Labor: Careful use of E-Verify is critical to avoid liability

Inadvertent prescreening of employees can lead to government investigations and fines

Many employers mistakenly believe that if they volunteer to participate in E-Verify they will be immune from scrutiny by the government regarding their pre-employment practices. This misconception can prove to be quite costly.

Simply speaking, E-Verify is a government-operated, Internet-based system that allows employers to determine prospective employees’ eligibility to work in the U.S. It compares information from an employee's Form I-9, Employment Eligibility Verification, to data from Department of Homeland Security and Social Security Administration records to confirm employment eligibility. Participation in E-Verify is voluntary for most businesses, yet state law or federal regulation requires some companies to use the program. For instance, most employers in Arizona and Mississippi must use E-Verify. E-Verify is also mandatory for employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation E-Verify clause.

Although it sounds easy enough to use, failure to follow the E-Verify rules to a tee may result in investigation and fines. The E-Verify User Manual for Employers itself is 88 pages, a fact that speaks volumes about how intricate use of the system can be.

Broadly speaking, employers participating in E-Verify must avoid:

  • Using E-Verify to prescreen an applicant for employment
  • Checking the employment eligibility of employee worker hired before the company signed the E-Verify memorandum of understanding
  • Taking any adverse action against an employee based on a case result unless E-Verify issues a “final nonconfirmation”;
  • Specifying or requesting which Form I-9 documentation a newly hired employee must use
  • Using E-Verify to discriminate against any job applicant or new hire on the basis

Unfortunately, many employers unintentionally commit unlawful “prescreening” or “discrimination” by not following the E-Verify procedures meticulously. This can result in tens of thousands of dollars in fines, if not more.

The simple cases are easy—employees complete Section 1 of the Form I-9 within the first three days of employment, providing a valid social security number. Within those three days, the employer creates a case in the E-Verify system for the employee and receives an authorization for that employee to work.

Complications and potential liability arise, however, when the case is not that simple. For example, employers that use E-Verify must know and follow the particulars regarding: What happens if the employee does not have a Social Security Number? What should an employer do if the employee provides a receipt showing he or she has applied for replacement documents for the Form I-9? Can the employer use E-Verify for rehires? Can businesses use E-Verify for reverification when work authorization documents for current employees expire or are about to expire? What happens if the employee’s case results in a Tentative Nonconfirmation? 

These are only some of the scenarios that can expose employers to potential liability. The government lays out directions for handling each situation in its user manual, and the burden is on any employer using E-Verify to follow the instructions in the manual without exception. Failure to follow the manual meticulously can result in a government investigation for improper use of E-Verify and potential discrimination, which in turn can result in thousands of dollars of fines per violation.

Accordingly, before an employer volunteers to participate in E-Verify or before an employer required to use the system enters its first case, they are encouraged to study the User Manual provided by U.S. Citizenship and Immigration Services, take any webinars that the government offers on how to use the system, contact the government with any questions that may arise and/or consult an immigration attorney to confirm compliance with the system before any violations occur.

Contributing Author

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Tina M. Maiolo

A member of Carr Maloney, P.C., Tina Maiolo partners with clients to operate and grow their businesses. She focuses her legal practice in...

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