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Mandatory E-Verify May Be Part of Immigration Reform in 2013

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Mandatory E-Verify May Be Part of Immigration Reform in 2013

January 18, 2013

With the federal government heavily promoting its E-Verify program over the past few years, the odds are high that any comprehensive immigration reform bill cobbled together in 2013 will include a national E-Verify mandate. This likely will be the enforcement "carrot" that is offered to conservatives in Congress - and particularly in the House - in exchange for much-needed immigration reform. President Obama has indicated that his administration will turn to immigration reform proposals this spring, with Congress following his lead, we hope.

But the question remains as to whether E-Verify is ready for prime time. The program, which attempts to screen out unauthorized employees against federal databases, has been found to fail frequently, with a high rate of erroneous denials, including for U.S. citizens who do not have any restrictions on their ability to work here.

  • As a slate of reports show, resolving the errors has been found to be time-consuming, costly and confusing for employers. In spite of that, in some states, such as Arizona, use of the federal program to verify employees' work authorization is already mandatory for all employers.
  • Other states have balked at the program's inherent inaccuracies - California, for example, has a law that prohibits the state and any of its municipalities from requiring an employer (other than a government entity) to use E-Verify as a condition of receiving a government contract, applying for or maintaining a business license, or as a penalty for violating licensing or other similar laws.
  • California employers remain free to use E-Verify on a voluntary basis or as required by federal contracts.

With mandatory E-Verify potentially right around the corner for all employers - even those without federal contracts - we recommend that employers take certain steps now to ensure that they're ready.

  • First, they should designate one individual as the lead evaluator on whether the company should enroll in E-Verify. It's critical to have this point person, who can gather information and bring in relevant stakeholders and points of view as needed, including Human Resources. This individual should lead a determination of whether E-Verify is currently required in the applicable jurisdiction(s).
  • Further, we recommend performing an analysis of whether any foreign-national students working at the organization in F-1 OPT status would benefit from a 17-month STEM (Science, Technology, Engineering and Math) extension, which requires enrollment in E-Verify.
  • It is also prudent for an organization to do a comprehensive cost-benefit analysis, with the assistance of immigration counsel, to determine whether voluntary enrollment would ultimately be a source of benefit or harm.
  • Along with these steps, an organization should perform an internal audit of its I-9 records to identify and resolve any compliance problems. This will prove beneficial even if the organization ends up deciding to steer clear of E-Verify - at least for now.

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