Starting January 1, 2012, Georgia employers with 500 or more employees must enroll and use E-Verify, the online federal work authorization program that determines the immigration status of new hires. The mandate will trickle down to companies with between 100 and 499 employees on July 1, 2012, and companies with 10 to 99 employees must begin using E-Verify by July 1, 2013.
For the purposes of the Georgia law compelling the use of E-Verify, the number of employees is measured on January 1 of each year. E-Verify does not eliminate, but is in addition to the requirement that an employer complete the federal Form I-9 for each newly hired employee.
The E-Verify process
The United States Citizenship and Immigration Service (“USCIS”) implemented the E-Verify System to help ensure that employees (both private and public) are legally authorized to work in the United States. Several states, including Arizona, Arkansas, Mississippi, Colorado, Oklahoma, Rhode Island, and now Georgia, require (to some extent) that private employers use the system. Other states “encourage” employers to use E-Verify, and more than dozen states are considering legislation that will affect E-Verify usage. Some federal laws also obligate certain companies to enroll in and use the system
To use E-Verify, employers must register online with the Department of Homeland Security (“DHS”) and the USCIS (http://goo.gl/jsr8). The registration process requires the employer to enter into a contract, called a Memorandum of Understanding or “MOU,” with the federal government by which the employer commits to use E-Verify for all newly-hired folks.
Once enrolled, employers must submit every new hire’s work authorization information to E-Verify within three days of the hire date. The system electronically cross-checks the information against Social Security Administration (“SSA”) and DHS databases to determine work eligibility. The authorization process is designed to be completed in a matter of minutes.
When employment eligibility is confirmed through E-Verify, the employer’s proper use of the system creates a rebuttable presumption that the employer has taken good faith steps to comply with federal (and, presumably, state) immigration law.
If the SSA and/or DHS are unable to initially confirm an individual’s work authorization, the system issues a tentative nonconfirmation response (“TNR”). Using a specified form, the employer notifies the employee of the TNR and the employee has eight days to resolve the issue with the appropriate agency. If the employee does not follow-up on the TNR, or the issue cannot be resolved, E-Verify issues a final nonconfirmation. Sometimes this process takes several hours. It has also been known to take several weeks.
Employers are generally advised not to take adverse employment action against an employee for whom only a TNR has been issued. But if a company continues to employ an individual for whom it has received a final nonconfirmation, the law presumes that the employer is knowingly employing an unauthorized worker, and the company subjects itself to fines or other penalties under federal and state law. As with any termination, however, an employer should consult with employment counsel to determine the company’s rights and obligations associated with the action.
It should also be noted that employers are, subject to only a few exceptions, not permitted to use E-Verify to inquire into the work authorization status of current employees. Only new hires should be run through E-Verify, and even then, only in the first three days of their employment.
Effect on the I-9 process
As noted, employers who use E-Verify (either voluntarily or because of a legal obligation) must still complete Forms I-9 for every employee, though the rules are a bit different. For instance, E-Verify employers may only accept I-9 “List B” documents that have a photograph of the individual, and even though employers are prohibited from requiring the employee to provide a Social Security Number when completing an I-9, E-Verify companies must obtain the Social Security Number to enter it into the E-Verify System.
Be patient and do your best
The E-Verify System is a work in progress and problems are to be expected. Snafus are doubly likely as more laws require employers’ use of the system. It appears, however, that the system is largely sound, so any hiccups will hopefully be resolved in short order. The USCIS website addresses many of the most common questions and bottlenecks (as well as some very specific potential problems), but employers are encouraged to consult their employment or immigration attorney as they navigate the process.