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Deciding to Use E-Verify: What it Means for Your Compliance and Your Workforce

September 2012

By: Ryan M. Helgeson, Esq.

Am I required to use E-Verify?

E-Verify is an internet-based program that provides links to government databases to help employers determine the employment eligibility of new hires. While the trend has been to require more and more employers to utilize E-Verify (and this trend is likely to continue), participation is voluntary for the large majority of employers.

Enrollment in and use of E-Verify is required for employers: 1) seeking employ a student on an F-1 visa under the STEM 17-month extension; 2) under certain state laws (enrollment is voluntary for Illinois employers that are not required to otherwise enroll); or 3) doing business as a federal contractor under a contract lasting over 120 days and with a value of more than $100,000.00. Federal contractors are required to enroll within 30 days of the date the contract is awarded and phase-in use of E-Verify over the next 90 days.

The pros and cons of registering with E-Verify

Whether to register for E-Verify is an important decision for an employer, and you must understand the pros and cons before proceeding. While each situation is unique, the following key factors are universal for this decision-making process.

The common criticisms include that use of E-Verify does not eliminate the need for the Form I-9 verification process and, consequently, represents an additional administrative burden. Further, E-Verify is still susceptible to identity fraud; it cannot confirm the actual identity of the person presenting the documents. Next, E-Verify is not an error-proof system. While it is improving, inaccuracies in government databases cause incorrect results. Therefore, given the above possibilities, the use of E-Verify does not necessarily increase the speed with which employers may determine the status of their employees. Finally, enrollment in E-Verify does not protect the employer from I.C.E. worksite enforcement investigations. In fact E-Verify data can be used against employers and may trigger investigations.

The biggest benefit for employers of enrolling in E-Verify is that an employer which enrolls may not be held civilly or criminally liable under law for any action taken in good faith reliance on information provided through the confirmation system. Also, employers who receive confirmation of employment eligibility through E-Verify have the benefit of a rebuttable presumption that they have not knowingly hired an unauthorized alien. This rebuttable presumption is similar to the usual "good faith" defense available to employers who have complied with I-9 verification procedures.

Accordingly, an employer must decide whether the additional defense is worth the additional burdens incurred through implementation of E-Verify at their business.

E-Verify and your current employees

Unless you are a federal contractor, employers are strictly prohibited from using E-Verify to check the employment authorization of current employees. Once you have made the decision to implement E-Verify in your workplace, you may only utilize it for new hires. Of course, E-Verify must be used for all new hires; an employer may not selectively use the system. Federal contractors required to use E-Verify must re-verify current employees who will be performing work under the contract and may re-verify their entire workforce if they wish.

If you have questions regarding E-Verify and I-9 Compliance or any other employment immigration question, please contact Attorney Ryan Helgeson at 630.377.1554 or ryhelgeson@wesselssherman.com.

About Ryan M. Helgeson

Attorney Ryan M. Helgeson works out of the firm's St. Charles office, assisting clients with various immigration matters. In his previous position, he practiced almost exclusively in business related immigration law with a Chicago law firm affiliated with one of the largest firms in China. This tremendous background has provided Attorney Helgeson with a wealth of experience representing a large volume of diverse business clients in all aspects of complex immigration law matters.

He has successfully procured for his clients a vast array of visas and other work authority, including H-1B and L-1 non-immigrant visa petitions, first/second/third preference employment-based immigrant visa petitions, as well as portability issues associated with these visas.

Additionally, Mr. Helgeson has practiced in the federal and state courts in Chicago in a variety of immigration law related and other business cases.