E-Verify is a system run by the United States Citizen and Immigration Services (USCIS), which provides employers with information on the eligibility of their employees to work in the United States. This is done by comparing information from the employee’s Form I-9, Employment Eligibility Verification, to data from the Department of Homeland Security and Social Security Administration. While some state legislatures are enacting provisions requiring both private and public employers to use the E-Verify system, the trend has been anything but consistent.  Recent developments regarding E-Verify in both the state and federal arena ensure the E-Verify will continue to be a hot topic for employers, lawmakers, and the courts.

Status of E-Verify in States

States have differed significantly in imposing E-Verify requirements. Some require use of the program only for public employers, while others have advocated for the E-Verify obligations to apply to private employers as well.  In Minnesota, due to Governor Mark Dayton’s decision not to extend former Governor Pawlenty’s executive order, public employers and contractors are no longer required to use E-Verify in Minnesota when entering into state contracts. The previous order, which required all hiring authorities in the executive branch as well as employer’s seeking to enter into state contracts worth more than $50,000 to participate in the E-verify program, expired on April 4th, 2011. Other states have followed Minnesota in ending the use of the E-Verify program. Earlier this year, Rhode Island’s newest Governor issued his own executive order rescinding a previous order mandating the use of E-Verify. Under the new order, no employer in the state of Rhode Island will be required to use E-Verify.

On the other hand, some states, like South Carolina, will require all employers to use the federal E-Verify program. According to legislation signed into law on June 27, 2011, beginning on January 1, 2012, South Carolina employers may no longer confirm new worker’s employment authorization with a driver’s license or a state identification card.

Status of E-Verify on the Federal Level

According to the “E-Verify federal contractor rule” (commonly known as the “FAR rule” due to its implementation as a Federal Acquisition Regulation by the Civilian Agency Acquisition Council and Defense Acquisition Regulations Council), many federal contractors are required to use E-Verify to determine their employees’ eligibility to work in the United States. The rule was initially established by former President Bush’s Executive Order 12989, and was effective as of September 8, 2009. The details of the rule vary in regards to subcontractors and independent contractors, but most federal contracts now contain an “E-Verify clause” which confirms the requirement to verify.

On the national level, E-Verify recently expanded its information source to include driver’s license records, which, according to the USCIS, will strengthen the integrity of the E-Verify program. In a more personal capacity, the system is now also available for individuals to check their own employment eligibility (“Self-Check”). USCIS is releasing E-Verify “Self-Check” in phases, with the first phase beginning on March 21, 2011, and is only accessible to users who maintain an address and are physically located in Arizona, Idaho, Colorado, Mississippi, Virginia or the District of Columbia.  

There has also been federal legislation introduced that may force all employers nationwide to verify eligibility of employers through the electronic system.  On June 14, 2011, Lamar Smith, R-Texas, introduced in the House the “Legal Workforce Act of 2011” (H.R. 2164). This bill would make E-Verify mandatory for all U.S. workers. With the courts, Congress, and state governments involved in the E-Verify debate, the issues surrounding unauthorized employment and E-Verify will not abate anytime soon.  Larkin Hoffman will keep you informed as new developments in E-Verify arise.

With the courts, Congress, and state governments involved in the E-Verify debate, the issues surrounding unauthorized employment and E-Verify will not abate anytime soon.