Basics of E-Verify *

Following our discussion last week on basic immigration issues for employers here, this week we turn to a more detailed discussion on the federal E-Verify Program. The E-Verify Program is an internet-based program operated by the U.S. Citizenship and Immigration Services (USCIS) in collaboration with the Social Security Administration (SSA) that allows participating employers to electronically verify employment eligibility of newly-hired employees. Except for federal contractors and vendors, the E-Verify Program is a voluntary program available to employers at no cost. Notwithstanding the fact that E-Verify is not generally mandatory for all employers (except in some states or for certain employers), there continues to be support for the continuation and expansion of the E-Verify Program throughout the country.

All employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause are required to use E-Verify to determine the employment eligibility of employees performing direct, substantial work under those federal contracts and new hires organization-wide, without regard to whether they were working on a federal contract. A federal contractor or subcontractor who has a contract containing the FAR E-Verify clause also has the option to verify the company's entire workforce. For additional information related to the most up-to-date regulations applicable to the use of the E-Verify for federal contractors, you can go to the USCIS website here.

Similar to some other states, Illinois has its own set of rules regarding the use of the federal E-Verify system by an amendment to the Illinois Right to Privacy in the Workplace Act. Prior to 2010, all Illinois employers were restricted from using the E-Verify system. However, effective 2010, Illinois employers are now allowed to voluntarily enroll in the E-Verify system. The law requires that E-Verify enrollees, including current E-Verify users, must attest, under perjury, to the Illinois Department of Labor that: (1) the company has received the E-Verify training materials from the Department of Homeland Security and all employees who have administered or are using the program have completed a computer-based tutorial (CBT) training provided by the E-Verify Program; (2) the company has posted the E-Verify program's antidiscrimination notice issued by the Department of Homeland Security, which must be posted in a conspicuous place to all current employees and prospective employees; and (3) the company must keep signed original attestation forms, as well as the computer-based tutorial trainings certificates on file for inspection and copying by the Illinois Department of Labor.

Among other things, the law also prohibits employers that enroll in E-Verify from: (1) failing to display the appropriate notices; (2) allowing an employer to use the E-Verify system prior to receiving the CBT training; (3) using the E-Verify program as a pre-screening mechanism for prospective employees; (4) terminating an employee prior to that employee receiving a final non-confirmation notice from the SSA and DHS; and (5) failing to notify the employee, in writing, of the employer's receipt of a tentative non-confirmation notice and of the employee's right to contest that tentative non-confirmation letter. These are all prohibitions that are already prohibited by the federal E-Verify laws and regulations. Keep in mind also that, at least in Illinois, a company's voluntary enrollment in E-Verify does not replace the required Form I-9 procedures mentioned earlier. Therefore, it technically adds more steps (and, therefore, more chance of error) for Illinois employers.

A participating employer's failure to follow the E-Verify Program's procedures creates a cause of action for employees and prospective employees to file a charge of discrimination against the employer. And, if a court finds that a violation is willful and knowing, the court may award the employee or applicant damages plus costs, reasonable attorneys' fees and actual damages. In order to determine whether you are governed by the E-Verify Program, or if you would like to voluntarily participate in the E-Verify Program, you should contact your legal counsel before doing so to ensure that the company complies with the many guidelines and regulations related to the Program.

Next week, we will continue our discussion on immigration-related issues for employers by discussing how to handle immigration related I-9 and other audits. ?

* This is one of a series of weekly articles containing helpful tips and “best practices” for employers to keep in mind when managing their workforce.? These articles are partially adapted from my book, Employment Law Toolkit for Employers.? If you would like a copy of my book, please reach out to me at 312-876-6676 or [email protected]. Nothing contained in this article shall be construed as legal advice and this article does not create an attorney-client relationship between Saul Ewing LLP and any reader.?