E-Verify is an Internet-based employment authorization verification system administered by the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA). After completing the Form I-9 process, employers create an E-Verify case and submit it to E-Verify, which electronically verifies work authorization by checking the information entered against DHS, SSA, and U.S. Department of State records. 
Although many companies have no choice regarding E-Verify participation (e.g., certain federal contractors and employers in certain states), those with the luxury of choice should seriously consider the consequences. Rather than asking “how” to register, companies need to ask whether they “should” register.
More cons than pros?
As of January 2014, over 500,000 employers have enrolled in E-Verify. While that number may seem large, it is only roughly eight percent of our nation’s employers. Although the trend is leaning toward E-Verify participation and comprehensive immigration reform (if passed) will likely require all employers to participate, you should seriously consider the ramifications of participation before jumping on board.
The DHS will provide you with the many pros of E-Verify, but it won’t mention the many cons. While companies should engage experienced immigration counsel to conduct a full analysis―taking into account such things as the size of the company, its industry, its history of violations, and the nature of its workforce―below are some cons that are worth contemplating while you still have a choice:
- All E-Verify participants must enter into a memorandum of understanding (MOU) with the government. The government regularly “updates” the MOU (as it did in January 2014) and imposes the new requirements on employers without notice or without signing a new MOU.
- E-Verify cannot detect identity fraud.
- E-Verify has some accuracy challenges (i.e., a number of false positives).
- Employers increase their exposure to litigation for false negatives.
- Employers expose themselves to increased government scrutiny.
- Employers expressly allow the SSA and DHS to perform periodic audits, including employee interviews.
- The E-Verify Monitoring and Compliance Branch (M&C) regularly monitors employer use, exposing employers to additional liability.
- E-Verify refers cases of suspected misuse, abuse, and/or fraud to other enforcement agencies―e.g., Immigration and Customs Enforcement (ICE) and the U.S. Department of Justice (DOJ). The DOJ’s Office of Special Counsel (OSC) is acting on referrals from E-Verify M&C (see recent DOJ OSC letters of resolution).
- E-Verify provides ICE and the DOJ with information regarding ongoing administrative and criminal investigations as requested by those agencies.
- There are additional expenses and resources for training and entering and monitoring cases.
- There are additional Form I-9 process requirements. (E-Verify participants have separate rules regarding acceptable documents and document copies.)
- E-Verify comes with poster requirements.
- There are additional auditing and compliance requirements.
- Employers experience uncertainty in the hiring process while
- Employers face discrimination issues because of concerns that E-Verify disproportionately affects legal immigrants and foreign-born citizens.
Bottom line
While in some cases the pros will outweigh the cons, it’s important not to dive in without understanding the additional obligations and exposure that come with E-Verify.
Christine D. Mehfoud is an attorney with Spotts Fain in the firm’s Richmond, Virginia. She may be contacted at cmehfoud@spottsfain.com.
We have been using E-Verify since it’s inception and have experienced NONE of the downsides you describe. We have had ZERO false positives. The two no matches that we received we in deed illegal aliens. And while we are aware that E-Verify cannot detect some identity theft, we believe that the use of E-Verify provides evidence of our good faith effort to avoid hiring illegals. We believe it’s use should be mandatory for all employers, and should also be expanded to allow us to verify the eligibility of those employees hired prior to its inception (as we are not currently allowed to do).
So, if I want to stop using e-verify, how do I quit?
Teresa — I agree that E-Verify is very helpful for most employers. My goal was to provide employers with the cons so that employers can make an informed decision. There is so much out there about the pros of E-Verify, but employers need to carefully weigh the consequences and understand the compliance risks before agreeing to participate (at least now while participation is “voluntary”). Thanks for reading!
C. TenHagen – Determining whether to quit E-Verify requires a case-by-case analysis and should be performed in consultation with experienced immigration counsel. I recommend that you contact your counsel to discuss. If you require assistance, please feel free to contact me directly at cmehfoud@spottsfain.com.
Christine,
We have over 800 site locations within the US and perform our hiring process entirely online. We have HR staff in regional offices in metro areas of the US. To be an E-Verify user, do you have to verify the documents provided “in person” or can you use the information verified by the I9 process? We would like to implement Everify but struggle with creating EVerify access for 800 site managers. Currently site managers complete the I9s in our online system by verifying the documentation “in person”. Can the HR Staff at the regional offices use the I9 information verified by the site managers to complete the Everify process or would we be required to train all 800 site managers on Everify?
Connie – I have many clients in a similar situation with multiple sites throughout the country. The E-Verify user need not be the same as the Form I-9 preparer and the E-Verify user is not required to verify the documents in person. I would never recommend training 800 site managers on E-Verify (that sounds like a compliance nightmare). In fact, the most recent MOU added new confidentiality and privacy provisions. I do recommend that you consult with experienced immigration counsel before implementing E-Verify, however, and ensure that you have the right process and auditing structure in place. If I can be of assistance, please do not hesitate to contact me directly at cmehfoud@spottsfain.com.