On February 17, 2021, U.S. Citizenship and Immigration Services (“USCIS”) announced that it will dispose of any E-Verify records older than 10 years on May 14, 2021. On May 19, the E-Verify Records Disposal Date was extended to June 4, 2021. This notice provides a reminder to employers that participation in E-Verify requires ongoing maintenance; everyone can benefit from a spring cleaning with a bit of best practices infused in the effort.
What is E-Verify?
E-Verify is an internet based system that compares information from an employee’s Form I-9 to the Department of Homeland Security (DHS) and Social Security Administration (SSA) records to confirm employment eligibility. Continuously improving, but not perfect, the system struggles with cracks in its armor, especially when it comes to confirming the identity of a worker. Accordingly employers must remember that use of E-Verify does not guarantee a “safe harbor” from worksite enforcement and that employees who are work authorized in the E-Verify system may in fact not ultimately be work authorized. However, if the Form I-9 was completed in good faith and if the system is used properly and consistently, E-Verify can provide a rebuttable presumption that there has been no violation of the statute with regard to the knowing hiring of an unauthorized worker. This also assumes the employee has been confirmed as “employment authorized.” This is important in the context of a Immigration and Customs Enforcement Form I-9 inspection.
Why is USCIS Cleaning These Records?
This is part of an effort to comply with the National Archives and Records Administration (NARA) records retention and disposal schedule (N 1-566-08-7). USCIS does this annually in order to avoid a potential breach of sensitive data.
What Should Employers Do?
All employers who use E-Verify must either record their employees’ E-Verify case verification number on the employee’s Form I-9 or attach a copy of the case details to the corresponding Form I-9. Employers who use the system directly (meaning without the use of a WebServices Provider, including an electronic I-9 vendor) should maintain the Historic Records Reports with their Forms I-9.
For any E-Verify records that are dated on or before December 31, 2010, E-Verify employers will have until June to download case information from the Historic Records Reports. It is very important to maintain information about the E-Verify cases of their employees, so retrieving these records is considered a best practice This report includes:
- Company name and location;
- Initiated date and verification case number;
- Employee name and date of initial resolution;
- Date of additional resolution and final status; and
- Case closure date and case closure description.
To download the Historic Records Report, Employers should log-in to the E-Verify website, click on Reports, select Historical Records Report, and then select Run Report. E-Verify will generate a downloadable file with the employer’s report.
Form I-9 regulations require that employers maintain Forms I-9 and, presumably, the related E-Verify information for one (1) year after termination or three (3) years after the employee’s date of hire; whichever is later.
Employers who participate in E-Verify via a third party vendor, including an electronic I-9 system should contact the company to ensure that all related information is maintained in the system and that no additional information or action is necessary.
USCIS protects E-Verify against system misuse through monitoring and compliance (M&C) activities, such as identifying and trying to resolve compliance issues, detecting employer misuse, notifying employers of noncompliant behaviors including discriminatory practices, contacting employers about potential case processing errors and conducting desk reviews and site visits to assist employers with E-Verify program compliance.
In recent years these M&C activities have increased, and E-Verify has taken steps to “clean-up” and improve the system, including mandating closure of timeworn Tentative NonConfirmation (TNC) cases, force-closing dormant accounts and increasing cooperation with other agencies.
Spring cleaning affords employers a time to not only to archive data, but also to set a cadence of running reports and reviewing E-Verify related I-9 practices to detect and address issues including:
- updating the listing of hiring sites and company contracts in the Memorandum of Understanding to reflect accurate addresses and process owners;
- updating user roles and access for only designated, active, employees
- open cases, including TNCs where the employee did not sign, or was not provided the Further Action Notice;
- employees that do not have attached “employment authorized” findings (where a case was ran and closed for “incorrect data” but a new, companion case was never opened;
- queries that were closed with a Final NonConfirmation but the employee is still working for the company;
- trends that indicate additional training is needed for certain I-9 completers, including a high number of case closures for incorrect data;
- missing E-Verify numbers or case details associated with the Form I-9;
- systemic late completions of E-Verify; and
- failure to maintain List A document copies, as mandated by the E-Verify Memorandum of Understanding;
While E-Verify participation is free, ensuring compliance and maintaining good hygiene in the system does require time and effort. Setting up best practices, with oversight by a dedicated owner, is key to minimizing exposure.
For questions regarding these policies, I-9 compliance, defending employers involved in worksite enforcement audits or actions, E-Verify compliance, LCA and H-1B compliance, and DOJ anti-discrimination matters, contact the Seyfarth Immigration Compliance and Enforcement group, or the author, Dawn Lurie, directly at email@example.com.