E-Verify is an internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility (I-9) of their newly employees. Currently, E-Verify is voluntary and free.

The employer has to successfully enroll with the E-Verify program. The new hire needs to fill out the I-9 form. The Administrator enters employee information from the Form I-9 into the system. Initial verification should be returned in “seconds”1 with one of 3 results: Employment Authorized; SSA Tentative Non-Confirmation (TNC); or DHS Verification in Process. If you get an immediate employment authorization, you should record the Case Verification number on the I-9. If there is a TNC, the employer needs to print the case details, provide it to the employee, and have the employee choose to “contest” or “not contest” the result. If the employee chooses not to contest the result, the employer may terminate the employee. If the employee chooses to contest the result, s/he has 8 days to resolve the matter with SSA or DHS. The employee may continue to work while the case is being resolved. With both a SSA and DHS TNC, a response is automatically sent to the employer through the system. The TNC Case Resolution should be one of 3 results: Employment Authorized; Final non-confirmation; or Review and Update Employee Data then Resubmit.

Before being issued the Employer ID number, the employer must agree to the terms of the USCIS prepared “Memorandum of Understanding” (MOU), which sets forth the points of agreement between the Social Security Administration (SSA), the Department of Homeland Security (DHS) and the Employer regarding the Employer’s participation in E-Verify. It is the terms of the MOU that the employer must agree to, the lost of privacy to all Americans, the substantial costs in operating such a system, and the unbearable added burden to SSA that has most employers declining to enroll in E-Verify. For those employers that do participate in the E-Verify program, and use identifying documents with photographs, they will benefit from a rebuttable presumption that the Employer has not knowingly employed an unauthorized alien.

As an employer, you want to be in compliance with the law, and you want something simple and easy to use to be in compliance, but is enrolling in this flawed system the answer? The Federal Government is pressuring employers to enroll in E-Verify whether they want to or not. Recently, USCIS made E-Verify enrollment mandatory if the employer wants to take advantage of the new 17 month extension of Optional Practical Training. (See article "F-1 OPT Extension" in this issue) On June 9, 2008, President Bush amended Executive Order 12989 in order to direct all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use an electronic employment eligibility verification system (designated by DHS) to verify the employment eligibility of all persons hired during the contract term and all persons performing work within the US on the federal contract. In response to the Executive Order, Michael Chertoff, immediately designated E-Verify as the system of choice.

At this time, some of you might have little choice but to enroll in E-Verify because your business economics requires it; however, isn’t this just more government interference?

1 USCIS E-Verify Powerpoint Presentation by Sonja Barnes, Chief of the Education Branch, December 17, 2007