Excerpted from Indiana Employment Law Letter and written by an attorney at the law firm of Baker & Daniels
An employer that needs to verify a worker's employment eligibility gathers the required proof of identity and employment eligibility from the lists on Form I-9. Through the miracle of the digital age, government databases confirm within seconds that the new employee's name matches the name on file for the social security number (SSN) he gave. The computer shows a photo that the employer can match against the identity document provided by the new hire.
In theory, employers get better data faster, and the government puts the information on the "frontline" of the hiring process. An employer that uses the system correctly (but is nevertheless found with unauthorized workers on the payroll) is entitled to a rebuttable presumption that it hasn't violated the law intentionally. The system sounds perfect, but plenty of traps are waiting.
Basic Pilot rebranded, updated
As of October, some 23,000 employers had signed up to use the system now known as "E-verify." It had been in place for about 10 years under the name Basic Pilot, but the U.S. Department of Homeland Security (DHS) -- in an effort at "rebranding" - updated the program's name and added new features this fall.
To use E-verify, employers must register, sign a memorandum of understanding (MOU), and train employees who will be using the system. To perform a query, the employer enters information found in Sections 1 and 2 of the new employee's I-9 form, such as name, date of birth, SSN, and immigration "A" number (if applicable). The system should return an initial report within seconds.
How the system works. The initial report checks a Social Security Administration (SSA) database to verify that the SSN the new employee has provided matches the name, date of birth, and other information on the I-9. The government touts instant feedback as one way to reduce the number of "no-match" letters that employers will receive. It also provides the employer and the government with a chance to intervene and follow up on a no-match letter by moving to a second-stage query into the DHS database.
If the SSA database returns a "tentative nonconfirmation" (it doesn't believe that the proffered SSN matches the other biographical data), you should verify that no errors were made in sending the information to the agency. You may retransmit the information to eliminate the chance of clerical errors. You should refer an employee to the local SSA field office only if:
" the automated system directs you to do so; and
" the employee intends to contest the tentative nonconfirmation.
If the employee does intend to contest the result, two deadlines come into play: (1) The employee has eight federal government workdays to report to the local SSA field office, and (2) you as the employer must make a second SSA inquiry on the 10th federal government workday. That inquiry should give you either a final confirmation of eligibility or a final nonconfirmation.
Photos play key role. To combat immigration document fraud, you also should be able to see the photo on record linked to the new employee's immigration documents. In particular, the DHS is trying to eliminate employees' ability to put a false photograph on an otherwise valid I-551 or I-766 form. If the photo that an employee presents at the work site differs from the one that the agency believes is linked to that person, a "photographic nonmatch" will occur.
As with an SSN mismatch, you must follow certain procedures if an employee shows up and his identification photo doesn't match the photo in the DHS database. If you can't determine whether the two photos match or if the employee intends to contest the photographic nonmatch, you must send the photo to the DHS either by scanning and uploading it or by express mail. In either case, the agency intends to give you final confirmation or nonconfirmation within 10 days.
What can go wrong?
States disagree. The most pressing legal issue that many employers face now is whether using (or failing to use) E-verify is legal. During the past few months, the answer to that question has begun to vary by state.
Although the DHS stresses that the program is voluntary, Arizona passed a law requiring all employers to register and use it by January 1, 2008. Illinois has taken the opposite approach - forbidding employers from using the program until the DHS can prove that it provides accurate results.
A variety of groups, ranging from immigrants' rights groups and the American Civil Liberties Union to Arizona businesses, are challenging that state's law. The federal government is challenging the Illinois law. Exactly what will come of those lawsuits remains to be seen.
In addition, the federal government intends to require all federal contractors to register and use E-verify perhaps as early as next year. So what do you do if you're a federal contractor with significant operations in Illinois and Arizona? Now would be a good time to talk with your attorneys.
Read the fine print. Be sure to read the fine print of your agreement to use E-verify:
" By registering for the program, you agree to accept only "List B" documents that have a picture. While most of those documents have a photo, some don't.
" By enrolling in E-verify, you agree not to accept nonphoto proofs of identity.
" You agree to use E-verify for all employment eligibility verifications.
" If you intend to continue to employ someone after receiving a report that she isn't eligible, you must notify the DHS or face potential fines.
While the government says that relying on E-verify can show that a violation wasn't intentional, the other possibility exists: If the SSA and the DHS have electronically informed an employer of final nonconfirmation, continued employment could be presumed to be an intentional violation of the Immigration and Nationality Act.
Don't commit discrimination. Most employers are required (by either Title VII of the Civil Rights Act of 1964 or the Immigration Reform and Control Act) to refrain from national origin discrimination. Examples of the discriminatory use of E-verify could include:
" prescreening job applicants by using the system to determine work eligibility before a job is offered;
" giving preferential hiring or start dates to new hires based on how quickly the system returns favorable results;
" using E-verify selectively instead of applying it uniformly to all new hires;
" using E-verify to recheck current workers' eligibility retroactively; or
" using the system's DHS photo-verification phase even if the SSA check shows eligibility.
Pay attention to new photo rule. One final legal challenge that E-verify might create stems from the MOU's requirement that you accept only "List B" documents with a photo. You might have received advice in the past that the law required you to accept any document that "appears to be genuine" and that the choice remained with the employee.
It's certainly illegal to require extra documents or refuse to honor otherwise genuine documents "for the purpose or with the intent of discriminating." Because the rule requiring only photo-bearing documents is new, no courts have yet had the chance to balance it against the general rule (barring you from refusing particular types of documents).
Bottom line
While E-verify has the potential to make the employment eligibility verification process faster and more accurate, you face different - and, for now, rapidly changing - legal challenges in deciding whether to register and use the system and how to react to the confirmation process.
If you're considering the system or wondering how to react to a tentative nonconfirmation notice, you should consider talking with your attorneys.
Copyright 2007 M. Lee Smith Publishers LLC. This article is an excerpt from INDIANA EMPLOYMENT LAW LETTER.INDIANA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems, but rather to provide information about current developments in Indiana employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.
