Slowly but surely, E-Verify is becoming the not-so-voluntary system of choice for verifying new hires’ eligibility to work in the United States. Regardless of whether or not you believe the system is “fast, free, and easy” or “too flawed to be mandatory,” the reality is that many employers are required to use E-Verify through an ever-expanding web of state requirements. Gone are the days when E-Verify representatives would explain to employers that the system is purely voluntary (as originally proscribed in the 1996 law creating it). Today, the tagline goes something like this: “E-Verify is a voluntary program unless you are a qualifying federal contractor or you have employees in the states of Alabama, Arizona, Georgia, Mississippi, South Carolina, Utah, etc., etc.” And if you’re a public contractor in any given state, the E-Verify maze really gets interesting as there are dozens of city and county requirements which seem to spring up from time to time (unbeknownst to many of the impacted employers).
For the past few years, we’ve been describing E-Verify laws as a growing patchwork, but I think it now more properly should be described as a full-blown quilt. By my count (which may change at any minute), we have 9 states which require E-Verify for all or most employers; 8 states which require E-Verify for public employers, contractors, and/or both; and 5 states which require employers to use E-Verify in certain local or municipalities. If you’d like to see an interactive view of all of the E-Verify requirements, please visit the LawLogix E-Verify State Map here. You can also request a free download of our reference chart for offline viewing.
New E-Verify State Laws – Effective January 1, 2012
Alabama’s new immigration law, Act No. 2011-535, is widely considered to be the toughest immigration law in the nation. While some parts of the law have drawn legal challenges, most of the provisions relating directly to employers have survived. Here is what you need to know for E-Verify:
- Effective January 1, 2012, as a condition for the award of any state contract, every contractor or subcontractor shall enroll in E-Verify and verify the employment eligibility of its new hires using E-Verify. A first offense of the Act can lead to debarment from state contracts, cancellation of state government grants or incentives and suspension or revocation of business license for up to 60 days. A second offense may lead to permanent revocation of the employer’s business license.
- Effective April 1, 2012, every business entity or employer in the state is required to enroll in E-Verify and verify the work eligibility of all new hires using E-Verify. A business entity or employer that uses E-Verify to verify the work authorization of an employee shall not be deemed to have violated this section with respect to the employment of that employee.
For a complete analysis from guest attorney blogger and I-9 guru, Wendy Madden, see our previous blog post here.
Georgia’s new immigration law, HB 87, is another broad piece of legislation that provides for state and local enforcement of immigration laws. With regards to E-Verify, HB 87 requires all private employers with ten or more employees to use E-Verify to confirm the employment eligibility of all new hires. As with a few other E-Verify mandates, Georgia’s HB 87 will be implemented in stages depending on the number of full-time employees (generally those who work 35 hours or more per week) within a particular business. Here are the timelines:
- Effective January 1, 2012: all private employers with 500 or more employers are required to enroll in E-Verify and verify the employment eligibility of new hires.
- Effective July 1, 2012: all private employers with 100 or more employees but fewer than 500 employees are required to enroll in E-Verify and verify the employment eligibility of new hires.
- Effective July 1, 2013: all private employers with more than 10 employees but fewer than 100 employees are required to enroll in E-Verify and verify the employment eligibility of new hires.
In addition, to enforce HB 87, every business will now have to submit an affidavit regarding compliance with E-Verify to its local government before that business can obtain or renew its business license or occupational tax certificate.
Louisiana – Act 376 and Act 402
Louisiana passed two E-Verify related bills in 2011 governing both public and private employers. Here are the basics:
- Effective January 1, 2012, Act 376 requires that private employers who bid on a public entity project or enter into a contract agreement with a public entity for the physical performance of services, confirm in a sworn affidavit that the company uses the E-Verify system for all new employees within the United States. If the employer is awarded a contract, he or she is required to E-Verify all new employees in Louisiana hired through the duration of the contract. The requirement applies to both general contractors and their subcontractors. Civil pe
- Effective August 15, 2011, Act 402 stipulates that all Louisiana employers must confirm the citizenship or work authorization status of new hires through one of two ways. The employer may either: (1) use the E-Verify system; or (2) ensure that each employee has provided a picture ID and one of the following documents (a copy of which must also be retained): U.S. birth certificate or certified birth card; Naturalization certificate; Certificate of citizenship; Alien registration receipt card; U.S. immigration form I-94, with employment authorized stamp.
- Both laws include a provision stating that any employer who E-Verifies an employee who is later found to be unauthorized will not be penalized, nor will the employer be held civilly or criminally liable due to inaccurate E-Verify reports.
Act 69 amends the South Carolina Illegal Immigration and Reform Act to require all employers to register and participate in E-Verify. Here are the details:
- Effective January 1, 2012, all employers must enroll in E-Verify to verify the legal status of all new hires within three days. There will no longer be the option of only hiring employees who possess or qualify for a South Carolina driver’s license (or other state license with similarly strict requirements) in lieu of using E-Verify.
- All private employers in South Carolina shall be imputed a South Carolina employment license, which can be taken away under certain circumstances. For example, a private employer who knowingly or intentionally employs an unauthorized alien violates the private employer’s license.
- There will be a grace period of one year for employers, during which penalties will be probationary. After that, employers can face temporary suspension of their business license for hiring unauthorized workers and reinstatement fees after those workers have been fired. On third offense, an employer’s business license can be revoked.
Last but not least, the Tennessee Lawful Employment Act requires all employers in Tennessee to demonstrate that they are hiring and maintaining a legal workforce either by verifying the employment eligibility of newly hired employees through E-Verify or by requesting (and maintaining a copy of) an identity/employment authorization document from all newly hired employees. The provisions will be phased in as follows:
- Effective January 1, 2012, all state and local government agencies must enroll and participate in E-Verify or request and maintain an identity/employment authorization document from a newly hired employee
- Effective January 1, 2012, all private employers with 500 or more employees must enroll and participate in E-Verify or request and maintain an identity / employment authorization document from a newly hired employee
- Effective July 1, 2012, all private employers with 200 to 499 employees must enroll and participate in E-Verify or request and maintain an identity / employment authorization document from a newly hired employee
- Effective July 1, 2013, all private employers with 6 to 199 employees must register and utilize E-Verify or request and maintain an identity / employment authorization document from a newly hired employee
An employer who has been found to have violated the employment verification provisions of the Act will be assessed $500 for the first violation, $1,000 for a second violation and $2,500 for a third or subsequent violation. In addition to these civil penalties, first-time offenders will also be assessed an additional $500 for each employee or non-employee who was not verified through the E-Verify program or for whom an identity / employment authorization document was not requested. For second and third violations, employers will be fined an additional $1,000 or $2,500, respectively, for each employee or non-employee.
Managing State-Level E-Verify Requirements
To further complicate matters, many of these state laws have been enacted without any accompanying guidance, leaving many questions and legal issues unanswered. In light of these constantly changing and often-complex E-Verify requirements, employers need to make a coordinated effort to successfully manage their I-9 and E-Verify obligations by working closely with experienced immigration counsel to ensure compliance with both state AND federal rules. In addition, employers are well-advised to use an integrated I-9/E-Verify system which can automatically control the submission of I-9s to E-Verify by work location or impose other state-specific rules which may be in effect.
As E-Verify continues to evolve and gain even more traction at the state level, employers should make sure to utilize these resources and tools to ease the inevitable E-Verify questions which arise from our growing state quilt.Originally published by LawLogix Group Inc. Reprinted by permission
John Fay is an experienced corporate immigration attorney and I-9/E-Verify blogger with a unique background in designing and advising on case management technology. While practicing immigration in New York City, John designed and managed his firm’s proprietary web-based immigration management system, which featured a fully multilingual interface for international organizations. In his current role, John serves as Vice President of Products and Services and General Counsel at LawLogix, where he is responsible for overseeing product design and functionality while ensuring compliance with rapidly changing immigration rules.