E-Verify: Frequently Asked Questions
Revised February 4, 2010
What is Basic Pilot/E-Verify?
When and how was it created?
When will E-Verify expire?
How does E-Verify work?
What is the current usage and capacity?
How well does E-Verify work?
How is it enforced?
What is required of federal contractors?
What states currently address the use of E-Verify?
Table: States Requiring E-Verify
Require Use of E-Verify
Encourages the Use of E-Verify
Limits on Use of E-Verify
Preemption Issues and Court Challenges
Sources
What is Basic Pilot/E-Verify
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The E-Verify program was created as a voluntary Internet-based pilot program to help employers verify the work authorization of new hires. It applies to U.S. citizens and noncitizens. Originally known as the Basic Pilot/Employment Eligibility Verification Program, the program was renamed E-Verify in 2007. The program is administered by the U.S. Department of Homeland Security in partnership with the Social Security Administration.
When and how was it created?
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The Basic Pilot program was established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), P.L. 104-208, signed September 30, 1996, citation: 8 U.S.C. 1324a. The program started in California, Florida, Illinois, New York and Texas (1997) with Nebraska joining in 1999. Congress authorized the expansion of the pilot program to employers in all 50 states in 2003.
When will E-Verify expire?
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September 30, 2012. IIRIRA required the termination of the pilot program after four years (allowing for a one-year implementation). It was extended for two years in 2002 and five more years in 2003 (until November 30, 2008). See the Basic Pilot Program Extension and Expansion Act of 2003, Public Law 108-156. Congress passed a continuing resolution extending budgets of certain federal agencies until March 2009, including E-Verify (HR 2638). Congress then passed the Omnibus Appropriations Act of 2009 in March, extending the budget of E-Verify until September of this year (Public Law 111-8). Another three-year extension was approved in the Department of Homeland Security appropriations in October 2009, P.L. 111-83.
All employers must first complete an I-9 form for every new hire, within three business days of the date the employee starts work. The employer and newly-hired employee jointly complete the I-9 Employment Eligibility Verification form. The form asks for employee’s name and date of birth; social security number; citizenship status; an A number or I-94 number if applicable; documentation to establish work authorization; and proof of identity and expiration date, if applicable. Employees may choose from several documents to prove identity and authorization to work, such as a U.S. passport or unexpired employment authorization card, or a combination of a driver’s license and social security card. Documents must appear genuine. http://www.uscis.gov/files/nativedocuments/m-274.pdf
An employer then enters information from the I-9 form into the E-Verify system, where it is compared against 444 million records in the Social Security Administration (SSA) database and 60 million records in the Department of Homeland Security’s (DHS) immigration databases. Most inquiries are resolved within 72 hours. Some inquiries can’t be confirmed instantly by DHS (“tentative nonconfirmation notices”) due to changes in citizenship status, name changes (e.g., marriage/divorce), or typographical errors.
To resolve a nonconfirmation notice, the employee must visit an SSA office or call DHS toll-free. The employee has eight federal workdays to start resolving the case. About one-half of those who receive a nonconfirmation notice contest the notice. Of these, about half of the employees will follow up.
What is the current usage and capacity?
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The U.S. Citizenship and Immigration Services (USCIS) reports that as of January 16, 2010 more than 182,000 employers have registered with the program, with 8.7 million inquiries in FY2009. In FY 2008, there were 6.6 million queries, and 3.27 million in FY2007. There are an estimated 7 million employers in the United States and 60 million new hires per year. The 2007 Westat evaluation estimated that 4 percent of newly hired workers are verified using the system.
How well does E-Verify work?
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The 2007 Westat evaluation conducted for DHS found that the accuracy of the USCIS database has improved substantially. However, the error percentage was still too high for it to become a mandated program. The report finds that “the database used for verification is still not sufficiently up to date to meet the IIRIRA requirement for accurate verification.” SSA estimated that 4.1 percent, or 17.8 million records, contained discrepancies related to name, date of birth or citizenship status; 12.7 million of these pertained to U.S. citizens.
Westat reports that for the July-September 2008 quarter, 96.9 percent of employees attesting to be U.S. citizens were automatically confirmed as authorized to work instantly or within 24 hours (up from 96.1 percent in the previous quarter). Westat’s 2007 study noted significantly different rates between citizen and noncitizen cases. Only 72 percent of lawful permanent residents and 63 percent of immigrants authorized to work were confirmed automatically.
The Immigration Reform and Control Act of 1986 established a prohibition on employers from hiring unauthorized workers and established criminal and civil sanctions. Citation: 8 USC 1324a(h)(2). USCIS is responsible for verification of documents and Immigration and Customs Enforcement (ICE) is responsible for enforcement. Both USCIS and ICE are part of DHS. To participate in E-Verify, employers sign a Memorandum of Understanding that sets out responsibilities for USCIS, SSA and the employer.
The law also created civil rights protections against unfair immigration-related employment practices. The Office of Special Counsel in the U.S. Department of Justice is the law enforcement agency charged with enforcement against discrimination on the basis of citizenship, immigration status or national origin discrimination. See section 274(b) INA. http://www.justice.gov/crt/osc/htm/article.htm
What is required of federal contractors?
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As of September 8, 2009, federal contractors or subcontractors are required to use E-verify to determine employment eligibility of employees performing direct work on the contract and new hires. It applies to federal contracts that contain the Federal Acquisition Regulation E-Verify Clause. It exempts contracts of less than 120 days and valued at less than $100,000 and subcontracts valued at less than $3,000.
Background: President Bush amended Executive Order 12989 on June 6, 2008, requiring all federal contractors to verify the employment eligibility of all persons hired during the contract term and all persons performing work within the United States on the federal contract by using the employment eligibility verification system (E-Verify). It was scheduled to go into effect on January 15, 2009, but implementation was delayed subsequent to a lawsuit. The lawsuit filed by multiple parties, including the U.S. Chamber of Commerce, challenged the use of the Executive Order on the grounds that it circumvented the Congressional prohibition in mandating the use of E-Verify for federal contracts through IIRIRA.
What states currently address the use of E-Verify?
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Thirteen states require the use of E-Verify for public and/or private employers, ten through legislation and three through executive orders. One state, Illinois, enacted legislation to limit the use of E-Verify until the database accuracy is improved and also created privacy and antidiscrimination protections. At least two states, Pennsylvania and Tennessee, encourage its use through providing a safe harbor from state penalties for employers enrolled in E-Verify.
Table: States Requiring E-Verify
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State
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Citation
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Year
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Applies to:
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1
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Arizona
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HB 2779
HB 2745
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2007
2008
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all employers, public and private
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2
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Colorado
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HB 1343
SB139, SB193
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2006
2008
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state contractors
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3
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Georgia
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SB 529
HB 2
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2006
2009
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state agencies, contractors, and subcontractors
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4
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Idaho
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Executive Order
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2006
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state agencies, contractors
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5
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Minnesota
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Executive Order
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2008
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state agencies, state contracts
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6
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Mississippi
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SB 2988
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2008
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all employers, public and private
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7
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Missouri
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HB 1549
HB3
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2008
2009
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public employers, contractors and subcontractors
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| 8 |
Nebraska |
L403 |
2009 |
Public employers, public contractors
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9
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North Carolina
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SB 1523
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2006
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state agencies
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10
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Oklahoma
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HB 1804
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2007
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public employers, contractors, subcontractors
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11
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Rhode Island
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Executive Order
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2008
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state agencies, grantees, contractors, subcontractors
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12
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South Carolina
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HB 4400
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2008
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all employers, public and private, phased in by 2010
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13
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Utah
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SB 81
SB 39
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2008
2009
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public employers, contractors, subcontractors
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Require Use of E-Verify (13 states)
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Arizona. The Arizona Fair and Legal Employment Act (HB 2779), enacted in 2007, prohibits employers from knowingly hiring unauthorized workers and requires all employers to use the Basic Pilot Program to verify employment eligibility. It establishes substantial penalties and threatens noncompliant employers with suspension and potential revocation of their business licenses. Effective date Jan. 1, 2008. Arizona HB 2745, enacted in 2008, prohibits government contracts to any contractor and subcontractor that fails to use E-Verify. It provides that companies can be punished only for unauthorized workers they hired after January 1, 2008 and that a violation at one location of a company shuts down only that location, not the entire corporation. The Arizona Attorney General is required to establish a Voluntary Employer Enhanced Compliance Program. Effective May 1, 2008.
Colorado. HB 1343 (signed 6/6/2006) prohibits state agencies from entering into contract agreements with contractors who knowingly employ illegal immigrants and requires prospective contractors to verify legal work status of all employees. The contractor must confirm that the Basic Pilot Program has been used to verify the status of all employees. If the contractor discovers that an illegal alien is employed, the contractor must alert the state agency within 3 days. Colorado SB 139 (Signed 5/20/2008) requires that employers be notified of the prohibition against hiring an unauthorized alien and the availability of and participation requirements for the federal E-Verify program. The Act requires the Department of Labor and Employment’s website to provide this information. Effective August 6, 2008. Colorado SB 193 (Signed 5/13/2008) creates a program to allow a contractor to verify employment eligibility of all employees under a public contract and requires future participation in the Federal Electronic Employment Eligibility Program or the department program to verify the employment eligibility of certain employees. Effective August 6, 2008.
Georgia. The Georgia Security and Immigration Compliance Act, SB 529, covered employment, enforcement, and benefits and was signed by the Governor on April 17, 2006. The bill requires public employers, contractors and subcontractors with 500 or more employees to participate in E-Verify for all new employees beginning July 1, 2007. The law is phased in for public employers, contractors and subcontractors with 100 or more employees effective July 1, 2008; and for all employers by July 1, 2009. Georgia HB 2 (signed 5/11/2009) requires every public employer, (including municipalities and counties), contractors and subcontractors to verify employment eligibility of all newly-hired employees with the federal work authorization program, effective January 1, 2010. No employer or agency or political subdivision shall be subject to lawsuit or liability arising from any act to comply with these requirements.
Idaho Executive Order. On December 13, 2006, Governor Jim Risch issued an executive order requiring that state agencies participate in the E-Verify system. Also, all workers employed to the state through contractors must also be from companies that have been verified to have eligible employees.
Minnesota Executive Order. Governor Tim Pawlenty issued an executive order on Jan. 7, 2008, stating that all hiring authorities within the executive branch of state government as well as any employer seeking to enter into a state contract worth in excess of $50,000 must participate in the E-Verify program. The Executive Order’s effective date is January 29, 2008.
Mississippi. SB2988 (signed 3/17/08) requires public and private employers to participate in E-Verify. The phase-in period is: all government agencies and businesses with more than 250 employees by July 1, 2008; companies with 100 to 250 employees by July 1, 2009; those with 30 to 100 employees by July 1, 2010; and all remaining companies by July 1, 2011. An employer violating the law is subject to the cancellation of public contracts, ineligibility for contracts for up to three years, and loss of business license for up to one year. The law also makes it a felony to accept or perform employment knowing or in reckless disregard of the immigrant’s ineligibility to work, with penalties from one to five years of imprisonment and/or $1,000 to $10,000 in fines.
Missouri. HB1549 (Signed 7/7/2008) requires E-Verify for public employers. All public employers must enroll and participate in a federal work authorization program. Any public contractor or subcontractor must, by sworn affidavit, affirm its enrollment and participation in a federal work authorization program. If a court finds that a business knowingly employed someone not authorized to work, the company’s business permit and licenses shall be suspended for 14 days. Upon the first violation, the state may terminate contracts and bar the company from doing business with the state for 3 years. Upon the second violation, the state may permanently debar the company from doing business with the state. H390 (signed July 7, 2009) specifies that the requirement for certain businesses to participate in a federal work authorization program will not apply after the federal government discontinues or fails to authorize or implement the program. Public contractors are required to provide affidavits of participation in the federal work authorization program annually. Onsite employees of a contractor or subcontractor on a public works project must complete a 10-hour Occupational Safety and Health Administration construction safety program or similar program.
Nebraska (L403 signed April 8, 2009)requires every public employer and every public contractor to use a federal immigration verification system.
North Carolina. All state agencies, offices, and universities must use E-Verify, required by SB 1523 in 2006. This applies to employees hired on or after January 1, 2007, except for employees of local education agencies hired on or after March 1, 2007.
Oklahoma. The Oklahoma Taxpayer and Citizen Protection Act of 2007 (HB 1804) addressed multiple issues: transporting and harboring, driver’s licenses, public benefits, law enforcement and employment. It made it a felony to transport or harbor unauthorized immigrants, with exceptions for health or benefits guaranteed by federal law. It requires public employers, contractors and subcontractors to participate in a federal electronic employment verification system and requires income tax withholding for independent contractors who do not have valid Social Security numbers. The law became effective Nov. 1, 2007.
Rhode Island Executive Order. On March 27, 2008,Governor Carcieri issued an executive order requiring executive agencies to use E-Verify; and for all persons and businesses, including grantees, contractors and their subcontractors and vendors to use E-Verify.
South Carolina. HB 4400 (Signed 6/4/2008) requires public employers and public contractors to register and participate in the federal work authorization program E-Verify to verify all new employees. All public employers, private employers with more than 100 employees and public contractors with more than 500 employees must comply with the law’s provisions on or after January 1, 2009; contractors with more than 100 employees on July 1, 2009; and all other contractors on January 1, 2010. The penalty for knowingly hiring unauthorized immigrants is a felony and punishable with up to five years in prison. The law provides for a private cause of action for an authorized employee, if he or she is discharged and replaced with an unauthorized employee.
Utah. SB 81 (signed 3/13/08) requires public employers, public contractors and subcontractors to register and use the federal work authorization program. It is unlawful to discharge a lawful employee while retaining an unauthorized alien in the same job category. Effective July 1, 2009. SB 39 (signed 3/23/2009) redefines a contract to mean an agreement for the procurement of goods or services that is awarded through a request for proposals process with a public employer, and includes a sole source contract.
Encourages the Use of E-Verify (2)
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Pennsylvania. HB 2319 (signed 5/11/2006) prohibits the use of illegal immigrant labor on projects and provides an affirmative defense if the contractor certifies compliance with Section 274A of the Immigration Reform and Control Act of 1986.
Tennessee. HB 729, signed into law on June 26, 2007 and effective January 1, 2008 states that employers who "knowingly employ, recruit or refer for a fee for employment an illegal alien" are subject to a temporary suspension of their business license; repeat offenders are subject to a one-year suspension. Employers who comply with the requirements of the current I-9 process or who verify new hires through the E-Verify within 14 days of employment are shielded from sanctions.
Limits on Use of E-Verify (1)
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Illinois. Illinois enacted HB 1744, which bars Illinois companies from enrolling in any Employment Eligibility Verification System until accuracy and timeliness issues are resolved. Illinois also enacted HB 1743, which creates privacy and antidiscrimination protections for workers if employers participating in E-Verify don’t follow the program’s procedures. On August 24, 2009, Illinois enacted S1133 amending the Right to Privacy in the Workplace Act and urges employers, before enrolling in E-Verify, to consult the State Department of Labor's website for current information on the accuracy of E-Verify and to review and understand an employer's legal responsibilities relating to the use of the voluntary program. It prohibits the state or localities from requiring employers to use an employment eligibility verification system.
Note: The California legislature passed CA A 1288 in 2009 that would have prohibited states, localities or special districts from requiring employers to use E-verify except when required by federal law or as a condition of receiving federal funds. The law was vetoed by the Governor on October 11, 2009.
Preemtion Issues and Court Challenges
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The Immigration Reform and Control Act of 1986 (IRCA) preempts any state or local law from imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. Citation: 8 U.S.C. 1324a(h)
Arizona’s 2007 law (HB 2779) was challenged as unconstitutional by plaintiffs representing the business and immigrant communities. Plaintiffs allege that the 1986 Immigration and Control Act expressly preempts the state because the Act was not a “licensing or similar law” within the meaning of IRCA; it is impliedly preempted because its sanctions provisions and e-verify requirements conflict with federal law; and the Act violated employers’ due process rights. In September, 2008, the 9th Circuit Court of Appeals upheld the Arizona law, determining that the law was a licensing law. Plaintiffs are seeking review by the U.S. Supreme Court.
Oklahoma. The employment provisions of the 2007 law (HB1804) are being challenged by the U.S. Chamber of Commerce and Oklahoma business associations for interfering with federal law, alleging that Sections 7(B), 7(C) and 9 of the Oklahoma act were expressly and impliedly preempted by federal law and unconstitutional under the Supremacy Clause. See U.S. Const. art. VI, cl. 2; 8 U.S.C. § 1324a(h)(2). Section 7B would require businesses to use E-Verify. Section 7C makes it a discriminatory practice for an employer to fire a worker while retaining an employee that the employee knows or reasonably should know is unauthorized to work. Section 9 would require contractors to verify employees or withhold taxes from them. In June, 2008, the Federal District Court for the Western District of Oklahoma postponed enforcement of these sections of the law, including the E-Verify mandate. On February 3, 2010, the 10th Circuit federal appeals court upheld the injunction, finding that federal law preempted Sections 7C and 9, but were split on Section 7B relating to the E-Verify mandate.
Illinois. The provision of HB1744 limiting use of e-verify was challenged by the U.S. Department of Homeland Security on the grounds that it conflicts with federal law and is preempted by the Supremacy Clause of the U.S. Constitution. Enforcement of this provision, scheduled to begin in 2008, has been delayed until the lawsuit is decided.
Sources:
U.S. Citizenship and Immigration Services www.uscis.gov/e-verify
Westat, “Findings of the Web Basic Pilot Evaluation” September 2007 http://www.uscis.gov/files/article/WebBasicPilotRprtSept2007.pdf
Prepared by:
Ann Morse, Program Director
Immigrant Policy Project
National Conference of State Legislatures
202-624-5400
Contributors:
Dirk Hegen
Lee De Cleene
Jonathan Jakubowski
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