Immigration Law

WILL DHS PUNISH EMPLOYEES CAUGHT UP IN E-VERIFY DISPUTES?

By Greg Siskind

As many of you know who have been following this issue here, I have been very concerned that US citizen and permanent resident employees could find themselves unjustly facing unemployment if DHS follows through on their pledge to issue final non-confirmations in E-Verify cases in ten days. Employers who receive a final non-confirmation letter are required to terminate the employee who is the subject of the inquiry.

I have suggested that DHS not require the termination of an employee if a worker is still trying to resolve the issue after ten days. The agency addressed this issue in a June 16, 2008 written response to a series of questions posed by American Immigration Lawyers Association member Josie Gonzalez (posted on AILA Infonet) including this one:

Gonzalez: We further recommend that you work with DHS to resolve tentative non-confirmations when the employee contests the discrepancy and the problem is not resolved within the 8 days allotted, through no fault of the employee.

DHS: Over 99% of DHS tentative nonconfirmations are addressed on the same day that the employee contacts DHS to contest. If a case is not resolved within the 8 days allotted, the case in put into continuance and the employer is directed to take no action against the employee until the matter is resolved.

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Gonzalez: Item number 6 in Section C of the MOU [the E-Verify Memorandum of Understanding employers sign] states that the employer must notify DHS if it continues to employ an alien after receiving a final non-confirmation; it provides for civil money penalties for failure to do so, and concludes: ?The Department of Homeland Security reserves the right to conduct Form I-9 compliance inspections during the course of E-Verify, as well as to conduct any other enforcement activity authorized by law.?

Please clarify how this would be handled. Is this information shared with ICE for the purpose of triggering enforcement activities?

DHS: USCIS and ICE are currently working on finalizing a MOA for purposes of establishing a referral process. Currently, information requests from ICE for E-Verify related data are handled on an ad hoc basis. Form I-9 compliance inspections are handled by ICE Worksite Enforcement.

2. Gonzalez: Generally, the reason an employer would continue to employ an individual after receipt of a final non-confirmation is an inability to resolve the discrepancy within the allotted time frame, and a belief that the employee has the right to work.

To accommodate the employer in such a situation, we recommend a system for necessary
extensions of time in limited increments in order to accommodate a resolution of the  confirmation process. A threat of DHS enforcement rather than interim provisions for difficult resolutions deters employers from participation.

DHS: The E-Verify system currently grants extensions in situations where an individual?s work authorization status could not be determined in the allotted time frame. The status verification unit will place the case in a ?Case in Continuance? status, and the employer will be informed when more time is needed and that no adverse actions should be taken against the employee during this time.

While this is encouraging, it still does not provide the assurance that DHS will be REQUIRED to withhold a final non-confirmation while a matter is in dispute. In other words, DHS holds all the cards here and employers and employees must rely on them to exercise their discretion. In addition to providing a process like Ms. Gonzalez suggests, I would suggest creating an appeals process where an independent review could be sought. And the employee should be permitted to work until the matter is resolved and be reimbursed for reasonable legal fees is the worker is ultimately successful. As I've said before, an illegally present worker is not going to risk the exposure that would come with fighting DHS on a non-confirmation. If DHS is serious that it does not want to harm American workers, they should be willing to accept such protections.

Full post as published by Greg Siskind's Blog on June 20, 2008 (boomark / email).