By: Amy L. Peck and Maggie Murphy for Jackson Lewis, Photo by Andrew Neel on Unsplash
Immigration enforcement is a major focus of attention of the Trump Administration – including in the business immigration context. One measure of this interest is the increase in I-9 audits. ICE reported that worksite investigations surged in FY 2018 by “300 to 750 percent” over FY 2017. Given that, many employers are considering whether to register for E-Verify.
E-Verify is the federal web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States based upon the presented documentation. The employer must still complete Form I-9s for each employee, even if E-verify is utilized.
Whether registering for E-Verify is right for your company will depend upon a number of factors. Below are some of the “pros and cons” to consider.
- Some state and federal government contractors are required to use E-Verify. The E-Verify requirement is specified in the contract. Although E-Verify is currently voluntary for most employers, some states require its use and the federal government may make it mandatory for some companies.
- Registered companies can offer eligible foreign student-employees in F-1 visa status an additional 24 months of optional practical training. This can be useful in recruitment and retention because it allows a company to continue to employ F-1 STEM students who do not “win” the H-1B lottery. It also allows a company to employ certain STEM students for up to 36 months without petitioning for an H-1B.
- Using E-Verify may help companies avoid receiving Social Security “No-Match” letters.
- After the initial weeks on E-Verify and the TNC process, employers generally report that it is not difficult and that results are immediate.
- Signing up for E-Verify allows the SSA and DHS to audit your data. E-Verify’s Monitoring and Compliance unit reviews the data every 30 days to determine if normal statistical parameters are met. If E-Verify spots issues, it will notify the appropriate government agency that an audit should be conducted. SSA, ICE, USCIS, and the IER all have MOUs (Memoranda of Understanding) with E-Verify that allows data to be shared, which leads to audits by these agencies.
- ICE has confirmed that E-Verify has no bearing in an I-9 audit and will not impact the outcome of an audit. In other words, the use of E-Verify by a company will not decrease the chance of an I-9 audit fine.
- More than one staff member in the company will have to be trained to use E-Verify and they must keep up-to-date on changes. This may be costly and time-consuming.
- E-Verify may generate erroneous non-confirmations of work authorization.
- The E-Verify system has had maintenance issues, and is periodically off-line, therefore timeliness of submissions may be affected.
- E-Verify is not available when the U.S. government is “shut down.” After the database is opened for use again, there is often a very short period during which users can submit data for employees hired during the shut-down, which can tax company resources.
If you have questions about whether E-Verify is right for your company, Jackson Lewis attorneys are available to assist you.