Wyatt Employment Law Report

E-Verify, I-9, and No-Match: The Obama Approach

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By Glen Krebs

I recently participated in an American Bar Association Tele-Seminar titled, “We Are a Nation of Immigrants . . . Or Are We?  The Obama Immigration Agenda So Far.”  The seminar covered E-verify, I-9 completion, and No-Match letters.  It also touched on perceived and stated enforcement priorities of the administration and 287(g).

The general consensus among the presenters was that the Obama Administration is increasing enforcement against employers in an attempt to appear “tough” on immigration.  It is supposed that this will give them more credibility during the upcoming debate on Comprehensive Immigration Reform.

The administration has stated that in contrast to the Bush administration, it is targeting employers – not employees.  In reality it is difficult to understand the difference between targeting employers and employees because if an audit of an employer discloses undocumented workers, the workers are also apprehended and placed into immigration proceedings.  To prove their point, ICE has issued 600+ letters to companies informing them that they will be auditing their I-9 forms and their H-1B compliance.

The administration is auditing a wide range of employers – both good and bad.  They are not just targeting industries suspected of immigration violations.  There is evidence of heavier penalties being imposed on employers, sometimes even criminal penalties.

Therefore, it is essential for employers to be more aware of the law regarding E-verify, I-9 completion, and responding to No-Match letters.  I-9 completion is mandatory for all new hires, E-verify is voluntary except for Federal (and some state) contractors, and responding to No-Match letters may or may not be an issue.

E-Verify   

E-verify is a program whereby employers can verify a prospective employee’s eligibility to work in the United States by entering certain data into a government website.  Federal and some state contractors are required to use E-verify.  Other employers may participate if they desire.  Participating in E-verify does not provide more protection than I-9 completion against knowingly employing undocumented workers, but there are some risks of discrimination if E-verify is not properly implemented.  Employers should carefully consider the pros and cons of participating in the E-verify program.

I-9 Completion

Because of the heightened priority on enforcement of immigration laws against employers, it is increasingly important to take great care when completing the I-9 forms.  Be sure you are using the new forms which became effective on April 3, 2009.  They have a revision date of February 2, 2009 or later.  It is also essential that both the employee and the representative of the employer are careful as they complete the I-9 form.  Management should take great pains to educate those responsible for implementing the I-9 completion process.  There are many dos and don’ts which will prevent problems during an audit and which will prevent discrimination during the hiring process.

No-Match Letters

The Obama Administration has withdrawn the No-Match Safe Harbor Guidelines which had been enjoined by a district court in San Francisco.  Therefore, with respect to No-Match letters, we are in the same situation as before the Guidelines were generated.  During the time since the Guidelines were enjoined, the Social Security Administration has not been sending out No-Match letters.  It is assumed that they will begin again to send out the letters.  The best general advice for an employer when they receive the No-Match letter is to do as little as possible.  It is probably good policy to inform the employee that they are on the No-Match list, but not to require the employee to take any action.  Employers should not terminate an employee simply because their name is on the No-Match letter.  Employers should have a policy for dealing with No-Match letters.  Other tips for dealing with No-Match letters can be found at the following website:.  These tips were prepared prior to the Safe Harbor Guidelines, so they are relevant again.

In an era of heightened enforcement against a wide range of employers, it is good management practice to have company policies covering usage of E-verify, completing I-9 forms, and responding to No-Match letters.  For help in dealing with any of these issues, feel free to contact Glen Krebs at (859)288-7409 or gkrebs@wyattfirm.com.

Author: Kim Koratsky

Labor & employment lawyer with the Memphis, Tennessee office of Wyatt, Tarrant & Combs, LLP

Leave a reply. Please note that although this blog may be helpful in informing clients and others who have an interest in information privacy and security, it is not intended to be legal advice. The information on this blog also should not be relied upon to form an attorney-client relationship.

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