Whether or not to join E-Verify is not an easy decision. E-Verify is a voluntary (except for certain federal contractors and employers hiring in certain states) Internet-based system, operated by DHS in partnership with SSA, that electronically verifies the employment authorization status of newly hired employees. To date, over 200,000 employers have chosen to participate in E-Verify. E-Verify has also been the subject of numerous state laws – some requiring the use of E-Verify and others forbidding it (see blog dated June 2, 2010).
In order to participate in E-Verify, each employer must sign a Memorandum of Understanding (MOU) with DHS. On the one hand, E-Verify offers participating employers the comfort of a “rebuttable presumption … that the [e]mployer has not violated … the Immigration and Nationality Act (INA) with respect to the hiring of any individual if it obtains confirmation of the identity and employment eligibility of the individual in good faith compliance with the terms and conditions of E-Verify.”
However, this comfort comes with a price. In addition to requiring that certain Form I-9 documents contain photographs and that the employer photocopy certain Form I-9 documents, the MOU requires that an employer agree “to cooperate with DHS and SSA in their compliance monitoring and evaluation of E-Verify, including by permitting DHS and SSA, upon reasonable notice, to review Forms I-9 and other employment records and to interview it and its employees regarding the [e]mployer’s use of E-Verify, and to respond in a timely and accurate manner to DHS requests for information relating to their participation in E-Verify.” Of course, under current law, an employer must already allow the government access to its Forms I-9, but not necessarily to employment records or to employees (or the employer) for government interviews. Nor does the current law require employers to respond to DHS requests for information.
In addition, the MOU provides that information given to DHS by the employer may be used “to enforce the Immigration and Nationality Act (INA) and Federal criminal laws.” By participating in E-Verify, the employer is regularly providing information to the government it could use in a criminal investigation of the employer. USCIS has also entered into Memoranda of Agreement (MOA) with ICE and the DOJ OSC (Office of Special Counsel for Immigration Related Unfair Employment Practices in the Civil Rights Division) for referring cases of suspected employer misuse of E-Verify and discrimination matters to ICE and the DOJ OSC. USCIS will also provide those agencies with information regarding ongoing administrative and criminal investigations when requested.
While for many employers, the rebuttable presumption offered by E-Verify far outweighs the additional administrative burdens and the risks that an invitation for closer scrutiny brings, all employers should fully understand what signing the MOU entails so as not to invite an unwelcomed guest. I welcome any thoughts or comments on this subject.
Stay tuned for my next blog pondering whether not participating in E-Verify is also an invitation for the government to look closer …