Original document prepared by former Worldwide ERC® General Counsel, Richard H. Mansfield III
Mansfield & Mansfield
Updated by Worldwide ERC® Government Affairs Adviser, Tristan North
Current as of January, 2017
In November 2008, several federal government agencies adopted a regulation amending the Federal Acquisition Regulation (FAR) to require certain contractors and subcontractors to use the E-Verify system administered by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), as the means of verifying that certain of their employees are eligible to work in the United States.
The scheduled date for the implementation of the regulation originally was January 15, 2009, and it applied to the Department of Defense (DOD), the General Services Administration (GSA) and the National Aeronautics and Space Administration (NASA). Both the date of implementation and the coverage has recently changed, however.
Federal contractors and subcontractors were required to use E-Verify beginning September 8, 2009. Executive Order 12989 mandates the electronic verification of all employees working on any federal contract. The exact requirements can be found in the order: http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/guide-federal-contractor_comp.pdf
As described in the regulation, the E-Verify system, formerly known as the Basic Pilot/Employment Eligibility Verification Program, is an Internet-based system operated by DHS USCIS, in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. E-Verify represents the best means currently available for employers to verify the work authorization of their employees.
Before an employer can use the E-Verify system, the employer must enroll in the program and agree to the E-Verify Memorandum of Understanding (MOU) required for program participants. The terms of the MOU are established by USCIS and are not negotiated with each participant. In consenting to the MOU, employers agree to abide by current legal hiring procedures and to ensure that no employee will be unfairly discriminated against in the use of the E-Verify program. Violation of the terms of the MOU by the employer is grounds for termination of the employer’s participation in the E-Verify program.
Current law (8 U.S.C. 1324a(b)) requires all employers in the United States to complete an Employment Eligibility Verification Form (Form I–9) for each newly hired employee to verify each employee’s identity and employment eligibility. Under this final rule, Federal contractors will additionally enter the worker’s identity and employment eligibility information into the E-Verify system, which checks that information against information contained in SSA, USCIS and other Government databases.
SSA first verifies that the name, social security number (SSN), and date of birth are correct and, if the employee has stated that he or she is a U.S. citizen, confirms U.S. citizen status through its databases. If the system confirms identity and U.S. citizenship, and there are no other indicators that the information is not correct, SSA confirms employment-eligibility. USCIS also verifies through database checks that any non-U.S. citizen employee is in an employment-authorized immigration status.
If the information provided by the worker matches the information in the SSA and USCIS records, no further action will be required. E-Verify procedures require only that the employer record on the Form I–9 the verification identification number and the result obtained from the E-Verify query or print a copy of the transaction record and retain it with the Form I–9. If SSA is unable to verify information presented by the worker, the employer will receive an ‘‘SSA Tentative Non-confirmation’’ notice. Similarly, if USCIS is unable to verify information presented by the worker, the employer will receive a ‘‘DHS Tentative Non-confirmation’’ notice. Employers can receive a tentative non-confirmation notice for a variety of reasons, including inaccurate entry of information by the employer into the E-Verify Web site, and changes in the worker’s name or immigration status that the worker has not updated in the SSA database searched by the E-Verify system. If the individual’s information does not match the SSA or USCIS records, the employer must provide the worker with a written notice generated by the E-Verify system, called a ‘‘Notice to Employee of Tentative Non-confirmation’’. The worker must then indicate on the notice whether he or she contests or does not contest the finding reflected in the tentative non-confirmation that he or she appears unauthorized to work, and both the worker and the employer must sign the notice.
If the worker chooses to contest the tentative non-confirmation, the employer must print a second notice generated by the E-Verify system, called a ‘‘Referral Letter,’’ which contains information about resolving the tentative non-confirmation, as well as the contact information for SSA or USCIS, depending on which agency was the source of the tentative non-confirmation.
The worker then has eight Federal Government workdays to visit an SSA office or call USCIS to try to resolve the discrepancy. Under the E-Verify MOU, if the worker contests the tentative non-confirmation, the employer is prohibited from terminating or otherwise taking adverse action against the worker while he or she awaits a final resolution from the Federal Government agency. If the worker fails to contest the tentative non-confirmation, or if SSA or USCIS is unable to resolve the discrepancy, the employer will receive a notice of final non-confirmation and the worker’s employment may be terminated.
Participation in E-Verify does not exempt the employer from the responsibility to complete, retain, and make available for inspection Forms I–9 that relate to its employees, or from other requirements of applicable regulations or laws. However, the following modified requirements apply by reason of the employer’s participation in E-Verify: (1) Identity documents used for verification purposes must have photos (except as discussed below with respect to accommodations); (2) if an employer obtains confirmation of the identity and employment eligibility of an individual in compliance with the terms and conditions of E-Verify, a rebuttal presumption is established that the employer has not violated section 274A(a)(1)(A) of the Immigration and Nationality Act (INA) with respect to the hiring of the individual; (3) the employer must notify DHS if it continues to employ any employee for whom the employer has received a final non-confirmation, and the employer is subject to a civil money penalty between $500 and $1,000 for each failure to notify DHS of continued employment following a final non-confirmation; (4) if an employer continues to employ an employee after receiving a final confirmation and that employee is subsequently found to be an unauthorized alien, the employer is subject to a rebuttal presumption that it has knowingly employed an unauthorized alien in violation of Immigration and Nationality Act (INA) section 274A(a); and (5) no person or entity participating in E-verify is civilly or criminally liable under any law for any action taken in good faith reliance on information provided through the confirmation system.
Further information on registration for and use of E-Verify can be obtained via the Internet at http://www.dhs.gov/EVerify.
As of November 30, 2012, a total of 20 states require the use of E-Verify for at least some public and/or private employers. See http://www.ncsl.org/research/immigration/everify-faq.aspx.
This is an ongoing issue, based as much on politics as the accuracy of the system. It will probably remain a highly debated one until comprehensive immigration reform is enacted.