Every week, over 1,000 companies enroll in the government's federal background check program, E-Verify, and as the system grows in popularity changes are being discussed to improve its efficacy.
E-Verify was created as an additional tool to help employers make sure new hires are eligible to work in the U.S. The system compares information acquired during the Form I-9 process with federal - and sometimes state - databases to determine work authorization. With an increase in usage, though, comes an inevitable jump in enforcement actions. One lawyer noted that Department of Homeland Security compliance actions have risen from just over 42,000 to nearly 87,000 in only "a few years." Attorney Anita Sorensen, a special counsel with Foley & Lardner LLP, went on to list the proposed changes.
It's probably safe to guess that no employer is looking forward to the potential of facing enforcement actions due to E-Verify noncompliance. This is why it is important to understand any potential changes coming to the background verification system, to ensure that compliant use of the program continues.
"It's important to understand any changes coming to E-Verify."
Using E-Verify for reverification? It could happen
For example, one proposed change is rooted in the Form I-9 reverification process, according to Sorensen. If an employee's citizenship status changes, he or she adopts a new name or anything else happens that may contradict the information on the individual's Form I-9, the employer must reverify him or her with a new form. However, a new E-Verify case cannot be created. Right now, the background check system may only be used for new hires, not to reverify the status of current employees. This could change, though.
DHS has proposed that E-Verify case inquiries more closely mirror the Form I-9 process. That is, when it comes time for an individual's Form I-9 to be renewed as his or her temporary employment authorization is expiring, the department believes an E-Verify case should follow. It proposed that employers should be given three days following completion of the Form I-9 to open an E-Verify case for reverification.
Once the case is opened, the rest of the process would be fairly similar to a regular, new hire background verification check. From there, the individual will either come up as eligible to work in the U.S., or the employer will receive a Tentative Nonconfirmation, which the employee can then contest.
This is true even if E-Verify wasn't used upon the individual's initial hiring. For example, if the company was not enrolled in E-Verify when the individual requiring reverification was hired, but has since begun using the background check system, it will have to open up a case for the new employment eligibility inquiry.