Laura J. Mazel Cautions on Current I-9 Climate

Employees and legal counsel need to be on heightened alert when using any immigration-related government or private technology, particularly in the I-9 area. Otherwise, attorneys may need to employ Forest Service-style tactics like “back burns” to help employers put out challenging wildfires resulting from reliance on technology without appropriate training on I-9 employment verification compliance.

 

Take, for example, I-9 work authorization using online private technology and the government’s E-Verify electronic system. The government continues to encourage employees to shoulder more of the burden in entering data about themselves before they even apply for a job, but the technology is confusing and it is doubtful employees will use it. However tempting it may be, employers may never require employees to confirm status on E-Verify through the website’s voluntary “self-check” before applying for a job. In addition, recent big-ticket settlements in the I-9 area following audits and investigations confirm that employers must be careful not to ask for more documentation than required when verifying work authorization, no matter what technology they use.

 

California is not currently a mandatory E-Verify state, but like in many states where E-Verify is optional, many employers sign on in order to take advantage of the 17 months’ additional work authorization offered for foreign national STEM (Science, Technology, Engineering and Math) graduates of U.S. institutions working at E-Verify employers. This carrot can give employers a critical edge in hiring foreign talent, given current limited H-1B annual quotas (the yield in last year’s fiscal-ear H-1B lottery was only 50 percent, for example, and this next spring it likely will be worse). The government has improved its E-Verify resources, and provides handy online webinars and E-Verify tutorials, diminishing the points of pain for employers new to E-Verify. Further, any long-term immigration reform likely will require a phase-in of mandatory participation in E-Verify. 

 

Participating in E-Verify so far has the employer working with the technology. Now the government is pushing harder for employees to use it. It tried, and according to a study it commissioned, failed, with the E-Verify “self-check” program, where employees can pre-check their status before even applying for a job. Earlier this month, the government unrolled the newest addition to its E-Verify program, called “myE-Verify.” MyE-Verify is a point-and-click option on the government’s website that allows any U.S. or foreign national employee to lock in Social Security information. The government’s goal is to make these myE-Verify accounts nationwide. For now, five states use it — Arizona, Idaho, Colorado, Mississippi, Virginia — as well as the District of Columbia. The website includes an interesting employee rights toolkit section.

 

The hope with myE-Verify is that employees will protect their Social Security and other information, much like when we answer security questions about our city of birth, property we have owned in the past, and so forth to prevent hacking by unauthorized users. Yet will employees use it? After spending a few minutes to perform the E-Verify “self-check” myself, all I can say is, “Buyer Beware.” I found the identity questions confusing, particularly dealing with street addresses where I have lived versus where I have worked. I can only imagine how a foreign national with potential language barriers may interpret the nuances. The screenshot telling me that if I flunked my own security test I’d be given a chance to take it again was only mildly reassuring. My bet is that employers will be tempted to ask employees to use it as part of the application package, but as with all things I-9, they must never ask employees for more than required, or direct which types of documents employees must show to verify work authorization. And a representative of the employer must always see the original documents, versus a PDF version of those documents, no matter what technology the employer uses.

 

Recent settlements confirm that employers are still fighting off fires. The U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) has already settled 14 cases so far in 2014 in which employers were accused of violating the anti-discrimination provisions of the Immigration and Nationality Act in the I-9 setting. Two settlements called for more than $200,000 in civil penalties (Continental Airlines and Select Staffing) and another involved a city (City of Waterloo, Iowa). 

 

In these I-9 discrimination settlements, common themes fanning the flames were employers using different standards for U.S. citizens than for non-U.S. citizens. And at least Continental Airlines was already using E-Verify. Technology can be a fire starter if not used in conjunction with training. The I-9 function should not be spread too thin.  The technology, as well as the I-9 process, can be confusing as well to employees, let alone employers.  It is best to train on the technology, and conduct annual spot I-9 audits by counsel as well as audits of immigration practices on onboarding foreign national employees.  Call the government old-fashioned, but it still likes to see pen-and-ink corrective action taken on I-9 forms in the internal audit process, to conclude employer good faith in a larger government audit.  This will help all E-Verify and none-verify employers now and down the road, when E-Verify becomes mandatory across the board and across industries.