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This presentation was done in conjunction with a DHS representative providing a presentation on E-Verify.

This presentation was done in conjunction with a DHS representative providing a presentation on E-Verify.

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Transcript

  • 1. INTERPLAY: E-VERIFY & I-9 COMPLIANCE Ilana J. Drummond, Norman C. Plotkin, & Daniel C. Horne 800.780.2008 www.jackson-hertogs.com
  • 2. Side-by-Side Processes
    • E-Verify does not trump I-9 process
    • E-Verify is not always consistent with I-9 process
    • E-Verify requires that the employee:
      • have an SSN and
      • present a picture ID
    • E-Verify participation creates a two-step
      • Complete the I-9; and
      • Use that I-9 step to complete E-Verify.
    • By complying with E-Verify, is the employer requiring over documentation in the I-9 context?
      • NO, because its roots are in IIRAIRA, a statute.
  • 3.
    • If employer participates directly in E-Verify, then must use the photo tool
    • If employer uses a 3rd party vendor, then the photo tool is not currently available
      • But does not negate requirement of photo ID
    • Even if you use a 3 rd party provider, employer still party of the MOU (Memo of Understanding among DHS, SSA and Employer)
    Photo Tool
  • 4.
    • Allows representatives from DHS to visit the worksite at any time (with reasonable notice) to review I-9s and speak with employees handling I-9s
    • Due process waived?
    • Also, MOU creates presumptions for enforcement under IRCA
    • E-Verify query
      • “ Yes” response:
        • Presumption individual work authorized;
      • If final non-confirmation, must terminate the employee or notify the USCIS that employer will continue employment
        • Rebuttable presumption that the person lacked work authorization
    Memorandum of Understanding
  • 5.
    • Who will enroll and at what corporate level?
    • Who will be responsible to ensure compliance?
      • Risk is not just from ICE, but debarment from government contracts
      • Who understands what the tentative non-confirmation process requires?
      • Who handles?
      • Who answers questions?
      • Do you have enough knowledge?
    To Enroll or not to enroll…
  • 6.
    • How do you participate?
      • Directly?
      • Through an outside provider?
    • Who will have authority to sign the MOU
      • This binds the company to the MOU
    • Need to identify all users who will be enrolled;
    • Does a collective bargaining agreement prevent enrollment without union consent?
    Enrollment options
  • 7.
    • FAR is the “federal contractor” E-Verify rule
    • E-Verify requirement delayed until May 21, 2009
      • Future uncertain pending litigation
    • Will employer E-Verify entire work force?
      • Or, will employer only query existing covered employees and all new hires?
    • Contract award date triggers 30 day countdown to enroll in E-Verify and 90 day countdown to query existing employees
      • New hires must be run through E-Verify within 3 days of employment (unless no SSN then ASAP);
      • If opt to verify entire work force, then 180 day countdown to query all employees starts on date of enrollment
        • must update registration if already registered
    Federal Acquisition Regulation
  • 8.
    • Requirements
      • Identification of covered contracts
        • $100,000 or more for not off the shelf products
        • Subcontracts of $3000 or more
      • Identification of covered current employees
        • Does not include “support” personnel
      • Methods of tracking
        • E-Verify status of employees
        • New and/or expiring covered contracts
        • New assignments for current employees
        • Covered sub-contracts?
    • Special union workforce concerns?
      • Some union contracts may prevent employer from using E-Verify without violating contractual provisions
    FAR continued…
  • 9.
    • Work through your implementation and nonconfirmation processes before you enroll
    • Establish an audit process for nonconfirmation tracking and resolution
      • there are currently no ticklers in the E-Verify system!
      • there are ticklers in 3 rd party employment verification software that handshakes with E-Verify (see Ombudsman’s report)
    • Before enrolling in E-Verify
      • change your I-9 process and audit I-9s
      • train staff who will be responsible for I-9/E-Verify compliance
      • set up audit procedures and continue to periodically audit I-9s
    Other Considerations…
  • 10.
    • New Form I-9 effective April 3, 2009
      • See Federal Register dated January 30, 2009, notifying of extension
    • Section 1 revisions – new classifications for workers
      • Citizen of the US
      • Noncitizen national of the US
      • Lawful permanent resident
      • Alien authorized to work . . .
    • Caveat : If E-Verify-enrolled, and individual has no SSN (e.g., application pending),
      • employer must complete the Form I-9, noting lack of SSN within 3 days and then run through E-verify when SSN issued
      • instruction is in the FAQs
    I-9 Issues – New Form
  • 11.
    • No expired identity documents are acceptable
      • E.g., expired US passport no longer acceptable
    • Must continue to let employee decide what documents to present
      • However, if E-Verify-enrolled, document containing a photo ID is mandatory
      • This means E-Verify-enrolled employer may be forced to reject once-suitable employment verification documents
    Changes to Acceptable Documents
  • 12.
    • Thanks for coming!
    Questions?