E-Verify Releases New TNC Enhancements

USCIS has gone 'live' day with a new TNC communication process. The highlight of the latest enhancement is the combining of the TNC Notice and Referral Letter into one document – the Further Action Notice.

The Further Action Notice simplifies the TNC communication process by combining the employee's biographical information, the reason for the TNC, the employee's decision to contest, and employee instructions for contesting a TNC into a single document. There will also be fewer screens to click through.

Here is a chart that provides the action that needs to be taken in various different TNC scenarios - very helpful, as well as a Further Action Notice sample, and a new email notification that will be sent to employees when their cases are referred to SSA or DHS.

ICE Changes Position on I-9 Pre-Population and OSC Speaks out on the Topic in TAL (Technical Assistance Letter)

ICE HSI (Homeland Security Investigations) directorate strongly spoke out against I-9 pre-population at a recent AILA (American Immigration Lawyers Association) meeting indicating that it was inappropriate and that pre-populating Form I-9 is considered unacceptable practice and a violation. More recently, OSC in a response to a TAL, also spoke out against pre-population stating their concern regarding Section 1 containing outdated or incorrect information.

In light of this change in policy, software providers and employers who use electronic I-9 software should consider this most recent announcement. We caution employers to review their hiring procedures as it relates to this compliance issue with their software providers.

For more information on I-9/E-Verify employer compliance, please refer to our Employer Resource Center.

Sharing I-9 Forms or E-Verify Information with 3rd Parties - Clarifed

OSC publishes their technical assistance letters in response to inquiries on a myriad of issues. This one is of particular interest. In this instance the employer was providing I-9 forms to a private vendor who issues "pay cards" to the employer's employees. The third party vendor was permitted to inspect the Forms I-9 to verify the employee's identity.

According to the OSC, part of the Department of Justice - a Form I-9 cannot be used for purposes other than for enforcement of the Immigration and Nationality Act (INA). Which is true if you read 8 U.S.C. § 1324a(b)(5) regarding limitations on use of the Form I-9. According to OSC, "sharing Forms I-9 with a private entity in order to have that entity verify employee's identities for payroll purposes is not a use related to enforcement" of the INA. Also, they go on to point out that if one is an E-Verify employer and they are sharing E-Verify related information with a third party, such as the results, that employer may also be running afoul of the Memorandum of Understanding they have with the Verification Division of the Department of Homeland Security.

So, do not share your I-9 forms or E-Verify information with private vendors. You can instead provide them with an employee roster, a payroll roster a copy of your payroll quarterly reports.

For further questions on disclosure of Form 1-9 documents, OSC suggests that you contact the USCIS Verification Division at (888) 464-4218, or contact our office.

Other OSC Technical Assistance Letters on Important Topics

• It is not permissible for a general contractor to re-verify I-9 documents presented by the employee of a sub-contractor at any time during the contractor/subcontractor relationship


• Print-outs of E-Verify results should only be available to the employer's authorized employee representative performing the E-Verify functions indicated in the Memorandum of Understanding (MOU), as entered into between the Social Security Administration , the Department of Homeland Security and the employer

New Employees have a Choice

The Justice Department has released a new educational video to assist employers in avoiding charges of discrimination in the employment eligibility verification form I-9 process and in the use of E-Verify. This video also helps educate employees about their legal rights.

I-9 Over-Documentation Issues A reminder to refer to The List of Acceptable Documents in the I-9 Process

Our firm completed two I-9 Compliance Audits in the last month where the reoccurring theme was over-documentation for both clients. Every time a list A document was presented, they filled in List C with a social security card. It is amazing - but true, just how often the statement "List A or a List B + a List C Document" on the I-9 form is overlooked. It should be bold and in RED! Clearly this was a training issue with these clients and not a matter of discrimination, but still each would have incurred fines for every incorrect I-9 form - at least 90% of their I-9 inventory.; this mounts up real quick. Neither of them had ever had any formal training, so it wasn't over-documentation based on discrimination.

Unless discovered and corrected immediately, over-documentation constitutes a permanent error. An organization with many over-documented I-9 forms could be considered to exhibit a pattern or practice of discrimination. There are two scenarios under which this occurs:

• The employee provides multiple documents and are not informed that they must select the appropriate documents for verification; and
• The employer requests alternative or extra documents

This brought to mind, whether one has minimal training or considers themselves a trained expert...provide the employee with the instructions and the List of Acceptable Documents and have it within sight on your desk when you are reviewing Section 1 and examining the documents in Section 2 - a quick and easy fix to this substantive violation. For some important Q&A on acceptable documents Click here.

Should you wish to know more about our services or become a client of our office, please contact us at info@immigrationcompliancegroup.com, or call 562.612.3996.

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Disclaimer: This newsletter does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed. © Copyright 2005-2013 Immigration Compliance Group.