Thus far in 2011, ten states have enacted legislation with E-Verify provisions – Alabama, Florida (executive order), Georgia, Indiana, Louisiana, North Carolina, South Carolina, Tennessee, Utah and Virginia. Eighteen states now have an E-Verify requirement for public and/or private employers - fifteen through legislation and three through executive orders. (In 2011, Rhode Island rescinded its 2008 executive order requiring state agencies and contractors to use E-Verify.) One state, Illinois, enacted legislation to limit the use of E-Verify until the database accuracy is improved and also created privacy and anti-discrimination protections. At least two states, Pennsylvania and Tennessee, encouraged its use through providing a safe harbor from state penalties for employers enrolled in E-Verify.

States Requiring E-Verify

USCIS reports that as of December 11, 2010 more than 238,000 employers have registered with the program, with 16 million inquiries in FY2010. In FY2009, there were 8.7 million inquiries, in FY 2008, 6.6 million, and 3.27 million in FY2007. There are an estimated 7 million employers in the United States and 60 million new hires per year. The 2007 Westat evaluation estimated that 4 percent of newly hired workers are verified using the system.

How well is E-Verify working? A December 2010 GAO report found that USCIS has improved the accuracy of E-Verify, immediately confirming 97.4 percent of 8.2 million new hires in 2009, up from 92 percent in 2007. The report notes that E-Verify remains vulnerable to identity theft and employer fraud. Name mismatches (multiple or hyphenated names) can still lead to tentative non-confirmation notices. GAO recommends that USCIS disseminate information to employees to consistently record names and to develop procedures to help employees correct inaccurate information. GAO also recommended that USCIS develop reliable cost estimates for E-Verify. The 81-page report, ”Employment Verification: Federal Agencies Have Taken Steps to Improve E-Verify, but Significant Challenges Remain.” View the report

E-Verify List of Guidelines for Employers: We’d like to review the E-Verify List of Guidelines for Employers.

Employers participating in E-Verify MUST:

• Follow E-Verify procedures for each newly hired employee while enrolled/participating in E-Verify.
• Notify each job applicant of E-Verify participation.
• Clearly display both the English and Spanish ‘Notice of E-Verify Participation’ and the ‘Right to Work’ posters.
• Complete Form I-9 for each newly hired employee before creating a case in E-Verify. Ensure that Form I-9 ‘List B’ identity documents have a photo (Section 2.1).
• Create a case for each newly hired employee no later than the third business day after he or she starts work for pay.
• Obtain a Social Security number (SSN) from each newly hired employee on Form I-9.
• Provide each employee the opportunity to contest a tentative non-confirmation (TNC).
• Allow each newly hired employee to start and continue working during the E-Verify verification process, even if he or she receives a TNC.
• Ensure that all personally identifiable information is safeguarded.

Employers participating in E-Verify MUST NOT:

• Use E-Verify to pre-screen an applicant for employment.
• Check the employment eligibility of an employee hired before the company signed the E-Verify MOU.
• Take any adverse action against an employee based upon a case result unless E-Verify issues a final non-confirmation.
• Specify or request which Form I-9 documentation a newly hired employee must use.
• Use E-Verify to discriminate against ANY job applicant or new hire on the basis of his or her national origin, citizenship or immigration status.
• Selectively verify the employment eligibility of a newly hired employee.
• Share any user ID and/or password

Upon enrollment, employers are required to clearly display both the English and Spanish ‘Notice of E-Verify Participation’ and ‘Right to Work’ posters. These should be displayed in the most appropriate location for viewing by potential and current employees. Both notices are found in E-Verify after you log in under ‘View Essential Resources’ (Section 1.2). In addition, E-Verify recommends providing a copy of these posters with job application materials, either online or in hard copy.

We link to the Department of Justice, Office of Special Counsel, for E-Verify Do’s and Don’ts for Employers.

Our recommendations:

We always recommend that you consult with an attorney skilled in employer compliance matters to assist you in the decision making process concerning enrollment in the system and developing a compliance plan so that you can monitor your state’s E-Verify requirements to remain compliant. Each state now has its own E-Verify requirements and penalties and therefore it’s imperative that you seek expert legal advice.

Should you wish to discuss this article or would like to consult with our firm, please contact us and sign up to receive our I-9 and E-Verify news and updates. View our services and solutions here.