E-Verify Overview: Which States? How To?

Are you hir­ing new employ­ees? If you live in Ari­zona, Col­orado, Geor­gia, Idaho, Min­nesota, Mis­souri, Mis­sis­sippi North Car­olina, Nebraska, Okla­homa, Rhode Island, South Car­olina, Ten­nessee, Utah or Vir­ginia you are required to use e-verify as part of your hir­ing process.  In addi­tion Arkansas, Hawaii, Iowa, Illi­nois, Michi­gan, New Hamp­shire, Nevada, Penn­syl­va­nia, Texas, Wash­ing­ton and West Vir­ginia have pend­ing e-verify leg­is­la­tion.  The US Supreme Court recently upheld Arizona’s law, which imposes harsh penal­ties on Ari­zona employ­ers who know­ingly hire undoc­u­mented work­ers [Cham­ber of Com­merce v.  Whit­ing No.  09–115], so there is no longer a ques­tion of whether or not you should if your state requires it.

WARNING: If you need a legal opin­ion, please dis­cuss e-verify or any other legal mat­ter with an attor­ney, Art & Busi­ness Con­sult­ing LLC (ABC) is not engage to prac­tice law.  ABC bases the fol­low­ing overview on our expe­ri­ence of being an Arizona-based busi­ness, which has per­formed e-verify for some of our clients; the fol­low­ing CANNOT be relied upon as legal advice.

So how do you use e-verify? The e-verify folks tell you that you can­not use it to pre-screen appli­cants, or use it on employ­ees hired before your state’s law went into effect.  The only thing e-verify really proves is that you did not know­ingly hire an unau­tho­rized worker; it does not shield your com­pany from other fed­eral or state employ­ment laws.  Your com­pany should prob­a­bly have a plan in case you do have a mis­match, and the employee does NOT con­test the Ten­ta­tive Non-Confirmation let­ter, or the employee does con­test the mis­match, but you receive a Final Non-Confirmation Notice issued via e-verify.  ABC can­not tell you if you should per­form e-verify, or what your company’s plan should be in the event of an unre­solved mis­match.  Dis­cuss these mat­ters with your attor­neys and fol­low their advice.

Mov­ing along, assum­ing you have decided to use the e-verify sys­tem, you have to hire the employee first, then you per­form e-verify.  Your new employee & your com­pany have to com­plete Form I-9, Employ­ment Eli­gi­bil­ity Ver­i­fi­ca­tion, within 3 days of hire. Your new employee must sup­ply cer­tain doc­u­ments, which con­firms their eli­gi­bil­ity to work in the United States, within three days of hire; you can­not tell the employee which doc­u­ments to sup­ply, except­ing the doc­u­ments they chose must con­form to the ones listed on the I-9 Form.  You must exam­ine the doc­u­ments the employee sup­plies, look­ing for fraud­u­lent iden­ti­fi­ca­tion.  Assum­ing the cre­den­tials sup­plied to you appear to be authen­tic, you write down cer­tain infor­ma­tion from those doc­u­ments on the Form I-9.  You use the com­pleted I-9 Form to answer the ques­tions at e-verify.  You are sup­posed to run the employee through e-verify within these same three days from the date of hire. You may need to make pho­to­copies of some doc­u­ments to com­pare them to DHS records.

First obser­va­tion, you prob­a­bly should keep pho­to­copies of all the doc­u­ments sup­plied by the new employee, along with the I-9, and the e-verify results, in a file sep­a­rate from other types employ­ment records, such as pay­roll records.

Sec­ond obser­va­tion, if you are going to make copies of doc­u­ments for one employee it might be a good idea to treat all the employ­ees the same, and make copies of everybody’s doc­u­ments.  In addi­tion, you have to e-verify all new employ­ees, not just the ones you think might have immi­gra­tion or other issues.

What does your com­pany need to do in order to reg­is­ter & use the e-verify sys­tem? Your com­pany has sev­eral deci­sions to make:
1. Who will sign the Mem­o­ran­dum of Under­stand­ing (MOU) for your com­pany; e-verify requires a signed MOU before you can use the e-verify sys­tem.
2. If your com­pany has sites in sev­eral states, which sites will par­tic­i­pate in e-verify.  Right now only 15 states require it and 11 more will be requir­ing it soon, but that still means about half of states will not require e-verify.
3. If your com­pany has sev­eral sites, which ones will access e-verify.  Will each site per­form their own e-verify?  Alter­na­tively, will there only be one site han­dling e-verify for all of your com­pany?
4. Which peo­ple in your com­pany will use the e-verify sys­tem?
5. Which person(s) will be e-verify administrator(s)?
6. Alternatively, is your com­pany going to des­ig­nate a third-party agent to per­form e-verify for the company?

In addi­tion, you will need to gather the fol­low­ing infor­ma­tion; please be aware, not every com­pany has all of these iden­ti­fy­ing pieces of information.

• What is your company’s name?
• What is the Dun & Brad­street Num­ber (DUNS) for each of your company’s busi­ness locations
• What is the name of your company’s par­ent organization?
• What is/are the name(s) of the person(s) selected to be e-verify administrator(s)?
• What is/are the phys­i­cal address(es) of each of your company’s busi­ness location(s) that will access­ing e-verify?
• What is your company’s mail­ing address?
• What is your company’s Fed­eral Tax Iden­ti­fi­ca­tion Number?
• What is the num­ber of employ­ees at your company’s hir­ing site(s) that will use e-verify?
• What is the first three dig­its of your company’s North Amer­i­can Indus­try Clas­si­fi­ca­tion Sys­tem (NAICS) code? Check with man­age­ment if you don’t know.
• What is the num­ber of your company’s hir­ing sites in each state using e-verify?
• What is the name, phone num­ber, fax num­ber, email address of the per­son who signed the MOU for your company?

Gen­er­ally before you can access e-verify the first time, you have to pass a tuto­r­ial on the sys­tem.  If e-verify makes changes to their sys­tem you may have to pass a refresher tuto­r­ial before you can con­tinue using the system.

The sys­tem also requires very strong pass­words, and requires you to change your pass­word to some­thing unre­lated to your pre­ced­ing pass­words at least every 6 months.

The e-verify sys­tem has four main parts:
1. e-verify con­tact data & short­cuts
2. e-verify news, includ­ing new updates, new require­ments, best prac­tices and cur­rent events
3. Options includ­ing My Cases, My Pro­file, My Resources
4. Links to things like a user man­ual, Right to Work posters, blank Depart­ment of Home­land Secu­rity (DHS) & Social Secu­rity Admin­is­tra­tion (SSA) forms, lat­est I-9, MOU that your com­pany has to sign, refer­ral tem­plates in 9 lan­guages & state Ten­ta­tive Non-Confirmation (TNC) notices.

What hap­pens when you per­form e-verify? If all goes well you enter the data from the I-9, ver­ify you have entered it all cor­rectly, sub­mit it, and e-verify autho­rizes the employee to work.  You file a copy of the Employ­ment Autho­rized Notice with your employ­ment records.  However,

1. If there is a mis­match, you print out a TNC let­ter, and some­body in the com­pany will go over it with the employee.  In the vast major­ity of cases, the mis­match is because employee has not updated some record: Mar­riage, recent nat­u­ral­iza­tion etc.  In a small per­cent­age of cases, it is because the employee does not have autho­riza­tion to work in the US.

• If the employee does not con­test the TNC let­ter, the employee should sign the TNC let­ter indi­cat­ing they did not con­test it.  The E-verify MOU implies you must fire them, but you may want to talk it over with your company’s attor­neys before­hand to make sure your com­pany does not run afoul of any other laws.
• If the employee refuses to sign the TNC let­ter, then write, “Employee refuses to sign” on the letter.
• File the TNC let­ter with your employ­ment records.

2. If the employee con­tests the TNC let­ter, “Hey I am who I say I am and I do have the right to work in the US,

• your com­pany will refer the case to DHS or SSA, and
• you will print out a let­ter of instruc­tions for the employee explain­ing what they have to do to resolve the mismatch.

3. The employee has eight fed­eral work­days to from the date your com­pany refers the prob­lem to DHS or SSA to resolve the prob­lem; the MOU says e-verify is sup­posed to get back within ten fed­eral work­days, but even if it takes longer your com­pany can­not fire the employee just because of the TNC, you have to wait for the Final Non-confirmation Notice.
4. You log in, you check every day.  e-verify will sup­ply updates.

• If the prob­lem gets resolved then your com­pany will receive an Employ­ment Autho­rized Notice.
• If the prob­lem does not get resolved, even­tu­ally the e-verify sys­tem will kick out a Final Non-confirmation Notice, which you would print out for you and the employee.  The e-verify MOU implies your com­pany must fire the employee, but once again, you may want to talk it over with your company’s attor­neys before­hand to make sure your com­pany does not run afoul of any other laws.

Call us before the IRS calls you.  Small Busi­ness and tax­a­tion are our busi­ness.  If you have ques­tion about e-verify or other mat­ters, Please give Art & Busi­ness Con­sult­ing a call.  We would love to engage you as a client.

(602) 717‑0763