E-Verify — Am I Required to Use It?

03 June 2013 Labor & Employment Law Perspectives Blog

According to the U.S. Citizenship and Immigration Services (USCIS) Web site, “U.S. law requires companies to employ only individuals who may legally work in the United States — either U.S. citizens, or foreign citizens who have the necessary authorization. This diverse workforce contributes greatly to the vibrancy and strength of our economy, but that same strength also attracts unauthorized employment. E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. E-Verify is fast, free, and easy to use – and it’s the best way employers can ensure a legal workforce.” Notwithstanding the USCIS’s assertions, many employers want to know — “Do I have to use it?”

For the most part, the answer is “No.” E-Verify is primarily a voluntary program. However, there are a number of companies that may be required to use E-Verify. For example, some federal contractors are required to use E-Verify. This is not a function of law, but of contract: The contract that the company enters into with the government or the governmental agency may have a Federal Acquisition Regulation (FAR) clause that specifically requires the contractor to enroll in and use E-Verify for the life of the contract. This is FAR 52.222-54 and, as a result of an amendment to Executive Order 12989 issued by President Bush in June 2008, certain new federal contracts are required to include this clause.

In addition, some states have specific laws that require employers in the state to use E-Verify. This is currently the case in Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina, and Utah (for employers with 15 or more employees). Louisiana and Tennessee require E-Verify unless an additional, alternate verification step is completed as outlined under state law. Other states have the E-Verify requirement limited to contractors or public employers. However, the list of states seems to be growing, and there is legislation afoot in both the U.S. Senate and the House of Representatives that may mandate E-Verify for all employers (depending on size).

For example, H.R. 1773, introduced in the House on April 26, 2013, would require E-Verify be used on a phased-in basis for all employers depending on size. For example, large employers (10,000 employees or more) within six months of passage, and employers with as few as 20 – 500 employees within 18 months after the law takes effect. A different Senate bill would require a four-year phase-in for mandatory E-Verify use.

Immigration reform is definitely a “hot” topic, and employers can likely expect some form of mandatory E-Verify use in the not too distant future. For now however, unless a company is a federal contractor with FAR 52.222-54, or an employer in the states identified above, it is not presently required to use E-Verify.

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