Some companies voluntarily use E-Verify because it is quick: within seconds of entering I-9 information, the employer receives notice that the information matches or fails to match USCIS and SSA records. If the employer receives a “tentative non-confirmation notice,” it must follow specific procedures which are laid out in the E-Verify handbook. Although following these procedures may be viewed as creating an administrative burden, the perceived burden may be outweighed by E-Verify’s benefits: running new hires through E-Verify is relatively simple, requires little training and overhead, and can help a company make a quick determination that an individual is legally authorized to work before investing significant time and money in the training process.
E-Verify also has the benefit of virtually eliminating an employer’s receipt of SSA “no-match” letters (which notify the employer that an employee’s name does not match their social security number). Because there is no established legal procedure for responding to these letters, an employer who receives one may have to choose between incurring immigration penalties for knowingly retaining illegal workers on the one hand, and facing a potential lawsuit for race/national origin discrimination (e.g., “I was terminated because I am Hispanic”) on the other. By reducing or eliminating no-match letters, E-Verify may allow companies currently receiving such correspondence to avoid having to choose between two unfavorable options.
E-Verify does not provide an official safe harbor from prosecution for knowingly employing unauthorized workers, but does create a legal presumption that your company has complied with immigration laws. As a practical matter, this presumption likely will reduce corporate liability from an audit or investigation by Immigration and Customs Enforcement. In many cases, use of E-Verify translates to a warning letter instead of a civil fine (or, in more serious cases, a civil fine instead of criminal charges).
E-Verify has its drawbacks, however. The most obvious downside is that, by participating in E-Verify, an employer makes its I-9s available (in electronic form) to the federal government. This makes it much easier for the government to search for small technical violations and errors (e.g., an I-9 completed on the fourth day of employment instead of the third). Enough minor errors could theoretically trigger an audit that would not have occurred if the employer had kept its records in paper format.
If federal and state political trends continue, E-Verify may soon will become mandatory for all employers. Companies that sign up for the program on a voluntary basis can reduce their receipt of no-match letters and also be confident that, if E-Verify becomes non-optional, their workforce is compliant.
For more information, contact Ms. Morrison at kmorrison@fmglaw.com.