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Questions and Answers on Employment Eligibility Verification

In late 2008/early 2009, Victoria Donoghue, Esq. (Of Counsel) has been assisting one of our academic organization clients to prepare for the impending implementation of the Federal Contractor Regulations requiring mandatory enrollment in the E-Verify system. The E-Verify system was a voluntary program implemented originally as the basic pilot program in 1996. Since that time, certain developments in the "immigration law world" have required certain employers to be enrolled on a mandatory basis in E-Verify.

First, certain States have passed legislation that may require the mandatory implementation of E-Verify. Second, certain employers seeking to apply for a 17 month extension of the Optional Practical Training ("OPT") portion of their International Student Status (F-1) are required to enroll in E-Verify. Third, and most recently, E-Verify has been mandated for certain Federal Contractors. The original implementation date for E-Verify for those Federal Contractors was January 15th 2009. Due to the institution of litigation by the U.S. Chamber of Commerce and several other professional business organizations, the implementation date for the new Federal Contractor Regulations is slotted to be moved back to February 20th, 2009.

The below questions and answers are common ones we receive from employers on an on-going basis. In addition, we frequently keep our readership apprised of new developments in this burgeoning area, we are available to assist with any questions that you can send to us at info@visaserve.com.

1) Can a Native American Tribal document be used to satisfy both list B and C? If so, why isn't it on list A?

Three documents can be found in both List B and List C: the U.S. citizen identification card and the US resident citizen identification card- acceptable as identification cards in List B- and a Native American tribal document. Although these documents are evidence of both identity and employment eligibility, they are not found in List A because List A documents are limited to those designated by Congress in the law. An employee can establish both identity and employment eligibility by presenting one of these documents. You should record the document title, issuing authority, number, and expiration date (if any) for that document in the appropriate spaces for both List B and List C (no further documentation would be required).

2) Can someone use an expired Permanent Resident Card as a list A document?

On an initial verification, the Permanent Resident Card must be valid. Even if it expires on the next day, it is acceptable (and should not be re-validated in the future). If it expires a week later, and the employee is scheduled to start work in two weeks, it is still acceptable because it was valid on the date of initial verification.

3) Can an I-9 be signed and dated (all sections) more than three days before the employee actually starts to work? In other words, can the offer date be used in the certification section of the I-9?

The law requires that the employer complete the Form I-9 no later than 3 days after the employee begins working. However, you may complete the form earlier, as long as the person has been offered and has accepted the job. Of course, you may not use the I-9 process to screen job applicants.

If, for example, an employee accepts a job on June 1, and the I-9 is completed on June 2, but he/she doesn't start to work until September 3, there is nothing further to be done on September 3. This ties into the answer to question 2 as well: If the person's Permanent Resident Card expires on September 1, there would be no need to re-verify.

4) If I-9 is completed in advance of the actual start date, can a document be used that will expire prior to the actual start date? If so, do you need to do a re-verification when the person actually starts?

It depends. If the employee presents a Permanent Resident Card that will expire on a future date prior to the actual start date, there would be no need to re-verify (see question 2 above). However, it the employee presents an EAD or visa that will expire, re-verification will be necessary.

5) With respect to e-verify, after a TNC is received, the employee has 8 federal government work days to start the process of resolving the matter. But is there an outside limit on the amount of time that the employer has to wait for it to be resolved? Are they supposed to just re-check e-verify for weeks on end?

When an employer receives a TNC it is required to provide the employee with a system-generated notification. If the employee chooses to contest the TNC the employer must also provide the employee with a system-generated referral to the appropriate agency (SSA or DHS). When the referral is made, the system notifies the appropriate agency. That agency then has the responsibility to update E-verify within the 8 federal government work days to indicate the status of the case, including a "no-show." SSA and DHS do not let the cases sit indefinitely. If, for example, they need more information from the employee, they will only give him or her a set number of days to obtain the information.

6) Suppose you input the information from the I-9 into E-verify and you get a SSA TNC. You immediately realize that you made an error when you entered the SSN. What can you do?

You can start over, but you have to go through the following steps: press "resolve case" in response to a SSA TNC, click on "invalid query," and start over with the correct SSN. You cannot do a new query until after you invalidate the first query.

7) What are the levels of E-verify users?

"Levels" of E-verify users become an issue when you have an employer with multiple work locations. In that case, there are Corporate Administrators that oversee all of the E-verify activities (but cannot run queries themselves), Program Administrators that oversee the E-verify activity at each work location (and can run queries), and General Users who run queries at each location.

8) Assuming that you determine that a person is not work authorized, and you terminate the person (and pay him/her for the days worked), what do you do at the end of the year in terms of the W-4? Do you issue one with the false social security number?

This is a difficult question, but we would suggest issuing a W-4 with a "dummy" Social Security Number like 000-00-0000.

9) If someone is away from the job for some period of time, does he/she have to be reverified when he/she is rehired? How long can that break be before a person has to be re-verified?

The rule of thumb is that when you re-hire a former employee, you do not have to re-verify if they have been verified within the last 3 years.

10) If we have a federal contract awarded prior to January 15, 2009, are you required to e-verify?

Pursuant to an Executive Order that was to have become effective on January 15, 2009, the final rule would have required contractors to begin use of E-Verify for new hires and to reverify any current employees working on existing contracts. The new rule would have applied only to contracts awarded on or after January 15th. So, if you have no new contracts (only contracts that were entered pre-Jan 15, 2009) you would NOT have to enroll in e-verify. If a contract is renewed, or you get a new one, after Jan 15 you would have to enroll at that time.

It is very important to note, however, that due to a lawsuit that was filed, implementation of the final rule has now been suspended until February 20, 2009.

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