Hey Georgia, E-Verify is coming—Be ready!

The Georgia Legislature, in a fit of anti-immigration vitriol, jumped on the E-Verify bandwagon in 2011.  Though many larger employers in Georgia have already been subject to the new law (those with MORE than 100 employees) smaller, private employers in the state of Georgia with 11-99 employees must enroll in E-Verify and begin using the program on or before July 1, 2013.  Private employers with 10 or fewer employees are exempt from this law (for now). This marks the final phase for employers to enroll and use E-Verify as part of Georgia’s Illegal Immigration Reform and Enforcement Act of 2011

The Illegal Immigration Reform and Immigration Responsibility Act of 1996 (“IIRIRA”) mandated that the Department of Homeland Security (“DHS”) and US Citizenship and Immigration Services (“USCIS”) in partnership with the Social Security Administration (“SSA”) develop a system for employees to verify the employment eligibility of new hires.  The program currently has over 23,000 participating employers. 

In response to the Congressional mandate, the Department of Homeland Security, US Citizenship and Immigration Services, and the Social Security Administration developed an internet-based system that is available in all 50 states and currently free for employers to use.  Participation is voluntary from a Federal perspective; however, many states, including Georgia, now require compliance from many employers across the state.

·         Reduce unauthorized employment (identity theft however remains a problem in that the system does not preclude individuals who use the identity of others)

·         Virtually eliminate Social Security No Matches

·         Minimize verification-related discrimination (although a disproportionate number of new hires who are subjected to tentative non-confirmations are foreign born)

·         Protect civil liberties and employer privacy

·         Be quick and non-burdensome

·         Rely on secure documents

         When an employer decides to participate in the E-Verification program, they must sign a Memorandum of Understanding (“MOU”) with USCIS.  The MOU sets forth the rights and obligations of the employer, DHS, and SSA.  For instance, by participating in the program, the employer gives DHS and SSA the authority to make periodic visits to the work site to review the E-Verify records.  Also, if an employer fails to notify DHS that an employee is still on payroll after final non-confirmation, the employer may be fined.  The employer can rescind the MOU upon giving a 30-day notice.

            After the MOU is signed by the employer, DHS, and SSA, the employer sets up user accounts for the on-line system.  The employer’s representatives must participate in an on-line tutorial and pass an on-line test prior to using the system.

            Once an employee is hired with a company participating with E-Verification, the company must verify the employment eligibility of the new hire within three (“3”) days.  The company must submit every new hire to E-Verification.   The company is prohibited from using E-Verification on current employees.

            The authorized company representative logs into the E-Verification system and submits the new hires name and Social Security Number.  The new hire must have a Social Security Number.  Many international hires, though authorized to work immediately, may not have a social security number.  USCIS allows such hires additional time to obtain Social Security Numbers so that they may be run through E-Verification.

            The E-Verification program checks the information provided and responds within a few seconds.  The system returns either an:

·         “Employment Authorized” response, indicating the employee is authorized to work or a

·         “SSA Tentative Non-Confirmation” response, indicating that there is an information mismatch with SSA (this is a common response to naturalized US Citizens)

·         “DHS Verification In-Process” response, indicating there is an information mismatch with DHS (this is a common response with international students or international employees switching employers)

The employer records the system generated verification number on the I-9 Form, or can attach a printout with the verification number to the Form I-9 as a record of verification.  If the response is other than “Employment Authorized”, the employee has 10 days to contact either DHS or SSA depending upon the non-confirmation to resolve the information mismatch.  If the new employee does not contest a Tentative Non-confirmation response, then it is considered to be a Final Non-confirmation and the employment may be terminated.

            E-Verification’s goal is to help employers hire only employees authorized to work.  For the vast majority of cases, E-Verification is quick and easy.  Also, for employers with higher percentage of undocumented workers or who experience much use of fraudulent documents, E-Verification saves companies time by weeding out those unauthorized workers before SSA sends “No Match” letters to the company. 

            E-Verification provides an employer with a safe-harbor in its hiring practices.  When employers submit all new employees to the E-Verification program, the employer obtains a “rebuttable presumption defense” that the employer did not “knowingly or intentionally” hire unauthorized workers.

            Participation in the program raises privacy and discrimination concerns for employees.  The I-9 forms that are completed by the employer for each new hire do not require disclosure of a Social Security Number, instead a Social Security Card is but one form of many that a new employee may present for the I-9.  However, the E-Verification program can only work with Social Security Numbers.  The I-9 form specifically does not require certain documents to avoid potential disclosure of the numbers and to prevent discrimination.  E-Verification essentially wipes away this protection by requiring the Social Security Number. 

            E-Verification disproportionately targets foreign nationals.  Native born USCitizens with Social Security Numbers are employment authorized 99% of the time.  Naturalized US Citizens, Permanent Residents, and other foreign nationals authorized to work tend to receive a much higher percentage of Tentative Non-Confirmations.  Those who receive Tentative Non-Confirmations must then resolve the Tentative Non-Confirmations with either SSA or DHS or possibly both.  Those with Tentative Non-confirmations create greater paperwork problems for the employers and thus may create discrimination when employers find it easier to avoid new hires with potential Tentative Non-Confirmation issues.

         Employers can use E-Verification as an effective tool for employers to help ensure the employment eligibility of new hires and can provide a beneficial “safe harbor” if it later turns out that a new hire was in fact not eligible to work.  The program still has many false “Tentative Non-Confirmations” for naturalized US Citizens and foreign born employees changing employers which can be cumbersome for both the employer and

         Employers wishing to participate in E-Verification can register online by visiting:  https://www.vis-dhs.com/employerregistration.

If you would like further information about specific case scenarios or situations, please call our office at 404.816.8611, or e-mail us at [email protected] to speak to one of our experienced immigration attorneys.