How to know whether your business is required to E-Verify new hires

The list of states that require E-Verify has expanded in the past decade, and so has the program’s murkiness!

States across the U.S. have been staking out their own paths on whether to adopt this electronic employment verification program, operated by the federal government in an effort to maintain a legal workforce. Some are making it mandatory for all employers, while others are letting individual employers choose. Even the latest entrant to the program -- Florida -- has created differing E-Verify rules for public and private employers.

As a business owner, it behooves you to acquaint yourself with the E-Verify rules for every state where your firm operates and hires employees. Otherwise, you risk the possibility of a subpoena or penalty from the Immigration Customs Enforcement Agency for running afoul of employment violations.

What is E-Verify?

  E-Verify is a free, web-based program administered by the Department of Homeland Security and the Social Security Administration that aims to help businesses to sift undocumented immigrants from their pool of potential employees. Using the portal, enrolled employers can electronically confirm the identity and U.S. work eligibility of new hires.

E-Verify does not replace the legal requirement of completing an I-9 Employment Eligibility Verification form. Rather, E-Verify is a supplementary program that works by comparing employees’ I-9 information against records from the SSA and DHS databases.

Who requires it?

Although E-Verify is available for businesses in all 50 states, it has been adopted in a piecemeal fashion. General guidelines on who is mandated to use the program to verify the employment eligibility of new workers are shown in the table below.

America’s updated E-Verify landscape

E-Verify requirements	States
All or most employers	Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, Utah
Public employers and/or state contractors	Florida, Indiana, Missouri, Nebraska, Oklahoma, Pennsylvania, Texas
Public employers only	Idaho, Virginia
Local municipalities	Michigan, New York, Oregon, Washington
State contractors only	Colorado, Louisiana, Minnesota
Federal contractors and subcontractors with qualifying contracts that include the Federal Acquisition Regulation E-Verify clause	All states

Note: In addition, employers that want to hire F-1 Visa students pursuing an extension of their optional practical training under a STEM-designated degree program must use E-Verify.

How to register?

If you are required to participate in E-Verify,  ensure that you use the program in a manner that is nondiscriminatory and protective of workers’ privacy. Violations of the E-Verify system and its data can bring severe consequences for your company, such as I-9 audits, civil penalties, contract cancellations, debarment from the E-Verify program or privacy and discrimination claims by employees.

In order to participate in the federal E-Verify program, you must register on its official site and agree to its rules. Here’s an overview of what businesses will need to provide:

• Basic information about your company, including NAICS code, EIN, total number of employees and hiring sites where you plan to use E-Verify.
• Access method: employer, agent, corporate administrator or web services.
• Organization category: federal contractor, state / local government organization etc.
• A signed memorandum of understanding mandating E-Verify use for new hires
• Select at least one program administrator.

If your business has multiple hiring sites, you can assign one site to create E-Verify cases for new employees on behalf of the entire company. Also, you do not have to enter separate agreements. A single MOU will suffice for all hiring locations.

What’s the process?

Once enrolled, here’s an overview of how E-Verification works:

Step 1: Submit a completed I-9 with supporting documents.

Step 2: Within three business days of an employee starting to work for pay, create a case for them in the E-Verify portal using information from the I-9.

Step 3:  You may be prompted by E-Verify to compare the employee’s photo on submitted documents against the photo on the portal.

Step 4:  E-Verify compares the employee’s submitted information against DHS and SSA records to generate six possible results: employment authorized; verification in process; tentative nonconfirmation, case in continuance; close case and resubmit; final nonconfirmation.

The backlash against E-Verify

Although this federal employment verification system aims to ensure a legal workforce in businesses across the U.S., it has created substantial headaches for hundreds of thousands of Americans who are legally authorized to work in the country.

Studies have found that E‐​Verify has harmed nearly 750,000 legal workers through erroneous non​confirmation rulings, often leaving them unemployed or costing their employers thousands of dollars for sorting out an appeal. In addition, critics say the so-called surveillance system has failed to halt illegal employment in the U.S.

Privacy advocates have raised concerns that broader use of online E-Verify would lead to increased identity theft, with critics calling the program an additional burden on government agencies meant to do other important tasks.