Hiring is a compliance minefield. Laws, rules, and regulations loom at every turn to trip employers up. The process involved in verifying a new hire’s employment authorization is no different. Most employers know how to fill out an initial I-9 when taking on a new hire. But they often have questions about other aspects of I-9 compliance, such as:

1)      If I switch to E-Verify, am I required to go back and E-Verify all of my current employees?

2)      When may/must I reverify my employees? and

3)      Are there any discrimination concerns, under Title VII or other laws, that I should be aware of in the employment verification context?

If you have had these same questions regarding your own employment authorization verification compliance (say that three times fast), then this two-part article is for you.

Switching to E-Verify

E-Verify is an internet-based system that allows employers to confirm the eligibility of their employees to work in the United States. Employers who use E-Verify still have to comply with I-9 requirements, but the E-Verify system compares information provided on the I-9 against records available to the Social Security Administration (SSA) and the Department of Homeland Security (DHS).

If you decide to enroll in E-Verify, you will be required to use E-Verify to confirm the I-9 of every new hire from the point of enrollment onward (Handbook section 1.2). And you may not use E-Verify for any other reason, including 1) prescreening applicants for employment, 2) checking employees hired before enrollment, or 3) reverifying employees who have temporary employment authorization. (Handbook 1.2)

Employers who use E-Verify are prohibited from using it to check the authorization status of employees hired before the E-Verify enrollment date. The process of enrolling in E-Verify requires you to sign a Memorandum of Understanding (MOU), which forms a binding contract between you, the Department of Homeland Security, and the Social Security Administration. One provision of the contract specifically says:

The Employer must use E-Verify for all new employees. The Employer will not verify selectively and will not verify employees hired before the effective date of this MOU. (Article II.A ¶ 11)

If, after you enrolled in E-Verify, you were to rehire a former employee within three years of the date of that employee’s previous I-9, you would be allowed, but not required, to have the employee complete a new I-9 form. (8 CFR § 274a.2(c)(1))(Handbook 5.2)(2.1.2 E-Verify User Manual) At that point, you could use E-Verify to check the rehired employee’s work authorization. But if the employee uses his/her old I-9 instead of filling out a new one, you may not run that rehired employee through the E-Verify system.

In summary, if you switch to E-Verify, you must use E-Verify to check the I-9s of every new hire after the date of enrollment, and you must not use E-Verify for any current employees or prospective employees.

Federal Contracts

There is, however, one teeny exception to the rule against E-Verifying existing employees: if you are awarded a federal contract that includes a Federal Acquisition Regulation (FAR) provision. The provision, which is codified in 48 CFR § 52.222-54, requires contractors for the federal government to enroll in E-Verify, if not enrolled already, and use E-Verify to check authorization for all new employees as well as all existing employees who are assigned to the contract and who have not already been E-Verified. (Handbook 1.2) (48 CFR § 22.1802(b)) (48 CFR § 52.222-54(b)(ii) and (iii)). The regulation also allows the contractor employer to elect to “verify all existing employees hired after November 6, 1986 . . . rather than just those employees assigned to the contract.” (48 CFR § 22.1802(c)) (48 CFR § 52.222-54(b)(4)). After being awarded the contract, you would need to change your enrollment status in E-Verify to a “Federal Contractor with the FAR E-Verify Clause.” Only then could you use E-Verify to check existing employees without violating the E-Verify policies.

Conversely, if you were awarded a federal contract without a FAR clause, you would be “prohibited from using E-Verify on current employees who perform work under the contract.” (Supplemental Guide for Federal Contractors 1.1.2) The main takeaway is that “E-Verify does not allow employers other than federal contractors with a federal contract that contains the FAR E-Verify clause to verify its existing employees.” (E-Verify Q&A)

So if you enter into a federal contract with a FAR clause, you are required to E-Verify all new employees and those existing employees who are assigned to work on the contract. And you are permitted to E-Verify all of your existing employees.

Taking a Second Look at an I-9: Reverification versus Review

If you are like most employers, you have new hires fill out an I-9 and then you store the form away, never to be seen again. But sometimes you need to take a second look at an employee’s I-9 and “re-verify” that the employee is actually authorized to work in the United States. The term “reverification” is sometimes used to refer to two different processes: 1) the formal process of filling out section 3 of an I-9; or 2) the simple act of examining an I-9 to make sure everything looks accurate. For simplicity, this article uses “reverification” to mean filling out section 3 of an I-9 and “review” to mean simply examining the I-9.

When to Reverify

As already explained, reverification occurs when an employer fills out Section 3 of an existing I-9. And it usually requires the employee to produce additional documentation. Because reverification involves I-9s that have previously been filled out, it is never done through E-Verify.

Government agency websites and officially published handbooks and instructions that deal with I-9 compliance and E-Verify suggest that reverification is only necessary when an employee’s work authorization expires or if the employee is being rehired within three years of his/her original I-9. But cases in the Ninth and Tenth Circuits suggest that an employer is also required to reverify, or fill out Section 3, if it receives notice that an employee’s documentation is inadequate—especially if that notice comes from a government agency. (Split Rail Fence Co. v. United States, 852 F.3d 1228, 1243 (10th Cir. 2016))

So it appears that you should only ever do a Section 3 reverification in three situations:

1)      When an employee’s work authorization expires. You are required to reverify an employee’s expired authorization “not later than the date work authorization expires” (8 CFR § 274A.2(b)(vii)) (Handbook 5.4 Note);

2)      When an employee is rehired within three years of the date of his/her original I-9 and does not fill out a new I-9 (8 CFR § 274A.2(c)); or

3)      If you receive reliable notice that an employee’s authorization is deficient. (Handbook 5.1 and 5.2) (See, e.g., Split Rail Fence, 852 F.3d at 1243, where a court held that “when an employer receives specific information that casts doubt on the employment authorization of an employee, and the employer continues to employ the individual without taking adequate steps to re-verify the individual's employment eligibility, [that the employer may be held liable for employing the unauthorized individual if it turns out that the individual was unauthorized].”)

And because citizens and noncitizen nationals of the United States are automatically eligible for employment, they should only ever be reverified if they leave the company and are then rehired within three years of their original I-9s. (Handbook 14.0, Q.1 and Q.28) In other words, do not reverify an existing employee’s verification if that employee is a citizen or noncitizen national.

Also note that Section 3 may be used to record an employee’s name change, although updating a name change on Form I-9 is not required. If you choose to record the name change, you are not required to ask the employee for documentation. (Handbook 5.3)

When to Review

While “reverifying” typically describes the formal process of updating Section 3 of an I-9, an employer may also simply “review” or audit an employee’s I-9 in some instances, such as during an internal I-9 audit or in response to an unofficial (meaning not from a government agency) tip that the employee is not authorized to work. The processes of reviewing an I-9 simply consists of looking at the form and copies of the documentation to double check that all the information appears to be accurate. Reviewing an I-9 should not be done through E-Verify and does not require the employee to produce additional documentation unless the review reveals mistakes or discrepancies in the form or the original documentation.

Because you cannot knowingly hire or continue to employ an unauthorized alien, you are expected to review or reverify an employee’s I-9 if you receive information suggesting that the employee is unauthorized to work in the United States. The published guidance from the government never explicitly addresses whether you should reverify or simply review the employee’s I-9 in response to the tip. So it likely depends on the reliability of the information that you receive and what would count as a reasonable investigation of that information. (See part 2 for more discussion on I-9 audits and how to proceed if you have reason to believe that an employee is not work authorized.)

Discrimination

Both the EEOC and the Department of Justice monitor discrimination related to employment of immigrants and aliens. The Department of Justice’s Civil Rights Division, Immigrant and Employee Rights Section, enforces the Immigration and Nationality Act (INA), which defines discrimination to include unfair documentary practices during the Form I-9 and E-Verify process. (8 USC § 1324b) Unfair documentary practices include “[t]reating groups of individuals differently when verifying employment eligibility, such as requiring certain groups of individuals who look or sound ‘foreign’ to present particular documents the employer does not require other individuals to present.”(Handbook 11.2.1)

In addition to the INA, an employer must take care not to violate Title VII when dealing with employment verification. The EEOC enforces Title VII of the 1964 Civil Rights Act, which of course forbids discrimination based on race or national origin.(42 USC § 2000e-2) Selective verification, or reverification that is based on a protected trait, constitutes unlawful discrimination under Title VII and the INA.

The Memorandum of Understanding that employers sign when enrolling in E-Verify also considers selective verification to be discrimination and incorporates Title VII and the INA. It requires employers to agree “to comply with Title VII of the Civil Rights Act of 1964 and section 274B of the INA as applicable by not discriminating unlawfully against any individual in . . . employment eligibility verification . . . because of his or her national origin or citizenship status, or by committing discriminatory documentary practices. The Employer understands that such illegal practices can include selective verification.” (Article II.A ¶ 14)

So if you were to use E-Verify selectively to check some employees’ I-9s and not others, you would violate the procedures for E-Verify, as discussed above, and would also be potentially liable for discrimination. “Federal law prohibits employers from discriminating against applicants and employees because of their national origin, citizenship or immigration status when verifying employment authorization through E-Verify.” (See FAQs on E-Verify.gov)

Summary

In short, if you enroll in E-Verify, you will be required to E-Verify every new hire, from the date of enrollment, on. Using E-Verify for already-existing employees is not allowed, even for reverification (with one small exception). Reverification, including auditing or reviewing an employee’s I-9, should be done for an employee whose employment authorization expires, for certain rehired employees, or after receiving information that gives you a reason to believe an employee is not authorized to work (if reverification would be a reasonable response to that information). Reverification should never be done through E-Verify. And finally, selectively verifying employees may expose you to liability for discrimination.

To learn more about I-9 audits and how to proceed if you have reason to believe your employee is not authorized to work, read part 2 of this article. If you have questions about this article or other I-9 compliance issues, call Crook & Taylor Law at 801.326.1943 to speak with a lawyer.

This article was written for informational and educational purposes only. It is not intended as legal advice or as a substitute for legal advice. Reading this article does not create a lawyer-client relationship between the reader and Crook & Taylor or any attorney. The rules and recommendations discussed in this article are valid as of the date this article was published or last updated, if applicable.

Resources

●        Form I-9 from the U.S. Citizenship and Immigration Services

●        E-Verify User Manual from E-Verify.gov

●        Questions and Answers on E-Verify.gov

●        M274 Employer Handbook from U.S. Citizenship and Immigration Services

- By Taylor Cutler