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E-Verify (formerly the Basic Employment Verification Pilot Program)
In 1997, the Government established a Basic Employment Verification Pilot Program ("Basic Pilot") in six states pursuant
to authority contained in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to allow
employer access to governmental databases of social security and alien numbers in order to double-check information provided
by new hires for I-9 form purposes. See more information on I-9 procedures and forms. In 2004, the Department of Homeland
Security ("DHS") expanded the Basic Pilot to all 50 states. In 2007, the program was renamed "E-Verify" to remove the "pilot"
connotation. The program has the following features and purposes:
- Primary access to social security records for new hires who present social security numbers, enabling a double-check of
the name and number presented and related data;
- Secondary access to DHS records of employment-authorized aliens;
- Establishment of procedures pursuant to a contractual memorandum of understanding with the Social Security Administration ("SSA") and DHS for employers, either directly or indirectly through designnated agents, to notify adversely affected hires
and enable them to contact the SSA or DHS for rectification of errors, within specified
deadlines and empowering employers to act decisively in the absence of a timely or successful employee protest;
- Safe harbor treatment for participating employers in cases of unauthorized employment;
- Web access including XML data integration with employer or designated agent systems through secure web services technologies;
- phased-in, online access to DHS database photographs of queried employees presenting employment authorization documents.
New (8/25/09): A new federal rule requires that starting Sept. 8, 2009, new federal contracts worth more than $100,000 will include a
clause requiring contractors to use E-Verify to certify the employment eligibility of any current employees who will work on the contract. This is an expansion of the use of e-Verify, which until now has only been used for new hires, consistently with I-9 practice. As in other e-Verify uses, the rule also requires contractors to use E-Verify new hires, even if they will not work on a federal government contract. Existing contracts lasting more than six months can be retrofitted by agencies to add the requirement, but only if the contractor agrees. The rule was adopted to implement a Bush administration Executive Order, which the Obama Administration had delayed implementing,
to allow the courts to rule on a legal challenge. Following a victory for the government at the district court level
read more, and subject to appeal, the way has been cleared for implementation and enforcement of the new e-Verify rule.
The Rule has been viewed by some as a first step to making eVerify mandatory upon private industry as a matter of federal policy and law.
The scope of the executive order is expansive. According to one commentator, "Interestingly, employers in the health care business using the Medicare program, janitorial services providing services to courts, universities getting federal student loans for its students or grants for some of its projects and programs, companies in the defense industry, and even contractors serving food in cafeterias in any government agency will be considered government contractors and will have to comply with this order." The text of the Executive Order as amended can be viewed here.
A press release from the Department of Homeland Security reported the official designation of E-Verify for this purpose.
Federal agencies have already used eVerify for their own federal workforce requirements. A final rule amending the Federal Acquisition Regulation
to implement the executive order has been published in the Federal Register.
Contractors were reported to be against plans to impose e-Verify upon them.
See a report on the differences between the proposed and final versions of the rule and an analysis of the system's possible shortcoming.
The feature of the new E-Verify contractor rule that existing employees assigned to Government contracts be verified
(or reverified) through e-Verify before beginning work on the government contract has led to speculation that large federal
contractors may prefer to reverify all existing employees rather than try to isolate those who may be picked eventually for a particular contract.
This practical consideration may trigger anti-discrimination provisions of existing law against requiring reverification of I-9's in an
overbroad manner especially if some employees of a contractor likely will never work on a federal contract.
A listing of the top 100 federal contractors can be viewed
here. Click on a contractor to view the reported number of employees for that contractor.
On December 23, 2008, the National Chamber of Commerce with others filed suit challenging the E-Verify contractor rule.
The suit was dismissed by court ruling on August 25, 2009. Read more about E-Verify litigation
When used with I-9 electronic generation, signature and storage, which are authorized by 2006
DHS interim rules, the electronic verification system is a useful tool to enable
all-electronic workflows, coupling instant database checks with a host of automated features that can be built into computerized systems like,
for example, automated reminders for reverification upon expiration of employment authorizations, and centralized management of
I-9 compliance programs at scattered geographical locations of large companies, but the Basic Pilot Program
is not without criticism, including alleged:
- Unacceptably high (15-30%) false query responses from the governmental databases attributable to incorrect information contained in them;
- Easily defeated protections because document forgers are able to create false identity documents using matching names,
citizenship data and social security numbers of real persons, which pass the computerized checks undetected (but online photo
checks announced on September 25, 2007 may help to close this loophole in the E-Verify system);
- Questionable ability to scale appropriately to
meet demand, as an Arizona Chamber of Commerce and Industry 2007
report on the Basic Pilot Program points out. Arizona Governor Janet Napolitano has also queried the ability of the Basic Pilot to
meet the expected burdens of a new Arizona law in an
open letter to Speaker of the House Pelosi and Senate Majority leader Reid. Relatively recent
Colorado and Georgia laws (click here for an unofficial comparison of the two) that require state contractors to use the Basic Pilot may also strain the Pilot Program's capabilities.
Consult a list of such immigration-status employment related state laws as of November 16, 2007.
In 2007, Illinois passed a Right to Privacy at Work Act, effective January 1, 2008, prohibiting employers from enrolling in E-Verify
until "the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases are able to make
a determination on 99% of the tentative nonconfirmation notices issued to employers within 3 days, unless otherwise required by federal law."
820 ILCS ("Illinois Compiled Statutes") 55/12. This provision has led to litigation in federal court. Consult updates on E-Verify Litigation.
The Government Accountability Office ("GAO") conducted a 2005
study of the Basic Pilot and was critical of it.
At Messing Law Offices, we provide high quality legal services and expertise to families, working men and women, and businesses. If you have a concern in the areas of family based immigration, business based immigration, employment based immigration, or naturalization and you are seeking the help of an experienced immigration lawyer, call Messing Law Offices for professional Arizona immigration attorney assistance.
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