Proposed Changes to the E-Verify MOU

On September 11, 2012, DHS announced proposed changes to the E-Verify MOU in the Federal Register (77 FR 55858). The Federal Register notice provides a 60-day comment period ending November 13, 2012. There are 6 versions of the new proposed MOU depending upon how access to E-Verify is gained. Each of the proposed MOUs may be viewed via the eRulemaking Portal, simply scroll to the bottom of the docket screen.

The proposed MOU includes several changes. The most significant of these changes are outlined below.

Article V. Section F. PENALTIES

  • The [Web Services Agent, Web Services Employer, etc.] agrees that any failure on its part to comply with the terms of the MOU may result in account suspension, termination, or other adverse action.
  • DHS is not liable for any financial losses to [Agent/Employer] or any other party as a result of account suspension or termination.

Article VI. Section B. TERMINATION

2. …DHS may terminate this MOU…, with or without notice at any time if deemed necessary because of requirements of law or policy, or ….breach of system integrity…, or a failure on the party of either party to comply with established E-verify procedures and/or legal requirements…the employer understands that if it is in a state where E-Verify is mandatory, termination of this MOU by any party may negatively affect the Employer’s business.

For employers using E-Verify in an E-Verify required state, these changes may have business ending consequences. The MOU does not outline the level or frequency of non-compliance issues which would result in suspension or termination. Furthermore, the MOU does not outline any means by which an employer can redress the non-compliance issues in order to maintain the employer’s E-Verify participation. Likewise, the MOU does not provide any process by which an employer can appeal the decision of DHS with respect to suspension or termination of the employer’s E-Verify account.

Lookout Services encourages employers to consider the proposed changes and to submit comments on the proposed MOU. Comments may be submitted via email ( ), as well as, the eRulemaking Portal. The comment period ends November 13, 2012.

Field Guidance on Electronically Generated Forms I-9

Although the regulations for the Electronic Generation, Signature, and Storage of Form I-9 have been in existence for several years, Department of Homeland Security recently released a Memorandum which provides guidance to field officers conducting audits of Forms I-9 created in electronic I-9 systems. This guidance has prompted auditors to engage in not only an audit of Form I-9, but also a review of how electronic generation, signature, and storage are accomplished in the Form I-9 system.

Employers may be asked to complete questionnaires which provide insight into the workings of the electronic system. Auditors are also likely to request a real-time demonstration of the Form I-9 process using the electronic system. Both requests are designed to allow the auditor to assess the electronic system’s compliance with the regulations.

The regulations governing electronic processing of Form I-9 are found at 8 CFR section 274a.2(e), (f), (g), and (i). These requirements are also addressed in the Handbook for Employers (M-274) beginning on page 24.

USCIS Issues E-Verify Self-Assessment Guide

Recently, the Department of Homeland Security published The E-Verify Self-Assessment Guide for Direct Access Users (M-1044) or Web Services Users (M-1043). The Self-Assessment Guide is designed to assist participating employers in complying with the user requirements of E-Verify and to help improve participants’ overall use of the E-Verify program.

“Self-assessment demonstrates a company’s commitment to compliance by internally reviewing, detecting and preventing E-Verify misuse.” E-Verify Self-Assessment Guide, (M-1043 Rev. 06/2012), p. 1. Even employers who participate in E-Verify via a Designated Agent share the responsibility for their E-Verify program participation. The Self-Assessment Guide highlights many common mistakes such as:

  • Creating duplicate cases for the same employee
  • Verifying employees hired before November 7, 1986
  • Immediately terminating employees who receive a Tentative Nonconfirmation
  • Failure to submit a case by the third day of work for pay
  • Submitting E-Verify cases for hires that pre-date E-Verify enrollment

See Id., p. 2. Insuring that employee rights are protected is one of USCIS’ top priorities. Participants are required to confirm that the Right to Work and E-Verify Participation posters are properly displayed. Participants are also repeatedly reminded to review E-Verify notices with the employee in private and to provide the notice in an alternative language if the employee requests it. (The notices are available in 17 alternative languages.) In addition, participants and users are instructed to take all appropriate measures to safeguard the employee’s personal data.

Furthermore, USCIS instructs employers to determine whether end users are following proper procedures. The Self-Assessment Guide continuously reminds employers of the importance of closing the E-Verify case. Employers are also instructed to confirm that notices are printed, signed, and maintained with the Form I-9 and periodically check to confirm that all cases are resolved.

Thus, Lookout Services strongly recommends that E-Verify participants use the Self-Assessment Guide to evaluate your implementation of the E-Verify program. Lookout Services’ customers are encouraged to use this in conjunction with the Lookout Services Companion to the Self-Assessment Guide found under the References section of our application.

Form I-9 Changes Still Pending

In March, USCIS proposed some significant changes to Form I-9. These changes included adding employee phone number and email as optional fields in Section 1. The proposal also called for requesting additional details in Section 1 for Aliens Authorized to Work in the United States, such as foreign passport number and country of issuance. A significant number of comments were received during the comment period. Common submissions signaled concerns about employee confusion during Section 1 completion and the additional time required for processing the two page form. As of this writing, the proposed form remains pending. USCIS has instructed employers to continue using Form I-9 (Rev. 08/07/09) Y despite the form’s expiration date of 08/31/2012.