Recently, many states have tried to discourage illegal immigration
into their jurisdictions by enacting legislation focusing
on enforcement. In May 2011, Arizona’s state-wide
mandate on the use of E-Verify was upheld by the U.S. Supreme
Court in Chamber of Commerce v. Whiting. As a result,
many other states have since enacted legislation requiring at
least partial adoption of E-Verify.
In the Southeastern United States, for example, Georgia,
Florida, Alabama, North Carolina, South Carolina, Mississippi,
Tennessee, and Louisiana, all mandate use of the E-Verify
program (or, in the case of Tennessee, the use of an alternative
program) for at least some employers. In Georgia, employers
of 10 or more people are required to use E-Verify as of
July 1, 2013. The majority of the states listed above require
certain private employers to register with E-Verify and also to
provide proof of such registration in order to get public
contracts, pay certain business taxes, and renew most business
licenses. The employer who fails to implement the
E-Verify system properly may lose its ability to conduct
business in that state.
E-Verify is a federal, online program through which
employers (any business, nonprofit organization, or government
agency) verify the employment eligibility of employees
after hire. Employers submit information taken from a
new hire’s Form I-9 (Employment Eligibility Verification Form)
into the online E-Verify system. E-Verify then communicates
the information to the Social Security Administration and
U.S. Citizenship and Immigration Service (USCIS) to determine
whether the information matches government
records and whether the new hire is authorized to work in the
United States.
Before you start using E-Verify, read the instructions on
preparing your company’s procedures and equipment (www.
uscis.gov/e-verify). Check that the company is not already
enrolled. If not, enroll the company in the system by reading
and completing the Memorandum of Understanding
(MOU) for Employers. Then register yourself and any others
to use the system.
Only then can the employer input data from the I-9s of
employees hired on or after the date on which it signed and
submitted the MOU. To do this, the employer must first have
the paperwork complete. Each new hire or rehire must fill out
the I-9 form within 3 business days that the employee starts
to work. The employer must complete the employer’s section
of the I-9 and review the form to see that it is completed
correctly. The employer must then review the identification
and employment eligibility documents, according to the list
of acceptable documents, to verify the hire’s identity and eligibility
for employment.
The employer then enters the new hire’s information
into the online E-Verify system. If E-Verify does not give
an immediate “Employment Authorized” response (e.g., there
is a mismatch on the Social Security Number), then the
paperwork and online entry should be reviewed for accuracy
and the USCIS website should be consulted to determine
how to proceed.
The employer should not re-verify existing employees’
employment authorization by requiring them to complete
new I-9s without discussing this decision with its immigration
counsel.
Employer’s self-audits. It is very common for I-9s to contain
errors or omissions. Every employer should implement a
self-audit of its I-9 system, involving an independent person
who has experience with immigration compliance issues.
This immigration expert comes on-site for a few days and
reviews all I-9s and supporting documents for the
employer. The attorney would identify and correct any errors,
and then put a more accurate I-9 verification system in
place for the future.
If the employer receives enough notifications of problems
with the I-9 data that is being captured into the E-Verify
system, then this means that the accuracy of the employer’s
entire I-9 system should be called into question. A self-audit
becomes a necessity at this point.
Self-audit should be repeated annually since E-Verify
monitors company usage via Monitoring and Compliance
(M&C) Assistance.
Failure to comply with I-9 verification and E-Verify requirements
carries significant penalties. If USCIS determines
that an employer has failed to use the E-Verify properly, then
USCIS may deregister the employer from the system and
block it from registering again in the future.
Business Insights is hosted by the Law Firm of Kumar,
Prabhu, Patel & Banerjee, LLC.
Toni L. Castel is a Business Immigration Attorney and is
of counsel to Kumar, Prabhu, Patel & Banerjee, LLC.
Disclaimer: This article is for general information purposes
only, and does not constitute legal, tax, or other
professional advice.