E-Verify — the online system used to verify whether a worker is legally permitted to work in the United States — is among the many proposed solutions to address flaws in the nation’s immigration system. Currently, E-Verify is mandatory for federal contractors and in states that require employers to use the electronic verification system. Although, there has recently been a push by some members of Congress to make E-Verify mandatory for all employers nationwide, participation for private business remains voluntary for the time being. In any event, there is a general consensus among policymakers and business groups that the mandatory use of E-Verify is inevitable. This article is a brief look at E-Verify and its potential impact on small and midsize businesses if/when its use becomes mandatory.

An Overview of the E-Verify System

Established in 1996, E-Verify is jointly administered by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration (SSA). Currently, about 400,000 employers use E-Verify, the majority of which are government contractors and public employers. The internet-based system compares information from an employee’s I-9 form and Employment Eligibility Verification to DHS and State Department records in order to verify that he or she is authorized to work in the U.S.

E-Verify is mandatory for federal contractors with contracts containing the Federal Acquisition Regulation (FAR) E-Verify provision. A number of states also require its use to some extent. E-Verify is mandatory for all employers in Arizona and Mississippi, for example, while it is required for public contractors and state agencies in Colorado, Georgia, Missouri, Nebraska, Oklahoma, Rhode Island and Utah. State agencies in Idaho, Minnesota and North Carolina are also required to use E-Verify.

In addition, some employers may voluntarily participate in the system to enhance their employment eligibility verification efforts and mitigate potential legal liabilities. In any event,  participants in E-Verify are required to post E-Verify posters — in English and Spanish — at the company’s hiring location, along with Right to Work posters.

While participation in E-Verify is not mandatory at this juncture, all employers — regardless of size — are required to verify the identity of new employees and their eligibility to work in the U.S. under the Immigration Reform and Control Act (IRCA). The IRCA also imposes civil and criminal fines and penalties on businesses that employ undocumented workers.

How Does E-Verify Work?

In order to use E-Verify, an employer must first enroll with the DHS which involves responding to a series of yes/no questions during the enrollment process and providing information about the company. There is also a tutorial on using the system for new participants.

To check on a new employee’s status, the employer gleans information from Form I-9 and feeds it into the E-Verify system which creates a new case. The system electronically compares that information to information available through the DHS  — such as passport and visa information, immigration and naturalization records — as well as state driver’s license and SSA records.

The verification system can produce a number of potential results, including:

  • Employment Authorized — The employee’s information matches the DHS and/or SSA records.
  • Verification in Process — Case has been referred to DHS for further verification.
  • Tentative Nonconfirmation (TNC) — The employee’s information did not match the DHS and/or SSA records. Employers are required to notify the employee of such a result, who can then contest the result or correct the records independently or with the assistance of an experienced employment law attorney.
  • Case in Continuance — The employee has been in contact with the DHS or SSA, but the final case result is pending.
  • Close Case and Resubmit — The employer must close the case and create a new one in the event that the employee’s passport or driver’s license information is incorrect.
  • Final Nonconfirmation — The employee’s eligibility cannot be confirmed.

In sum, E-Verify is designed to enhance the enforcement of the IRCA. The question remains as to whether the verification system is accurate and effective, however. There are also concerns about the long-term impact on the businesses if/when E-Verify becomes mandatory.

What are some of the challenges of E-Verify?

As lawmakers consider E-Verify as part of a comprehensive immigration reform measure, there has been pushback from the business community. While the system is free, using E-Verify adds a layer of cost. First, implementing and administering the system requires having an individual at the helm. Since most small businesses don’t have in-house human resources staff, they may need to hire and train additional personnel or, in the alternative, rely on third-party providers.

According to some estimates, moreover, participation in the E-Verify system requires 30 hours of educational preparation. Many users have also noted that the system is burdensome and takes too long to verify employment eligibility. This can have an adverse impact on the bottom line of many small and midsize businesses.

In addition to the costs and the delays in verifying an employee’s eligibility, questions have been raised about the system’s accuracy. There have been reports that the success rate of E-Verify in identifying undocumented workers is only about 46 percent. In addition, of the 21 million employee queries that were processed in 2017, more than 2 million received a TNC response, meaning that the E-Verify could not verify the information provided by an employee.

With such a dubious success rate, employers may experience lost productivity as they weed out ineligible employees and delay hiring new workers. At the same time, many businesses face potential liabilities arising from flaws in E-Verify should the system become mandatory. Ultimately, any employment verification system needs to be efficient, easy to use and must not impede productivity.  As it stands now, it is unclear whether E-Verify achieves those objectives.

The Takeaway

While some studies indicate that E-Verify reduces the number of illegal immigrants in states that require its use, it remains to be seen whether the program will be effective in deterring illegal immigration nationwide. As immigration reform continues to be a hot-button issue, however, there may be a renewed emphasis on making E-Verify mandatory at the federal level. Nonetheless, businesses are still required to comply with current standards for verification of employment eligibility of federal immigration law.

Regardless of whether E-Verify is mandatory, all employers must verify the identity and employment authorization of each person they hire and complete and retain a Form I-9, Employment Eligibility Verification for each employee. Businesses are still required to comply with current standards for verification of employment eligibility of federal immigration law.

Gerald LeMelle
Gerald LeMelle

In a career that spans 26 years, Gerald LeMelle has helped thousands of immigrants in the United States. Mr. LeMelle was raised in Africa and Europe, so he fully understands the challenges facing foreign nationals in this country. After a lengthy career advocating for immigration reform and human rights, Mr. LeMelle now brings his passion, determination, and unique insights to Dunlap Bennett & Ludwig and to our clients. EXTENSIVE INTERNATIONAL EXPERIENCE | ​Gerald LeMelle launched his legal career in New York City in 1987 as the in-house counsel and Director of Programs for the oldest international education foundation in the nation, the Phelps-Stokes Fund.