JBA Board of Governors member Giselle Carson
Well … some employers do not have a choice. In an effort to control unauthorized employment, employers are electing, or having to use a federally operated electronic system to verify employees’ employment eligibility. The once small and voluntary program, E-Verify, has evolved and continues to grow despite some opposition.
What is E-Verify?
E-Verify is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to verify employees’ work authorization status using information from employees’ Form I-9. The data entered by the employer is compared with more than 455 million U.S. government records. If the data matches, the employer receives an E-Verify “employment authorized” confirmation. If the information does not match, the employer receives a tentative nonconfirmation (TNC), and must inform the employee as soon as possible so that the employee can contest the finding. Employers must not take an adverse employment action against an employee during a TNC period.
How many employers are using the program?
Approximately 200,000 employers (of the nation’s approximate 7 million employers) are using E-Verify at over 675,000 work sites. In 2009, more than 8.7 million queries were run through the system. So far in 2010, more than 8.8 million queries have been run.
Are certain employers required to register?
Yes. Many federal contractors and subcontractors are required to use E-Verify as of Sept. 8, 2009. Additionally, 13 states, various local governments and some large private employers such as Wal-Mart are requiring participation as part of their contracts or to do business in the state/region. The level of required participation varies. Employers should check local and state laws, and review contract agreements with E-Verify in mind.
What is required to enroll?
The employer must register on-line, sign a Memorandum of Understanding (MOU) which outlines the responsibilities of the parties (DHS, SSA and the employer) and complete an online training tutorial, including a test. By signing the MOU, the employer gives up some protections, such as authorizing DHS and SSA to review any form I-9 or other employment record and interview employees on the use of the program with little notice. Once the employer begins using the system, it must process all new employees. The system cannot be used to prescreen employees.
What should an employer consider when contemplating enrolling in E-Verify?
• Identify the personnel involved, including the person who would sign the MOU on behalf of the employer and additional general users.
• Consider the resources and financial needs, such as additional human resource time and potentially computers with Internet access at various locations.
• Allocate sufficient time for training those involved.
• Evaluate the employer’s current immigration compliance, including the I-9 process, re-verification procedures, anti-discriminatory and no-match policies and revise/update policies and process to comply with the E-Verify requirements.
• Audit the I-9 records and make corrections as needed.
• Evaluate the composition of the current workforce and consider that some employees might be lost during the E-Verify process.
What is the future of E-Verify?
E-Verify, or some form of enhanced federal verification system, is likely to remain and grow, particularly as talks for comprehensive immigration reform persist. The program has some significant flaws, such as the erroneous non-confirmation of U.S. citizens and legal foreign nationals who are authorized to work and the failure to detect identity fraud. However, DHS continues to work on enhancing the use and reliability of the program and expanding participation.
Two of the latest program enhancement initiatives include:
• An improved and redesigned website that is scheduled to go live this month.
• The deployment of a self-check function to allow individuals to check their E-Verify response before being hired. This feature is scheduled to go live in December.
• Employers should consider the pros and cons of enrollment and remain informed to determine what is best for their particular situation.
Let’s stay connected and continue to make Jacksonville a great city to do business, be healthy and be a lawyer!