Ready Or Not, Here They Come: State E-Verify Laws And What Employers Should Know

Just as the nation's unemployment rate has risen to new levels, so has public pressure on the government to curb employment of undocumented workers. Several states have responded to illegal employment by passing laws that require employers to use a federally created Internet-based program called E-Verify. This electronic verification system allows employers to verify that new hires are authorized to work in the United States by comparing information from employees' Form I-9s with records maintained in federal databases.

While employer participation in E-Verify is voluntary under federal law, the recent United States Supreme Court decision in Chamber of Commerce of the United States v. Whiting has given states the green light to make E-Verify1 participation mandatory for employers. In the 5-3 decision, the Court upheld an Arizona law that, in addition to imposing licensing sanctions on businesses that hire unauthorized workers, requires Arizona businesses to check the work authorization status of new employees through E-Verify. Given this unequivocal endorsement from the High Court, employers should now expect to see a proliferation of state laws requiring mandatory E-Verify participation. Not only will the hiring process change for many employers who hire employees within a state that has passed E-Verify legislation, but multistate employers will be forced to navigate an ever-changing and sometimes contradictory patchwork of state laws.

Development of the E-Verify Program

Sanctions against employers for hiring unauthorized aliens were first created at the federal level in 1986 when Congress passed the Immigration Reform and Control Act (IRCA).2 IRCA prohibits employers from knowingly or intentionally hiring or continuing to employ an unauthorized alien.3 It also established the I-9 system, which requires employers to complete a Form I-9 for every new hire as a way to demonstrate employer compliance with IRCA.4 Form I-9 requires employees to attest to their eligibility to work, and employers to certify that the documents presented reasonably appear on their face to be genuine and relate to the individual.5 Employers who act in good faith compliance with the I-9 system are entitled to an affirmative defense to federal employer sanctions.6

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which created three pilot programs to improve the efficiency and accuracy of the I-9 verification process.7 Of those three programs, E-Verify, formerly called the Basic Pilot Program, is the only program still in existence. A free Internet-based program, E-Verify is administered by the Secretary of Homeland Security.8 It allows employers to compare employees' Form I-9 information with records in the Social Security Administration database and the Department of Homeland Security's immigration databases. E-Verify does not replace the I-9 system, and employers who elect to participate in E-Verify must still complete Form I-9 for every new employee.9 While employers who in good faith comply with the I-9 system are entitled to an affirmative defense to sanctions, those who use E-Verify are...