E-Verify Anti-Discrimination Measures Instituted

As more employers participate in the E Verify program on a daily basis, the USCIS is ramping up efforts to educate employers and employees on the discrimination concerns raised by the program. Current statistics show that the databases supporting E Verify have a 3% error rate. Unfortunately, 97% of the 3% error rate involve the records of foreign nationals. As a result of this high percentage of errors in foreign national records, employers must be especially careful when using the system to verify the employment eligibility of naturalized U.S. citizens, legal permanent residents and temporary foreign workers. It is often the case that employers will make their most egregious mistakes when verifying these types of employees through the system. The Immigration Service is also recognizing this fact and providing additional education and guidance to employers to help them avoid discriminatory actions and to develop compliance programs that are free from discrimination concerns.

Information Sharing with DOJ
E Verify has entered into a memorandum of understanding with the Department of Justice’s Office of Special Counsel for Immigration-Related Discrimination. The memorandum establishes a streamlined process for referring E Verify matters. The Office of Special Counsel will receive referrals of potential discrimination that come to USCIS and in turn USCIS will receive referrals of potential employer misuse of the E Verify system from the Office of Special Counsel. In addition, the memorandum permits the two agencies to cooperate during pending investigations as they relate to E Verify. The information that may be shared between the two agencies includes data from queries run through the system, including citizenship status. USCIS will also share employer information as necessary when employers have engaged in misuse of the E Verify system. When evidence of discrimination by an employer is present, the Office of Special Counsel will follow its normal procedures, conduct an investigation and bring charges or refer the case to the EEOC when necessary.

USCIS has confirmed that it has also entered into similar agreements to share employer E Verify data with the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance programs, and several state agencies, as well as the Department of Homeland Security’s Immigration and Customs Enforcement.

Knowing this information, provides employers with a strong motivation to ensure that they are properly using the E Verify system. Employers should have a written E Verify policy that covers the who, what, when, where and why of usage of the system, follow up when there are tentative non confirmations, and complete the verification when negative issues arise. Regular training should also be provided to employees who are running the company’s E Verify program.

Civil Rights Education Videos
To educate employers, USCIS has developed “E Verify civil rights and civil liberties” videos. The video for employers is designed to help them understand their responsibilities. The video is 20 minutes long and contains reenactments of real world hiring scenarios, where employers and employees work through E Verify process problems. The video demonstrates the ideal employer action scenario when verifying an employee’s authorization to work, as well as informing them if negative information is produced by the E Verify system.

A similar video has also been developed for employees, and is available in Spanish and English. The employee video ensures that workers are apprised of their rights with regard to usage of the E Verify system. Both videos are available from the USCIS website, YouTube and by contacting USCIS for individual copies. To view the videos, click here.

Employee Hotline
USCIS has also rolled out an employee hotline for E-Verify. The number, 888 897 7781, became active on April 5, 2010 and is available during normal business hours. The hotline is a dedicated number created to respond to employee inquiries, issues and complaints. It operates with an interactive voice response system that allows the employee to choose from four options. Once the employee makes their selection, the system will route the call to the appropriate customer service representative.

The questions that may be addressed by customer service representatives include how to contest an E Verify case, how to file complaints regarding possible violations of policy and privacy laws by employers, filing a report of misuse against an employer and general information on completing the I 9 form and participating in the E Verify process.

With all these new measures being put into place, it is increasingly important for employers who are using E Verify to understand the discrimination ramifications of their actions. Regular training as well as a well-defined and regularly followed policy are imperative -for any employer using E Verify.

About vbimmigration

For More Information Call 215 979 1840 Immigration Law Partner at Duane Morris, LLP. 20 years representing companies and individuals in all aspects of immigration law. H-1Bs, L-1s, TNs, PERM, Global immigration; compliance; working visas; green cards; consular processing citizenship and deportation.
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