New England Biz Law Update
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.
Participating employers can check the name, Social Security number and work status of new hires online by comparing information from an employee’s I-9 form against SSA and Department of Homeland Security databases.
Employer participation is voluntary with the exception of: those who have been ordered to participate; federal government departments; congressional offices within participating states; and federal government contractors.
Employers register online at www.dhs.gov. Once the registration is complete, the employer’s representative must sign a memorandum of understanding between the employer, the Social Security Administration and the U.S. Citizenship and Immigration Service, which outlines the terms and conditions for participation in the program.
At minimum, the employer must agree that:
(1) it will not initiate any verification procedure until after the employee has been hired and the Form I-9 completed;
(2) it will verify all new employees under the terms of the program and within three business days of hire;
(3) it will display notices to inform employees and prospective employees about its participation in the program and provide anti-discrimination information;
(4) it will not take any adverse action against an employee while the SSA or ICE is processing a verification request, unless the employer obtains information that the employee is unauthorized;
(5) it will provide access to its employment records to Homeland Security and SSA for the purposes of program evaluation; and
(6) it will use the information provided to it through the confirmation system only to supplement and confirm the identity and work authorization of newly hired employees, and not for any other purposes.
A voluntary employer-participant may terminate participation in the program at any time, and ICE may terminate an employer’s participation for substantial failure to comply with its obligations under the program.
Tentative and Final Non-Confirmation
“Tentative Non-Confirmation” occurs when either the SSA or ICE indicate an employee’s preliminary non-eligibility for employment. Upon receipt of a Tentative Non-Confirmation, the employer must notify the employee and determine whether the employee will contest the finding.
If the employee does not contest the Tentative Non-Confirmation, it will become a Final Non-Confirmation. If the employee contests the Tentative Non-Confirmation from the SSA, she must visit an SSA field office within eight working days to resolve the issue. If the employee contests a Tentative Non-Confirmation from ICE, she must contact ICE either by phone or by visiting a local office to resolve the discrepancy.
The SSA or ICE must respond with 10 working days from the date the agency was advised of the Tentative Non-Confirmation. During this time, the employer may not terminate or take adverse action against the employee absent other information that the employee is not authorized to work.
The employer must make a second inquiry to the SSA database at the end of the 10-day period to obtain a confirmation or a Final Non-Confirmation. ICE will electronically transmit the result of the referral to the employer within the 10-day period.
If an employer receives Final Non-Confirmation, it may terminate the employee and will not be liable for the termination so long as there is good-faith reliance.
If the employee is not terminated, the Department of Homeland Security must be notified through an automated system. Failure to notify the department is a paperwork violation under the Immigration and Nationality Act and may result in a fine for each unreported case.
Advantages and disadvantages
The advantages for an employer to participate in the E-Verify program, per the Department of Homeland Security’s website are: “E-Verify is free and voluntary, and is the best means available for determining employment eligibility of new hires and the validity of their Social Security numbers.”
Another advantage is the “rebuttable presumption” that an employer did not knowingly or intentionally hire unauthorized workers if it relied in good faith on the E-Verify system.
Arguable disadvantages of E-Verify include restrictions on the employer throughout the lengthy verification process; the requirements that employers safeguard the information provided to and received from E-Verify, or face criminal penalties and allow Homeland Security and SSA to make periodic site visits to review E-Verify records; and fines and penalties associated with non-compliance, such as failure to notify Homeland Security of any employee with a Final Non-Confirmation.
An oft-cited problem with the E-Verify system is its accuracy and the inconvenience of an incorrect Tentative Non-Confirmation on an eligible worker. However, it is generally agreed that E-Verify has an accuracy rate in excess of 90 percent, although exact figures are hard to come by as they are often contained in reports of studies conducted by advocacy organizations.
Moreover, there are issues that arise when E-Verify is used incorrectly. The first is that the employer loses the rebuttable presumption that it did not knowingly or intentionally hire unauthorized workers.
The second problem for employers who incorrectly use E-Verify is that it exposes it to possible claims of discrimination if E-Verify is used in pre-employment screening or selectively.
On Sept. 27, 2008, Congress extended the E-Verify program until March 6. The future of the program beyond that point is uncertain because it is believed that there may be strategic political reasons to attach it to another attempt at Comprehensive Immigration Reform once a new administration and a new Congress are in place.
Bradley Maged is managing partner at Maged & Rost in Burlington, Mass. He practices employment and family-based immigration law and writes for his immigration blog, www.immigrantconnect.com.
