January 02, 2009

New E-Verify Immigration Requirement for Federal Contractors: Proceed With Caution!

Starting January 15, 2009, federal contractors and subcontractors will be required use the E-Verify system starting Jan. 15, 2009, to verify their employees’ eligibility to legally work in theUnited States. On December 23, 2008, the U.S. Chamber of Commerce filed a lawsuit challenges the new rule that requires federal contractors to enroll in E-verify. So it is possible the implementation of this rule be placed on hold.

The E-Verify program (formerly the Basic Pilot Program) is a voluntary, internet-based system, jointly managed by the DHS and the Social Security Administration (SSA). Nearly 70,000 employers are enrolled in the program with about 1000 new enrollments per week. Some states like Arizona and Mississippi require local employers to enroll in E-Verify. The program obliges participating employers to verify employment eligibility of new hires by checking the employee’s I-9 information against the SSA and DHS databases. Many critics of the program emphasize that the databases are imperfect. For example, the SSA database has a 4.1 percent error rate, and approximately 10 percent of naturalized U.S. citizens are initially told they are not authorized to work.

Whether your company’s participation in E-Verify is mandatory or voluntary, here are a few key steps you should take before using E-Verify.

Choose and train staff who will administer the E-Verify checks. Any employee that uses E-Verify must be thoroughly trained and periodically re-trained in its procedures and policies. One wrong step can result in fines and penalties for the company, including back wages for employees who are fired because of misinterpretation of E-Verify results.

Know your legal obligations. The responsibilities of all employers that use E-Verify can be found in the Memorandum of Understanding (MOU). Read the MOU thoroughly! It lists 15 employer responsibilities that must be followed strictly. For example, participating employers must allow the DHS or SSA to come on-site and review their E-Verify-related and employment records.

Complete and maintain I-9 forms. The E-Verify program is not a substitute for long-established I-9 procedures. Employers must continue to follow I-9 rules for employment verification in addition to performing E-Verify screenings. Make sure your staff is thoroughly trained in I-9 procedures before using E-Verify.

Conduct an I-9 audit before enrolling in E-Verify. I-9 records have always been subject to government review or audit. But participating in E-Verify also gives DHS an additional reason to take a peek at I-9 records. To discover problems and avoid heavy fines and penalties, companies should conduct a private audit of its I-9 forms and procedures. A private I-9 audit can reveal a number of correctable errors and areas where additional staff training is needed. It will also expose systemic problems, such as the failure to keep required records, the failure to re-verify employment authorization, and the repetitive mistakes in completing I-9 forms. Indeed, more and more companies now demand that their contractors perform an internal I-9 audit of its own I-9 file.

Contact an immigration attorney Because the use of E-Verify is not risk-proof and the immigration laws change frequently, cautious employers should contact an immigration attorney before using E-Verify. An attorney can help train your staff in both I-9 and E-Verify procedures and conduct an internal I-9 audit that will help you spot problems before the government does.

By Ann Massey Badmus

Learn more about the dos and don’ts of E-Verify – send an email to annbadmus@badmuslaw.com to get your free copy of the audio CD, “E-Verify for Immigration Compliance: Safe Harbor or Trap!”