As companies across the country analyze whether or not to join E-Verify (a voluntary Internet-based system that electronically verifies the employment authorization status of newly hired employees), much of the concern revolves around whether E-Verify invites additional government scrutiny of an employer’s workforce and an employer’s immigration compliance program (or lack thereof).  However, one should also examine whether not participating in E-Verify might prompt additional government scrutiny.

To date, only 200,000 of the more than 6,000,000 employers in this country have opted to join E-Verify.  Some have had little choice for a number of reasons (e.g., certain federal contractors and participants in ICE’s IMAGE program must participate, as do other employers under state law requirements and settlement agreements).  Others have chosen to participate.  As more employers opt to join E-Verify, however, it raises the question whether there is a critical mass at which an employer’s decision not to participate in E-Verify will be considered an unreasonable business practice. 

The analysis of whether not participating in E-Verify invites additional government scrutiny begins with a closer look at the specific employer’s business and the likelihood of attracting unauthorized workers.  The following risk factors should be considered:

  • size of employer
  • type of industry (e.g., construction, janitorial, food, transportation, agricultural, critical infrastructure, defense)
  • number of unskilled or entry-level positions
  • location of facilities (border state or state with high number of illegal immigrants)

The more risk factors that apply to an employer, the more likely not participating in E-Verify will lead to increased government scrutiny.

With only 3% of employers in this country currently participating in E-Verify, it is unlikely that an employer’s decision not to participate will automatically prompt the government to take a closer look.  However, if ICE has information about two employers that would prompt it to begin an investigation and one of the two employers is participating in E-Verify, will ICE focus its attention on the non-participating employer first?  It is certainly a possibility.