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FMG Law Blog Line

E-Verify Ramps Up Enforcement

Posted on: September 13th, 2013

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 enforcement trends that we have seen 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)
    • These audits are usually conducted by phone and attempt to assess whether the employer is correctly administering E-Verify;
    • 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:
    • These investigations usually stem from allegations that E-Verify was administered incorrectly;
    • Like I-9 audits, these investigations are costly and time-consuming.
  • Third Party Contracting Problems: utilizing payroll services to facilitate E-Verify requirements
    • Many third-party contractors are not sufficiently familiar with E-Verify and make errors in handling tentative non-confirmations or I-9 issues;
    • 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 training for the person(s) responsible for administration of E-Verify.

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