July 2013 Brings Additional E-Verify Requirements for Employers in Several States

July 9, 2013

While the focus on comprehensive immigration reform has been at the federal level, to date federal law mandates use of E-Verify for only, among other things, certain federal contactors and subcontractors (and not all employers). However, some states are taking up the issue on their own and are continuing to impose new verification requirements on employers within the jurisdictions that they control.

What Is E-Verify?

E-Verify is a “free” and sometimes “voluntary” Internet-based system, operated by the U.S. Citizenship and Immigration Services (which is part of the Department of Homeland Security), in partnership with the Social Security Administration. The goal of E-Verify is to electronically verify the identity and employment authorization status of newly hired employees, and current employees in some circumstances.

Participating employers submit information from an employee’s Employment Eligibility Verification Form (Form I-9) to the E-Verify system through a secure website. The system then compares the information to data found in two main databases – USCIS and SSA. If the system matches the submitted information with the databases, employers are immediately notified that the worker is confirmed (98.3 percent receive confirmation within 24 hours). If the E-Verify system cannot confirm the data, employers receive a tentative nonconfirmation notice. Employers must then follow specific procedures to allow workers to correct erroneous nonconfirmations. For more information on how to integrate E-Verify into your immigration compliance program, please see Integrating E-Verify Into Your Existing Form I-9 Process.

Changes Effective July 1, 2013

Although private employers with more than 100 employees in Georgia and North Carolina have been required to participate in E-Verify for some time, as of July 1, 2013, smaller employers in those states are required to participate as well:

  • Georgia (Georgia HB 87). Now covers employers with 11-99 employees, effective beginning July 1, 2013.
  • North Carolina (North Carolina HB 36). Now covers employers with 25-99 employees, effective beginning July 1, 2013.

The North Carolina law notably exempts seasonal temporary employees who are employed for 90 or fewer days during a 12-month period. However, employers need to be careful with these state-mandated exemptions. In order to participate in E-Verify, employers are required to sign a Memorandum of Understanding with DHS that requires employers to use E-Verify for all new employees and prohibits employers from verifying individuals on a selective basis.

While this list will not remain current for long, as of the date of this article, the following states have some form of mandated E-Verify requirements that apply to employees working in those jurisdictions:

  • Alabama
  • Arizona
  • Colorado
  • Florida
  • Georgia
  • Idaho
  • Indiana
  • Louisiana
  • Minnesota
  • Mississippi
  • Missouri
  • Nebraska
  • North Carolina
  • Oklahoma
  • Pennsylvania
  • South Carolina
  • Tennessee
  • Utah
  • Virginia

Employer Take-Aways

The law is changing regularly in the immigration compliance arena. Employers should review their policies on a periodic basis (e.g., at least annually) to ensure compliance with both federal and state requirements. The state imposed penalties, which often include restrictions on the ability to get new or renewed business licenses or other required business documents, can be debilitating, if not fatal, to a company.

As of February 2013, more than 430,000 employers had enrolled in E-Verify. If your organization is already using E-Verify as part of its immigration compliance program, consider yourself ahead of the curve. If your company is not yet using E-Verify, it is likely only a matter of time until state or federal law expands to the point that your participation or non-participation in the program is no longer voluntary.

For more information on the state of E-Verify in light of federal comprehensive immigration reform, please see Employer Alert – E-Verify Is in Your Future. In addition, for questions regarding state or federal E-Verify requirements, assistance in enrolling in E-Verify, or training for or auditing E-Verify participation or your Form I-9 compliance in general, please contact the authors or any other members of the McGuireWoods Immigration Practice Team.