A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Tuesday, August 2, 2016

Why Employers May Have to Embrace E-Verify?

E-Verify is an internet-based system created by the federal government for employers to verify employees' eligibility to work in the U.S.  It's roots can be traced back to the Immigration Reform and Control Act (IRCA) of 1986, which required employers to examine documentation from employees to prove their identity and eligibility to work in the United States. The Form I-9, Employment Eligibility Verification, was created for these purposes.  Since then, employees have been required to complete the form and present evidence to prove their work eligibility.  Employers must also certify that the documents presented, on their face, reasonably appear to be genuine.

Subsequently, a pilot program was launched in 1997 to allow employers to confirm the work eligibility of their newly hired employees, using information from the former INS and the SSA.  The pilot program evolved gradually and was renamed E-Verify in 2007.

Today a handful of states have passed laws to require mandatory use of E-Verify. Some others require the use E-Verify by employers who are federal or state contractors, or  public entities.  For the other states such as California, New York, New Jersey, E-Verify is still a voluntary program.  So, why would employers enroll with E-Verify?  For federal contractors, enrollment in E-Verify is a condition under their government contracts.   For mega employers who have a large workforce or who have to constantly hire new employees, E-Verify is a tool to reduce their potential liability.  Failure to properly verify employees' legal status can result in substantial civil fines. Employers who knowingly hire individuals without work authorization may also be subject to criminal charges.  In 2005, Wal-Mart Stores Inc., the world's largest retailer, avoided criminal charges by agreeing to pay $11 million in a civil immigration case regarding to end a federal investigation of the company's use of illegal immigrants as janitors.  

Even for smaller employers, there are still reasons to embrace E-Verify.  The most common reason is when an employer wants to hire a foreign graduate who has authorization to work under the STEM OPT program.  The STEM optional practical program allows foreign students who have completed an academic degree in a STEM (science, technology, engineering and mathematics) field to have an additional 24 months (used to be 17 months) of employment authorization in the U.S.  This is in addition to the "regular" 12-month OPT employment period.  Shortage of workers with technical skills in the U.S. drive many employers to hire foreign students with graduate degrees.  It should be noted that these degrees must be earned in the U.S.

Furthermore, as the U.S. economy continues to expand, the H-1B visa program has been under pressure. The regular visa cap of 65,000 and advanced degree cap of 20,000 are being used up quickly for the past few fiscal years.  Hence, employers who are in need of technology workers would find the expanded STEM OPT program to be particular attractive.   Currently, immigration law requires that only "e-Verified" employers may hire employees under the STEM OPT program.  As a result, some employers would have no choice but enroll in E-Verify in order to tap into this pool of workforce. 

Another reason for using E-Verify is its relatively low costs of enrollment and maintenance. It is free to enroll and use.  After all, the federal government wants to encourage more employers to sign up. The only costs involved would be administrative in nature. Employers must assign and train employees to be the program administrators and users of the program.  There would be additional steps in the hiring process.  For example, the social security number is required from the employee in order to use the E-Verify system. If an employee's information does not match the government record, the employer must also take further steps to follow up with the case.  However, since employers must collect documents and information from new hires for completing the I-9 form anyway, these additional steps do not add substantial burden to the administrative or human resources staff.  

In a way, the E-Verify program represents a shift of responsibility to the employers in curtailing unauthorized employment.  Historically, the federal government emphasized more in enforcement by conducting on-site visits.  Federal agents would arrest any unauthorized immigrants from the job sites.  Over the years, the focus has been shifted to prevention and education, resulting in programs such as the E-Verify.  The E-Verify program has been gaining traction and may become universally mandatory in the future.  From the employers' perspective, they may as well embrace the program earlier if they have such a need.  

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