Employment is often the magnet that attracts persons to come to or stay in the United States illegally. To address this concern, Congress passed the Immigration Reform and Control Act of 1986 (IRCA). This law requires employers to hire only persons who may legally work in the U.S., citizens and nationals of the United States, and aliens authorized to work in the U.S. In addition, the law prohibits employers from discriminating against individuals on the basis of national origin or citizenship. To comply with the law, employers must verify the identity and employment eligibility of anyone they hire. This is accomplished through completion of the “Employment Eligibility Verification Form” commonly referred to as the Form I-9.

Employers should have completed a Form I-9 for every person hired after Nov. 6, 1986.  The law requires employers to:

Ensure that employees fill out the Form I-9 within three days of their hire date.

Review documents establishing each employee’s identity and eligibility to work. An employer cannot request that an employee present more or different documents than are required. Also, an employer cannot refuse to honor documents, which reasonably appear to be genuine and to relate to the person presenting them.

Properly complete Section 2 of the Form I-9.

Retain the Form I-9 for three years after the date the person begins work or one year after the person’s employment is terminated, whichever is later.

Make Form I-9s available for inspection to an officer of the Department of Homeland Security (DHS), the Department of Labor (DOL), or the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) upon request. Employers are given at least three days advance notice of an inspection.

Since verification of the employment authorization and identity of new hires became law in 1986, Form I-9 has been the foundation of the verification process. To improve the accuracy and integrity of the process, the Department of Homeland Security (DHS) operates an electronic employment verification system called E-Verify.

E-Verify is a web-based system that verifies the eligibility of individuals to work in the United States by comparing information electronically from Form I-9 against more than 425 million records in the Social Security Administration’s database and, for noncitizens, against more than 60 million records in the DHS immigration database. E-Verify is free to employers and is available in all 50 states.

Federal contractors

The Federal Acquisition Regulation (FAR) requires contractors with a federal contract that contains a FAR E-Verify clause to use E-Verify for their new hires and all employees (existing and new) assigned to the contract. Federal contracts issued on or after Sept. 9, 2009, as well as older contracts that have been modified may contain the FAR E-Verify clause. Federal contractors are responsible for their subcontractors’ verification obligations. 

The rule exempts certain federal contracts, such as contracts that include only commercially available off-the-shelf items. Nearly all food and agricultural products fall within the definition of “commercially available off-the-shelf” (COTS) items. Also exempt are contracts for less than $100,000; contracts less than 120 days; and contracts where all the work is performed outside the United States.

While participation in E-Verify is voluntary for most businesses in the private sector, some companies may be required by state law to use E-Verify. For example, the use of E-Verify for private sector employers is currently required in Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina, Tennessee and Utah. In Virginia, all state agencies of the Commonwealth are required to use E-Verify, but the program is still optional for private sector employers that do not have federal contracts.

Concerned that E-Verify eventually might become mandatory for all employers, some employers are weighing the pros and cons of E-Verify to determine whether they should get used to the verification system before federal legislation mandating its use by employers is enacted.

Pros and cons

The pros include the way E-Verify reduces the risk of hiring undocumented workers; provides a legal presumption of authorization and immunity from legal claims for employers that rely on it in good faith; provides credibility in immigration audits and might be a factor in reducing fines for I-9 errors; and indicates good corporate citizenship.

On the flip side, there remain disadvantages to using E-Verify in that it adds time and complexity to the I-9 process, increasing HR or outsourced services costs and might increase turnover and recruiting costs because employers must keep employees with tentative nonconfirmations (TNCs) on the payroll during the TNC contest process.

Currently, more than 120,000 employers participate in the program. Enrollment in the E-Verify system can be completed on the website of the United States Citizenship and Immigration Services (USCIS) at www.uscis.gov.

Jamie Hasty has been recently promoted to vice president and will be managing SESCO's Richmond, Virginia office. Jamie has developed into a successful consultant representing SESCO's clients throughout the southeast and in front of federal agencies. She specializes in management training and development for all levels of managers, federal and state employment law compliance, executive screening and hiring, compensation and performance management systems and a variety of human resources consulting services. For more information contact Jamie Hasty at Jamie@sescomgt.comor (804) 931-6281.