The U.S. Citizenship and Immigration Services (“USCIS”) recently announced an ehnacment to the E-Verify program to combat identity fraud with respect to social security numbers. Basically, USCIS will “lock” social security numbers that appear to have been fraudulently used. If an employee provides a locked social security number while completing the I-9 form, E-Verify will generate a Tentative Nonconfirmation (“TNC”), which then will require the employee to contest the TNC at a local Social Security Administration field office.
Prior to this enhancement, USCIS believed it was more likely that a stolen social security number would not raise any red flags or result in a TNC, if the employee also provided the name and date of birth of the individual to whom the social security number belonged. Thus, for example, if I stole the name, date of birth, and social security number of John Smith, I may get through the E-Verify process with no problem, because there was no mechanism to catch that the social security number had been stolen.
Combating identify fraud is something everyone can support, but here are the bad news for E-Verify employers. Multiple TNCs may result in USCIS sharing such information with ICE, which in turn may result in an audit of the employer’s I-9s and other work authorization processes.
So, here is the “key” to the lock out. Employers must focus on I-9 compliance first and foremost. Specifically, employers should make an honest effort to examine whether the original documents presented by the employee appear to be genuine and belong to the employee. If the employee chooses to present a social security card as a List B document, pay close attention and make sure it appears to be genuine. (In conducting audits, I have seen many fake social security cards that even my 10 year old could have spotted.) If it’s reasonably clear that the documents presented are fake, the employee should not even get through the I-9 process, thus avoiding the social security number being run through E-Verify.
E-Verify employers who ignore or don’t even try to identify fake documents and thereby rely on E-Verify as a safety net are making a mistake. It is no safety net, and the fact you used E-Verify and the employee does not receive a TNC will provide no immunity from liability if it turns out that the documents presented by the employee, including the social security card turn out as fake as monopoly money. Obtaining some basic training on spotting fake documents will go a long way for E-Verify employers, now more than ever.
Also, employers must remember that the employee has a choice of what documents to present. Requiring an employee to present specific document to avoid a TNC likely will be considered document abuse. As we have discussed in prior posts, the Office of Special Counsel receives statistical analysis from E-Verify regarding the types of documents presented by employees and initiates enforecement actions when they find patterns that suggest an employer is mandating a particular set of documents be presented for I-9 purposes.