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Insights: E-Verify

Over the years, the government has intensified its enforcement of employment verification procedures including increased fines and penalties, as well as potential criminal charges and charges of discrimination against U.S. citizens. The federal government introduced E-Verify in 1997 as a pilot program. E-Verify is an internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. Now, the use of E-Verify is voluntary, unless you are a federal contractor or it is required by state law. Many employers are trying to decide whether they should use E-Verify.

Below are some of the factors to consider.

The main benefit of using E-Verify is that your employees in student status who have STEM degrees would be eligible for employment authorization for up to three years without having to obtain an H-1B visa. Other benefits include:

  • Your company would be entitled to a “rebuttable presumption” that it did not hire any unauthorized workers and you cannot be charged with a “knowing” violation of the employment verification laws – which may lead to more “peace of mind” about the process
  • You find out quickly if an employee’s information does not match government databases
  • If you are audited, you may receive favorable discretionary treatment for voluntarily choosing to use E-Verify
  • By using the system, you become aware of and may be able to fix mistakes or errors precipitously
  • It is possible that E-Verify will become mandatory and you may decide that if you start using the program now, you will avoid what may be an inconvenient rush at a later date

There are, however, some down sides, including:

  • You will have to spend time (and therefore incur additional expenses) training employees to use the system
  • You must sign a Memorandum of Understanding (MOU) with the government
  • The MOU allows the SSA and DHS to perform periodic audits at your worksite and conduct employee interviews
  • The E-Verify Monitoring and Compliance Branch regularly monitors usage
  • The government has easy access to all of your company’s employment verification data, which may mean possible increased liability
  • The government can more easily mine and scrutinize your data and compare your data to other companies’
  • E-Verify staff may refer cases of suspected misuse to other enforcement agencies
  • There are additional Form I-9 process requirements, including some more stringent rules about acceptable documentation
Jackson Lewis P.C. © 2017

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About this Author

Amy L. Peck, Immigration Attorney, Jackson Lewis, Worksite Compliance Lawyer
Principal

Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National...

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