For employers who have been approached by graduates with STEM degrees (i.e. degrees in Science, Technology, Engineering or Mathematics) for employment on the basis of a recent extention of their optional practical training from 12 to 27 months, the question of what E-verification is and whether to get involved in the program is an issue that has come into focus. E-Verify, formerly a pilot program, has recently undergone technological enhancement and is currently mandatory in certain states and under certain circumstances, i.e. such as when participation in the program is a conditon to entering into a government contract. Essentially, E-Verify provides a database system that allows employers to cross-reference identity information with Social Security Administration records confirming work eligibility.   Employers can register to participate in the E-Verify program via the Department of Homeland Security’s website. As part of the registration process, employers are obliged to  enter into a Memorandum of Understanding with the Government regarding the employer’s reponsibilites and duties under the program. Whether or not an employer should participate in E-Verify depends on its specific circumstances.  However, employers should know that participation is not a substitute for the I-9 requirement, which requires all U.S. employers to fill out and maintain I-9 forms for each newly hired employee. Participating in E-Verify also does not afford the employer immunity from enforcement of the immigration laws.  Obviously, for employers dependant on government contracts and/or doing business in states like Arizona, which make participating in E-Verify mandatory, there is little choice in the matter. However,  for employers with a choice, critics point out that participating in E-Verify can, in the short-run, raise administrative costs because to comply with the program the employer must use E-Verify to evaluate the work eligibility of every new hire, which  may require a central database manned by well-trained staff. Among other things, critics also point out that the Memorandum of Understanding that employers are required to execute as part of the program contains language which strongly indicates that an employer may subject intself to increased scrutiny by immigration enforcement authorities, including requests by such authorities for compliance documents relevant to the employer’s participation  in the E-Verify program. Finally, although the database capabilities of E-Verify have supposedly improved, there is still concern the that upwards of 8% of all E-Verify requests will yield false negatives. According to certain commentators, there could be especially significant problems processing individuals who are J, F (OPT), H, TN and TPS status holders or persons authorized to work in the U.S. under the terms of special programs.  For this reason, employers who employ or plan to employ non-immigrant workers may well find participating in E-Verify a time consuming and frustrating process.

We expect that in the future, employers will hear more about E-Verify as the U.S. Government and state governments increasingly emphasize the need to halt undocumented labor through implementing employment eligibility enforcement measures. Although there are virtues to a more technology driven system for ascertaining employment eligibility, there would be significant growing pains and, at least initially, materially higher costs. Moreover, the E-Verify program doubtless will impose increased administrative burdens on and heighten risks for American employers, who are already expected to shoulder many of the responsibilities attending the nation’s broken immigration system.    

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