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The Obama Administration has finally made its immigration enforcement priorities clear: it will shift its focus from 
high profile raids with arrests and immediate deportation of undocumented workers to an approach “using all tools available” to find and punish employers who are not playing by the rules. John Morton, the newly-confirmed head of ICE, announced at a June 16 meeting in Washington, D.C. that this new approach will include re-instituting I-9 audits and imposing stringent administrative fines on employers for I-9 violations, as well as criminal prosecutions of employers and managers where the facts warrant.
As a corollary to the new focus on employer compliance—and with much less fanfare, the Administration also announced that, effective June 22, it will now use E-Verify as one of these “tools” to assist in its new worksite enforcement regime. On May 22, the Department of Homeland Security published technical rule-making notices outlining its plans to add a “data mining” technology, which DHS calls “CTMS” (Compliance, Tracking and Monitoring System) to E-Verify data. Although the notices called for public comment, DHS announced that CTMS would nonetheless take effect on June 22, regardless of the comments.
CTMS will use algorithms and other formulas to evaluate information in E-Verify and to look for irregularities that suggest fraud or misuse of the E-Verify system. If CTMS spots data irregularities, it will trigger a personal inspection of the employer’s E-Verify record by a DHS evaluator. The evaluator will evaluate whether the overall data in the employer’s profile appears suspicious. If so, the evaluator will open a review matter and refer it to an investigator for follow-up. Depending on the circumstances, the investigator may contact the employer to inquire about its E-Verify utilization—including requests for personnel information and documents, or the investigator may make a referral to ICE for enforcement.
Adverse findings could lead to supervised use of E-Verify, additional E-Verify training or, in egregious cases, cancellation of E-Verify participation. In addition, if pending regulations requiring federal contractors to participate in E-Verify finally become law, adverse E-Verify findings could lead to debarment from participation in federal contracts. Also see post E-verify Arizona concerns.
Bonnie Gibson (licensed in California) is a partner in the Phoenix office of Fragomen, Del Rey, Bernsen & Loewy, LLP, one of the largest business immigration legal practice in the world. Bonnie (E-verify Lawyer) specializes in I-9, E-Verify and other immigration worksite compliance, drawing upon her 25 years experience in labor and employment law. She also serves as the E-Verify chair for the American Immigration Lawyers Association Verification Liaison Committee. For more information about E-Verify or I-9 compliance, contact Bonnie Gibson at bgibson (at) fragomen.com.
