Immigrant Policy Project

E-Verify: Frequently Asked Questions

May 5, 2008

What is Basic Pilot/E-Verify?

The Basic Pilot program is a voluntary Internet-based pilot program to help employers verify the work authorization of new hires. It applies to U.S. citizens and to noncitizens. Originally known as the Basic Pilot/Employment Eligibility Verification Program, the program was re-branded as E-Verify in August, 2007.

When and how was it created?

The Basic Pilot program was established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), 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 to employers in all 50 states in 2003.

When will E-Verify expire?

November 30, 2008. IIRIRA required the termination of the pilot program after 4 years (allowing for a one-year implementation). It was extended for two years in 2002 and five more years in 2003. (See the Basic Pilot Program Extension and Expansion Act of 2003, Public Law 108-156.)

How does E-Verify work?

All employers must first complete an I-9 form for every new hire, within 3 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 425 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.

According to the U.S. Citizenship and Immigration Services (USCIS), 92% of verification inquiries are “instantly” verified. SSA tentative nonconfirmation notices (information mismatch) account for 7% and DHS verification “in process” accounts for 1%.

To resolve a nonconfirmation notice, the employee must visit an SSA office or call DHS toll-free. The employee has 8 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?

DHS reports that as of February 2, 2008 there were 50,906 employers registered with the program.

In FY 2007, there were 3.6 million queries, up from 1.7 million in FY2006. Current capacity is 30 million queries per year. 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?

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. On average, 96 percent of employees attesting to be U.S. citizens were automatically confirmed as authorized to work; compared to 72 percent of lawful permanent residents and 63 percent of immigrants authorized to work.

How is it enforced?

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 an 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 states currently address the use of E-Verify?

Ten states require the use of E-Verify for public and/or private employers, seven 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 one state, Tennessee, encourages its use through providing a safe harbor from state penalties for employers enrolled in E-Verify.

State

Citation

Applies to:

1
Arizona

HB 2779, 2007

all employers, public and private

2
Colorado

HB 1343, 2006

state contractors

3
Georgia

SB 529, 2006

state agencies, contractors, and subcontractors

4
Idaho

Executive Order, 2006

state agencies, contractors

5
Minnesota

Executive Order, 2008

state agencies, state contracts

6
Mississippi

SB 2988, March 2008

all employers, public and private

7
North Carolina

SB 1523, 2006

state agencies

8
Oklahoma

HB 1804, 2007

public employers, contractors, subcontractors

9
Rhode Island

Executive Order, 2008

state agencies, grantees, contractors, subcontractors

10
Utah

SB 81, March 2008

public employers, contractors, subcontractors

Require Use of E-Verify (10)

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.

Colorado

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.

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.

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

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.

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.

Utah

SB 81 was signed into law 3/13/08. The law address multiple issues, including driver’s licenses, law enforcement, harboring and transporting, public benefits and employment. It requires public employers to register and use the Basic Pilot program for new employees; state contractors must use Basic Pilot effective July 1, 2009. The law makes it a Class A misdemeanor to conceal, harbor, transport or shelter undocumented immigrants, though church, charitable and humanitarian assistance groups are exempted.

Encourages the Use of E-Verify (1)

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)

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.

Preemption Issues and Court Challenges

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 law is being challenged as unconstitutional by plaintiffs representing the business and immigrant communities.

Oklahoma’s law is being challenged by the U.S. Chamber of Commerce and Oklahoma business associations for interfering with federal law.

Illinois. One provision of the Illinois law (HB1744) 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 Jan. 1, 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

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Prepared by Ann Morse with contributions from Dirk Hegen and Lee De Cleene

NCSL’s Immigrant Policy Project

Last Updated May19, 2008