E-Verify

What is E-Verify?

E-Verify is an Internet based system allowing employers to verify that employees are work authorized in the United States. E-Verify is administered by USCIS and provides an automated link to the Social Security Administration (SSA) database and the Department of Homeland Security (DHS) immigration records. E-Verify is generally a voluntary program, although certain employers are required to participate. (See our News Section for E-Verify updates).

Employers who register for E-Verify agree to use the online system to verify the work authorization for each new employee within three days of hire. Employers check basic Form I-9 information and social security numbers against records in SSA and DHS databases. Employers must accept reporting obligations in addition to maintaining Form I-9 documents and must agree to take certain steps, including possibly terminating an employee if E-Verify cannot confirm their work authorization. Although registration is free, training of personnel and other administrative costs may be significant. To facilitate compliance with these obligations, employers are permitted to utilize Designated Agents to assist in administration of their E-Verify procedures. As mentioned above, an employer who enrolls in E-Verify must submit an E-Verify query for each new hire within three days of enrollment.

Though E-Verify is generally a voluntary program, some federal contractors are required to enroll in E-Verify. Additionally, some state statutes require an employer to enroll in E-Verify.

Federal Contractors

On November 14, 2008, the federal government published its final regulations requiring certain federal contractors to utilize the E-Verify system to verify the work authorization of certain employees. After numerous challenges in the courts and a review of the regulations by the Obama Administration, the final regulations became effective on September 8, 2009.

Pursuant to the new regulations, many federal contracts executed on or after September 8, 2009 will be required to contain a clause committing contractors to electronically verify the work authorization of certain employees through the E-Verify system. Existing federal contracts and subcontracts are not subject to the new regulations unless and until the contract is modified to include an E-Verify clause. Otherwise, a contractor or subcontractor only becomes subject to these E-Verify requirements upon signing a federal contract on or after September 8, 2009 that contains the relevant E-Verify clause.

The following types of contracts signed on or after September 8, 2009 will contain the E-Verify clause:
 

  1. Contracts for work to be performed in the United States with a period of performance of more than 120 days and with value of more than $100,000 (unless the contract is exclusively for commercially available off-the-shelf (COTS) items); and 
  2. Subcontracts with a value of at least $3,000 where the primary contract contains the E-Verify clause.

If a federal contract contains the E-Verify clause, the regulations require that the contractors and subcontractors utilize E-Verify to verify the work authorization of the following employees: 
 

  1. All new employees; and 
  2. All existing employees who are “assigned to the contract.” An employee is considered “assigned to the contract” if he/she was hired after November 6, 1986, and directly performs work in the United States under a contract containing the E-Verify clause. Employees who normally perform support work and do not perform any of the substantial duties under the contract need not be processed through E-Verify.

Companies that sign a contract containing the E-Verify clause will also have the option of verifying their entire workforce, including existing employees not assigned to a federal contract.

Companies awarded a federal contract requiring the use of E-Verify will have 30 days from the award date of the contract to enroll in E-Verify and indicate whether they will verify all existing employees or just those “assigned to the contract.” Once enrolled, companies will have an additional 90 days to begin using E-Verify for all new employees and existing employees assigned to the contract. Companies that choose to verify all existing employees must update their E-Verify profile and initiate E-Verify queries for each existing employee within 180 days of updating the profile.

State Laws

Certain states have also enacted legislation or have proposed legislation requiring the use of E-Verify by certain employers doing business in those states. These laws fall into three main categories: 
 

  1. Those that require all employers in the state to participate in E-Verify; 
  2. Those that require public or state employers to participate; and 
  3. Those that require employers contracting with the state or political subdivisions within the state to participate in E-Verify.


The penalties for non-compliance vary by state and may include ineligibility to receive contracts, the loss of business licenses as well as civil fines and penalties.
 

Incentives to Enroll in E-Verify

In addition to mandating enrollment for federal contractors, the government has provided an incentive for companies that recruit and hire foreign national employees who are recent graduates with U.S. degrees in the STEM fields (Science, Technology, Engineering and Mathematics).  Foreign national graduates in F-1 immigration status may be eligible for extended post-graduate employment authorization if they work for companies who are enrolled in E-Verify.  For more information, please visit news item.

DISCLAIMER: The information contained in this site is intended to educate members of the public generally and is not to be construed as legal advice, either implied or expressed. This information is subject to change without notice. For legal advice, consult an attorney experienced in employment and/or immigration law matters.