E-Verify is currently the best means available for employers to verify electronically the employment eligibility of their newly hired employees. E-Verify virtually eliminates Social Security mismatch letters, improves the accuracy of wage and tax reporting, protects jobs for authorized U.S. workers, and helps U.S employers maintain a legal workforce.
U.S. law requires companies to employ only individuals who may legally work in the United States – either U.S. citizens, or foreign citizens who have the necessary authorization. Created under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, E-Verify is a Web-based system that allows employers to electronically verify the work eligibility of newly hired employees. The Social Security numbers and alien identification numbers of new hires are checked against Social Security Administration and Department of Homeland Security records to weed out fraudulent numbers and help ensure that new hires are legally authorized to work in the United States.
While the government requires you have your candidate complete an Employment Eligibility Verification form, the I-9, and requires you to view their supporting documents, within three days of beginning to work for you for pay. The main problem with the I-9 program is that employers often lack the expertise to detect fraudulent work documents. Moreover, because of the nondiscrimination provisions in the Immigration Reform and Control Act employers are generally reluctant to be overly demanding during the I-9 process. In response to this problem, the government created the E-Verify program to operate alongside the I-9 procedure and make the verification process more effective.
WHY SHOULD I CONSIDER PARTICIPATING IN E-VERIFY?
E-Verify is the best means available for employers to verify the employment eligibility of their newly hired employees. Faking social security cards and other documents used for I-9 verification has gotten easier, and those selling fake documents have gotten much more sophisticated, which makes it harder for you to discover if the documents are fake or stolen documents. Federal enforcement actions against employers hiring unauthorized and/or undocumented employees are harsh and swift, and defending yourself can be expensive, and can impact your mission.
AM I REQUIRED TO PARTICIPATE?
No. Under federal law, E-Verify is voluntary for all employers with limited exceptions for federal government employers and violators of certain immigration laws that are ordered to participate. Employers should check to see if their state law requires participation in E-Verify.
E-Verify does not check who the employer sponsor is and the new employer can use the employee’s I-94 information from the previous employer in an H-1B portability situation.
Employers who elect to participate in E-Verify must verify ALL newly hired employees including both citizens and non-citizens. Employers may not pick and choose which employees are put through the verification system.
The employer needs to be careful not to pre-screen applicants and may not delay training or an actual start date based on a tentative non-confirmation, nor can the employer cannot accelerate a start date for an employee because employment authorization is confirmed. Employers must always be consistent in the timing of a query so as to avoid discrimination. Additionally the employee may not face adverse consequences as a result of the use of E-Verify unless a query results in a non-confirmation.
BENEFITS OF PARTICIPATING
Employers are presumed not to have violated the employer sanctions rules in INA Section 274A with respect to the hiring of any individual if it obtains confirmation of the identity and employment eligibility in compliance with the terms and conditions of E-Verify. Note that DHS does not consider using E-Verify to provide a “safe harbor” from work site enforcement. Some states such as Tennessee do, however, consider using E-Verify a safe harbor from violation of the state’s new law which can lead to the revocation of a business license for employer’s knowingly hiring unauthorized immigrants.
Using E-Verify will likely result in the elimination of no-match letters being received by a company. However, there are private companies that provide similar services, albeit at a cost. DHS also touts E-Verify as a way to improve the accuracy of wage and tax reporting, protecting jobs for authorized U.S. employees and helping U.S. employers maintain a legal workforce.
RISKS ASSOCIATED WITH PARTICIPATING
An employer will have a rebuttable presumption that it knowingly employs someone ineligible to work if it continues to employ someone after receiving a final nonconfirmation. If an employer believes E-Verify is incorrect, the employer will have a strong incentive to terminate an employee anyway in order to minimize the risk since an employer acting in good faith on information received from E-Verify is immunized from civil and criminal liability.
Employers must agree to permit DHS and SSA officials to visit their work sites to review E-Verify records and other employment records related to E-Verify. And DHS and SSA may interview an employer’s authorized agents or designees regarding the employer’s experience with E-Verify for the purpose of evaluating E-Verify.
Employers who have “buyer’s remorse” and choose to stop using E-Verify must continue using the program for 30 days after giving written notice to USCIS that it wants to stop using the system.
ARE EMPLOYERS PROTECTED FROM INVESTIGATION IF THEY USE E-VERIFY
No. Work site enforcement is still permitted, but an employer using E-Verify is presumed to not knowingly have hired unauthorized aliens.