There has been another delay in the requirement for certain federal contractors to use E-Verify.  The litigants in the court challenge to the FAR Council's regulations mandating the use of the E-Verify/Basic Pilot program for certain federal contractors have agreed to extend the applicability date to May 21, 2009.  Implementation of the requirement had previously been delayed until February 20, 2009.  See Announcement

What is E-Verify?

E-Verify (formerly the Basic Pilot/Employment Eligibility Verification Program) is an online system operated jointly by the Department of Homeland Security and the Social Security Administration (SSA).  Participating employers can check the work status of new hires online by comparing information from an employee's I-9 form against SSA and Department of Homeland Security databases.

Is E-Verify Voluntary or Required?

Perhaps the most confusing issue surrounding E-Verify right now is the so-called “voluntariness” aspect of the program.  As of the end of 2008, 15 states had passed specific legislation regarding E-Verify.  Two states require all employers doing business in their state to participate in E-Verify—Arizona and Mississippi.  Other states, such as Colorado, Georgia, Minnesota, Oklahoma, Rhode Island and Utah, require some state contractors to use E-Verify.

One state has actually passed legislation prohibiting employers from using E-Verify—Illinois.  The state of Illinois passed a law—Section 12(a) of the Illinois Right to Privacy in the Workplace Act—that would effectively prohibit employers in the state from enrolling in the E-Verify program.  In September of 2007, DHS sued Illinois and asked a court to declare the new law illegal.  The law was scheduled to take effect on January 1, 2008, but the state has agreed to not enforce this law until the DHS lawsuit has been adjudicated.

In addition to individual state laws, there is a new federal mandate and executive order requiring federal contractors and subcontractors to use E-Verify.  Federal contractors and subcontractors were to be required to begin using the U.S. Citizenship and Immigration Services’ E-Verify system starting February 20, 2009, to verify their employees’ eligibility to legally work in the United States.   The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the Federal Acquisition Regulation (FAR) to reflect this change.

The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees.   The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business with companies that have a legal workforce. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States.

The implementation of this rule was originally scheduled for January 15, 2009.  On December 23, 2008, however, the US Chamber of Commerce filed a complaint with the U.S. District Court of Maryland, southern District challenging the rule.  Joining the U.S. Chamber as co-plaintiffs in the lawsuit are the Associated Builders and Contractors, the Society for Human Resources Management, the American Council on International Personnel, and the HR Policy Association.  The law suit initially delayed implementation of the federal contractor and subcontractor E-Verify rule until February 20, 2009.

There has been another delay in the requirement for certain federal contractors to use E-Verify.  The litigants in the court challenge to the FAR Council's regulations mandating the use of the E-Verify/Basic Pilot program for certain federal contractors have agreed to extend the applicability date to May 21, 2009.  Implementation of the requirement had previously been delayed until February 20, 2009.  See Announcement

Advantages to Using E-Verify

One potential advantage of enrolling in the E-Verify system is the limited protection afforded if an unauthorized worker is discovered.  If an employer is concerned about the possible civil and criminal penalties of employing unauthorized workers, utilizing the E-Verify program will create a rebuttable presumption that your company has not knowingly hired an unauthorized worker.  Participation in E-Verify does not provide a safe harbor from worksite enforcement, but it does provide some protection.

Another advantage of using E-Verify is that it may allow employers to attract and retain key foreign personnel.  On April 8, 2008, Citizenship and Immigration Services (“CIS”) published a new interim final regulation, effective immediately, that allows students working pursuant to their F-1 student visa Optional Practical Training (OPT) to extend their OPT from 12 months to 29 months if certain requirements are met:

1.  That the student’s degree has been issued in a science, technology, engineering or math field (STEM); AND

2.  That the employer supporting their extension request be enrolled in the voluntary E-Verify program run by CIS.

Disadvantages to Using E-Verify

One major disadvantage of using E-Verify is the problem caused by incorrect information in the system.  If there is a database error and incorrect information in the E-Verify system,  the worker has eight federal workdays to contact the appropriate government agency and resolve the problem.  The individual will likely need to miss work to resolve the problem. If it is not resolved, the employer may be prevented from continuing to employ that individual.

Another disadvantage is opening up your company to audits and investigations by DHS.  CIS keeps track of tentative and final nonconfirmations that an employer has in E-Verify. CIS may provide this information to Immigration and Customs Enforcement (ICE) to facilitate and encourage I-9 audits, worksite enforcement raids and other I-9 and employment-related sanctions investigations.  In addition, an employer who participates in E-Verify is obligated to permit the SSA and/or DHS to make periodic visits to the employer to review E-Verify related documents.

The Future of E-Verify

CIS recently announced that more than 100,000 employers have signed up to participate in E-Verify.  Employers have run more than two million queries through the system since October 2008 and employers have been able to automatically verify more than 18 million workers’ eligibility since 1997.  Currently, approximately 96.1 percent of qualified employees are cleared automatically by E-Verify and  99.6 percent of all work-authorized employees are verified without receiving a tentative nonconfirmation or having to take any type of corrective action.

CIS plans to make additional enhancements in 2009 to E-Verify and the employment authorization process, including amending the list of acceptable identity documents workers may present to employers to verify employment eligibility and adding passport data and photos to the system to reduce identity theft. 

The increasing number of states passing E-Verify legislation and the new federal contractor rule means the push to require all employers to use E-Verify will continue.  Employers should not be surprised to see E-Verify as a requirement for everyone within the next 1-2 years.  All employers should review the E-Verify system and prepare themselves for the inevitable-E-Verify as a national employer verification system.