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E-Verify

What Is E-Verify?

The E-Verify System was established by the U.S. Citizenship and Immigration Services (USCIS) to verify that current and/or newly hired employees have legal authorization to work in the United States. Because both state and federal laws regulate the use of E-Verify, some employers are prohibited from using E-Verify to check the work eligibility of current employees, while other employers are required to do so. Employers are therefore strongly encouraged to speak with an attorney to determine which E-Verify laws apply, if any.

How does E-Verify work?

Employers must first register online to use E-Verify, and the registration process will include signing a contract with the Department of Homeland Security called a Memorandum of Understanding (MOU). This MOU commits the employer to use E-Verify for all newly-hired employees at each specific work-site that is included in the MOU. If the employer is not otherwise required by law to use E-Verify, the employer may cancel the MOU and stop using E-Verify at any time.

The MOU obligates the employer to submit every newly-hired employee's information into the system within three days of the hire date. The new hire's basic information is automatically submitted to both the SSA and DHS databases to determine eligibility to work. If the SSA and DHS cannot immediately confirm work authorization, the employer will receive a tentative nonconfirmation response. The employee can contest the nonconfirmation and has eight federal workdays to follow-up with SSA or DHS. Otherwise a final nonconfirmation will be issued. To avoid being penalized for unlawfully terminating an employee because of a tentative non-confirmation, employers are encouraged to consult a Fisher & Phillips attorney for instruction while using E-Verify.

If the employer continues to employ the worker after a final nonconfirmation, a rebuttable presumption is created that the employer has knowingly employed an unauthorized individual. This can result in the employer being fined for unlawfully employing an individual who lacks authorization to work in the United States. One benefit of E-Verify is that an employer's proper use of the system to verify an employee's eligibility to work provides a rebuttable presumption that the employer has taken good-faith steps to comply with federal immigration law, specifically the Immigration Reform and Control Act.

Use of E-Verify does not eliminate the need for an employer to complete an I-9 form for newly hired employees. An employer who uses E-Verify, however, may need to adjust its procedures for completing the I-9 form. For example, employers who have enrolled in E-Verify may only accept a "List B" document during completion of the I-9 form if that document has a photograph. Moreover, employers are prohibited from requesting an employee's Social Security number during completion of the I-9 form, but must subsequently request that number in order to check the employee in the E-Verify system.

Timeliness and Accuracy of E-Verify

The majority of secondary verifications by USCIS are resolved in 24 hours, however some queries have taken several weeks. E-Verify is still undergoing growing pains as more employers register, especially in the secondary verification process. Some individuals who have legally changed their names but did not notify the Social Security Administration may initially show a lack of work authorization. Moreover, individuals who have recently naturalized to become U.S. citizens may not be shown in the government database as U.S. citizens. As with any large database, individuals' records may be susceptible to data errors which will erroneously indicate that the individual is not authorized to work. Employers should be careful to follow E-Verify procedures in the event of a tentative non-confirmation notification.

Weaknesses in E-Verify

"The E-Verify system is not fraud-proof and was not designed to detect identity fraud," according to USCIS Director Emilio Gonzalez. E-Verify cannot detect when workers are using another person's name and SSN. To increase the system's ability to detect identity fraud, E-Verify now has the capability of displaying the most current photograph contained in the government's database. Usually, only individuals who have obtained an Employment Authorization Document or green card will have a photograph on file with the immigration system.

Use of the E-Verify system will not immunize employers from I-9 compliance audits or possibility of raids. For example, on April 16, 2008, Immigration and Customs Enforcement raided Pilgrim's Pride poultry plants and arrested more than 300 foreign nationals working in its plants in Texas, Florida, Tennessee, Arkansas and West Virginia for suspicion of committing identity theft and other criminal violations in order to obtain employment. Pilgrim's Pride participates in E-Verify but the E-Verify system did not detect the identity theft. Thus far, 91 workers have been charged with criminal violations, including false use of a Social Security number and document fraud. Pilgrim's Pride, which has been cooperating with the ICE's investigation, knew about the raids in advance and has not been charged with any civil or criminal violations.

Verification data can also be used as a means of targeting employers for I-9 audits. For example, ICE has the ability to request and receive program data from USCIS on specific employers who participate in E-Verify and are under investigation. (GAO Worksite Report, July 13, 2006.)

E-Verify Rules For Federal Contractors

A final rule has been published in the Federal Register amends the Federal Acquisition Regulation (FAR) to require certain federal contractors and sub-contractors to use the E-Verify system. All federal solicitations issued and contracts awarded after implementation of the rule will include a clause related to the new rule.

Under the new rule, federal contractors and subcontractors will be required to verify through E-Verify the employment eligibility of all new-hires and all existing and new employees directly performing work on the covered federal contract, during the term of the covered contract. Existing indefinite-delivery/indefinite-quantity federal contracts will be amended to include the E-Verify clause for future orders if the performance period extends for a set period of time, and the work or number of orders will be or is expected to be "substantial."

For the most current information about federal contractors' obligations to use E-Verify, please see the Global Immigration Alerts section of our website.

State Laws Requiring Use of E-Verify

Across the country, states continue to enact their own employment-related immigration legislation, including legislation requiring certain employers to use E-Verify to electronically verify the employment eligibility of their newly hired employees.

While there are currently seven states that mandate E-Verify, as shown by the chart below, there are numerous states with legislation or pending legislation relating to E-Verify.

State E-Verify Legislation
Mandates the use of E-Verify	AZ, AR, MS, GA, CO, OK, RI
Encourages the use of E-Verify	TN, MO
Requires state agencies to use E-Verify	ID, NC, PA, MN, UT, RI
Legislation is still pending	CA, MN, PA, SC, TN, WV, IL, IN, IA, MO, RI, KS, NJ, CO, FL

For a complete list of all states that have enacted employment-related immigration legislation, please visit our State Survey of Immigration Laws page (see sidebar) to review our survey of employment-related immigration legislation that may affect your company.

Extending OPT For F-1 Students

The Department of Homeland Security allows certain students holding an F-1 student visa to extend their Optional Practical Training (OPT) if their employer uses the E-Verify system. Specifically, graduates in science, technology, engineering and math (STEM) who are employed by businesses enrolled in the E-Verify program are eligible for a 17-month extension of OPT for a total of 29 months of OPT. The STEM graduate's employer must be registered in the E-Verify program and must be in good standing in the E-Verify program in order for the OPT extension to be granted.

Click here for E-Verify User Manuals for Employers and Federal Contractors.