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Immigration E-Verify System for Employers

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What Is the E-Verify System?

The Employment Eligibility Verification Program, or “E-Verify”, is a free program that allows employers to use the internet to check whether their immigrant employees are eligible for work in the U.S. The program was initiated by the Department of Homeland Security (DHS) and works in tandem with the employee’s Form I-9 to verify their immigrant status. The use of biometric data such as electronic fingerprint scans has also recently been included in the E-Verify system.  

It is estimated that over 196,000 employers are currently using E-Verify. In many situations the use of E-Verify is mandatory for some employers; legal consequences may result if the employer fails to use E-Verify if it is required by law. The consequences for illegal alien employment may vary by state. They may include fines, loss of a state/federal contract, and possible suspension of business operating licenses.

How Does E-Verify work?

By law, all employers must complete Form I-9, “Employment Eligibility Verification Form.” Form I-9 must be completed by the employer and employee once the employee is hired for pay. Information from the Form I-9 is then entered into the E-Verify database. The E-Verify system will then run a comparison between the Form I-9 and the employee’s immigration information from other government records.   

The employee is considered to be eligible for employment in the U.S. if the information from the Form I-9 matches with the results of the E-Verify comparisons.  If the employee’s information does not match, then the E-Verify system will alert the employer. The employee is considered eligible to work while the information is resolved; however, the employer and employee have only 8 federal working days to resolve any mismatched or incorrect information. 

When Is an Employer Required to Use the E-Verify System?

While Form I-9 is mandatory, participation in E-Verify is not always mandatory.  Registration with the E-Verify system is required in some employment situations such as:

  • Federal Government employees: As of October 2007, all federal government agencies must use E-Verify to check the status of their employees
  • Federal Contracts: Employers must use the E-Verify system if they are operating under a federal contract containing the Federal Acquisition Regulation (FAR) E-Verify clause. The employer must use E-Verify for any employees who perform substantial, direct work under the contract, or for any new hires. The employer may also use the system for their entire workforce as a whole
  • Some Student Visas: Foreign students who are participating in the Optical Practical Training (OPT) extension program must register with E-Verify if their employer is required to do so. Failure to register will disqualify the student for the extension, resulting in only 12 months work eligibility as opposed to 29 months
  • H1-B Visas: E-Verify laws may restrict H1-B Visa allotments and extensions for foreign employees in a specialty occupation
  • State Laws: Several states have now made participation in E-Verify mandatory for all or certain employers

Which States Use the E-Verify system?

E-Verify is not mandatory across all U.S. states. Even in states that have implemented E-Verify, the system is sometimes only implemented in certain counties. States that require the use of E-Verify in some form are:  AZ, CO, GA, ID, MN, MS, MO, NE, NC, OK, RI, SC, and VA.

Also, PA and TN have encouraged employers to use E-Verify, though they have not yet passed legislation making it mandatory. Several other states are considering legislation involving E-Verify, including: CA, FL, IA, IL, IN, KS, MN, NJ, and WV. 

Do I Need a Lawyer for E-Verify Laws?

Whether you are an employer or an employee, it is important that you understand the employment laws in your area. Laws requiring the use of E-Verify are constantly undergoing challenges regarding their legality and constitutionality. If you are unsure of your state’s E-Verify laws, you should consult with a lawyer for advice. An attorney will be able to keep you updated on the exact E-Verify requirements in your state, and can represent you in court if a claim arises. 

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 03-31-2014 04:33 PM PDT

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