By: Kelly Eisenlohr-Moul
With E-Verify participation now mandatory for Georgia businesses with eleven or more employees, related federal enforcement activity has increased significantly.
Below are some of the recent enforcement trends with regards to E-Verify usage:
• E-Verify “Desk Audits” by the Department of Labor (DOL): these usually target employers with heavy E-Verify traffic (i.e. staffing agencies or employers with heavy turnover, such as chain restaurants)
o These audits are usually conducted by phone and attempt to assess whether the employer is correctly administering E-Verify;
o If the DOL identifies issues, they may “refer” the employer to Immigrations and Customer Enforcement (ICE) or the Department of Justice (DOJ) for further enforcement action, including investigations and audits.
• E-Verify “Discrimination” Charges by the DOJ’s Office of Special Counsel:
o These investigations usually stem from allegations that E-Verify was administered incorrectly;
o Like I-9 audits, these investigations are costly and time-consuming
o Unlike other agency audits, these investigations are conducted by lawyers and more closely resemble litigation.
• Third Party Contracting Problems: utilizing payroll services to facilitate E-Verify requirements
o Many third-party contractors are not sufficiently familiar with E-Verify and make errors in handling tentative non-confirmations or I-9 issues;
o ICE and the DOJ have taken the position that the employer ultimately is responsible for these third-party errors.
E-Verify is rapidly becoming a mine field for employer liability. The federal agencies take these issues very seriously and are pursuing claims in an aggressive manner.
As a result, Georgia employers would be wise to consider the following:
• Instituting comprehensive immigration and E-Verify policies and procedures;
• Conducting a self-audit of Forms I-9 on at least an annual basis; and
• Attending training regarding appropriate administration of E-Verify.