In a move sure to capture the attention of employers using the E-Verify system, the United States Citizenship and Immigration Services (USCIS) has entered into a Memorandum of Agreement (“MOA”) to share information with the Civil Rights Division, Office of Special Counsel for immigration Related Unfair Employment Practices (“OSC”), which is a part of the of U.S. Department of Justice.   Under the MOA, which went into effect on March 17, 2010,  USCIS will share with OSC data obtained from queries run through E-Verify, which will allow OSC to identify potential violations of the anti-discrimination provisions of the Immigration and Nationality Act (“INA”).    USCIS will also provide employer information to OSC, as necessary, when employers have engaged in potential misuse or abuse of E-Verify.

OSC is responsible for enforcing the anti-discrimination provisions of the INA.  The types of discrimination and violations covered in these provisions include:  (1) citizenship status discrimination, (2) national origin discrimination, (3) unfair documentary practices during the employment eligibility verification process (document abuse) and (4) retaliation.   Under the MOA, USCIS will refer to OSC allegations involving potential discrimination resulting from employer misuse or abuse of E-Verify.  OSC will analyze the information to identify potential patterns or practices of discrimination through the misuse of E-Verify, or by investigating individual claims of discrimination.

The announcement of the information sharing agreement coincides with the announcement by USCIS of two additional initiatives intended to “enhance” E-Verify.   The first is the creation of an Employee Hotline, available starting on April 5, 2010, intended to address employee inquiries and complaints.   The hotline will provide general information to employees about E-Verify and completing Form I-9, and will also provide an option for employees to contest an E-Verify case or file a complaint regarding possible discrimination or employer misuse of E-Verify.   The second initiative was the creation of two videos, available now on dhs.gov and Youtube.  The first is directed towards employers, to help them understand their responsibilities under E-Verify, while the other directed towards employees to inform them of their rights when working for employers enrolled in E-Verify.  

The USCIS has indicated that the purpose behind these two initiatives, and the information sharing agreement with OSC, is to strengthen the efficiency and accuracy of the E-Verify system.   The message to employers, however, is that participation in E-Verify now comes with the potential for additional scrutiny.   In order to avoid a potential claim of system misuse, or discrimination, employers should take steps to ensure that employees responsible for submitting E-Verify queries on the company’s behalf understand the implications of using the system, and its requirements.   Further, employers must ensure that employees responsible for verifying the eligibility of other employees understand the anti-discrimination provisions of the INA, both by providing training and by making available to those employees internal and/or external resources capable of providing assistance and advice when questions arise.