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E-Verify is an online application that allows participating employers to verify electronically the employment eligibility of new hires.  It is jointly operated by the Department of Homeland Security (DHS) and the Social Security Administration (SSA).

To participate in E-Verify, an employer must sign a multi-page Memorandum of Understanding (MOU) with the DHS and SSA. The employer must still complete the Form I-9 but uses E-Verify to check the information the new hire has provided against records contained within the DHS and SSA databases. If the new hire passes muster, there is a presumption that the employee is authorized to work in the United States. Nevertheless, the DHS reserves the right to conduct I-9 compliance inspections as well as any other lawful compliance and enforcement activity. The employer who participates in E-Verify also agrees to cooperate with the DHS and SSA, including allowing the agencies and their contractors to review Forms I-9 and other employment records and to interview employees.

For most employers, E-Verify is still a voluntary program. Should you enroll in E-Verify? If you are a federal contractor or operate in a state where E-Verify is mandatory, you will not have a choice, at least for some of your operations. Otherwise, you have to weigh the benefits – a clean bill of health on those employees confirmed through E-Verify and getting ahead of the curve on the almost assured mandatory implementation of E-verify in the future – versus the cons – administrative burdens, potential liability for misuse of E-Verify or noncompliance with the rules, and agreeing to greater DHS access to your workplace and records.

The tipping point may be DHS’s data mining of E-Verify information and sharing of the information with other agencies, such as the Department of Justice’s Office for Unfair Immigration-Related Employment Practices. DHS looks for E-Verify noncompliance and irregularities, such as infrequent use of E-Verify, entering invalid Social Security Numbers, verifying existing employees, failing to verify in a timely manner, and too high a percentage of permanent residents using their permanent residence cards as proof of employment eligibility.

If the data mining identifies an “issue” DHS does not like, it may conduct a site visit or notify other agencies, such as the Department of Justice or Immigration and Customs Enforcement.

The specter of the government mining your data to drum up noncompliance “issues” may be enough to dissuade many employers from participating in this voluntary program.

As an aside, Kara S. Nickel will be presenting a “New Claim on the Horizon: Family Responsibilities Discrimination” at our Miami office on September 17th.   If you have not already done so, please register here for the in-person session or here for the webinar. We look forward to seeing you there!