Most U.S. employers and workers have heard of E-Verify, but what is it?
More critically, is it required for your manufacturing business?
E-Verify is a free internet-based program, run by U.S. Citizenship and Immigration Services in partnership with the Social Security Administration, and designed to help employers verify the identity of new hires and confirm they are eligible to work in the U.S.
While every U.S. employer is legally required to complete a Form I-9 for each new hire, the use of E-Verify is not always required.
During the Form I-9 process, the employer reviews identity and work authorization documentation provided by the new hire to ensure that the individual is "who they say they are" and is legally authorized to work in the U.S.
Authentification
When E-Verify is used during the onboarding process, the system compares the information/documents provided by the new hire as part of the I-9 process to available state and federal government records to authenticate the new hire's information/documents as genuine.
For example, if a new hire presents a Connecticut driver's license as proof of identity, the system would compare the name and photograph on that license to Connecticut's Department of Motor Vehicle records to ensure a match.
The process therefore protects employers against the risk of document and/or identify fraud by helping to ensure that the information and documents presented by the new hire during the hiring process are authentic.
When there is a mismatch between the information and/or documentation presented by the new hire for the Form I-9 and the records in the E-Verify database, the employer is alerted and must give the employee an opportunity to rectify the record.
If the record cannot be rectified within the prescribed period, the employer may decline to move forward with the hire, or may terminate the new hire if they have already commenced employment.
Moreover, while E-Verify does not protect the employer from worksite enforcement investigations, reliance on the system's confirmation of identity and work authorization does afford the employer a presumption of good faith in the hiring process.
When Is E-Verify Required?
E-Verify is generally an optional process for employers.
However, in some scenarios its use is required. Below is a non-exhaustive list of such scenarios:
- Required by law:
- Some states require all or most employers to use E-Verify (such as Florida, Georgia, and Arizona) while others limit its use to public employers. Connecticut currently does not require its use.
- Local and municipal jurisdictions may also impose their own requirements.
- Required by contract:
- Certain government contracts may require use, even when the law does not mandate it.
- Use is mandatory for employers with federal contracts/subcontracts that contain the Federal Acquisition Regulation E-Verify clause.
- Required for use of certain government
benefits:
- Employers using the new alternative remote document inspection procedures for Form I-9 completion must enroll in and be in good-standing with E-Verify.
- Employers must enroll in and be in good-standing with E-Verify to employ foreign nationals working under U.S. employment authorization based on completion of a STEM degree from a U.S. college or university (known as "STEM OPT").
Accordingly, manufacturers (especially those with federal contracts) will want to fully understand their obligations, if any.
Best Practices
Manufacturers who voluntarily opt to use E-Verify are best advised to implement an internal policy to ensure the program is used consistently across the organization and without discrimination.
Once an employer is enrolled, the process should be used for all new hires going forward.
A potential exception is for employers with multiple worksites; manufacturers should consult with an immigration lawyer about the ability to use the program at certain work locations and not others.
Penalties for Misuse
Violating program rules (for example, using the program in a discriminatory manner or willingly employing individuals without work authorization despite an alert from E-Verify) can result in fines and other penalties.
Each state that requires E-Verify use has its own penalty mechanism, which can include monetary fines, cancellation of state grants or other financial incentives, debarment from state contracts, and suspension/revocation of a business license.
When use is required by contract, misuse can result in breach of contract claims and possibly other penalties as outlined in the contract.
Program misuse under federal contracts may result in the contractor's ineligibility to receive future federal contracts and/ loss of existing federal contracts.
Why Use E-Verify?
Even when not required, E-Verify use is generally a "good idea."
The program can help employers ensure that they are compliant with applicable federal law, including immigration laws, by accurately verifying the identity and employment authorization of new hires.
Because of the good faith presumption mentioned earlier, using and relying on the program will also help protect against civil and criminal penalties for hiring someone without U.S. work authorization.
Moreover, as shown above, there are circumstances under which E-Verify is required to receive certain governmental benefits.
Coming Improvements
In June 2023, USCIS announced it intends to launch a new product called E-Verify+, which will be designed to modernize and streamline the currently separate and independent Form I-9 and E-Verify verification processes.
Most notably, this new product will allow new hires to directly enter their information into an electronic platform, which will simultaneously complete the Form I-9 and the E-Verify processes.
This will help remove a hurdle for employers who believe that completing the additional E-Verify process is too burdensome and time-consuming.
A release date for the new system is not yet known; more information about the platform is forthcoming from USCIS.
This article first appeared on CBIA's website and is published here with permission.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.