E-Verify: What Federal
Contractors Need to Know
In accordance with an executive order signed on June
6 by President Bush, all organizations working under contract to the federal
government are required to use the Department of Homeland Security's (DHS)
E-Verify system to check that new hires are eligible to work in the U.S.
Three days after President Bush issued his executive
order, on June 9, the Department of Homeland Security (DHS) designated E-Verify
as the electronic employment eligibility verification system that all federal
contractors must use as required by Executive Order 12989, as amended.
Also on June 9, 2008, the federal agencies
responsible for administering the FAR sent a Notice of Proposed Rulemaking to
the Federal Register, setting forth proposed implementing regulations (the
"Proposed Rule"). The terms of the Executive Order will not become effective
until final regulations are issued. Final regulations are expected to be issued
at the end of 2008.
We asked Attorney Jennifer G. Parser, an immigration
specialist with Ward and Smith in Raleigh, North Carolina, to walk us through
Delving into the "new" system.
The system is only new in that it was rechristened
E-Verify on January 1, 2008; its earlier version, called either Basic Pilot of
Electronic Eligibility Verification System, was first deployed during federal
fiscal year 2005. Since its earlier incarnation, DHS head Michael Chertoff has
said employer participation has increased 1,070 percent. And, it's sure to
increase now that thousands of federal contractors are using it. E-Verify
combines DHS data with records from the Social Security Administration to
determine whether a new hire is eligible to work in the U.S. The verification
doesn't replace the employer's gathering of documents to complete the I-9
form--both that form and some mode of verification are necessary. Or, at least,
Parser highly recommends the additional verification step, one of whose purposes
is to check that the new hire's Social Security number is valid.
Here's how it works:
An employer submits a Memorandum of Understanding to
the system to get started: A separate memo must be submitted for each location
where the employer wants to conduct verifications. Once that step is completed,
one or more company individuals, usually in HR, can apply for passwords to
access the system. Parser says those people can include a general user, a
program administrator, and a corporate administrator, each of whom will then be
able to perform a different level of functions with E-Verify. Further, once an
employer is on file to use the system, E-Verify generates posters in English and
Spanish that must be prominently displaced in the workplace. The posters inform
employees that the system is being used, and copies are filed with DHS. If all
those administrative steps strike the organization as too much of a headache,
says Parser, "There are now 310 third-party agents nationwide who will, for a
fee, perform your E-Verify checks for you."
What about the critics?
The Society for Human Resource Management and others oppose E-Verify, primarily
because, they say, its databases are rife with errors, especially in Social
Security records. Some legislators have been urging Congress to mandate that
employment verification be done through state records created for Welfare to
Work instead. Parser tells her clients to use E-Verify: If agents raid your
workplace, and you've verified your employees, you may have a good-faith defense
that will persuade them to see you more favorably. Replace the system with state
records? "I'd be concerned that they may not contain the information that DHS is
using in E-Verify," says Parser.
In leading us through the DHS/SSA system for checking a new hire's eligibility
to work in the U.S., Parser offered a series of tips and cautions.
Just as you can't arbitrarily screen
out applicants in other ways, you cannot prescreen applicants using E-Verify
(and then hire only those that pass).
Nor can you selectively decide which
new hires to verify--such as those who aren't U.S. citizens--and fail to check
on the rest. All new hires must be run through the system after they've been
hired and within 3 days of their actual start dates.
The system can't be used to delay
training or start dates or to speed up start dates.
E-Verify information must be kept
separate from an employee's other personnel records, just like personal medical
Remember that the system tests only
eligibility to work in the U.S., not immigration status. Examples: The spouse of
an H 1-B visa holder is in the U.S. legally (his or her immigration status) but
is not eligible to work in the U.S. (E-Verify status). By contrast, the spouse
of an L-1 visa holder (a visa issued to those making international intracompany
transfers) are not only in the U.S. legally (immigration status) but also
eligible to work in the U.S. (E-Verify status).
Federal contractors aren't the only
employers required to use E-Verify. So are employers in close to 10 states,
including Arizona, and employers who hire foreign students under the new
29-month STEM (science, technology, engineering, and math) visa program.
E-Verify is currently set to expire on
November 30, 2008, but it is likely that Congress will act to extend it and/or