E-Verify FAQ

The National Conference of State Legistlatures created a FAQ on the E-Verify program.  Here is the link to the FAQ:  http://www.ncsl.org/default.aspx?TabId=13127

The E-Verify program was created as a voluntary Internet-based pilot program to help employers verify the work authorization of new hires.   This program remains voluntary in California but 18 states have an E-Verify requirement.  In 2011 alone, ten states enacted legislation requiring the use of  E-Verify – Alabama, Florida (executive order), Georgia, Indiana, Louisiana, North Carolina, South Carolina, Tennessee, Utah and Virginia. Eighteen states now have an E-Verify requirement.

The program applies to U.S. citizens and noncitizens. The program is administered by the U.S. Department of Homeland Security in partnership with the Social Security Administration.

Hints from the USCIS on E-Verify and Forms I-9

On June 1, 2010, the USCIS published its notes from a session it held to gather feedback and input from stakeholders on E-Verify and the Form I-9 program.

There were a few notable points released in this memo:

1)  A self-check initiative will be introduced in December.  This initiative will enable anyone to go to the website and run a verification query on him/himself and determine the accuracy of his/her government record.  Hopefully, this will allow those individuals who have recently changed their name or their immigration status to verify that the system is correct and solve problems before they are given an abbreviated window by the e-verify system to do so.

2) The Verification Division informed stakeholders that it runs monthly reports to see if companies are running checks outside 3 business days of an employee’s hire date.  This statement confirms our suspicion that the USCIS is using the e-Verify tool to police Form I-9 completion.  This monitoring could expand into other areas and also prompt further audits and investigations.

For further information about worksite enforcement activities, please visit our worksite enforcement portal under the “information” tab.

Sonoma Employers Advisory Council Lessons

On March 17, 2010, I spoke at the Sonoma County Employers Advisory Council regarding worksite enforcement and immigration concepts human resource professionals must master when employing foreign nationals.  I had some great questions from the group that I thought I might share from the presentation. 

1)  Can I use e-Verify as a pre-employment inquiry?

No.  e-Verify may only be used after the employee has been offered the position and accepts the position.  The memorandum of understanding (MOU) signed by all e-Verify participants outlines these terms of use.

2)  Can I use the social security verification service as a pre-employment inquiry?

No.  Although there is no direct regulation on the subject, it is probably not a good idea to use the SSNVS system during the hiring process or it could result in a discrimination claim or unfair employment practice. After someone is hired, it is permissible to use this service to ensure that the social security number is valid for wage reporting purposes.

3)  Can I review the Form I-9 for my subcontractors?

Probably not.  Due to privacy laws, your subcontractor will probably not share its Form I-9s with the contractor.  However, it is a good idea to have an indemnification clause in the contract to ensure that the subcontractor maintains sound I-9 practices and will indemnify the contractor in the event of a worksite enforcement action.  In a recent case, Wal-Mart was held responsible for its subcontractor’s failure to maintain proper I-9 records.

If you would like a copy of the power point from this presentation, please e-mail my office directly at info at harms-law and state your organization name and we will send you a copy.  Please refer to the worksite enforcement section of this website for further information and resources.

 Here are some of the topics covered by this powerpoint presentation:

E-Verify, I-9 Compliance and Worksite Enforcement: An Essential Primer for All Employers.  With the new changes to the I-9 and increased worksite enforcement actions, completing and maintaining the I-9 form, once viewed as a simple HR function, has become more complicated and riddled with significant liability.  This presentation will cover the following critical components of the Form I-9, the new e-Verify system as well as some tips for employers to protect themselves in event of a government worksite enforcement action:

1. Recent events in worksite enforcement
2. Possible employer sanctions from a worksite enforcement action: civil and criminal
3. Critical elements of the Form I-9 and common mistakes when completing the Form I-9
4. Changes to the Form I-9 and what these mean to HR professionals
5. E-Verify: What is it and what are the responsibilities involved with this system?
6. Should my employer enroll in e-Verify?  Is my employer required to enroll in e-Verify?
7. Strategies to reduce liability in the event of an audit and critical first steps for employers to follow when government agents arrive at the workplace

Reminder that the New E-Verify Federal Contractor Rule is Effective on September 8, 2009

Beginning on September 8, federal contractors and subcontractors are required to use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify clause.  Applicable federal contracts awarded after September 8, 2009 will include a clause committing government contractors to use E-Verify within 30 days of the contract award date. With certain exceptions, E-Verify will only be used to confirm that new hires are legally authorized to work in the United States.  The USCIS released a Supplemental Guide on E-Verify For Federal Contractors on September 8, 2009 which contains detailed instructions regarding the use of E-Verify as well as which contractors and subcontractors are covered by this new rule.