E-Verify Overview

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 (SSA). Participating employers can check the employment eligibility of new hires online by comparing information from an employee's Form I-9, Employment Eligibility Verification, against SSA and Department of Homeland Security databases. More than 133,000 employers are enrolled in the program, with over 5.9 million queries run through the system in fiscal year 2009 (as of June 27, 2009). The number of registered employers is growing by over 1,200 per week.

E-Verify is a voluntary program for employers, with limited exceptions. Companies can access E-Verify online and compare an employee's Form I-9 information with over 444 million records in the SSA database, and more than 60 million records in Department of Homeland Security immigration databases.

Employers must sign the E-verify Memorandum of Understanding (MOU). The MOU is problematic because the employer must allow ICE periodic visits to review the employer's I-9s and E-verify related files. A careful reading of E-Verify literature on the USCIS website shows, however, that while the assumption of being less likely to be exposed to immigration raids may be true, participation in the E-Verify program does not by itself mean that a company is completely protected from being raided or audited.

Employers who participate in the E-Verify Program must complete Form I-9 for each newly hired employee in the United States. E-Verify employers may accept any document or combination of documents on Form I-9, but if the employee chooses to present a List B and C combination, the List B (identity only) document must have a photograph.

After completing a Form I-9 for a new employee, E-Verify employers submit an electronic query that includes information from Sections 1 and 2 of Form I-9. After submitting the query, you will receive an automated response from the E-Verify system regarding the employment authorization of the individual. In some cases, E-Verify will provide a response indicating a tentative nonconfirmation of the employee’s employment authorization. This does not mean that the employee is necessarily unauthorized to work in the United States. Rather, it means that the system is unable to instantaneously confirm that employee’s authorization to work. In the case of a tentative nonconfirmation, both you and the employee must take steps specified by E-Verify to resolve the status of the query within the prescribed time period.

Employers must also follow certain procedures when using E-Verify that were designed to protect employees from unfair employment actions.

• Employers must verify all new hires, both U.S. citizens and noncitizens, and may not verify selectively.
• Employers may not prescreen applicants for employment, check employees hired before the company became a participant in E-Verify, or reverify employees who have temporary employment authorization.
• Employers may not terminate or take other adverse action against an employee based on a tentative nonconfirmation.

There is some concern that E-verify can be thwarted by unlawful workers using another individual's valid identification. In other words if someone has stolen an identity and presents legitimate documents connected to that identity, or presents fraudulent documents which make use of stolen identity data, the purpose of the employment eligibility verification exercise can be defeated.

USCIS has been expanding its database of photographs to be used as a back-up checking tool to ensure that the images of applicants presenting their Social Security numbers to E-Verify match in appearance the images in photos existing in current government systems linked to the same Social Security number. However, the photographic matching is limited in scope. There is increasing support for strengthening E-verify to include fingerprint collection.

For Federal Contract Employers--FAR Requires Using E-verify
Federal contractors and subcontractors will be required to use E-Verify if and when they are awarded a federal contract, beginning September 8, 2009. Federal Acquisition Regulation (FAR) requires when a contractor wins the bid on a federal contract that contains the FAR E-Verify clause, the contractor and any covered subcontractors on the project are required to enroll in the E-Verify program within 30 calendar days of the contract or subcontract award date.

FAR requires that if a company has not enrolled in E-Verify, then it has 30 days from the date of contract award to enroll and 90 days from the date it enrolls with E-Verify to initiate verification queries for employees already on its staff who will be working on the contract and to begin using the system to verify newly hired employees. After this 90-day phase-in period, the employer will be required to initiate verification of each newly hired employee within 3 business days after their start date. To meet this three-day requirement, employers may initiate verification of a newly hired employee before their start date if the employee has accepted the job offer and filled out the Form I-9.

The 90-day window in the FAR rule to start using E-Verify for new hires applies to new E-Verify users and is intended to provide additional implementation time.

E-verify may be used for new hires only after the employee has been offered the job and has accepted. FAR requires that employers must continue to use E-Verify for the life of the contract for all new hires, whether or not they are employees assigned to the contract, unless certain exceptions apply.

Employees whom the employer has already verified through E-Verify should not be re-verified. However, an employee’s previous employment authorization through E-Verify from another employer does not satisfy its obligation to use E-Verify once you have hired them

Federal contractors who no longer wish to participate in E-Verify after a contract has ended can terminate their participation by selecting the “request termination” link in the E-Verify system. If the company fails to do so then the terms of the MOU remain in place.

The FAR E-verify rule only covers subcontractors if a prime contract includes the clause. For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000.

The FAR E-verify rule applies only to employees working in the United States, which is currently defined to include the fifty States and the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands.

FAR E-verify exempts:

• Contracts that include only commercially available off-the-shelf (COTS) items (or minor modifications to a COTS item) and related services;
• Contracts of less than the simplified acquisition threshold ($100,000);
• Contracts less than 120 days; and
• Contracts where all work is performed outside the United States.

A COTS item is a commercial item that is sold in substantial quantities in the commercial marketplace and is offered to the government in the same form that it is available in the commercial marketplace, or with minor modifications

Nearly all food and agricultural products fall within the definition of “commercially available off-the-shelf (COTS)” items. Federal contracts for COTS items are exempt from the rule. Federal contracts for food and agricultural products shipped as bulk cargo, but that otherwise would be considered COTS items, such as grains, oils and produce are also exempt. Subcontracts that only provide supplies, such as food, are exempt from the rule.

There are some exceptions to the requirement to use E-Verify for all new hires. The exceptions apply to institutions of higher learning, state and local governments, governments of federally recognized Indian tribes and for sureties performing under a takeover agreement with a federal agency. Under the rule, such entities may choose to only use E-Verify on new and existing employees assigned to the covered federal contract.

What is an “employee assigned to the federal contract”?

The rule defines an “employee assigned to the federal contract” as any employee hired after November 6, 1986, who is directly performing work in the United States under a contract that includes the clause committing the contractor to use E-Verify. An employee is not considered to be directly performing work under the contract if the employee normally performs support work, such as indirect or overhead functions, and does not perform any substantial duties under the contract.

The rule does not exempt employees based on the intermittent nature of the work or the length of time spent performing the work.

Federal contractors and subcontractors have the option of verifying their entire workforce, both new hires and existing employees – including those not assigned to a federal contract. A federal contractor that chooses to exercise this option must initiate an E-Verify query for each employee in the contractor’s entire work force within 180 days of updating its company profile.

The employee must provide his or her SSN to an E-Verify employer if the employee has one. If the employee has applied for and is waiting to receive an SSN, the employer should make a notation on their Form I-9 and proceed with E-Verify upon receipt of the SSN.