Employers often debate whether to use E-Verify—a free, mostly voluntary Web-based tool that allows them to verify the employment authorization of new hires. Just as Apple created a technological solution to the legal problem of rampant online music sharing by developing iTunes, E-Verify is often seen as a silver bullet to combat widespread document fraud enabling the employment of undocumented workers. But should employers use it?

E-Verify safe harbor

The U.S. Department of Homeland Security (DHS) has asserted that good-faith participation in E-Verify will protect employers from civil and criminal penalties relating to the hiring of undocumented workers. The agency also has claimed using E-Verify establishes a rebuttable presumption that an employer hasn’t knowingly employed an unauthorized, screened worker. But that rebuttable presumption may similarly be achieved through the proper completion of a Form I-9.

Using E-Verify: the nuts and bolts

To participate in E-Verify, an employer must sign a memorandum of understanding (MOU). Under the MOU’s terms, you must verify all new hires within the enrolled hiring site. E-Verify cannot be used on prospective employees, employees who need to be reverified, or existing employees.

Employers that participate in E-Verify must still complete the Form I-9 and accept only certain enumerated documents containing a photograph. You must submit the employee’s information to E-Verify within three days of the hire date. The submission may be done only online; there are no phone or fax alternatives. You may also choose to authorize a third party to process your employees through E-Verify.

Once the new hire’s information has been electronically submitted, most employers receive verification within seconds. Although U.S. Citizenship and Immigration Services (USCIS) administers E-Verify, both Social Security Administration (SSA) and DHS databases may be used in processing queries.

If the new hire is a citizen, her name and Social Security Number (SSN) will be submitted to the SSA and checked against more than 449 million SSA records. If she is a noncitizen, her name, SSN, and other information will be submitted to DHS and checked against 80 million DHS records. If neither the SSA nor DHS can confirm work authorization within 24 hours, you will receive a tentative nonconfirmation (TNC) notice.

During the TNC period, you may not terminate the employee’s employment and should check the accuracy of the information for misspellings. If an employee doesn’t contest or resolve a TNC finding within eight workdays, E-Verify will issue a final nonconfirmation notice, and you must either immediately terminate the employee or notify DHS that you will continue to employ her.

If you contest the TNC, advise the employee either to visit the local SSA office or call DHS. She then has 10 days to resolve the issue with the local agency; otherwise, a final nonconfirmation notice will be issued. If you continue to employ her after a final nonconfirmation, a rebuttable presumption will be created that you have knowingly employed an unauthorized foreign national.

E-Verify’s timeliness and accuracy

Of all the queries submitted to E-Verify, more than 90 percent have historically been handled by the SSA, and fewer than 10 percent have been passed along to DHS, which is responsible for verification for noncitizens. Accuracy has improved over time, and the vast majority of all submissions are currently automatically verified. Only a tiny percentage are initial TNCs that later result in work authorizations.

Secondary verifications are performed by USCIS employees, who manually verify employment authorization. The majority of secondary verifications by the agency are typically resolved within 24 hours, but some queries may take up to two weeks. Studies have suggested E-Verify may face growing pains as more employers register, particularly in light of secondary verification.

DHS has made efforts to reduce the time it takes for immigration status changes to be reflected in E-Verify’s system. Previously, data on new immigrants were often unavailable for six to nine months. Now, information is typically available for verification within 10 to 12 days of a new immigrant’s arrival in the United States.

Weaknesses in E-Verify

Former USCIS director Emilio Gonzalez has conceded “the E-Verify system is not fraud-proof and was not designed to detect identity fraud.” It cannot detect when workers are using another person’s name and SSN. As long as an unauthorized worker presents documents containing valid information, it will verify her as authorized to work.

Despite the additional effort required for E-Verify, participation will not immunize employers from I-9 compliance audits, nor will it preclude the possibility of immigration raids. And employers concerned about EVerify data being used to target them for I-9 audits may have reason to worry.

U.S. Immigration and Customs Enforcement (ICE) and USCIS have long been parties to an information-sharing agreement. Under the agreement, USCIS’s verification division will notify ICE’s worksite enforcement unit of incidences or patterns of “misuse, abuse, or fraudulent [E-Verify] use, the employment of unauthorized aliens, and the failure to use E-Verify [on all new hires] as required under the E-Verify MOU.”

E-Verify is particularly interested in monitoring employers with a high incidence of uncontested TNCs—often an indication they’re using the system for prescreening.

Conclusion

There unfortunately remains a lack of clarity about the depth and frequency of information sharing between ICE and USCIS. Employers interested in E-Verify’s convenience, speed, and reassurance should thus be aware of potential liability arising from information sharing and consult with experienced counsel in deciding whether using the system is appropriate for their circumstances.