Some businesses, such as federal government contractors, are very familiar with E-Verify. Other private sector businesses…not so much. We routinely walk our clients through the E-Verify process from start to finish. However, sometimes a more in-depth discussion is required about E-Verify and whether to use it – particularly if the client is a business that can use E-Verify but is not required to do so. Evaluating such things as the size of the company, its industry, its history of violations, and the nature of its workforce are all relevant considerations in the E-Verify analysis.
A. What is E-Verify?
E-Verify is a cloud-based system that confirms data entered by an employer from an employee’s Form I-9, Employment Eligibility Verification (E-Verify). The data is collected and stored by the U.S. Department of Homeland Security and the Social Security Administration to confirm employment eligibility. E-Verify allows employers to verify the identity and employment eligibility of newly hired employees by electronically matching information provided by employees on the Form I-9, Employment Eligibility Verification, against records available to the Social Security Administration (SSA) and the Department of Homeland Security (DHS).
According to DHS, E-Verify, which is available in all 50 states, the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and Commonwealth of Northern Mariana Islands, is currently the best means available to electronically confirm employment eligibility.
B. Permissive vs. Required Use of E-Verify
E-Verify is a voluntary program for most private sector employers. However, E-Verify is mandatory for some employers, including the following:
- Employers with Federal Contracts or Subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause:
As of 8 September 2009, employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause are required to use E-Verify to determine the employment eligibility of 1) Employees performing direct, substantial work under those federal contracts and 2) New hires organization-wide, regardless of whether they are working on a federal contract. A federal contractor or subcontractor who has a contract with the FAR E-Verify clause also has the option to verify the company’s entire workforce;
- Employers with operations in states that have mandated the use of E-Verify for some or all employer; and
- Employers that wants to help secure a 17-month extension for a student with an F-1 visa who has a science, technology, engineering or mathematics degree and who is performing post-graduation “Optional Practical Training.”
C. What are Some Advantages of Using E-Verify?
Most employers report that the E-Verify system is intuitive and easy to use. But notwithstanding its relative operational ease, there can be real advantages to using E-Verify.
- For starters, the system is designed to quickly verify employment eligibility and the E-Verify system should significantly reduce the likelihood of getting Social Security “No-Match” letters.
- An employer that verifies work authorization through E-Verify enjoys a legal presumption that the employer did not knowingly hire an unauthorized worker.
- In a mid- to large-sized organization, with a healthy hiring program, eliminating half of the manual data entry work can save a substantial amount of time and cut down on human error.
- E-Verify recently introduced photo-matching functionality for certain documents that are presented for employment verification. As part of the E-Verify process, employers can compare the photo in the employee’s document to the photo displayed in the E-Verify system when certain documents are presented.
- Participating in E-Verify may allow employers in some states to pursue state or local government contracts.
- Registered companies can offer eligible foreign student-employees in F-1 visa status an additional 24 months of optional practical training. This can be useful in recruitment and retention because it allows a company to continue to employ F-1 STEM students who do not “win” the H-1B lottery. It also allows a company to employ certain STEM students for up to 36 months without petitioning for an H-1B.
- Lastly, according to DHS, E-Verify virtually eliminates Social Security mismatch letters, improves wage and tax reporting accuracy, protects U.S. worker jobs, and helps employers maintain a legal workforce.
D. What are Some of the Disadvantages to E-Verify?
Like every governmental program, there are both “pros” and “cons” to using E-Verify. Some of the major disadvantages to E-Verify include the following:
- E-Verify is not 100% accurate. Even though the government touts its small published error rate, the system is not perfect. For example, according to the National Immigration Forum, in 2017 the system returned 1.1% of the submitted applications as Tentative Non-Confirmation. This means that from 34,853,666 cases, the system marked as TNC a total of 383,390. The real number of confirmed negatives ended up being only 52,280 cases – meaning the E-Verify system got it wrong in 331,110 instances.
- Some argue that the information about individuals contained in the DHS database is of questionable accuracy. E-Verify cannot always detect instances of identity theft (i.e. when an employee may present valid documents that do not belong to him/her), typographical errors, data entry mistakes, etc.
- ICE has confirmed that E-Verify has no bearing in an I-9 audit and will not impact the outcome of an audit. In other words, the use of E-Verify by a company will not decrease the chance of an I-9 audit fine.
- By using E-Verify, Employers must agree allow the SSA and DHS to perform periodic audits of its hiring records.
- Using E-Verify can also increase employers’ risk of liability and privacy litigation. Particularly in instances of erroneous TNC results, applicants could take legal action against employers, accusing them of discrimination or failing to provide them with proper notice of E-Verify results.
- Smaller businesses have also expressed concerns about the amount of time that the process can take. While there is no cost to use the system, it requires some work to set up an account and upload information for each new hire. This may not be a significant issue for large enterprises. But for small businesses that don’t have dedicated HR staff, the additional administrative burden can limit productivity.
- Additionally, once an employer enrolls in E-Verify, it must use it for all new hires. You cannot pick and choose which people to run through the E-Verify system. So, if your business decides to enroll, you must commit to making E-Verify a regular part of your hiring process.
E. So,Is E-Verify Right for your Company?
If your company is required by law to use E-Verify, then the decision is already made for you. But for most private sector employers E-Verify is voluntary, and whether it makes sense depends on your company’s needs and administrative capabilities. If your company employs a lot of hourly paid workers and has a fairly high turnover rate, using E-Verify may make sense. In addition, if your company operates close to the U.S. southern border or otherwise operates in an area where there are large numbers of immigrant employees, using E-Verify could be a useful tool. On the other hand, if your company employees mostly highly skilled professionals, then E-Verify might not be worth the additional administrative burden. At a minimum, all employers should consider the states in which it conducts business, determine if it must use E-Verify and, if not, examine its current employment verification procedures, balance the pros and cons of E-Verify, and before proceeding, make an informed decision about whether it would be beneficial.
C2 provides strategic HR outsourcing to clients who want to develop optimal workforce strategies and solutions to allow them to be more competitive and profitable. C2 blog posts are intended for educational and informational purposes only.
