E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. U.S. Citizenship and Immigration Services (USCIS) administers the program. In considering whether an employer participate in the E-Verify program, there are numerous factors that employers should consider before deciding whether or not to participate in this voluntary federal program.

The Pros

The E-Verify program has some notable benefits for an employer. Once an employer registers with the program and signs a Memorandum of Understanding with DHS, the employer then has the ability to electronically verify the name and employment eligibility of newly hired employees. An employer will receive electronic confirmation of the worker's employment eligibility, thereby significantly reducing the likelihood of receiving a "nomatch" letter from the Social Security Administration (SSA) or DHS. Furthermore, while the program is currently voluntary, several states have contemplated making participating mandatory, in a stated effort to curb unauthorized employment. Perhaps most importantly, an employer who participates in the E-Verify program and only retains workers who DHS "confirms" are authorized is entitled to a presumption that it has not knowingly hired unauthorized workers, an offense that carries potential civil and/or criminal penalties.

The Cons

The program also places some significant burdens on the employer. Pursuant to the terms of the Memorandum of Understanding, an employer is limited to accepting for I-9 purposes only those identity documents that include a photograph. Also, if the E-Verify system indicates a final nonconfirmation (a "no match") and the employer continues to employ the worker, there is a reputable presumption that the employer has knowingly employed an unauthorized worker. This fact is particularly concerning in light of the Inspector General to the SSA's December 2006 report which found that 17.8 million discrepancies in the SSA database, with a large number of those errors involving authorized workers. Finally, an employer who participates in E-Verify is obligated to permit the SSA and/or DHS to make "periodic visits" to the employer to review E-Verify related documents, including I-9s.

The Danger of Fraud: The Employer's Continuing Duty to Inspect the Documents Presented

While the E-Verify system may provide an employer with a "match" or "no match" with respect to an employee's name and work authorization, participation in the program does not relieve an employer of its duty to review the documents presented by the new employee and determine (1) if each document appears reasonably genuine on its face and (2) relates to the person presenting it. A growing trend with unauthorized workers is to present a valid social security card and identity document, but the documents do not belong to the worker presenting them. The E-Verify system will likely show a "match," confirming work authorization when in fact the new hire could be an unauthorized worker fraudulent presenting himself or herself as work authorized. Therefore, regardless of participation in the E-Verify program, the employer must remain vigilant to ensure compliance with the laws and inspect the documents presented.

Conclusion

While there is no clear "right" answer, it is important the employers weight these pros and cons in making a determination regarding participation in the E-Verify program and continue to comply with the legal obligation to review the documents presented by the new employee for sufficiency as part of the employment eligibility verification process.