Proposed Changes to the E-Verify MOU

On September 11, 2012, DHS announced proposed changes to the E-Verify MOU in the Federal Register (77 FR 55858). The Federal Register notice provides a 60-day comment period ending November 13, 2012. There are 6 versions of the new proposed MOU depending upon how access to E-Verify is gained. Each of the proposed MOUs may be viewed via the eRulemaking Portal, simply scroll to the bottom of the docket screen.

The proposed MOU includes several changes. The most significant of these changes are outlined below.

Article V. Section F. PENALTIES

• The [Web Services Agent, Web Services Employer, etc.] agrees that any failure on its part to comply with the terms of the MOU may result in account suspension, termination, or other adverse action.
• DHS is not liable for any financial losses to [Agent/Employer] or any other party as a result of account suspension or termination.

Article VI. Section B. TERMINATION

2. …DHS may terminate this MOU…, with or without notice at any time if deemed necessary because of requirements of law or policy, or ….breach of system integrity…, or a failure on the party of either party to comply with established E-verify procedures and/or legal requirements…the employer understands that if it is in a state where E-Verify is mandatory, termination of this MOU by any party may negatively affect the Employer’s business.

For employers using E-Verify in an E-Verify required state, these changes may have business ending consequences. The MOU does not outline the level or frequency of non-compliance issues which would result in suspension or termination. Furthermore, the MOU does not outline any means by which an employer can redress the non-compliance issues in order to maintain the employer’s E-Verify participation. Likewise, the MOU does not provide any process by which an employer can appeal the decision of DHS with respect to suspension or termination of the employer’s E-Verify account.

Lookout Services encourages employers to consider the proposed changes and to submit comments on the proposed MOU. Comments may be submitted via email (uscisfrcomment@dhs.gov ), as well as, the eRulemaking Portal. The comment period ends November 13, 2012.