Posted on 02/18/2019 at 02:00 PM by David Gonzales
E-Verify is on the lips of employers and legislators across the country. However, E-Verify is not the magical solution many people believe it to be. It’s best to start with what E-verify does not do for an employer. E-Verify does not verify employment eligibility for the employer. E-Verify does not remove the responsibility of the employer to complete an I-9 Form in accordance with federal regulations. An I-9 Form must be completed for every employee regardless of participation in E-Verify.
E-Verify participation is outlined in a Memorandum of Understanding that an employer has to sign in order to participate. The memorandum has several responsibilities and almost all of them fall on the employer. The MOU gives instructions on when an employer can open a case for verification, verification of current employees, and responsibilities for failed matches.
Most importantly it makes three changes to how the employer completes the I-9 Form. First, the employer can only accept List B documents with pictures. List B documents are those that only establish identity. Believe it or not, you can establish identity in a document without a picture for the I-9 Form, for example with an ID card with information such as name, date of birth, gender, height, eye color, and address.
Second, the employer must photocopy & retain green cards, EADs or US Passports and retain with the I-9 Form. Employers who do not participate in E-Verify are not required to keep copies of presented documents, only to inspect them and make a good faith determination that (1) they appear to apply to the applicant and (2) they appear to be genuine. Under E-Verify conditions there is no choice and the submitted documents are admissible evidence in a case of illegal hiring.
Lastly, the biggest difference for an E-verify employer is that a social security number is required. E-Verify is essentially a database matching tool. The Department of Homeland Security will compare the information provided by the employer to information in both their own and the Social Security Administration databases to ensure that the names appear to match…in the databases.
What do employers get from the extra paperwork and requirements of E-Verify? The big thing is the ability to contract with the federal government. Any federal contract is going to require the employer to participate in E-verify due to Federal Acquisitions Regulation clauses. Additionally, several states have passed similar laws and regulations requiring E-Verify participation. Legislation is currently pending in Iowa.
The other major benefit is if the Department of Homeland Security clears the employee after submission the employer gains a rebuttable presumption that they did not knowingly hire an unauthorized worker. This does not address any I-9 technical violations, only the hiring of unauthorized aliens. It’s important to note that the presumption is rebuttable and if the employer knew the employee used a fake identity they may still be fined or potentially prosecuted.
Learn more about E-Verify and employment eligibility during Dickinson Law’s ABCs of I-9s webinar on March 14, 2019 from noon to 1pm.
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