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What Employers Need to Know About E-Verify Enforcement

July 2014

By: Ryan M. Helgeson

Recently, the government has increased inspection of and enforcement against employers using E-Verify. E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. Employers that are voluntarily enrolled in E-Verify, use the program to check the validity of information obtained from the employee on Form I-9. Understanding how and why E-Verify enforcement is occurring will assist employers with minimizing their potential liability.

The Verification Division Monitoring and Compliance Branch ("MCB") of the U.S. Citizenship and Immigration Service is tasked with identifying and deterring possible discriminatory use of E-Verify. The MCB generally provides information and guidance to employers enrolled in E-Verify through email and telephone help-lines, as well as through desk audits and site reviews. Although MCB does not have the authority to fine employers, it can refer cases of suspected abuse to Immigration and Customs Enforcement ("ICE") for further investigation. ICE does have the authority to audit and fine employers for violations regarding the employer's use of E-Verify and Form I-9.

MCB's scrutiny an employer's use of E-Verify is commonly triggered by:

  • The employer's frequent failure to create E-Verify cases within three days after the employee's first day of work;
  • Impermissible verification of current employees by the employer (only new hires may be verified using E-Verify from the date of enrollment forward);
  • Failure to print Tentative Non-Confirmation ("TNC") and/or Further Action Notices when prompted by the E-Verify system; and,
  • Having a large percentage of cases when a lawful permanent resident presented a Lawful Permanent Resident card ("green card").

Employers with any of the above issues may be selected by MCB for a desk review or a site visit. A desk review consists of providing MCB with E-Verify employment-related documents, such as TNC notices, referral letters, and copies of the employer's E-Verify and I-9 Compliance policies. MCB reviews the documents and advises the employer on how to correct and improve their processes. A site visit is a coordinated review of an employer's E-Verify policies and procedures conducted at the employer's place of business. In each case, significant misuse, abuse, or fraud involving an employer's use of E-Verify may be referred by MCB to ICE for further investigation.

Employers that are currently enrolled or considering E-Verify enrollment are encouraged to call Attorney Ryan Helgeson to discuss their compliance obligations and how to minimize any potential liability. Ryan is happy to assist you with this or any other employment immigration question you may have. Ryan works out of the St. Charles office of Wessels Sherman and can be contacted by phone (630-377-1554) or email ( [email protected]).