E-Verify, and its Pros and Cons
E-Verify is a Internet-based voluntary program operated by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify a new hire's legal ability to work in the United States. E-Verify supplements, but does not replace, the Form I-9 verification procedure for new hires that has been required by federal law since 1986.
Federal law does not require employers to use the E-Verify program. However, some in Congress are pushing to make it mandatory (including former Washington Redskin quarterback Heath Shuler), and states such as Arizona, Mississippi, and South Carolina have passed varying laws requiring private employers to use E-Verify. In addition, E-Verify is increasingly being tied to federal benefits. For example, effective September 8, 2009, enrollment in E-Verify became a requirement for receiving a prime federal contract valued at $100,000 or more, or with a performance period of 120 days or more.
The Form I-9 Process
For more than 20 years, employers have been required to complete the Form I-9 for new hires. Federal law requires employers to complete the I-9 to verify the identity and employment eligibility of employees hired to work in the United States. The I-9 must be completed within three days of the employee's hire. The employee provides, and the employer inspects, original documents that attest to the employee's identity and authorization to work in the United States. The employer must retain the I-9 for three years after the employee's date of hire, or one year after the date the employment is terminated, whichever is later. While not required by law, many consider it a best practice to also retain photocopies of the documents presented by the employee.
How E-Verify Works
E-Verify supplements the I-9 process by allowing an employer to cross-check the I-9 information presented by the employee against SSA and USCIS databases. To utilize the program, an employer must sign up as a registered E-Verify user. The basic registration process includes the execution of a Memorandum of Understanding with the government, and the taking of a required on-line tutorial.
To perform a query, the employer enters the employee's personal data (name, date of birth, gender, Social Security Number (SSN)) and immigration status (U.S. citizen/lawful permanent resident/work authorized nonimmigrant, etc.) from the I-9 into E-Verify. The system typically returns a response within a few seconds. In most cases, E-Very will return one of the following responses:
•· Employment Authorized
•· SSA Tentative Nonconfirmation
•· DHS Tentative Nonconfirmation
•· DHS Verification in Process
•· DHS Case in Continuance
If the employer receives an "Employment Authorized" response, that response will be displayed along with a photo of the employee (assuming USCIS possesses a photo). If the photo identification presented by the employee matches the photo displayed by E-Verify's photo tool, the employer may close out the verification case. If the photo does not match, further action, including sending USCIS a copy of the photo identification document which was provided by the employee, is required.
If the employer receives a Tentative Nonconfirmation (TNC) from E-Verify, the employer is expected to print and provide to the employee an E-Verify generated "Notice to Employee of Tentative Nonconfirmation." The employer is to review that notification with the employee, and the employee must then decide whether or not to contest the TNC. If the employee does not contest the determination, the employer is expected to immediately terminate the employee, and to indicate this conclusion within E-Verify.
Alternatively, if the employee chooses to contest the TNC, the employer is expected to print out and provide the employee a "Referral" notification which instructs the employee to make contact with either USCIS or SSA to resolve the existing work eligibility discrepancy within eight federal government working days. In many cases, including most cases involving U.S. citizens and lawful permanent residents, the employee will be given the option of resolving the mismatch discrepancy over the phone by contacting USCIS via a toll-free number. Some individuals, however, must visit a SSA field office to resolve a SSA TNC determination.
After the contesting employee visits SSA or contacts USCIS by phone, the applicable agency will provide a final work authorization determination within ten business days after issuance of the Referral notification. After issuing the Referral notification, the employer is required to check the E-Verify system regularly for case updates. If the employee is found work eligible, E-Verify will display an "Employment Authorized" result; if not, a Final Nonconfirmation will issue. In a small percentage of cases, the SSA or DHS verification process exceeds ten days. In such cases, the querying employer will receive a "Case in Continuance" message from E-Verify to signify that the query remains under active consideration. The employer must continue to check E-Verify regularly for such employees.
Importantly, employers and employees both are warned that an initial TNC determination must not be misinterpreted as a definitive determination that the queried employee is in the United States unlawfully or is otherwise not work authorized. Employers are prohibited from terminating the employee due to the TNC or changing the terms or conditions of his/her employment during this contest period. An E-Verify-based employee termination may only occur after the issuance of a Final Nonconfirmation, or after the employee abandons the resolution process.
If the employee cannot work out the situation, and the system provides the employer with a "final non-confirmation" of eligibility, the employer must either fire the employee or risk employing an unauthorized worker contrary to law.
Pros and Cons
E-Verify is a voluntary program, and, as of August 2011, is used by about 3 percent of employers in the United States. In making a business decision about enrollment in E-Verify, employers often consider a number of pros and cons, many of which are specific to their organization. Some considerations include:
Pros
•· Many federal contracts issued after September 8, 2009, will contain a clause requiring the prime contractor, and the subcontractors on the job, to utilize E-Verify. E-Verify is thus often required to do business in the federal contract arena.
•· Proper use of E-Verify serves as a tremendous defense to any charges that an employer illegally hired an unauthorized worker.
•· E-Verify assists employers in maintaining a legal workforce and helps protect jobs for authorized U.S. workers.
•· Utilizing E-Verify greatly reduces the chances of receiving a "no-match" letter from the SSA.
•· E-Verify employers are exclusively able to offer employment authorization extensions to certain college and university graduates present in the United States on temporary student visas.
•· E-Verify provides an employer the extra-assurance that its workforce is legal.
Cons
•· E-Verify is a unnecessary extra step. An employer has fulfilled its obligation under the law once it completes the I-9.
•· Employees must be trained on how to use the system. The User Manual is 68 pages.
•· E-Verify requires access to a computer and the Internet.
•· E-Verify may not be used selectively. An employer who registers with E-Verify must use it for all new hires, or risk liability for discrimination.
•· E-Verify may not be used to pre-screen applicants. It may only be used in supplement to the I-9 process after an employee is hired.
•· Under the E-Verify Memorandum of Understanding, the employer agrees to only accept I-9 "List B" identity documents that contain a photo.
•· The SSA database has a 4.1 percent error rate. SSA has estimated that if the system were to become mandatory and the databases were not improved, SSA database errors alone could result in 3.6 million workers a year being misidentified as not authorized for employment.
•· Resolving TNCs requires time and effort. Queries submitted to E-Verify by Intel Corporation in 2008 resulted in slightly over 12 percent of all workers being initially flagged as unauthorized for employment. All of the workers were eventually cleared as work authorized, but according to Intel, only after "significant investment of time and money" and "lost productivity."
•· E-Verify can subject U.S. citizens and other work-authorized employees to unnecessary hassle. The concern most frequently identified when USCIS interviewed a variety of employers in Arizona (where E-Verify is mandatory) was that the E-Verify issued Tentative Nonconfirmations on work-authorized individuals.
•· E-Verify employers give up certain rights, and make themselves known to the immigration authorities. Most employers are legally entitled to three-days notice before Immigration and Customs Enforcement (ICE) can audit and investigate a workplace for immigration violations. Under the Memorandum of Understanding signed in order to use E-Verify, employers agree to allow ICE to enter a workplace to investigate without any prior notice.
•· The government has stated its intention to mine the E-Verify data to support monitoring and compliance activities. They want to use E-Verify data for law enforcement activities. For example, a company with a lot of TNCs might be flagged for enforcement.
•· E-Verify might provide a safe harbor as to employer liability for employees who were approved by E-Verify, but it does not provide a safe harbor for employees who were hired earlier, and cannot prevent the hassle of a worksite enforcement action that occurred because the employer made itself known to the immigration authorities through E-Verify.
•· E-Verify is not adept at identifying an unauthorized worker who is using the stolen name and Social Security number of a lawful worker.
•· Several employers have faced wrongful termination lawsuits by employees fired after their names triggered incorrect non-confirmation results on E-Verify.
E-Verify is a program with vocal advocates, and vocal opponents. As a voluntary program, employers may choose to use, or not use, E-Verify based upon their business needs.
