It is vital for employers to understand E-Verify and FAR E-Verify in order to determine whether to utilize it and whether it is required for each location. E-Verify is an Internet-based employment verification system which matches information from employees’ I-9 forms with databases of the Social Security Administration (SSA), Department of Homeland Security (DHS), the Department of State, and a few states’ driver’s licenses/identifications. It is important to remember E-Verify is not a pre-screening tool in the application process. An employer may not submit an inquiry to E-Verify until after an employee is hired. Furthermore, an employer is strictly prohibited from using E-Verify to verify existing employees.
In order to utilize E-Verify, an employer must sign an appropriate Memorandum of Understanding (MOU) with DHS. An employer must also post notices provided by DHS announcing its participation in E-Verify. Although most employers detest required government-issued posters, E-Verify posters are an employer’s friend because it informs prospective applicants without legal status that they will be subject to E-Verify.
The initial step in E-Verify is the same as I-9 verification. The employee and employer complete and sign the I-9 form. The employer then logs onto the E-Verify website and enters the I-9 data. If the employee is verified, the system will generate a confirmation number.
If instead a Notice of Tentative Non-Confirmation (“TNC”) is received, the employer must ask the employee whether he wants to contest the Notice. If the employee does not contest the TNC, the employer should advise the employee that he is terminated due to ineligibility for employment. If the employee chooses to contest the TNC notice, the employer should advise the employee to contact the SSA or the DHS within eight federal business days to resolve the discrepancy. A determination should be made within eight to 10 business days. And remember, an employer is prohibited from discharging or disciplining the employee who is contesting the TNC, unless the employer obtains independent knowledge that the employee is not authorized to work.
If the employee contests the TNC, there are four possible outcomes: (1) “Authorization” notice, meaning the employee may continue employment; (2) Final Non-Confirmation notice, meaning the employee should be terminated; (3) DHS Tentative Non-Confirmation, which the employee may contest in a similar manner as a SSA Tentative Non-Confirmation; or (4) “Review and Update Employee Data” message, meaning there will be further investigation.
II. FAR E-Verify
FAR E-Verify is mandatory for contractors, with contracts of $150,000 or more, and related subcontractors with contracts of $3,000 or more. FAR E-Verify requires federal contractors/subcontractors to verify all newly-hired employees, regardless of whether they are assigned to the federal contract, and all existing employees assigned to the federal contract. Additionally, federal contractors and subcontractors may elect to verify all existing employees regardless of whether they are working on a federal contract.
III. State Immigration Laws Concerning E-Verify
Some states require employers within their state to utilize E-Verify for newly-hired employees. They are: Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina and Utah. A few of these states have a minimum number of employees employed before E-Verify is required. The following states require employers who contract with state and/or local government to utilize E-Verify: Colorado, Florida, Idaho, Indiana, Michigan (contractor/subcontractors for transportation department only), Missouri, Nebraska, Oklahoma, Pennsylvania and Virginia.
Beginning January 1, 2017, Tennessee will require private employers with 50 or more employees to utilize E-Verify.
Louisiana has “non-mandatory” E-Verify requirements – meaning private employers can either sign up for E-Verify and receive protection under state law, or copy and retain one of the specified identification documents provided by the employee. Some local governments require companies contracting with the local government to utilize E-Verify. California prohibits any local government entity from requiring employers to utilize E-Verify.
The consequences of violating state immigration laws are harsh – suspension of your business license in most states for first offense and eventually for later offenses could be revocation of business license.
It is important for companies to know whether they are required to enroll and utilize E-Verify. Even if not required, companies should consider whether to use E-Verify. An immigration compliance attorney can assist you in understanding the pros and cons of E-Verify.