Introduction to E-Verify
By: LAURA J. DANIELSON, LOAN T. HUYNH, & DEBRA A. SCHNEIDER
What is E-Verify?
E-Verify is a web-based program that allows employers to electronically verify the information provided on the Form I-9 including social security numbers with databases of the Social Security Administration (SSA) and the Department of Homeland Security (DHS). The Department of Homeland Security in conjunction with the Social Security Administration in 1996 established what is now the E-Verify program to supplement the current I-9 employment eligibility verification process.
E-Verify is currently a voluntary program at the federal level and in most states. As of June 2008, more than 70,000 employers have registered for
E-Verify participation with an average of 1000 employers signing up per week. The numbers of employers registering with E-Verify is expected to continue to grow as the Immigration and Customs Enforcement (ICE) increases its enforcement actions, more states enact legislation mandating
E-Verify for employers, and the federal government provides more incentives such as the recent proposal to require all federal contractors to register with E-Verify.
As the pressure on employers to register with E-Verify increases, employers should be cautious when deciding to register with E-Verify as it imposes significant obligations and requires employers to enter into a Memorandum of Understanding (MOU) with the SSA and the DHS.
Responsibilities and Obligations Under E-Verify
Employers can register for E-Verify online (https://www.vis-dhs.com/EmployerRegistration). As part of registration process, the employer must sign a MOU, which outlines the responsibilities and obligations of the employer, DHS, and SSA under E-Verify. An employer’s main responsibilities under E-Verify are to:
- Post a notice supplied by the DHS that the employer engages in E-Verify;
- Provide the identification of the designated E-Verify employer representative;
- When completing Form I-9, accept only List B documents that contain a photograph;
- Photocopy and retain Form I-551 (Permanent Resident Card) or Form I-766 (Employment Authorization Document) with I-9 records if they are presented by an employee;
- Notify DHS if the employer continues to employ following a non-confirmation (with civil penalties of $500 - $1000 for failure to notify);
- Initiate E-Verify process within three business days after hire;
- Follow required procedures, including notifying an employee in writing of any tentative non-confirmations;
- Record the case verification number on the employee’s I-9;
- Allow DHS and SSA representatives to make periodic visits to review an employer’s E-Verify procedures and to make such records available along with any materials related to the I-9 process.
The employer also agrees not to use E-Verify for pre-employment screening, for re-verification purposes, or for screening of any employees hired before the date that the MOU is signed.
The E-Verify Process
Under E-Verify, an employer must initiate an electronic inquiry for all new hires no later than three days after the start of employment or whenever the I-9 employment verification process has completed.
There are three possible results from E-Verify: 1) Confirmation; 2) Tentative Non-Confirmation; and 3) Final Non-Confirmation. Details about each are described below:
- Confirmation: This creates a rebuttable presumption of I-9 compliance. The case verification number needs to be attached to Form I-9. This ends the process with the exception of time limited authorizations, when re-verification is necessary.
- Tentative Non-Confirmation: This is NOT grounds for termination and requires follow-up steps: double checking for errors, recording case verification number, and informing employee of the right to contest non-confirmation with SSA or DHS. If an employee does not contest, then employment MUST be terminated. If an employee contests, the employer must provide the employee with a referral letter to the SSA or refer to DHS. The employee has eight federal working days to resolve the discrepancy unless SSA or DHS extends the time period. After ten days, the employer must query the system again.
- Final Non-Confirmation: The employer must record the case verification number on Form I-9. If the employer does not terminate employment, there is rebuttable presumption of unlawful hire.
According to DHS, the confirmation rate is about 92% where confirmation is within seconds. Seven percent cannot be confirmed as work authorized with SSA. A majority of SSA nonconfirmations are due to citizenship or names not being updated in the SSA. About 1% is noncomfirmation by USCIS because the information does not match SSA and DHS databases.
E-Verify is not a substitute for I-9 compliance and does not provide protection against worksite enforcement. It can only be used to verify work eligibility for newly hired employees. The
E-Verify program can be terminated after thirty days notice to the government.
The advantages of using E-Verify are that it allows the employer to query the government databases as to validity of documentation. For those in vulnerable industries, it saves time and training by identifying unauthorized workers.
The disadvantages of E-Verify are that there are significant problems with underlying databases, creating errors that may lead to termination of lawful, U.S. workers. E-Verify is also limited to new hires and does not create a safe harbor from worksite enforcement. In addition, eight days is often not enough for employees to resolve discrepancies and there is no formal appeal process. Continued hire after final non-confirmation will result in a rebuttable presumption of a violation and can lead to further worksite enforcement scrutiny by the DHS.
The Future of E-Verify and the Employment Eligibility Verification Process
While the debate as to whether a mandated electronic employment verification process should replace the Form I-9 is ongoing, it is clear that the future of the employment eligibility verification process will involve some form of electronic verification component whether it is in the form of E-Verify or some other form. As an increasing number of states enact legislation requiring
E-Verify participation and the federal government increases pressure to register, many employers are facing the fact that the only choice they have is to register with E-Verify.
State executive orders and legislation regarding E-Verify are varied in that some require only public employers and others require both public and private employers to register with E-Verify. States which have some form of E-Verify requirement include Arizona, Colorado, Georgia, Oklahoma, Minnesota, North Carolina, Pennsylvania, Missouri, and Idaho. In addition, the federal government recently provided more incentives to employers to participate in E-Verify. In April 2008, USCIS announced that F-1 students with degrees in a Science, Technology, Engineer, or Mathematics (STEM) field and employed with an employer registered with E-Verify can extend their Optional Practical Training period from 12 months to 29 months. The carrot keeps getting bigger as President Bush recently signed an Executive Order mandating that federal contracts can only be issued to employers who are participants in E-Verify. Although it is not yet effective, this will clearly result in even more employers registering with E-Verify.
While some employers may no longer have a choice as to whether to register with E-Verify or not, those that do have a choice must weigh advantages and disadvantages carefully and determine what is best for their particular situation.