July 17, 2017

Many employers want to know what consequences will flow from enrolling in E-Verify.

First, consider the benefits of enrollment.

1) E-Verify is already mandatory in some states* & for federal contractors.** (see below for details) Enrolling in E-Verify qualifies your company to do business as a federal contractor or subcontractor, and to hire local workers & do business in certain states.

2) E-Verify may eventually become mandatory in all states, so enrolling voluntarily gives you time to get familiar with it, train your HR personnel & alert your legal department.

3) Using E-Verify helps to avoid hiring & sinking training resources into employees who are ineligible to work.

4) Enables your company to obtain 24-month STEM OPT extensions for F-1 students.

5) Using E-Verify creates a rebuttable presumption that your company has not knowingly hired any unauthorized workers.

6) Enrollment almost eliminates SSA No-Match letters, and improves accuracy of wage & tax reporting for employees.

*Which states? AZ, MS, AL & SC mandate E-Verify enrollment for all government & all private employers; GA & NC mandate it for all government agencies & most private employers; VA, FL, TX & ID mandate it for state agencies & state contractors; UT, NE, OK, MO & IN mandate it for all state & local agencies & their contractors; TN mandates it for private employers but not government agencies; CO & LA mandate it for state & local contractors but not the government agencies. Source: Numbers USA, 5/27/2016

**Which contracts? All direct federal contracts issued after September 8, 2009, except where valued at under $100,000, or where the performance period is less than 120 days, for off-the-shelf items, or for work performed entirely outside the US; includes all sub-contracts for services or construction over $3,000.


But there are the downsides to enrolling in E-Verify. Maintaining compliance will incur additional costs; E-Verify was developed & programmed by humans, so it contains errors; enrollment will inevitably incur liabilities; and it entails permitting possibly unannounced government site visits.

1) While enrollment in E-Verify is free (there is no internal cost), employers will incur set-up, training & ongoing compliance costs. Companies must allocate time, personnel, supervision and ongoing training resources to any staff who will use the E-Verify system, and to deal with results of queries. Costs will vary by company size, number of locations, industry, human resources staffing, and whether there are multiple hiring sites.

2) E-Verify was programmed by humans, so it contains errors & makes mistakes: The system will occasionally issue Tentative Non-Confirmations or Final Non-Confirmations for individuals who are in fact authorized to work, and it will occasionally state “Employment Authorized” for individuals who are not. Erroneous TNC rates for foreign-born personnel are about 10%, much higher than for US-born personnel.

3) Tentative Non-Confirmations open up the employer to new legal risks, such as lawsuits by employees not provided with proper notice & instruction as to how to contest a TNC, or by prospective candidates for discriminatory use of E-Verify, such as where an employer uses E-Verify prior to extending a job offer.

4) E-Verify can also lead to liability for violations of employee privacy as well as discrimination, for failure to safeguard employees’ I-9 information from intentional or accidental misuse by staff with access to E-Verify. I-9 data is protected by state & federal laws.

5) Federal agencies with access (DHS, DOL, SSA) can data-mine E-Verify to find your company’s hiring mistakes that they would not otherwise have discovered, which in turn may trigger I-9 investigations, worksite raids, fines or criminal prosecution.

6) The Memorandum of Understanding means that employers who enroll in E-Verify authorize both the Department of Homeland Security & the Social Security Administration to make periodic inspection visits, and agree to respond to DHS requests for information about their participation.