Editor's Note: Congress passed legislation to fund the federal government and President Joe Biden signed it just before midnight Sept. 30. The measure will keep the government open through Nov. 17, 2023.
Congress has until midnight Sept. 30 to avert a federal government shutdown, which could make the E-Verify system unavailable, as it has been during prior shutdowns.
But Dawn Lurie, an attorney with Seyfarth in Washington, D.C., said employers shouldn't panic when E-Verify is down. "Employers will not be penalized as a result of the E-Verify operations shutdown," she said. "Employers will not be penalized for any delays in creating E-Verify cases. However, employers are reminded that they must continue to complete I-9s in compliance with the law, and when E-Verify becomes available, create cases in the system."
Such outages aren't the only challenge with the E-Verify program.
"E-Verify is not a best practice for every employer," said Amy Peck, an attorney with Jackson Lewis in Omaha, Neb.
Some issues employers often encounter when using E-Verify include:
- The administrative cost of participating in E-Verify, despite the program being free.
- E-Verify monitoring company data.
- False indicators from the tentative nonconfirmation process.
"Using E-Verify comes with certain downsides and limitations, but for most companies, not all, the benefits outweigh the concerns," Lurie said.
Advantages of E-Verify
The new "alternative procedure" allowing qualified E-Verify employers to virtually review I-9 documentation greatly benefits employers with remote workforces, Peck said. Employers can centralize the I-9 function through one person, instead of scrambling to find authorized representatives at each location to complete the I-9 or requiring an employee to drive to the nearest office, which may be far away.
Although E-Verify isn't perfect and struggles with identity verification in many scenarios, it typically helps companies comply with immigration laws, Lurie said. "This prevents penalties for unauthorized hires," she noted.
E-Verify can also help catch I-9 errors, such as transposed numbers, invalid formats, or invalid or expired documents.
Employer use of E-Verify is voluntary, except in some instances:
- Alabama, Arizona, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee and Utah require all or most employers to use E-Verify. Idaho and Virginia require it only for public employers, while multiple municipalities around the U.S. have E-Verify mandates.
- Companies that contract with the federal government or certain state governments may be required to use E-Verify.
- The Optional Practical Training Extension for STEM Students (science, engineering, technology and math) requires the use of E-Verify.
"The trend is toward more widespread enrollment," said Maggie Murphy, an attorney with Berry Appleman & Leiden in Austin, Texas. Participation in the E-Verify program shows good faith in the event that an employer is audited, she said.
Challenges
For all its advantages, E-Verify has some challenges for employers.
There are two major downsides to using E-Verify, according to Peck. First, although use of the system is free, there is an administrative cost. For example, the employer must train and monitor the individuals using E-Verify.
The employer is prohibited from taking any adverse action—such as termination, suspension, delay in training, or withholding or lowering pay—against an employee based on a tentative nonconfirmation of employment eligibility. Employers might need more training to handle these situations, Murphy said.
Another example of the administrative cost: E-Verify employers must update their memoranda of understanding with the U.S. Department of Homeland Security about E-Verify on the latest number and addresses of hiring sites, in addition to the number of employees, Lurie said.
"The second downside is that E-Verify monitors each company's data that is input into the system," Peck said. If a company's data doesn't align with certain parameters, then E-Verify will refer the company to the Immigrant and Employee Rights (IER) Section of the U.S. Department of Justice.
An example of this would be if all the employees of a company have submitted List A documents—such as passports, green cards or employment authorization documents—for I-9 purposes. "Statistically, it would be unlikely for employees to always choose List A documents, so E-Verify would send this information over to IER to investigate the company for possible discrimination," Peck said.
A List A document establishes both identity and employment authorization. Instead of submitting a List A document, new hires may submit a List B document (such as a driver's license), which establishes only identity, plus a List C document (such as a Social Security account number card), which establishes only employment authorization. E-Verify participants may accept any document or combination of documents from the I-9 lists of acceptable documents, but if the employee chooses to present a List B and C combination, the List B document must have a photograph. Requesting that someone produce more or different documents than are required by I-9 to establish their identity and employment authorization is a prohibited unfair documentary practice.
"Any inconsistency or failure to comply with the program is tracked by the government, so it is critical that companies who enroll and use E-Verify are dedicating resources to keep the company compliant with the program's rules," said Sujata Ajmera, an attorney with Clark Hill in Austin, Texas.
Another problem with E-Verify is possibly causing legally authorized workers to undergo the tentative nonconfirmation process or, worse yet, be found unauthorized to work, Lurie said.
"This can complicate things for both the employee and the employer and require additional verification steps," she said. "Fortunately, the number of both false indicators is minimal these days and generally no longer cumbersome."
Furthermore, U.S. Citizenship and Immigration Services' proposal for a revamped version of E-Verify called E-Verify NextGen recommends letting workers deal with the tentative nonconfirmation process directly.
E-Verify can struggle with handling complex cases, such as those concerning noncitizens who are authorized to work in the U.S., Lurie said. These cases often involve refugees, those with temporary protected status, new nonimmigrant workers entering the U.S. or changing states, or students.
Also, E-Verify is primarily for new hires, Lurie noted. The program "cannot be used for existing employees, unless part of a federal contract mandate. This is sometimes confusing to employers and can lead to discrimination risks," she said.
In addition, California specifically prohibits the use of E-Verify on an applicant who hasn't received a job offer.
Employers often "trip up over the smaller details or ignore or do not understand their responsibilities. The bottom line is E-Verify is a system that requires ongoing attention," Lurie said.
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