June 18, 2009            Click here for a pdf version of this Alert.

 

Greenberg Traurig’s Business Immigration and Compliance Group has extensive experience in advising multinational corporations on how to minimize exposure and liability regarding a variety of employment related issues, particularly I-9 employment eligibility verification matters. In addition to assisting in H-1B (Labor Condition Application) audits, GT develops immigration-related compliance strategies and programs and performs internal I-9 compliance inspections. GT has also successfully defended businesses involved in large-scale government worksite enforcement actions and Department of Labor Wage and Hour investigations. GT attorneys provide counsel on a variety of compliance-related issues, including penalties for failure to act in accordance with government regulations, IRCA antidiscrimination laws, and employers’ responsibilities upon receiving Social Security Administration “No-Match” letters.

United States Citizenship and Immigration Services (USCIS) announced its intention to use a new system to monitor the use of E-Verify. The new system, Compliance Tracking and Management System (CTMS), “collects and uses information necessary to support monitoring and compliance activities for researching and managing misuse, abuse, discrimination, breach of privacy, and fraudulent use of USCIS Verification Division’s verification programs, the Systematic Alien Verification for Entitlements (SAVE) and E-Verify.”¹
Insiders at USCIS have confirmed that one of the objectives of CTMS will be to help employers understand potential issues and misuse of SAVE and E-Verify. The tracking system will provide USCIS with a necessary tool to help employers understand and
correct deficiencies. It is important to note that the CTMS system will also assist USCIS with gathering information to share with its law enforcement sister agency, Immigration and Customs Enforcement (ICE), as well as the Office of Special Counsel in the Civil
Rights Division at the Department of Justice. Former Assistant Secretary of Homeland Security for Immigration and Customs Enforcement Julie Myers Wood discussed the increase in USCIS monitoring of the E-Verify system, USCIS’ focus on particular employer activities and USCIS compliance analysts’ investigations of E-Verify violations in a recent article entitled E-Verify Employers Should Prepare For USCIS’s Announced Increase in Monitoring.

In particular, it is important to note the wide breadth of resources and information that USCIS compliance analysts will have access to as part of their review of a company’s compliance. The documentation included in the CTMS notice is comprehensive and includes instructions on how to interview users of the E-Verify system. The analysts may also collect:

•  E-Verify created documents;
• Tentative Non-Confirmation letters;
• Referral Letters;
• I-9 Forms;
• Supporting Documentation for I-9s;
• Employment Offer Letters; and
• Termination Letters.

The article also provides an in-depth analysis of the system and why employers should be concerned about the new system and data collection. The analysis further emphasizes the need for retaining
competent legal counsel should your company be selected for a CTMS review. Ms. Myers Wood correctly notes that the “new CTMS notices should spark interest and comment from the more than 120,000 employers who voluntarily participate in the E-Verify system. Although USCIS’s increased compliance and monitoring should not come as a surprise, some employers may not have previously fully focused on the responsibilities that come with participation in E-Verify.”

USCIS has not previously provided all of the tools employers need to properly implement E-Verify. While E-Verify provides a standard training module and user manual, employers are not offered a true understanding of the mechanics of the program, let alone a sample auditing and an internal protocol for their E-Verify users. Foreseeing this stepped-up compliance, Greenberg Traurig has always warned employers that E-Verify would eventually begin to track behaviors. In light of the
introduction of CTMS, internal auditing is critical to stay a step ahead of the government. While the majority of employers believe they are using the system appropriately, the lack of training and oversight required for a comprehensive compliance program leaves room for abuse, fraud and both intentional and unintentional misuse of the system. While most employers want to do the right thing, not all companies have adequate resources for creating a comprehensive, customized program. At a minimum, however, employers should be reviewing the basic guidance provided by USCIS with expert counsel to outline a specific set of best practices. While USCIS has been encouraged to develop templates that small and large companies can implement and adapt, these tools do not appear to be forthcoming any time soon. Employers cannot afford to wait on the sidelines. A proactive approach to compliance is and will continue to be critical to limit company liability.

To ensure appropriate E-Verify participation and avoid unwanted government scrutiny, it is critically important to adopt a rigorous compliance protocol. Best practices in this area include:

• Providing standardized ongoing training for all E-Verify users;
• Providing core I-9 training for all E-Verify users;
• Organizing E-Verify as part of the I-9 process rather than housing it elsewhere;
• Sharing the E-Verify basic compliance manual with all E-Verify users;
• Tasking 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;
• Ensuring that the Administrator reviews such reports and then provides them to an individual or team who is not otherwise involved with E-Verify operations;
• Considering self-reporting when appropriate;
• Having outside auditors and legal counsel review the process to assess exposure and concerns;
• Establishing and maintaining safeguards to prevent use of the E-Verify process for unlawful
  discrimination;
• Creating and implementing standardized protocol when USCIS’ Verification Division contacts the employer, involving immediate company-wide attention, referral to legal counsel, and focus on potential problems;
• Abiding by appropriate document retention policies; and
• Conducting annual I-9 and integrated E-Verify internal audits.

With the new administration’s two-pronged approach of stepped-up employer enforcement and increased awareness of employee rights, companies must strike a balance between compliance, discriminatory practices and the basic realities of running a business. Providing those charged with immigration compliance responsibilities with the right tools is key and following the best practices outlined above is a step in the right direction.