E-verify May Be Expanded to ALL Employers

Momentum is growing in Congress to expand E-verify for ALL employers and not just federal contractors.

What is E-verify?
E-Verify provides an automated link to federal databases to help employers determine the employment authorization of new hires. E-Verify is free to employers and is available in all 50 states, as well as U.S. territories except for American Samoa and the Commonwealth of the Northern Mariana Islands.

Employers who participate in the E-Verify Program must complete Form I-9 for each newly hired employee in the United States. E-Verify employers may accept any document or combination of documents on Form I-9, but if the employee chooses to present a List B Document and List C Document combination, the List B (identity only) document must have a photograph.

After completing a Form I-9 for a new employee, E-Verify employers submit an electronic query that includes information from Sections 1 and 2 of Form I-9. After submitting the query, you receive an automated response from the E-Verify system regarding the employment authorization of the individual.

In some cases, E-Verify will provide a response indicating a tentative nonconfirmation of the employee’s employment authorization. A nonconfirmation does not mean that the employee is necessarily unauthorized to work in the United States. Rather, it means that the system is unable to instantaneously confirm that employee’s authorization to work. In the case of a tentative nonconfirmation, both you and the employee must take steps specified by E-Verify to resolve the status of the query within the prescribed time period.

Employers must also follow certain procedures when using E-Verify that were designed to protect employees from unfair employment actions. Employers must verify all new hires, both U.S. citizens and noncitizens, and may not verify selectively. Employers may not prescreen applicants for employment, check employees hired before the company became a participant in E-Verify, or reverify employees who have temporary employment authorization. Employers may not terminate or take other adverse action against an employee based on a tentative nonconfirmation.

E-Verify Requires Employers Sign ICE's Memorandum of Understanding (MOU)
To participate, an employer must register online and accept the electronic Memorandum of Understanding (MOU) with Immigation and Custonms Enforcement ("ICE", also an agency of DHS) that details the responsibilities of SSA, DHS, and the employer.

Employers should discuss with its immigration attorney the disadvantages of signing the ICE MOU. Many businesses have found the MOU burdensome and potentially risky. Employers should consider before signing the ICE Memorandum of Understanding (MOU) that the employer is agreeing to:

• Implement ICE best hiring practices;
• Implement ICE's training program;
• Establish a tip line for employees to report violations;
• Make an annual report to ICE;
• Allow ICE on premises at any time to review the employer's records.