by Kristina E. Chubenko, Esq.
In August 2009, the U.S. Department of Homeland Security (DHS) published a proposed regulation that would rescind the “no-match rule” that for years has been the centerpiece of the government’s effort to enforce laws banning employment of illegal immigrants.
The no-match rule made employers responsible for resolving discrepancies when employees presented mismatched Social Security numbers on employment eligibility verification Form I-9.
DHS wants to rescind the no-match rule in order to emphasize its E-Verify program, an online employment eligibility verification system, as a tool to crack down on employers that hire undocumented workers. E-Verify has existed since 1996, but federal contractors have been required to use it since Sept. 8, 2009. Many states have enacted or are considering legislation that would encourage or mandate the use of E-Verify for public contractors, state agencies and private employers.
Federal contractors and E-Verify
Most federal contractors must now use E-Verify. This requirement applies to prime contracts entered into after Sept. 8 worth $100,000 or more and to subcontracts worth $3,000 or more. Covered federal contractors must ensure their subcontractors use E-Verify.
The requirement applies to current employees working on the government contract, as well as all new hires who will do contract work. The E-Verify program rules expressly forbid employers from using E-Verify to check on existing employees unless the employers are performing under a covered federal contract.
Contractors using E-Verify for the first time have 30 days from the date of the contract to enroll in the program and 90 days from the date of enrollment to begin using E-Verify.
Using E-Verify for new hires
Any employer may use E-Verify to confirm the work eligibility of new hires.
Employers cannot use E-Verify as a pre-screening tool. When there is no federal contract mandating the use of E-Verify, an employer may not submit the person’s name to E-Verify until the new employee has been offered a job, has accepted it and has submitted Form I-9.
Once the new hire submits Form I-9 to the employer, the employer enters the necessary information into E-Verify’s database. The employee’s information must be entered within three business days from the date of hire.
E-Verify will communicate one of three results to the employer:
- Employment authorized
- Social Security Administration (SSA) tentative nonconfirmation
- DHS verification in process—which means authorization or nonconfirmation will occur within 24 hours.
An “SSA tentative nonconfirmation” result means there is an information mismatch with the SSA and sets a time-sensitive process in motion. The employer must inform the employee of the nonconfirmation, and the employee can contest the mismatch and resolve the discrepancy with either the DHS or the SSA.
The employee has eight federal government workdays to contact either agency to resolve the discrepancy. Should the employee contest the mismatch on time, then the employer must permit the employee to continue working and may not take disciplinary action.
Once the employee contacts the DHS or the SSA, the employer will receive one of four results:
- Employment authorized
- Review and update employee data, then resubmit
- Final nonconfirmation
- DHS no show.
Upon receipt of one of these results, the employer must resolve the case in E-Verify. However, if the employee chooses not to contest the nonconfirmation with either agency, then the employer may terminate the employee.
While the E-Verify rules don’t expressly direct employers to terminate an employee after receiving a final or uncontested nonconfirmation, failing to dismiss the worker will be presumed to constitute knowing, unlawful employment of an unauthorized immigrant under the Immigration Reform and Control Act.
After the nonconfirmation becomes final, the employer must report to E-Verify whether the employer has terminated the employee. The civil and criminal penalties imposed by federal law for knowingly employing an illegal immigrant range from a $250 fine for employing one unauthorized individual, up to $10,000 for each unauthorized employee if the employer is a repeat violator.
A criminal conviction may lead to imprisonment for up to six months.
Note: Employers that use E-Verify must display an E-Verify poster and an anti-discrimination poster in an area that is visible to prospective employees to show that it participates in this program. These posters must be in English and Spanish.
Author: Kristina E. Chubenko, Esq., is an associate in the Newark office of Genova, Burns & Vernoia. Contact her at (973) 533-0777 or firstname.lastname@example.org.
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