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What employers should know about using E-Verify

July 2022 employment law letter
Authors: 
Roger Tsai, Holland & Hart LLP

When it began in 1996, the E-Verify program initially was available in only five states. Currently, more than 520,000 employers nationwide use the program, with almost 44,000 of those being federal contractors. Because E-Verify is a voluntary program for non-federal contractors, participation is further evidence of good-faith compliance with the Immigration Reform and Control Act (IRCA). The Department of Homeland Security (DHS) has stated that good-faith participation in E-Verify will protect employers from civil and criminal penalties for hiring undocumented workers. The agency also asserts that E-Verify use establishes a rebuttable presumption that the employer hasn’t knowingly employed an unauthorized screened worker. Note that this rebuttable presumption may be similarly achieved through the proper completion of an I-9 Form.

Using E-Verify

To participate in E-Verify, you must sign a memorandum of understanding (MOU). Under the MOU terms, you must verify all new hires within the enrolled hiring site. E-Verify cannot be used on prospective employees, employees who need to be re-verified, or existing employees. Employers who participate in E-Verify must still complete the I-9 and must only accept List B documents that contain a photograph. You must submit the employee’s information to E-Verify within three days of the employee’s hire date. The submission of information may only be done online; there are no phone or fax alternatives. You may also choose to authorize a third party to process your employees through E-Verify.

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