News from USCIS and E-Verify We Plan to Contact Your Employees!

If you wondered why USCIS chose to include “optional” fields for phone numbers and email addresses of employees in the recently updated Form I-9, you do not have to  guess any more.

 USCIS plans to contact your employees.  Yes, you heard it right. USCIS plans to contact employees (who provide their email address on their I-9 forms) if their respective E-Verify case results in a TNC (Tentative Non Confirmation).  Presently, there is no plan for telephone communication, but that can change. As well, USCIS recently stated that it presently does not plan to copy employers on such e-mail notifications.

 During the last USCIS Stakeholder Conference, USCIS informed the public that it will contact employees in the following three cases:

 Initial Alert:  Employees who provided an e-mail address when completing Section 1 of Form I-9 will receive a notification informing them of a TNC.

  • Reminder:  Employees will receive a reminder that they have 8 federal working days to begin the process of resolving the TNC if they choose to contest it.  It is our understanding that if the employee notifies the E-Verify system that it will contest the TNC but fails to contact the agencies to initiate the resolution process within 4 days of making such election, the system will prompt an e-mail reminder.
  • Post Determination Notification:  Upon final verification, even when the results of the case confirm that the employee is authorized to work in the United States, the system will remind the employee to contact SSA or DHS, or avail itself of Self-Check in order to prevent future TNCs if he/she were to change employment.

In addition, the Initial Alert will contain a section on “Reporting Violations” that informs employees how and where to report employers for violations of E-Verify rules and discrimination or “unfair” treatment.

 So, what can employers do?

 Our clients have asked if it is permissible for an employer to direct the employee not to provide an e-mail address when completing form I-9. The answer is no. While the email and phone number fields in Section 1 of the Form I-9 are entirely optional to compete, the option still belongs to the employee. Therefore, employers may not direct employees not to provide such information.   Arguably, it may be permissible to tell employees that providing an e-mail address is optional by referring them to the applicable instruction (Note that the I-9 form itself does NOT mention that the e-mail address or phone number is “optional”).  The employer also may be able to inform employees that whatever e-mail address and phone numbers are provided must be provided to the government.

In addition to not being able to tell employees NOT to provide an e-mail address, an employer cannot force an employee to provide an e-mail address.  If the employer is not familiar with the I-9 instructions, it could easily ask an employee to complete the e-mail and phone number fields on the I-9 in the interest of making sure the I-9 is fully completed.

 USCIS also advised that an employer may not fail to provide the employee’s e-mail address if the employee opted to provide it in the I-9.  In other words, if the employee chooses to provide it on the I-9, the employer must provide it during the E-Verify process.

 The employee may also  choose what email address they will provide, including a company e-mail address. While employers may have a policy that prohibits the use of company email for personal purposes, communication related to a TNC arguably is a legitimate business purpose, thereby allowing employees to provide such if they so choose.

 Finally, if your company is currently utilizing an electronic I-9 system to complete the forms and submit the cases to E-Verify, you should ensure that your vendor has updated the form and is currently aware of this issue.