Should Employers Sign Up for E-Verify?

Pros and cons to signing your workplace up to use the U.S. government's E-Verify system.

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E-Verify is a “free” Web-based program provided by the U.S. federal government, allowing employers to submit information from an employee’s Form I-9 and receive confirmation that the employee is employment authorized (or a so-called “tentative nonconfirmation,” indicating that the employee may not be authorized to work in the U.S.). For more about tentative nonconfirmations, see What Employers Should Do After E-Verify Issues a Tentative Nonconfirmation for an Employee.

There are a number of considerations that employers must take into account when making a decision to register or not to register for E-Verify.

Some Employers Are Required to Use E-Verify

The laws in a number of states require that employers use E-Verify. Additionally, some federal government contractors are required by contract to use the system. Because the state laws are constantly in flux, you should check with an attorney to determine whether use of E-Verify is optional for you.

Many employers also see nationwide mandatory use of E-Verify as inevitable and have opted to begin using the system now so that they are comfortable with it and avoid the rush if and when all employers have to use it.

E-Verify Is Not Really Free

While you do not pay to use the E-Verify system, it does require employers to allot time toward training the employees who will administer the system, running queries, and dealing with tentative nonconfirmations. It also potentially opens employers up to new risks for discrimination claims from the Department of Justice’s Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) and for so-called “desk audits” by the U.S. Department of Homeland Security (DHS).

Additionally, due to the rules surrounding tentative nonconfirmations, employers may invest weeks of training time in an employee, only to have to terminate the person's employment once E-Verify issues a final nonconfirmation.

The E-Verify System Is Imperfect

The E-Verify system has flaws. If you use it, you will inevitably spend time dealing with tentative nonconfirmations, and maybe even final nonconfirmations, for individuals who are, in fact, authorized to work. You may also get “employment authorized” results for individuals who are not authorized to work.

E-Verify Requires Ready Access to Technology

In order to use E-Verify, you must be able to complete your I-9 forms on time and have access to the Internet to submit a new hire’s information to E-Verify on or before the third business day after hire (the third business day after the new hire’s first day of work for pay).

This may sound simple, but for some employers it means that E-Verify queries will consistently be completed late. Late queries may make the government believe that you may not be completing I-9s on time either, making you a potential target for an I-9 inspection. Because timeliness errors are fine-able offenses, the inspection may prove to be lucrative for ICE.

The Government Can Data Mine Your E-Verify Information

The U.S. government tracks the information that employers submit via the E-Verify system. The information comes straight from your I-9 forms. So when using E-Verify, you are effectively providing I-9 data to the government that the government would not otherwise have access to unless it audited your I-9 forms.

Additionally, the government can see information from lots of employers and compare it, so if twelve different individuals are using the same Social Security number and working for twelve different employers, the government may notice the trend and investigate. While the individual employers may not face any consequences here, as they likely had no reason to know that the employees had used someone else’s number, they may still have to participate in an investigation that may be time-consuming, stressful, and uncomfortable.

Immigration Benefits of E-Verify

Use of E-Verify allows some foreign students to obtain an extended period of employment authorization without their employers having to file H-1B petitions on their behalf (effectively delaying the need to file an H-1B petition by a year). For more, see Certain F-1 Students Can Extend Optional Practical Training Period.

Peace of Mind When Using E-Verify System

Employers often feel helpless when they consider the possibility that they may have unauthorized workers on staff. Let’s face it, the Form I-9 leaves a lot of room for error, and the anti-discrimination provisions make it difficult to dig deeper when you may suspect that someone is not authorized to work.

Using E-Verify for new hires can give you peace of mind by confirming that the data provided by the employee matches the data that the government has on file. While some unauthorized workers will “pass” the E-Verify check because they are using someone else’s valid information, many others will be caught and removed from your workforce.

Improved Compliance Based on Use of E-Verify

Use of E-Verify may help employers become aware of systemic errors that they've been making on their I-9s. This should lead to corrective action and the elimination of those errors, improving the employer’s overall level of compliance.

Elimination of SSN “No-Match” Letters

For employees hired after an employer registers for E-Verify, use of E-Verify should eliminate the problem of receiving SSN “No-Match” letters from the U.S. Social Security Administration (SSA). This is because E-Verify checks the SSA’s databases and confirms that there is a match. See Employers Receiving 'No-Match' Letters From Social Security for more on this topic.

Employers Using E-Verify Are Presumed to Be Hiring Authorized Workers

Employers who use E-Verify properly benefit from what the law calls a "rebuttable presumption" that they did not knowingly hire an unauthorized worker. This does not amount to a safe harbor or exempt you from fines if it turns out your did hire unauthorized workers, but it may help in the event that an employee is determined to lack work authorization. If you ran that employee’s data through E-Verify and were told that he or she was authorized to work – and so long as no other information came to light that should have caused you to question the person's work authorization – you cannot be charged with a “knowing hire” violation.

Because such violations are amongst the most serious, this presumption can provide the employer with an additional sense of security.

Brownie Points for Using E-Verify

U.S. Immigration and Customs Enforcement (ICE) will ask you, if you are an employer that is the subject of an I-9 inspection, whether you use E-Verify. If you use E-Verify, you will likely get “brownie points” for using it and may be less likely to be fined for any errors found on your I-9 forms.

Using E-Verify in a Unionized Workplace

If you have a unionized workforce, you may need to review your collective bargaining agreement and negotiate with the union prior to voluntarily registering for E-Verify. While good arguments can be made to the contrary, unions take the position that voluntary use of E-Verify is a mandatory subject of bargaining, and if you register for E-Verify and begin using it without first getting the union’s consent, you may face a complaint alleging unfair labor practices.

While the points described in this article do not cover every possible consideration, they highlight those that most employers find important when considering use of E-Verify. Before choosing to register, you may want to talk to a qualified attorney about proper use of the system.

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