • Benefits
      • Impossible to err on Form I-9
      • Tie in to E-verify done automatically in most products
      • Audit Trail for I-9s built into the system
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 34. State Legislation
    • States that have enacted legislation that mandates the use of E-Verify .
      • GA (all state contractors and state agencies), OK (state contractors only), AZ, UT, MS , SC, MO (All Employers) more to follow
    • States that have their state agencies participate in E-Verify .
      • ID, NC, PA, MO
    • States that have legislation pending that mandates public and private employers to verify new hires using E-Verify.
      • TX, FL, KY, AK, KS, TN, NC, LA, MD, CA (would require public employers)
      • MO, VA, RI,
      • (would require all public and private employers)
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 35. So, what to do?
    • Implement a compliance program
    • Audit at least yearly, more often if you have high turnover of employees, using outside auditors
    • Don’t discriminate based on nationality
    • Know new State Laws as they are passed if you are a multi-jurisdictional employer
    • Go Electronic on your I-9s!
    • Get involved!
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net
  • 36.
    • The End, unless you haven’t audited your I-9s!
    • Charles H. Kuck
    • Kuck Immigration Partners LLC
    • 8010 Roswell Rd., Suite 300,
    • Atlanta, GA 30350
    • 404/816-8611
    • (F) 404/816-8615
    • Toll Free: 1-866-286-6200
    • Offices also in Charlotte, North Carolina
    • [email_address]
    • www.immigration.net
    Kuck Immigration Partners LLC –The Immigration Law Firm 2010 © www.immigration.net