Is E-Verify Right For Your Organization? If Not, It May Become Mandatory Anyway

Tuesday, April 15, 2014 - 15:17

It was with great fanfare that the government in 2007 unveiled E-Verify, the online system through which participating employers can verify the work authorization of new hires. E-Verify can be a solution for some employers seeking to minimize the risk of hiring unauthorized workers, particularly in the current climate of increased immigration enforcement. This article explores the pros and cons of E-Verify for employers considering whether E-Verify is the right choice for their organization.

While relatively new, E-Verify is one result of the 1986 Immigrant Reform and Control Act, which prohibits employers from hiring unauthorized workers. To effectuate the Act, employers must complete an I-9 employment eligibility verification form for each new hire, attesting that a new hire’s identity and work authorization documentation affirm his or her work eligibility. E-Verify is an additional component of employment verification. Employers enter a new hire’s Social Security number and other details to screen for authorization and document authenticity.

A determination to enroll in E-Verify is generally voluntary, with a few significant exceptions. First, a Federal Acquisition Regulation amendment, effective since September 2009, requires that certain federal contractors participate in E-Verify. Second, beginning as early as 2007 but increasing in the past few years, states have demanded employers use E-Verify as part of a broader state-level effort to deter illegal immigration. Today, over 20 states require some form of E-Verify use. Finally, organizations employing F-1 STEM graduates (foreign nationals with degrees in science, technology, engineering or mathematics) that want the benefit of a 17-month extension of Post-Completion Optional Practical Training will need to use E-Verify.

Organizations that elect to use E-Verify sign a memorandum of understanding with which they agree to adhere to the terms of E-Verify and cooperate with the government’s compliance monitoring in exchange for the system’s screening benefits. Employers who use E-Verify voluntarily can choose to apply the program to their entire organization or to limit participation by hiring site. The question remaining for some organizations today is whether to sign up for E-Verify voluntarily.

The principal advantage of E-Verify is that it creates a rebuttable presumption that an organization that complied with E-Verify in good faith did not knowingly hire an unauthorized worker. Additionally, E-Verify is better suited to weed out fraudulent documents than the I-9 process, under which employers are required to accept an employee’s document as evidence of work eligibility if the document appears facially valid and relates to the individual presenting it. Due to the steep fines associated with hiring unauthorized workers, these advantages alone are sufficient to motivate many employers to use E-Verify.

The government also continuously works to improve E-Verify and, in our experience, has reduced its disadvantages. For example, reports of U.S. citizens being found unauthorized and foreign nationals’ name changes resulting in their unemployment created concerns that E-Verify yields erroneous non-confirmations and tentative non-confirmations. In response, the government created Self-Check, which allows potential employees to confirm their own employment eligibility and to take action to cure any inaccuracies in the system before starting a new job.

However, E-Verify use does require concessions. To avoid inferences of discriminatory use, organizations must invest in training hiring personnel to use E-Verify properly and consistently. Businesses may also incur costs in resolving non-confirmations, and although nearly 90 percent of tentative non-confirmations result in final non-confirmations, organizations may not suspend employees or delay training while contesting a tentative non-confirmation (which generally takes between one and two weeks to resolve). Finally, while the government may inspect all employers’ I-9 documentation, ICE’s Worksite Enforcement Unit closely supervises E-Verify compliance and has some broader access to enrolled employers’ documentation.

Despite these concessions, E-Verify use has been increasing among the over 7.4 million businesses in the United States. From 2007 to 2013, the number of employers using the program surged from 24,463 to 482,692.

That number would increase exponentially once Comprehensive Immigration Reform passes. Electronic verification systems have been part of reform packages for a while, and current legislative proposals indicate that reform would receive bipartisan support for an electronic verification system. S. 744, which passed the Senate in June of 2013, proposes that E-Verify become mandatory for all employers over the course of the five years following the bill’s enactment. The House’s 2011 Legal Workforce Act proposes the electronic verification system be implemented within two years of enactment. As both bills advocate for mandatory use of an electronic verification system, it is likely only a matter of time before most employers are verifying employees’ work eligibility online. But until then, many organizations can still choose.

In conclusion, what an organization has to gain by using E-Verify depends very much on its circumstances. Larger companies and smaller organizations with F-1 STEM employees may well find that E-Verify is right for them. Smaller organizations that do not often hire new employees may choose not to allow the government to access their business records in exchange for the conveniences of E-Verify. Employers deciding whether or not to use E-Verify should examine the pros and cons of the program in the context of the organization’s circumstances to determine whether E-Verify is a suitable choice for their organization. 

 

Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at mpatrick@fragomen.comRachel Weissman, a legal intern, and Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.