May 19, 2008

E-Verify

As part of its ongoing attempt to ensure that U.S. employers are only hiring people authorized to work in the United States, the Department of Homeland Security (DHS) instituted an online verification program entitled E-Verify (formerly known as Basic Pilot Program.) E-Verify is a free online system that allows employers to confirm the legal working status of new hires, sometimes instantaneously. The Federal government made employer use of the system voluntary. However, many states, frustrated by Congress’ failure to institute comprehensive immigration reform, have passed legislation mandating E-Verify use. Mississippi and Arizona are two of the states mandating E-Verify use. Other states, including Colorado, Oklahoma, and Georgia mandate its use for companies entering into state contracts with those particular states. Interestingly, Illinois prohibited its use by any employer within the state. That legislation is currently not being implemented pending the outcome of a lawsuit brought by the DHS seeking a determination that the law violates federal regulations.

E-Verify does not guarantee that the documents provided in support of an I-9 belong to the person providing them. It only verifies that the person named on the documents either has the authorization to work in the U.S. or does not. It relies upon the Social Security Administration’s database, which is not always 100% accurate or completely up to date. As such, there are situations where a person is authorized to work in the United States, but the E-Verify system reports the person as unauthorized.

E-Verify is only authorized by Congress through 2008, unless Congress extends the program. There is a lot of movement afoot in Congress now to scrap the program in favor of an alternative program. This bill, if passed, would create a mandatory electronic employment verification system (EEVS) that would require all employers in the U.S. to use a federal government database to verify the work authorization status of newly-hired employees, both U.S. citizens and immigrants alike. The bill creates a voluntary biometrics option that employers could choose to use in the verification process. Basically, it would authorize employers to require collection of “biometrics,” such as a fingerprint, to accurately ensure a person’s identity and then authorization to work. One of the major failures of the current system is the inability to verify with absolute certainty that the person providing documentation is the person listed on that documentation. Identity theft is rampant and it is hoped that the use of collecting biometrics will provide some surety to the hiring process. The bill also increases penalties on employers for hiring employees not authorized to work in the U.S.

Remember, E-Verify is only one tool in the I-9 process. If you are considering using it, be sure to check the requirements to ensure you are complying with the regulations and discuss this issue with the attorneys at Badmus Immigration Law Firm.

By: Martha James