E-Verify & I-9 News

[Editor’s Note: today’s post is brought to you by guest blogger Katie Nokes Minervino, Associate Attorney in the Immigration Group at Pierce Atwood LLP. Katie assists employers and employees in employment authorization needs and provides clients with support and guidance on employment verification requirements, best practices, and audit response.]

E-Verify is the federal government’s current foray into electronic verification of employment authorization of US workers that functions as a complement to— not a replacement for — the traditional paper-based Form I-9 employment verification system. Over the past few years, many employers have found themselves in a “sink or swim” situation as they have been forced into this otherwise optional program by laws mandating their use. Others have voluntarily enrolled in the program. The remaining majority are now finding themselves teetering at the edge wondering whether or not to take the plunge.

E-Verify: Who Should Jump Right In

Businesses required by law should enroll in E-Verify and structure their participation to comply with applicable laws and the terms of the program. Currently many employers are required by state or local law to enroll in E-Verify, and all signs indicate that this trend will continue. Certain federal contractors are also required to use E-Verify. Further, multi-state corporations may consider enrolling nationally to avoid facing the moving target of state-by-state compliance and the associated burden as new state laws are passed. Employers who have previously been the subject of an I-9 audit and related fines should also strongly consider enrolling in the program.

E-Verify: Who Should Stay on Shore

E-Verify use has its drawbacks. These include employer-borne costs of training personnel and allocating resources to correctly administer the program, the addition of an extra step in the hiring process, and the risk of a “false positive” for a new hire that may raise an unnecessary red flag that requires corrective action. For companies with limited HR resources or who would face significant burdens in regularly accessing the online program not required or otherwise inclined to enroll, the costs will not likely justify the benefits. Some employers simply do not want to participate in the “voluntary” program, and can elect this approach unless otherwise required to enroll.

E-Verify: Who Should Test the Waters

As the program is currently structured, employers have options in how they use E-Verify, including limiting use for new hires at only one (or a handful) of hiring sites. Enrolling in the program for use at a single hiring location, for example, does not trigger a nation-wide E-Verify use requirement for all hiring sites of a given company. While E-Verify is imperfect, the federal government has put significant resources into the program and more and more states are imposing E-Verify requirements. Odds are good that most employers will need to at least consider participation at some point in the future.

Enrolling in E-Verify on a limited basis is a good option for employers with the necessary resources to properly administer the program who may otherwise be on the fence. Choosing to participate at one hiring site provides an opportunity to gain familiarity with the program and complete the necessary training and registration on the employer’s own timeline. E-Verify experience may also provide a competitive edge when competing for business. Companies are increasingly adding employment verification compliance provisions to service contracts, which may include current (or perhaps future) E-Verify use. Putting “a toe in the water” provides companies negotiating such contracts an advantage over companies that are not familiar with or currently contemplating at least limited use of the program.

No matter their current E-Verify enrollment status, all US employers should continue to monitor E-Verify related developments to acquire a general understanding of program requirements and any pertinent compliance deadlines.

Disclaimer: The content of this website is for information purposes only and should not be construed as legal advice or a legal opinion on any specific facts or circumstances, nor does it create attorney-client privilege. This blog should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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Although parts of a newly-passed immigration petition remain contested, the Fremont city council voted to implement the E-Verify portions of the ordinance, effective March 5, 2012, requiring businesses to use the federal E-Verify system. Businesses have a grace period of until May 4, 2012 to comply.

Fremont Ordinance 5165

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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Update! Failing to get enough WA House votes, Bill 2568, which would have curtailed government-mandated E-Verify, appears to have died.

A measure that would have stopped more cities and counties from mandating use of a federal work eligibility program failed to get votes in the Washington state House, despite backing from farmers and immigrant advocacy groups.

Known as E-Verify, the voluntary program has been adopted by 11 cities and counties for government contracts. The program checks a person’s eligibility to work in the country.

A proposed bill in the Washington State House of Representatives, House Bill 2568, would prohibit the state and municipalities from requiring that a private employer use the E-Verify program, unless required by the federal government.

E-Verify is the Employment Eligibility Verification program, a free electronic system provided through a partnership between the Department of Homeland Security and Social Security Administration. E-Verify allows businesses to electronically check the eligibility of their employees to work in the United States.

Like several states, Washington has a number of cities and counties that have mandated the use of E-Verify for  certian businesses. These E-Verify-mandated municipalities currently include Centralia, Chehalis, Clark County, Kennewick, Lakewood, Lewis County, Napavine, Pierce County, City of Sumner, Washougal, and Whatcom County. If adopted, HB 2568 will override these policies, and in effect limit E-Verify participation in the state of Washington to a voluntary or federally mandated basis. The bill would prevent state and local governments from requiring employers to use E-Verify as a condition of receiving a contract, applying for or maintaining a business license, or as a penalty for violating licensing or similar laws. California and Illinois currently impose similar E-verify limits at the state level.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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[Editor’s Note: today’s post is brought to you by guest blogger Katie Minervino, Associate Attorney in the Immigration Group at Pierce Atwood LLP. Katie assists employers and employees in employment authorization needs and provides clients with support and guidance on employment verification requirements, best practices, and audit response.]

Georgia’s comprehensive immigration law requires that private employers enroll in E-Verify as a condition to obtaining or renewing a broad range of business licenses and other documentation required to operate a business or engage in a professional service.

While some provisions of the Georgia law took effect on July 1st, the E-Verify requirements are being phased in, with staggered E-Verify compliance dates based on the size of an employer. The initial phase-in for private employers started in the new year, with businesses employing more than 500 employees required to use E-Verify for new hires as of January 1, 2012. Businesses with less than 500 but more than 100 employees must start using E-Verify by July 1, 2012, and businesses with less than 99 but more than 11 workers must use the program by July 1, 2013. Businesses with 10 or less employees are exempt.

All employers must look closely at whether they have any employees performing services in Georgia that trigger a license requirement because if so, they may be caught in the cross-hairs of Georgia’s immigration enforcement efforts.

Counting your employees for purposes of compliance deadlines

To determine the number of its employees for E-Verify purposes under this law, a business must count its total number of employees working at least 35 hours a week as of January 1st of the year the E-Verify mandates for that employer kick in. The definition of “employee” in the Georgia law cross-references the Georgia tax code, and as it is currently written, does not specify that an employer need only count employees on a Georgia payroll. The law further contains no language limiting the employer’s required use of E-Verify to new hires within the state of Georgia, leaving the door open for an interpretation of the law with a far-reaching scope outside of the boundaries of Georgia for multi-state employers.

If an employer exclusively employs workers on a Georgia payroll, the analysis is simple and the employer should look to its number of full-time employees paid under its federal employer identification number to determine when the E-Verify requirement applies.

But my employee only works in Georgia – I’m not a Georgia-based business

If an employer has payroll employees in multiple states, including Georgia, the situation is a bit stickier. Such employers should determine, first, whether all these employers are connected to the same federal employer identification number (FEIN). If the employees are distributed among multiple FEINs (for example, in the case of a parent and subsidiary) and the total number on each FEIN is less than 500, the employer’s E-Verify requirements will be deferred in Georgia until at least July 2012.

If the employees are all paid under the same FEIN and number 500 or more, the recommended approach is for an employer to enroll in E-Verify for its Georgia hiring sites on or as soon after January 1st as possible, thus placing the employer in the strongest position to obtain the wide range of business and professional licensure in Georgia for which proof of E-Verify is required.

I’m not prepared to potentially “jump the gun” on an otherwise voluntary program.

A company applying to obtain or renew its Georgia business license or an employee obtaining a professional license in Georgia must present an affidavit attesting employer compliance with the E-Verify requirements of the Georgia immigration law. While Georgia has yet to release rules or provide any clarification on how employees should be counted under this law, the Georgia Department of Law released affidavits for employers to present when applying for licensure: one for claiming less than 11 employees, and thus exemption from the E-Verify requirements, and another for employers with 500 or more employees. The affidavit for employers with more than 500 employers (valid from January 1, 2012 to June 30, 2012), like the immigration law itself, does not specify that the total number of employees is restricted to Georgia. The affidavit also asks for an employer’s E-Verify identification number and the date that number was issued.

Employers not already in E-Verify with 500+ employees and a limited Georgia presence may be justifiably on the fence about whether they want to enroll in E-Verify under the earliest possible deadline. These employers should consider the cost to working out the wrinkles in a license renewal process for a professional who needs a Georgia license and is unable to provide the required compliance affidavit.

For private employers without federal contracts, E-Verify use is limited to new hires. If an employer hires no (or a minimal number of) employees in Georgia in 2012, actual use of the program will be minimal and the burden relatively low compared to the cost if Georgia takes a hard line issuing licenses and later releases rules specifying that employers must consider all US employees for E-Verify compliance and deadlines.

Further, employers have a range of options in using and administering E-Verify within their company and can obtain the E-Verify Identification Number required as a condition to obtaining licensure without triggering E-Verify obligations for any hiring sites outside of Georgia.

Employers can also choose to administer E-Verify use for Georgia hires at a location outside of Georgia, for example, an out-of-state corporate headquarters.

The Georgia E-Verify law exemplifies the challenges that state-specific E-Verify requirements impose on employers, requiring additional compliance obligations for private employers while lacking clarity on practical aspects of the law.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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[Editor’s Note: today’s post is brought to you by guest blogger John Manley, U.S. Immigration Attorney and Co-Liaison to U.S. Customs and Border Protection.]

Several states began requiring various employers to use the E-Verify system as of January 1, 2012.

Here is a list of these states and their E-Verify laws that go into effect in varying stages:

1. Louisiana: Act 376 will apply to private employers who bid on public entity projects or enter into contracts with a public entity on or after Jan. 1, 2012. The law requires that private employers who bid on a public entity project or enter into a contract agreement with a public entity for the physical performance of services, confirm in a sworn affidavit that the company uses the E-Verify® system to validate the legal citizenship or legal alien status for all employees within the United States. If the employer is awarded a contract, he is required to E-Verify all new employees in Louisiana hired through the duration of the contract. The requirement applies to both general contractors and their subcontractors. SOURCE

2. Alabama: Effective January 1, 2012, state contractors must use E-Verify. Effective April 1, 2012, every business entity or employer in this state shall enroll in E-Verify and thereafter, according to the federal statutes and regulations governing E-Verify, shall verify the employment eligibility of the employee through E-Verify. A business entity or employer that uses E-Verify to verify the work authorization of an employee shall not be deemed to have violated this section with respect to the employment of that employee.   SOURCE

3. Tennessee: under the Tennessee Lawful Employment Act of 2011,the employment verification provisions will be phased in as follows [SOURCE]:

• All state and local government agencies must enroll and participate in E-Verify or request and maintain an identity/employment authorization document from a newly hired employee no later than January 1, 2012

• All private employers with 500 or more employees must enroll and participate in E-Verify or request and maintain an identity / employment authorization document from a newly hired employee no later than January 1, 2012

• All private employers with 200 to 499 employees must enroll and participate in E-Verify or request and maintain an identity / employment authorization document from a newly hired employee no later than July 1, 2012

• All private employers with 6 to 199 employees must register and utilize E-Verify or request and maintain an identity / employment authorization document from a newly hired employee no later than July 1, 2013

4. South Carolina: the South Carolina Illegal Immigration and Reform Act requires all employers to enroll in the U.S. Department of Homeland Security’s E-Verify system beginning January 1, 2012 and to verify the legal status of all new employees through E-Verify within three business days. Employers may no longer confirm a new employee’s employment authorization with a driver’s license or state identification card. SOURCE

5. Georgia: The E-Verify Provision in Georgia’s H.B. 87 will require Georgia businesses with 500 employees or more to check their employees using E-Verify. Workers must be U.S. citizens or otherwise authorized to work in the country in order to be hired. The requirement takes place in phases. Starting July 1, businesses of 100 or more must use E-Verify. By January 2013, all businesses with more than 10 employees will be required to use the system. Those with 10 or fewer employees are exempt. SOURCE

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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On December 14, the first step was taken towards bringing manditory E-Verify to a Kentucky employer near you.

Yesterday, Kentucky Representative Stan Lee (R-Lexington, 45th District) announced he is pre-filing E-Verify legislation for the 2012 Legislative session. Read the press release here. If passed, this legislation would require companies doing business in Kentucky to E-Verify all employees working in Kentucky (on projects funded by either public or private funds), to make sure they are authorized to work in the United States. Businesses that fail to comply with this mandate risk the loss of their business licenses and permits.

According to the press release, if the bill passes the Kentucky legislature and is eventually signed into state law companies employing unauthorized workers in Kentucky would have their state, county or city issued license or permit revoked for six months for each offense. Each additional illegal worker identified would be considered a separate charge under this proposal.

Re. Lee’s proposed legislation is similar to Arizona’s Legal Arizona Workers Act, passed in 2007. Recently, a U.S. Supreme Court decision (Chamber of Commerce v. Whiting, 2011 U.S. LEXIS 4018) upheld the Arizona law, stating that a state may require employers to use E-Verify to confirm an employee’s eligibility to work in the United States or face loss of license penalties.

Besides Arizona, the states of Alabama, Tennessee, North Carolina, Utah, South Carolina, Louisiana and Mississippi require public and private employers to use E-verify to confirm a worker’s status, and Georgia, Indiana, Virginia, Florida, Idaho, Missouri, Nebraska, Oklahoma, Minnesota, and Colorado mandate public employers, state agencies and/or state contractors use E-verify.

The bill is pre-filed as BR 53 for the 2012 Regular Session.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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[Editor’s Note: today’s post is brought to you by guest blogger John Manley, U.S. Immigration Attorney and Co-Liaison to U.S. Customs and Border Patrol.]

Taps for E-Verify in CA?

On October 9, 2011, Governor Jerry Brown signed into law A.B. 1236. A.B. 1236 prohibits local governments from making E-Verify mandatory for employers within their borders.

Here is the full text of the bill: A.B. 1236

As part of the bill, the Legislature made a number of interesting findings:

1) A 2007 independent evaluation commissioned by the federal Department of Homeland Security found that the electronic employment verification database was still not sufficiently up to date to meet requirements for accurate verification. This has led to employers being unable to hire employees in a timely manner and kept workers from earning wages.

2) Mandatory use of an electronic employment verification program would increase the costs of doing business in a difficult economic climate. The United States Chamber of Commerce estimates that the net societal cost of all federal contractors using the E-Verify Program would amount to $10 billion a year, federally.

(3) California businesses would face considerable odds in implementing such a program. Employers using the program report that staff must receive additional training that disrupts normal business operations. If E-Verify had been made mandatory for all [California] employers in 2010, it would have cost businesses $2.7 billion, $2.6 billion of which would have been borne by the small businesses, which drive our economy.

Cities such as Temecula, Lancaster, Murrieta, and Lake Elsinore did have existing E-Verify ordinances requiring private employers to use E-Verify. After A.B. 1236, these ordinances are now null and void.

Under A.B. 1236, therefore,except as required by federal law, or as a condition of receiving federal funds, neither the state nor a city, county, city and county, or special district shall require an employer to use an electronic employment verification system, including under the following circumstances:

(a) As a condition of receiving a government contract.

(b) As a condition of applying for or maintaining a business license.

(c) As a penalty for violating licensing or other similar laws.

“Employer” means an employer other than the state, or a city, county, city and county, or special district. Local government entities may still require other government entities to use E-Verify under A.B. 1236, and as required by federal law, or as a condition of receiving federal funds.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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[Editor’s Note: today’s post is brought to you by guest blogger Bruce Buchanan, partner-in-charge of immigration practice, King & Ballow, LLP.]

Tennessee is one of 18 states that have passed legislation or have an executive order implementing E-Verify. However, the Tennessee Lawful Employment Act, which will become effective on January 1, 2012, is unique in that the use of E-Verify is not mandatory. Under the new law, an employer may enroll and use E-Verify for newly-hired employees, or it may accept, copy and maintain a state-issued driver’s license or identification, unexpired U.S. passport, permanent resident card, work authorization, birth certificate, certificate of naturalization, or a few other forms of identification from newly-hired employees.

You will note the documents above are redundant of documentation needed for I-9 verification. The only real difference is the requirement to maintain a copy of the identification document. Under the Immigration Reform and Control Act (IRCA), an employer is not required to maintain a copy of the presented documents from List A or Lists B and C.

A second provision in the law involves a “non-employee” providing labor or services to an employer. A “non-employee” is defined as “any individual, other than an employee, paid directly by the employer in exchange for the individual’s services.” If an employer contracts with an individual/non-employee, it must request and maintain a copy of one of the specified documents, such as state-issued driver’s license or identification. However, a subcontractor, who is not an individual, is not covered by this provision under the definition of non-employee.

An employer violates the law by failing to receive E-Verify confirmation or to request and maintain a copy of one of the specified identification documents. An employer has a “safe harbor” and cannot be found to have violated the law by employing an employee without work authorization if the employer utilized E-Verify and received a confirmation or the employee appealed the tentative non-confirmation and the appeal has not been resolved. This “safe harbor” is not available for employers who copy and maintain an employee’s driver’s license or identification if the employee is found to be working without employment authorization.

The Tennessee Lawful Employment Act will be phased in as follows: Employers with 500 or more employees and governmental entities must comply by January 1, 2012; employers with 200 to 499 employees by July 1, 2012; and employers with six to 199 employees by January 1, 2013. Employers with five or fewer employees are exempt from the law.

Any lawful resident of Tennessee or a federal agency employee may file a complaint with the Tennessee Department of Labor and Workforce Development, which will investigate such complaints. This provision is an extension of the current law which only allows state or local officials to file a complaint alleging an employer’s employment of an unauthorized worker.

The penalties for the new law are: First offense – $500 penalty + $500 per employee or non-employee not verified or copy of documentation maintained; second offense – $1,000 penalty + $1,000 per employee or non-employee not verified or copy of documentation maintained; and third offense – $2,500 penalty + $2,500 per employee or non-employee not verified or copy of documentation maintained

Most states that have passed E-Verify require it for all employers. Why is Tennessee different? In my opinion, two primary factors are the strength and the diversity of the Chamber of Commerce and the level of tourism in Tennessee. The Chamber of Commerce has opposed mandatory E-Verify. Further, Tennessee’s Chamber includes a lot of foreign-based employers, such as Nissan’s North American headquarters in the Nashville area, Volkswagen’s new manufacturing facility near Chattanooga and Wacker Chemie AG in east Tennessee.

The second apparent factor is tourism. Again, Tennessee strives to be a friendly state toward domestic and foreign tourists, and E-Verify can be viewed as unfriendly to an immigrant population. Interestingly, the only other state which just passed non-mandatory E-Verify is Louisiana, a state heavily reliant upon tourism.

After passage of this law in 2011 without mandatory use of E-Verify, the Tea Party supporters in Tennessee felt like the Republicans had abandoned them in favor of the Chamber of Commerce. The Tea Party supporters vowed to seek mandatory E-Verify in 2012. Only time will tell if they will be successful.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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Following the recent U.S. Supreme Court ruling that allows state and local governments to mandate the use of E-Verify and penalize violators, counties in Washington and Utah unanimously passed E-Verify ordinances yesterday.

Cowlitz County, WA now requires current contractors (and any employer vying for a county contract) to use E-Verify to prove that their workers are legal. This E-Verify requirement applies to any contractor employee who will work on the project, no matter how long they’ve been employed.

Commissioner James Misner called the decision a “no brainer,” saying that the federal E-Verify system is more accurate than simply taking a copy of a worker’s Social Security card and filing it with employment paperwork. Nearby counties of Clark and Lewis and the city of Woodland already require E-Verify, and backers of the new ordinance say that without the requirement, illegal immigrants would flock to Cowlitz.

Meanwhile in Utah, county commissioners enacted their own E-Verify ordinance. Beginning in mid-December, all places of business in the unincorporated areas of Washington County will be required to confirm the employment eligibility of new hires through the E-Verify system. While Utah currently has statewide E-Verify requirements (here and here), there are no penalties for non-compliance (other than ineligibility to enter state contracts) and it only applies to businesses with 15 or more employees.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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The growing patchwork of E-Verify laws at the state level continues. Beginning immediately, the state of Minnesota is again requiring E-Verify for its large contractors. After Gov. Mark Dayton dropped the previous E-Verify requirement in April, the mandatory work eligibility check quietly came back as a provision of the state’s final budget deal, approved last month. Please visit the Minnesota Public Radio website to read the full story.

Already in effect, this new law applies only to private businesses providing more than $50,000 worth of services to the state. These companies must enroll in E-Verify and check the work status of new hires.

The E-Verify mandate does not extend to new state employees, which is curious since under the previous E-Verify law state agencies were required to E-Verify all new hires.

In December 2009, the state directed all of its agencies to stop using a Texas I-9 software vendor, Lookout Services, which state officials had hired for the purpose of submitting data to E-Verify. The state notified approximately 500 employees that their personal data, including names, dates of birth and social security numbers, may have been accessible on the Lookout Services’ website [Full article].

The security issue came to light when Minnesota Public Radio was able to access state employee data on the software vendor’s web site without using a password or any encryption software. Allegedly, employee names, birth dates, social security numbers and hire dates were visible on the web site for every state agency using the service as well as a long list of private companies.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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