The Facts about E-Verify
The Department of Homeland Security received funding in its FY 2019 budget to prepare the E-Verify system for mandatory nationwide implementation, so this is a good time to review the facts about E-Verify. If your business does not fall into a category of state or federal law that already requires you to participate, you may want to consider voluntarily enrolling now. We’ll discuss some of the pros and cons that could affect such a decision.
What Is E-Verify?
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorized E-Verify as a means for employers to electronically match documents provided by employees to verify work eligibility for the Employment Eligibility Verification Form I-9 against data contained in federal databases. Results are generated within a few seconds that serve either to confirm status or to flag a case for further action. The system is not meant to replace I-9 procedures but merely to enhance them—a form must still be retained for each employee.
E-Verify may not be used for:
- Determining immigration status;
- Pre-screening or
- Protection from worksite enforcement.
While the use of E-Verify does not protect a business from liability for I-9 violations or discriminatory employment practices, proper use does create a presumption of not knowingly hiring an unauthorized employee.
Who Is Required to Use E-Verify?
E-Verify is still generally considered a voluntary program today, with some exceptions. Employers with federal contracts or applicable subcontracts must participate in E-Verify. Twenty-two states require some level of participation. More than 750,000 employers are currently registered, with almost 2.5 million hiring sites covering every state and US territory, and these numbers grow by the day.
The Trump administration requested and received funding this year to upgrade the E-Verify systems in preparation for expanding use to every American employer. While the legal means of such a federal mandate may be challenged in the courts, many observers expect it to become a reality in the near future.
Should You Voluntarily Enroll in the Meantime?
Valid pros and cons can be persuasive in either direction of this question, depending on the circumstances of your company and its exposure to the various types of liability at play. Immigration and Customs Enforcement has touted its increased worksite enforcement efforts in two specific areas of concern: (1) critical infrastructure and (2) industries that have been known to exploit undocumented workers. If your business falls into one of these categories, the additional scrutiny of your workers’ documents provided by E-Verify may put you more at ease with your own I-9 compliance measures. If your business is less susceptible to compliance issues, the heightened responsibilities enumerated under the Memorandum of Understanding (MOU) may not be worth the trouble. A closer look at some of the advantages and disadvantages of enrolling in E-Verify may help clarify the issues.
The Department of Homeland Security sets forth these global advantages to signing onto the program:
- It ensures that the country’s workforce is legal;
- It reserves jobs for legal workers;
- It deters identity and document fraud and
- It works in concert with the Form I-9 seamlessly.
Whether these societal interests are of enough value to you or your company to merit participation is, of course, up to your discretion, but there may be some other considerations.
- Participation is required for all federal and many state or other public contracts. If such business is part of your company’s strategy for the future, you may want to go ahead and establish this relationship.
- Participation provides a presumption that unauthorized workers were not knowingly hired, though that presumption is rebuttable.
- Checking documents against federal databases gives you an added layer of comfort in your level of I-9 compliance and subsequent buffer against penalties.
- Adopting the program before the government mandates it gives you time to adapt and test your procedures before regulatory penalties for E-Verify compliance kick in.
- A flag on an employee who appears to be eligible but is not prevents the time and expense of training an unauthorized worker and eliminates the legal hassle of an enforcement proceeding.
- The system requires a List B photo identification which may be difficult for some employees to obtain.
- The system does not actually verify employment authorization; it only matches documents. It does not, therefore, relieve an employer of I-9 liabilities or responsibilities.
- The MOU describes the conditions for opening verification cases and responsibilities when matches fail. Most of the obligations covered in the MOU fall on the employer.
- The business must retain photocopies of identity documents, and those photocopies may be used against the employer in a worksite enforcement proceeding.
- A Social Security number is required.
- While the program is technically free to use, it requires training and supervision.
- State and federal laws safeguard I-9 data. Companies are legally obligated to protect both privacy and security while preventing accidental or intentional misuse by personnel with access, which opens them up to a new layer of liability.
- The government may mine E-Verify data which can assist in identifying employer mistakes which can then lead to an audit.
Voluntarily signing on to E-Verify may be the right thing for your company but should not be entered into lightly. Carefully weighing the good and the bad against the needs of your particular business and industry are critical before volunteering for the additional responsibilities and liabilities that come with participation in the program.