E-Verify Participation May Spur Compliance Investigations

I-9 and E-Verify compliance enthusiasts report a noteworthy trend in recent cases brought to the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Many of the recent cases in which OSC has reached settlements with employers for work authorization noncompliance were initiated by a referral from USCIS’s Verification Division Monitoring and Compliance Branch (M & C Branch).

The E-Verify Statute requires that Department of Homeland Security (DHS) ensures the security of the E-Verify System. The authority to monitor and provide oversight is based on Section 404(d) of the E-Verify statute and the Memorandum of Understanding which E-Verify employers are required to enter into with DHS.

The M & C Branch describes their mission as overseeing the usage of E-Verify and detecting and reducing misuse with the responsibility of protecting the integrity of the E-Verify Program. In addition to acting as a customer service center for confused or novice E-Verify employer-participants, M & C Branch monitors E-Verify system usage to identify potentially noncompliant employer-participants.

Common errors identified by M & C Branch include:

• Creating duplicate cases for the same employee
• Immediately terminating employees who receive a tentative non-confirmation (TNC)
• Failing to create a case by the third day after the employee started work for pay
• Creating cases for employees who were hired before the employer-participant enrolled in E-Verify
• Not reviewing acceptable documents or a document containing a photograph

After an initial review of an employer-participant’s system usage, M & C Branch may contact participants with noncompliance issues by emails and phone calls. In addition, employers may be contacted to participate in a desk review or site visit for further investigation and to educate the employer-participant about how to properly use E-Verify. According to USCIS “Employers are selected to participate in a desk review if a standard review of their company’s usage indicates that they may be experiencing difficulties with the [E-Verify] system” (USCIS Executive Summary).

M & C Branch is not authorized to issue fees or other punitive measures. However, it can refer employer-participants suspected of misuse, abuse and/or fraud to Immigration and Customs Enforcement (ICE) or the Department of Justice. For more information about M & C Branch, please visit the USCIS website
Please feel free to contact our office for more information about E-Verify and the eligibility requirements and individual considerations for enrollment.