E-Verify & the Employer
by Maria S. R. Wiemann & Melissa de la Garza
ATTORNEYS AND COUNSELORS AT LAW
1401 Elm Street, Suite 3404
Dallas, Texas 75202
P: 214.220.1210 F: 214.220.1218
• Employment Verification Practices
• When should we think about this issue?
▫ Hiring, mergers, and acquisitions
• What is the purpose of this law?
• The method of choice – E-Verify
What Is E-Verify?
• An Internet based system operated by the
Department of Homeland Security (DHS) & U.S.
Citizenship and Immigration Services (USCIS).
▫ Allows employers to verify the employment
eligibility of their employees.
▫ Electronically compare information from Form I-9
against Social Security Administration and DHS
▫ Free and voluntary.
▫ Initial verification returns results with 3-5
• Includes naturalization data which helps to
instantly confirm citizenship status of naturalized
▫ Naturalized citizens, who have not updated their
records with SSA are the largest category of SSA
• Naturalized citizens who receive a mismatch can
call USCIS directly or go to the SSA field office.
Photo Screening Tool
• This is the beginning of biometric verification
• Goal – give employers the tool to detect identity
theft in the employment eligibility process.
• Checks photo of new hire’s Employment
Authorization Document (EAD) or Permanent
Resident Card (“Green Card”) against 14.8
million images in DHS databases.
Enrolling in E-verify
• Currently voluntary and free to employers.
• Accessible through any internet –capable computer with a web browser of
Internet Explorer 5.5 or Netscape 4.7 or higher (with the exception of
• Employer provides basic contact information for company and agrees to
follow rules of program. Employer is required to sign a Memorandum of
Understanding (MOU) with terms of agreement between company, DHS
• Must identify employer category – ie. Federal contractor, private sector.
• After the employer completes the enrollment process, USCIS will review the
information and activate the account.
• Employer will then receive an email with login instructions, user ID and
• Verify identity and employment of all new employees (including US citizens)
within 3 days of hire.
• Have employees complete I-9 and provide employer with documentation
establishing identity and eligibility to work in the United States.
• Employer provides information on I-9 (name, SSN, DOB, citizenship status,
and any other non citizen info) to SSA and DHS through E-Verify to
determine if the information matches government records.
• Employer must post notice informing employees of the use of E-Verify.
• E-Verify can only be used for new hires, not current employees.
• E-Verify can not be used selectively, it must be used for ALL new hires.
• E-Verify can not be used to pre screen applicants. It can only be used after
offer and acceptance of job and following the completion of a form I-9.
Employer Duties (cont’d)
• If employee receives an information mismatch, the employer
must promptly provide employee with information about how
to challenge the mismatch, including written notice generated
• If employee decides to challenge the mismatch, employer
must provide them with a referral letter issued by E-Verify
with specific instructions and contact information.
• Employer can not take adverse action against an employee
who challenges a mismatch. No firing, suspending
withholding pay or training, or infringing upon employment.
• Employee must be given eight Federal government work days
to contest the mismatch.
Federal Contractors and Subcontractors
• Every Federal contract requires that the contractor agree to use E-Verify for:
▫ All persons hired during the contract term to perform employment duties within the US.
▫ All persons assigned by contractor to perform work on the contract within the United States.
• The above is based on the Federal Acquisition Regulation (FAR)
• On September 8, 2009, E-Verify became mandatory for Federal contractors and subcontractors.
▫ Now, Federal contracts and solicitations issued will include a clause requiring E-Verify.
▫ Federal subcontracts over $3,000, for services or construction, will also have an E-Verify
▫ E-Verify is mandatory for new hires and existing hires working on the contract.
▫ Federal Contracts exempt from this rule:
Contracts for less than $100,000,
Contracts with a period of performance less than 120 days,
Contracts for commercially available off-the-shelf items (COTS),
Contracts for work outside of the United States
• Companies awarded a Federal contract must enroll in E-Verify within 30 days of award date.
Mergers and Acquisitions
• Certain corporate structural changes can trigger obligations to re-verify the employment
authorization of one or more workers.
• An exemption to the re-verification exists for circumstances involving employees who are
“continuing employment.” An employer who continues to employ some or a previous employers
entire work force, in the case of a merger, may qualify for this exception.
• To qualify the successor entity must accept full responsibility and liability for all Form I-9s
completed by the predecessor employer.
• This exception does not shield employers from the civil and criminal liability associated with the
Form I-9 violations acquired when accepting pre-existing Form I-9s from predecessor employers.
• Therefore, companies should have their lawyers audit the employment verification records of all
companies involved in an acquisition or merger to assess the level of compliance and to determine
potential exposure to civil and criminal penalties.
• Gaining such knowledge in the early stages of a merger/acquisition will help structure certain
aspects of the deal and may also affect acquisition pricing.
• The best way to avoid an ICE investigation is to verify every employee’s identity and employment
Question: “As a current or prospective Federal
contractor am I required, by the final rule, to enroll in
• The final rule became applicable to Federal contractors on 09/08/09
and requires the use if E-Verify for all solicitations and contracts.
• All employers, including federal contractors, can enroll in E-Verify.
▫ Enrolling may help the employer become familiar with the system
before you solicit a Federal contract.
• If you were enrolled in E-Verify prior to 09/08/09, you must update
your company profile if awarded a Federal contract.
• Once you designate yourself as a Federal contractor, all E-Verify users
(data people) at your company will need to take a Federal contractor
Question: “How should a first time Federal contractor
proceed with E-Verify?”
• Within 30 days of the contract award enroll with E-Verify.
• Within 90 days of enrolling with E-Verify begin verification of
current employees that will be working on contract.
• Verify all new hires within three days of hire. Therefore, a Form I-9
must be completed upon acceptance of job.
• Pre-screening of job applicants is not allowed.
• E-Verify must be used for all new hires, for life of contract,
regardless of whether the new hire is assigned to the contract.
Question: “Company is enrolled in E-Verify, but not as a
Federal contractor. Do we need to re-enroll if we acquire
a Federal contract?”
• No, you do not need to enroll again, but you
must update your company profile with E-
Question: “My company’s Federal contract has ended,
What should we do?
• Your company may continue to use E-Verify but
you should update your company profile with E-
Verify so that you are not held to the same
requirements as a Federal contractor or
• Federal contractors who no longer wish to
participate with E-Verify after their contract has
ended can terminate their participation in E-
Verify. If you do not do so, the terms of the
MOU will remain in place.
Question: “Are there exceptions to the use of E-Verify
for all new hires?”
• Yes, the exceptions apply to institutions of
higher learning, state and local governments,
governments of federally recognized Indian
tribes, and sureties performing under a takeover
agreement with a Federal agency.
• Under the rule, the above employers can choose
to use E-Verify on new and existing employees
assigned to a covered Federal contract.
Question: “How do you define an employee assigned to the
• The rule defines an “Employee assigned to a Federal
contract, as an employee hired after November 6, 1986,
who is directly performing work in the United States
under a contract that includes the clause committing the
contractor to use E-Verify.”
• An employee is not considered to be directly performing
work under the contract if the employee normally
performs support work, such as indirect or overhead
functions, and does not perform any substantial duties
under the contract.
• The rule does not exempt employees based on the
intermittent nature of the work or the length of time
spent performing the work.
Question: “My employee was verified by a previous
employer; do I need to do it again?”
• Yes, Under the rule, Federal contractors are
required to enter the worker’s identity and
employment eligibility information into E-Verify
at the time of hire, following the completion of a
Form I-9, and before the end of three days.
Question: “Does an employee who was previously
confirmed through E-Verify, who is being moved to
another contract, need to be verified again?”
• No. Once an employee has been verified and
employment authorization has been confirmed,
the employee should not be re-verified through
E-Verify by the same employer.
Question: “Are there any exceptions to verify employees
with certain credentials and security clearances?”
• Yes. Federal contractors are not required to use
E-Verify for an employee who has been granted
and holds active federal agency HSPD-12
compliant credential or a US Government
security clearance for access to confidential,
secret or top secret information in accordance
with the National Security Program Operating
• The employer must still complete Form I-9 at
the time of hire for all employees.
Question: “Can my subcontractor verify under my MOU?”
• No, each employer must enter into an individual
MOU with SSA and DHS.
Question: “May I verify my entire workforce?”
• Yes, Federal contractors and subcontractors have
the option of verifying their entire workforce, both
new hires and existing employees – including those
not assigned to a Federal contract.
• If your company elects to verify the entire
workforce, you must notify DHS by updating your
company profile with E-Verify.
• A Federal contractor that chooses to exercise this
option must initiate an E-Verify query for each
employee in the contractor’s entire work force
within 180 days of updating the company profile.
Question: “Is the employee required to provide his or
her SSN on Form I-9?”
• Yes, the employee must provide a SSN to an E-
Verify employer, if the employee has one.
• If the employee has applied for and is waiting to
receive a SSN, the employer should make a
notation on the Form I-9 and proceed with E-
Verify upon receipt of the SSN.
Question: “Does participation in E-Verify provide “safe
harbor” from work site enforcement?”
• No. However, using E-Verify creates a
rebuttable presumption that your company has
not knowingly hired an unauthorized alien.
• However, participation in the program does not
provide a “safe harbor” from worksite
Question: “If my company participates in E-Verify, are
we required to notify applicants of our participation?”
• As an employer participating in E-Verify, you are
required to post the notice provided by DHS indicating
your company’s participation in the E-Verify program as
well as the anti-discrimination notice issued by the
Office of Special Counsel for Immigration-Related Unfair
Employment Practices at the Department of Justice.
• The posting must take place in a prominent place that is
clearly visible to prospective employees and all
employees who are to be verified through the system.
• Once you are enrolled, and able to log into the E-Verify
on-line system, these notices can be found in the “On-
line Resources” section.
• In April of 2009, DHS secretary articulated the new administration’s strategy when
DHS published a fact sheet indicating that Immigration and Customs Enforcement
(ICE) the division of DHS tasked with enforcing immigration laws within the United
States, will focus its resources on the criminal prosecution of employers who
knowingly hire illegal workers, while continuing to arrest and remove
undocumented workers discovered in the course of enforcement activities.
• The number of work-site immigration raids has increased, and more sanctions –
criminal and civil fines and debarment (denying the employers request for certain
certifications, which excludes the employer from sponsoring employees with those
visas), are being brought against employers who hire unauthorized employees.
• In a program study released on March 25th, ICE identified that its strategy has
evolved into a practice of “working up the chain” which involves investigating work
sites and detaining ground level workers to collect evidence to build a case against
higher level employees and ultimately, their employ.
Important Facts (Cont’d)
• To wit, more than 130 of the arrests made in 2008 included owners, executives,
managers, supervisors and human resources employees on criminal charges.
▫ harboring illegal aliens for profit;
▫ conspiring to commit document fraud;
▫ aiding and abetting document fraud;
▫ aiding and abetting aggravated identity theft;
▫ and bank fraud
• In this era of continued focus on illegal immigration, Texas employers and their
counsel should be prepared for greater scrutiny, and potential liability in the area of
• Company managers, executives and owners now have an added incentive to insure
that the Form I-9 verification and audits are properly conducted in the wake of
increasing attention to work-site compliance.