Although the issue of immigration compliance in the workplace is not a new topic in the United States, it has become more and more pronounced due to the daily stories from the news media and an increased scrutiny of employers. A few months ago, the U.S. Immigration and Customs Enforcement (ICE) raised the level of concern further by announcing a dramatic increase in the number of workplace audits they will complete in 2018. Employers who want to avoid potential financial penalties may be interested in learning about E-Verify, a system of employment eligibility verification that goes beyond the Employment Eligibility Verification Form I-9.
E-Verify is a free Internet-based system that is currently used by close to 800,000 employers in the United States. It compares information from a newly hired employee’s Form I-9 to the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA) databases. Although E-Verify is still voluntary for most employers, it is mandatory for employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause. Some states have also enacted laws that mandate usage beyond the federal laws. Alabama, Arizona, Mississippi, and South Carolina require all public and private employers to utilize E-Verify. Indiana requires all government employers to utilize E-Verify. Other states have mandated E-Verify usage for companies over a certain size, such as Georgia, which mandates it for all private employers with more than ten employees. For those who are not yet required by law to participate in E-Verify, this article will provide information on the process of becoming an E-Verify participating employer and will explore reasons why E-Verify may be worth further consideration.
Enrolling in E-Verify is fairly simple if an employer has a computer and Internet access. It is an Internet-based system that has been tested and verified to work with Microsoft Internet Explorer version 6.0 or higher, Mozilla Firefox 3.0 or higher, Chrome version 7.0 or higher, or Safari version 4.0 or higher. Employers who participate in E-Verify will also need the capability to print various forms, notices and publications, and Adobe Acrobat Reader software, which may be downloaded for free, to view Portable Document Format (PDF) files.
Once an organization provides some basic information, agrees to follow the rules of the program, and has employees who will be using the system take a tutorial and pass a test, they will be ready to begin utilizing the system. The following information is needed to enroll:
- The organization name and mailing address.
- Physical address and county of the location from which the organization will access E-Verify.
- Federal Employer Identification Number (FEIN), aka Federal Tax ID Number.
- First three digits of the organization’s primary North American Industry Classification System (NAICS) code.
- Total number of employees for all of the organization’s hiring sites that will participate in E-Verify.
- Contact information for the hiring sites that will participate in E-Verify in each state.
- Signatory and contact information for the E-Verify Memorandum of Understanding (MOU).
Organizations new to E-Verify do not need to enroll current employees to “catch up” in the E-Verify system. After the enrollment process is complete, employers should utilize the E-Verify system no later than three business days after each new employee begins to work for wages. The system guides the employer through a series of questions, which follow the new employee’s Form I-9. E-Verify often displays a confirmation quickly. According to the new E-Verify website, as of April 2018, 98.95 percent of employees are automatically confirmed as authorized to work either instantly or within 24-hours. If E-Verify cannot initially match the information, the employer will be prompted to review and correct discrepancies. After an employee’s information is run through E-Verify, the system creates a case verification number and employers are required to either record the case verification number on the employee’s Form I-9 or to print the case detail page that contains the verification number and attach it to the employee’s Form I-9.
Employers are responsible for notifying employees that they are using the E-Verify system. An E-Verify poster and a Right to Work poster must be clearly visible to potential employees. These posters indicate that the employer participates in E-Verify and describes employees’ rights under the program. Posters are available on the E-Verify website and must be displayed in both English and Spanish.
For companies who are considering whether they should enroll in E-Verify, there are multiple advantages including:
- The ease and reliability of the system.
- E-Verify may save an employer the time and money spent for onboarding, training and resourcing an individual who is not eligible for employment.
- Even though there is not currently a safe harbor for employers, utilizing E-Verify demonstrates that employers have made an effort to be compliant with immigration laws.
Disadvantages may include:
- There is no charge to employers to use E-Verify, however, there is an investment of employer time and resources for participation in this program.
- An inability to hire an individual if erroneous information isn’t corrected within the designated time frame.
- Potential risks of discrimination violations and a new concern for privacy obligations.
As with any new program, some employers experience a level of apprehension as they consider enrolling in E-Verify. They may wonder about the accuracy rates of information in the SSA and DHS databases and how often information is updated, or worry about whether utilizing E-Verify may allow the federal government to find errors that may not have been discovered in the Form I-9’s. However, even though there may be a few disadvantages and uncertainties, E-Verify is the only service that verifies employees’ data against millions of government records and provides results, usually within seconds, ensuring that employees are legal U.S. workers. There is no other program that provides the same peace of mind in such little time.
Employers should be mindful of potential State-specific legislation requiring the use of E-Verify. It’s also important for employers to know that E-Verify may not be a choice much longer as House Republicans have reintroduced federal legislation to make it mandatory for all employers. Mandatory E-Verify is also reflected in President Trump’s 2018 budget proposal. With these realities, the question isn’t whether an organization should use E-Verify but whether an organization should wait to enroll until E-Verify is mandated by law. At the very least, it is recommended that employers look at the technology required and be prepared for the possibility of required participation.
Written by: Kathi Walker, SHRM-SCP, PHR
Sr. HR Consultant