E-Verify is an Internet-based system operated by the U.S. Department of Homeland Security (“DHS”) in partnership with the Social Security Administration (“SSA”). Registration with E-Verify enables employers to electronically verify the employment eligibility of newly hired employees. It is voluntary, with limited exceptions as addressed below. Once registered, an employer may begin using the system by submitting a query that includes information from sections 1 and 2 of the new employee’s I-9 Employment Eligibility Verification form. Such a query must be initiated within three business days of the employee’s start date. Employers participating in E-Verify must verify all newly hired employees including citizens and non-citizens (existing employees may not be verified). Employers may terminate participation in E-Verify at any time upon proper notice to DHS.
DHS claims that E-Verify is the best means available to verify employment eligibility of newly hired employees because it virtually eliminates Social Security mismatch letters, improves wage and tax reporting accuracy, protects U.S. worker jobs and helps employers maintain a legal workforce. And although E-Verify does not provide safe harbor from worksite enforcement, employers who verify work authorization using the system are presumed to have not knowingly hired an unauthorized worker.
Another reason to register is to take advantage of the U.S. Citizenship & Immigration Services’ (USCIS) interim rule that permits foreign students to request a seventeen (17) month extension of Optional Practical Training (“OPT”) beyond the twelve (12) months previously available. In order to qualify for such an extension, the foreign student must (among other requirements) be working for, or have accepted employment with, an employer enrolled in E-Verify.
Further, some states now require employers to register with E-Verify (i.e., Arizona, Colorado, Georgia, Oklahoma) making what was intended by the federal government to be a voluntary program mandatory in those states. Penalties for non-compliance include loss of public contracts (GA), bars from claiming deductible expenses for state income purposes (GA) and loss of business licenses (AZ). We anticipate much litigation over such state legislation.
Why Not Register?
Although some states now require employers to register with E-Verify, at least one, Illinois prohibits employers from such registration because it questions the accuracy of the information contained in the database. The system also cannot always detect instances of identity theft so an employee may present valid documents that do not belong to him or her.
If the information in the database is incorrect for a particular employee (including U.S. citizens), an employer may be restricted from continuing to employ that person if the issue is not resolved within a set time frame. Employees have eight (8) federal government workdays from notification of the issue to contact USCIS or SSA to resolve the discrepancy. This can result in employees missing work.
Finally, administration of the system can be somewhat cumbersome. Employers may only accept a Form I-9 List B document if it bears a photograph and employees must possess a Social Security Number.