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.