In the vacuum created by the absence of comprehensive immigration reform at the federal level, many states and local governments are enacting their own patchwork quilt of laws and regulations mandating the use of E-Verify by certain employers. Morgan Lewis maintains a "50-State Survey of State Immigration Laws Affecting Employers" that can be viewed and downloaded at http://www.morganlewis.com/documents/50StateSurvey_StateImmigrationLaws.pdf. The current version reflects some important recent developments.
Florida Enters the E-Verify Fray; Rhode Island Does a Reverse
Two newly inaugurated governors have moved quickly to take strikingly different steps regarding the mandatory use of E-Verify by state agencies and their contractors. In Florida, on January 5, Governor Rick Scott issued Executive Order 11-02, which requires the following:
1. All agencies under the direction of the Governor to verify the employment eligibility of all current and prospective agency employees through the U.S. Department of Homeland Security's E-Verify system;
2. All agencies under the direction of the Governor to include, as a condition of all state contracts, an express requirement that contractors utilize the U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility of:
(a) All persons employed during the contract term by the contractor to perform employment duties within Florida; and
(b) All persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract with the state agency.
3. Agencies not under the direction of the Governor are encouraged to verify the employment eligibility of their current and prospective employees utilizing the E-Verify system, and to require contractors to utilize the E-Verify system to verify the employment eligibility of their employees and subcontractors.
The new Florida requirement, which takes effect immediately, is certain to be challenged in court, either by private entities or by the federal government. In particular, the provisions that require the use of E-Verify for all "current and prospective agency employees" and the use of E-Verify for all employees of subject contractors appear to violate current E-Verify regulations that restrict the use of E-Verify to new hires, except for certain federal contracts. Presumably, state agencies will soon take steps to (a) amend existing contracts to include the new E-Verify requirement and (b) ensure that the E-Verify requirement is part of future contracts.
In contrast to the Florida action, on the same day Rhode Island's new governor, Lincoln Chafee, rescinded his predecessor's Executive Order mandating the use of E-Verify by state agencies and contractors. Calling for a federal solution to problems in immigration law and enforcement, Chafee said that the mandatory use of E-Verify was "divisive" and has caused "needless anxiety." The Rhode Island Executive Order also takes effect immediately.
What Is E-Verify?
An add-on to the Form I-9 employment eligibility verification process, E-Verify is an online electronic database operated by the U.S. Citizenship and Immigration Services, in conjunction with the Social Security Administration (information is available at www.uscis.gov). Employers that use E-Verify are required to enter certain information from Form I-9 into the E-Verify system. E-Verify then queries various databases at the Department of Homeland Security and the Social Security Administration to determine whether an individual is lawfully eligible to work in the United States. While nominally free, employers who use E-Verify nonetheless find that they expend resources in training and administration of their E-Verify participation. Properly used, E-Verify may be an effective tool at identifying individuals whose employment authorization documents are entirely fictitious. E-Verify is less effective at identifying an individual who is pretending to be another person who is in fact a lawful worker. The improper use of E-Verify by employers may create exposure to liability related to unlawful discrimination.
Employers may process E-Verify queries directly or through third-party designated agents. Many designated agents also provide electronic Form I-9 services; however, the quality and sufficiency of many electronic Form I-9 services varies considerably, and employers that are considering an electronic Form I-9/E-Verify solution should consult with experienced counsel before finalizing an arrangement.
E-Verify and the New Congress
Many observers predict that the House of Representatives will soon take up legislation to make E-Verify mandatory for all employers (with some possible exceptions). At present, there is no formal legislative language, although a number of members are considering such an initiative. Interest groups from a variety of perspectives are mobilizing to shape the issues and the debate. While it is far too soon to know what specific provisions any draft legislation might contain, employers with an interest in the outcome of this discussion will want to stay tuned, and possibly become engaged themselves, either independently or through appropriate business or trade associations.
What This Means for Employers
Florida employers that are contractors of any tier with state agencies should expect that state agencies will soon take steps to (a) amend existing contracts to include the new E-Verify requirement and (b) ensure that the E-Verify requirement is part of future contracts. If an employer is currently a party to a contract that might be impacted by the Executive Order, or expects to be a party to such a contract, then the employer should investigate enrolling in E-Verify. These employers should also ensure that all employees with responsibility for Form I-9 maintenance and E-Verify administration undergo thorough training in Form I-9 and E-Verify compliance. For purposes of confidentiality, the training should be performed by competent counsel who can help to address any related systemic concerns related to Form I-9 maintenance and E-Verify compliance.
How We Can Help
The Morgan Lewis Immigration Practice is a national leader in the area of immigration and E-Verify compliance. We offer affordable and customized Form I-9 and E-Verify training either live or over the web, including our "Improve Your I-9 IQ" course. The training has been well received by clients across the country and by attendees at numerous SHRM conferences. In addition, we have helped employers navigate the process of vetting and selecting an appropriate electronic I-9/E-Verify vendor.
For more information, or if you have any questions regarding the issues discussed in this Immigration Alert, please contact any of the following attorneys:
Eleanor Pelta
Eric S. Bord
A. James Vázquez-Azpiri
Lance Nagel