With so much emphasis in Washington on preventing illegal immigration and disappearing jobs for American citizens, chances are better than ever that the E-Verify system will soon become mandatory. If Congress rules businesses are required to use it, President Trump’s 2018 budget proposal includes funds to upgrade the system to handle a larger capacity.

History of the E-Verify Background Check

Verify is currently a voluntary federally administered electronic system created to help employers verify the work eligibility and citizenship status of applicants and employees. Its purpose is to alert users when the Social Security number supplied by an individual is already in use by someone else. After an initial phase in 1996, it became available to employers in all states in 2001.

Where E-Verification is Mandatory

Today, nine states require employers to use E-Verify, including Alabama, Arizona, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, and Utah. Also, federal contractors must use the system. A handful of other states also require public employers or contractors doing business with state or local governments use E-Verify.

Though only about 10 percent of employers use the system. Of those, 60 percent do so because it is required by law. Yet, around 90 percent of employers recently polled by the Society for Human Resource Management (SHRM) said they would support a mandate to use E-Verify or a similar system, subject to certain changes in the existing program.

What Employers Want

High on employers’ list of possible changes to the E-Verify system is that it would take place of the Form I-9, “Employment Eligibility Verification,” the paper-based system created for the same purpose. Current users of E-Verify are still required to collect I-9s from employees.

Additional changes sought by employers if E-Verify was made mandatory in its current form include:

  • A strong “safe harbor” protecting employers from accusations of wrongdoing if they use the system in good faith
  • Elimination of any potential liability for employment-based discrimination charges in conjunction with its administration of E-Verify
  • Establishment of a set time period for resolving work authorization disputes

Another concern with E-Verify in its current form is that its usefulness is limited. E-Verify determines whether information entered into the system — such as name, date of birth and Social Security number — already exists in the government’s database and corresponds to someone who is eligible to work. It cannot give employers certainty on employee identification.

SHRM proposes the use of a network of “identity verification centers.” These centers are similar to the ones companies use when individuals need to request a new password to gain access to their online accounts. The requester must provide personally identifiable information to prove who they are (such as answers to preset security questions). In an employment setting, employers would be told whether an employee or job applicant has cleared that hurdle.

Also, employers currently using E-Verify must later confirm the person they entered is indeed employed by the company. One reform being proposed would streamline the system by dropping this requirement.

Pending Legislation for E-Verify

The latest version of the “Accountability Through Electronic Verification Act,” was proposed by Senator Charles Grassley (R-Iowa and chairman of the Senate Judiciary Committee) and co-sponsored by nine other senators in January. If passed, the act would make E-Verify permanent (though under current law, it must be reauthorized by Congress every two years). It would also address several of the concerns of groups like SHRM.

Here are several of the key provisions of the proposed measure, as described on Congress’ website.

  • Employers must: (1) use E-Verify to confirm the identity and employment eligibility of any individual who has been vetted through E-Verify no later than three years after enactment of this Act (2) re-verify the work authorization of individuals not later than three days after their employment authorization is due to expire, and (3) terminate an employee following receipt of a final E-Verify nonconfirmation.
  • The information provided by the employee must then be submitted to DHS, to assist in enforcing or administering U.S. immigration law.
  • The system may be used to verify the identity of individuals before they are hired, recruited, or referred if the individual consents.
  • The bill eliminates the Form I-9 process and sets forth the design and operation requirements of the E-Verify system.
  • S. employers must begin using E-Verify within one year of enactment of this Act; and employers using a contract, subcontract or exchange to obtain labor to certify that they use E-Verify.
  • The failure of an employer to use E-Verify shall be treated as a violation of the Immigration and Naturalization Act requirement to verify employment eligibility. It also creates a rebuttable presumption that the employer knowingly hired, recruited or referred an illegal alien.
  • The bill increases civil and criminal penalties for specified hiring-related violations and establishes a good faith civil penalty exemption/reduction for certain hiring-related violations.
  • State and local governments may not prohibit employers from using E-Verify to determine the employment eligibility of new hires or current employees.

There’s no sure sign E-Verify will become the law of the land any time soon, and if it does, there’s a chance for a long lag time before it takes effect. But it may be a good idea for companies to review their work-status vetting procedures, as well as the possible implications of what a more foolproof E-Verify system might have for your workforce.