August 31, 2009

USCIS Monitoring Use of the E-Verify and Sending Notices of Non-Compliance

As we recently reported in Monitoring and Compliance Stepped up in E-Verify Program, the United States Citizenship and Immigration Services (USCIS) has now started to use its new Compliance Tracking and Management System (CTMS) to monitor the use of the E-Verify system.

Through CTMS, the USCIS is reviewing its records and the use of the E-Verify system to ensure participating employers are abiding by E-Verify policies and procedures. For example, CTMS allows USCIS to verify whether participating employers are complying with the three-day requirement for employment verification. Specifically under E-Verify, employers are required to submit employment eligibility verification queries within three days of the employee’s date of hire. Failure to complete this process within three days is a violation. In what appears to be a courtesy notification, the USCIS has started to send letters to E-Verify participants notifying them of this failure to comply and requesting that they ensure that the company’s E-Verify users are aware of and comply with this requirement. The letters do not request an explanation of the issues nor do they require a response to USCIS.

Although the USCIS is currently only sending notices to help employers understand the proper use of E-Verify, it is not yet clear what enforcement actions they will take in the future for failure to comply with this three-day requirement or other obligations. The new CTMS systems references referrals to law enforcement agencies.

The Department of Homeland Security may impose penalties on employers who fail to comply with Form I-9 requirements, including for failure to properly complete, retain and/or make available Forms I-9 for inspection. These penalties are separate from the E-Verify responsibilities. According to the E-Verify Memorandum of Understanding employers should note that if, for whatever reason , they do not initiate a verification query by the 3rd business day after the employee starts work for pay, they should submit the verification as soon as possible . We also recommend employer make a note of the reason for the delay and attach it to the Form I-9 and E-Verify documentation.

The USCIS’ implementation of CTMS , and the mailing of these notices , reinforces the reality of increased enforcement. Employers should ensure that they are properly trained and in compliance with E-Verify and that they are fully informed of their basic I-9 obligations and responsibilities.

Greenberg Traurig reminds employers the importance of being proactive and that having an internal audit of their records, practices and procedures to ensure they are using the system appropriately can greatly reduce their risk of a finding of non-compliance and limit company liability.