eVerify Analysis - May 21, 2008 Update
Posted May 30, 2008; updated Jun 06, 2008
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After this article was published in its original form, we were contacted by our colleague, Gary Endelman, a reader of the MurthyBulletin, who has been extensively researching the eVerify system. He was able to clarify some matters and correct some information that had been provided by the government. We appreciate his contribution.
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The USCIS provided an overview of the status of eVerify and responded to questions from members of the District of Columbia Chapter of the American Immigration Lawyers Association (AILA) on May 21, 2008. The discussion provided details on the proposed implementation of the U.S. Department of Homeland Security (DHS)'s eVerify system. Most of the attorneys from the Murthy Law Firm attended this meeting. Katherine Lotspeich, Acting Chief, USCIS Verification Division, and Bruce Friedman, Senior Policy Advisor for Immigration, DHS Office for Civil Rights & Civil Liberties, discussed the eVerify system and answered questions related to work authorization problems facing many nonimmigrants, adjustment-of-status applicants, and even recently-naturalized U.S. citizens. Michele Waslin, Ph.D., the Senior Policy Analyst at the Immigration Policy Center of the American Immigration Law Foundation (AILF), provided insights and expressed concerns and a critique of the eVerify system.
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eVerify System Voluntary for Most Employers
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The eVerify system was covered for MurthyDotCom and MurthyBulletin readers in our April 18, 2008 article, eVerify Registration to Qualify for F-1 OPT Extension. While participation in eVerify is currently voluntary for most employers, many states have introduced legislative proposals that would make eVerify mandatory for some or all of their resident employers. Moreover, it will be necessary for employers to register under eVerify in order to get the recent U.S. graduates they need to qualify for optional practical training (OPT) extensions.
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eVerify Uses SSA and DHS Databases
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Once an employer enters Form I-9 data on a newly-hired employee, the eVerify system compares the information against databases maintained by the U.S. Social Security Administration (SSA) and the DHS. If the SSA database does not confirm that the new employee is authorized for employment, then a tentative non-confirmation (TNC) notice is issued. The employee must be provided with a written TNC of legal eligibility to work, and must be given the opportunity to amend the I-9 or otherwise resolve the discrepancy by following the instructions in the notice. EVerify compares information provided by newly hired foreign national employees with various government databases to determine whether they are work authorized based on lawful permanent residency (green card status), an Employment Authorization Document (EAD), an H1B visa or from another work-authorized nonimmigrant or other status. If neither the SSA nor DHS database can confirm the work authorization, or if a USCIS Immigration Status Verifier does not make an authorization determination, a final non-confirmation may be issued. A flow-chart (PDF 14.6KB) illustrating these processes was released by the U.S. Government Accountability Office and reproduced for MurthyDotCom and MurthyBulletin readers.
According to a pamphlet on the eVerify system provided at the meeting, "Employers may not take any adverse action against an employee because he/she contests the information mismatch. This includes firing, suspending, withholding pay or training, or otherwise infringing upon his/her employment." Furthermore, "the employee must be given eight federal government work days to contact the appropriate federal agency to resolve the information mismatch."
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eVerification Confirmation Statistics
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Acting Chief Lotspeich stated that 92 to 93 percent of individuals checked through the eVerify system are confirmed for work authorization. The concern expressed by AILF is that just seven or eight percent with problems would translate into tens of thousands who would get stuck with expansion of the program. This would include U.S. citizens and qualified, legally authorized workers. The point was reinforced that, with a comparatively small percentage of U.S. employers participating in eVerify today, problems are ample enough that these would be expected to increase exponentially if or when the number of participating U.S. employers is greatly expanded. There is concern that the eVerify system will not be able to cope with the tremendous expansion. Validly authorized employees, in this case, could be deprived of the opportunity to work and litigation would likely ensue while matters are resolved.
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F-1 OPT Employers May Need to Register at Employee's Work Location
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Acting Chief Lotspeich advised that DHS is expected to publish guidance making it clear that the employers registering under eVerify for OPT extensions must register at the student's employment workplace and not at the employer's headquarters location. Though not yet fully resolved, this appears to be the direction the DHS taking.
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Trends in eVerify
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The eVerify system is currently required for all federal agencies. It will soon be required, by regulation, for all personnel of U.S. government contractors for each government contract, as well.
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Conclusion
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We at the Murthy Law Firm appreciate this information provided by the USCIS, DHS, Acting Chief Lotspeich, Senior Policy Advisor Friedman, and Senior Policy Analyst Waslin. Developments in the eVerify program will be monitored and updates will be provided on MurthyDotCom and for MurthyBulletin subscribers. It is expected that the eVerify program is expanding and that employers should become familiar with its operation, if they are not already using the program on either a voluntary or mandatory basis.
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