A proposal from the U.S. Citizenship and Immigration Services would change the reverification system for authorized workers in the country. The regulation, if passed, would focus on the E-Verify program as a deterrent for unauthorized employment, as an accompaniment to the I-9 form. The I-9 is the current method for verifying employees' ability to work in the U.S.
A new reverification process
The USCIS regulation would enable a different reverification process for workers whose authorization to work in the U.S. has expired. Currently, employers are only required to verify employees using the I-9 form. The proposal would make it mandatory for companies to enroll all workers in the E-Verify program, even those who previously were reverified by the I-9.
The law would only apply to companies that voluntarily participate in the E-Verify program, as well as employers required by state law and federal contractors. It would also enact a three-day window for employers to create new cases for workers in the E-Verify system.
The proposal has stirred up debate. The U.S. Chamber of Commerce is against the new reverification guidelines, stating the regulations create more problems for those involved, goes against current statutes and establishes conflicts with current laws. Human resources may receive the brunt of the extra workload if the proposal is passed, as companies would have to enter information for both new and old employees, regardless if there was already an existing profile for workers. As a result, data could be outdated, causing additional problems with the reverification process and additional effort on HR"s part.
The proposal would also change the date that employees could be reverified. The current regulation states workers can be reverified up until the date of the authorization expiration, while the new proposal mandates a new case can't be opened prior to the expiration date. Employers and their HR teams are then given a three-day window to complete the process and reverify the employee's work authorization, adding more of a time crunch to the process.
Streamlined TNC/FNC processes
The USCIS's proposal would also change the current procedure for tentative nonconfirmations and final nonconfirmations. Currently, employers notify workers when the reverification of their work authorization is uncertain. If passed, the E-Verify process would alert employees via email of the reason for their TNC and give workers eight-days notice.
Additionally, the proposal allows employees to call for a final review of their FNC, even if they didn't protest the TNC, according to the Immigration Compliance Group. The regulation, if passed, would give workers an opportunity to undergo a formal analysis of their reverification. Employers would have to give a copy of the FNC notice to employees, as well as affix a copy to their I-9. The USCIS would also email a duplicate of the notice if employee emails are on file in the E-Verify system.
Unlike the reverification process, the U.S. Chamber of Commerce agrees with the formal review procedure that the proposal would put in place. The government body does believe, however, that it should be clearly stated that employers can terminate employees regardless of whether the worker wants a review and that, alternatively, companies can face penalties if they continue to employ workers who are not authorized to work in the country.
Next steps for HR
Should the USCIS proposal go into effect, HR will be responsible for ensuring company compliance with the regulations. It's vital that HR is aware of the timelines and deadlines for the reverification process, as well as the TNC/FNC procedure. Since the new rules could create additional work for employers, HR should give itsel enough time to complete the guidelines, according to Ogletree Deakins.
"Both the addition of a changed final nonconfirmation review process through E-Verify and a new obligation to complete reverification of expiring work authorization through E-Verify change the burden and work of federal contractors in using E-Verify," the U.S. Chamber of Commerce stated in its comments.
Although this regulation could signal a push toward the elimination of the I-9 for verifying an employee's work authorization, there is still a long way to go before that point. For now, the E-Verify process is still under consideration as the Federal Register weighs public comments.