Conner & Winters assists clients in negotiating E-Verify requirements as well as navigating federal immigration laws.
For a consultation on how the E-Verify program applies to your business or organization, contact one of the following attorneys or any other attorney in our Labor and Employment Practice Group:
Houston — Jerry Redmond
Tulsa — Melinda Kirk
Northwest Arkansas — Terri Dill Chadick
Oklahoma City — Vic Albert
Washington, D.C. — Donn Meindertsma
Recent E-Verify-Related Client Alerts
Congress authorized the forerunner of today’s E-Verify program as part of its 1996 immigration reform legislation. The program is a free government service, accessed through the Internet. Employers that use the program submit information obtained from newly hired employees on their I-9 forms. The information is checked by the Social Security Administration (SSA) and the Department of Homeland Security (DHS). Employers promptly receive a response to their query, and in the vast majority of instances the response confirms the employee’s authorization for employment. In some instances, an employer may receive a “tentative nonconfirmation,” which must be provided to the employee. A process is available for the employee to contest a nonconfirmation.
Here are some things to know about the E-Verify program:
- Using the program requires a participating employer to register, to train staff on using the program, and to enter into a Memorandum of Understanding with the SSA and the DHS.
- The program is only used for newly hired employees; employers may not use it to confirm the work authorization of current employees. (A recently proposed federal rule would require that employers that have government contracts verify the work authorization of current employees who are assigned to government contracts in the U.S.)
- E-Verify may not be used to confirm work authorization for applicants; the earliest that an employer may initiate a query is after an individual accepts an offer of employment and the employee has completed a Form I-9.
- An employer that verifies work authorization under E-Verify has established a rebuttable presumption that it has not knowingly hired an unauthorized alien.
- Employers that use E-Verify must notify employees by posting the authorized notice.
E-Verify in Practice
The program has been a voluntary one. However, some states and local jurisdictions have passed laws that require employers to use E-Verify or provide incentives for employers to do so. Some of these laws apply only to government employers and government contractors, while others apply to private sector employers as well. One state, Illinois, has attempted to limit an employer’s ability to use E-Verify, but the law is not being enforced pending a court challenge.
At the federal level, Executive Order 12989 requires federal agencies to insert a clause in their contracts with private sector companies that obligates those companies to participate in the E-Verify program. Subcontractors will also be required to participate. In general, contracts and subcontracts valued at less than $3,000 need not include the E-Verify clause.
According to the U.S. Citizenship and Immigration Services (USCIS) less than one percent of all work-authorized employees receive a tentative nonconfirmation through E-Verify.