What is E-Verify and how does the program work?

E-Verify is a free, voluntary program that uses an automated system to verify the employment authorization of all newly hired employees through Social Security Administration and Department of Homeland Security databases. The program started under the name Basic Pilot and was originally available only to employers with operations in six states (California, Florida, Illinois, Nebraska, New York and Texas). It became available to employers in all 50 states on December 1, 2004.

Basic Pilot/E-Verify is the last of three employment verification pilots required by the Illegal Immigration Reform and Immigrant Responsibility Act (the Machine-Readable Document Pilot and the Citizen Attestation Pilot programs ended in May and June 2003), and it was scheduled to end in November 2008. In September 2008, the program was extended to March 6, 2009, as part of a continuing resolution that funded at current levels the budgets of all federal agencies until that date. The program was again extended in March 2009, this time until September 30, 2009.

When the Immigration and Naturalization Service became part of the DHS on March 1, 2003, the pilot programs came under the jurisdiction of the U.S. Citizenship and Immigration Service's (USCIS) Systematic Alien Verification for Entitlements (SAVE) Program.

Verification assistance. As a participant in E-Verify, employers are required to verify all newly hired employees, both U.S. citizens and non-citizens. Employers may not verify selectively, and must verify all new hires while participating in the program. The program may not be used to pre-screen applicants for employment, go back and check employees hired before the company’s participation in E-Verify, or reverify employees who have temporary work authorization. An employer who verifies work authorization under E-Verify establishes a rebuttable presumption that it has not knowingly hired an unauthorized alien. However, participation in the program does not provide a safe harbor from worksite enforcement.

Photo screening tool. In September 2007, a photo screening tool was added to E-Verify to help employers more accurately verify a new non-citizen employee’s identity. It will be available when a new employee presents an Employment Authorization Document or Permanent Resident Card (green card) to complete the Form I-9. Designed to help employers determine whether the document presented reasonably relates to the individual presenting it and contains a valid photo, the photo screening tool allows employers to compare identical photos-the individual’s photo on the document presented against the image stored in USCIS’s databases.

Passport data. In February 2009, the Department of State incorporated passport data into the E-Verify employment authorization program. If the Department of Homeland Security or the Social Security Administration is unable to immediately confirm a citizen’s work eligibility, USCIS can now check State Department records prior to issuing a TNC. If citizenship information provided on the Form I-9 matches those records, E-Verify will seamlessly confirm the individual’s work authorization. Prior to this enhancement, the system would have issued a TNC, prompting a potentially authorized worker to resolve the mismatch issue

Participation. The E-Verify program is generally voluntary and employers may choose to leave the program at any time.

Federal contractors. However, effective June 30, 2009, certain federal contracts must include a clause requiring the contractor to enroll in E-Verify to check the employment eligibility of:

1. all newly hired employees, following completion of Form I-9; and

2. all existing employees who are assigned to the contract (this includes employees hired after November 6, 1986, who are directly performing work in the United States under a contract that includes the E-Verify clause; it excludes employees who normally perform support work not involving substantial duties under the contract).

Contractors are covered if they have prime federal contracts with a performance period longer than 120 days and a value above $100,000. Subcontractors are covered if their contract is valued at over $3,000 and it flows from a prime contract that includes the clause.

Note, however, that a coalition of business groups led by the U.S. Chamber of Commerce's National Chamber Litigation Center filed suit on December 23, 2008, challenging the legality of the Executive Order and related federal procurement regulations that require certain federal contractors and subcontractors to use E-Verify. Originally scheduled to take effect on January 15, 2009, the Bush Administration delayed implementation of the rule until February 20, 2009. The Obama Administration has twice delayed implementation of the rule; first until May 21, 2009, and again until June 30, 2009.

State mandates. Additionally, several states legislatively require participation to some extent. Illinois enacted a law that prohibited employers’ participation in E-Verify until the administering agencies were able to make a determination on 99 percent of the TNC notices within three days, but a federal district court ruled that the law is invalid under the Supremacy Clause.

Registration. Employers can register for E-Verify at www.vis-dhs.com/EmployerRegistration , which provides instructions for completing the registration process. At the end of the registration process, you will be required to sign a Memorandum of Understanding (MOU) that provides the terms of agreement between you the employer, the SSA, and USCIS. An employee who has signatory authority for the employer can sign the MOU.