Slowly but surely, E-Verify is becoming the not-so-voluntary system of choice for verifying new hires’ eligibility to work in the United States. Regardless of whether or not you believe the system is “fast, free, and easy” or “too flawed to be mandatory,” the reality is that many employers are required to use E-Verify through an ever-expanding web of state requirements. Gone are the days when E-Verify representatives would explain to employers that the system is purely voluntary (as originally proscribed in the 1996 law creating it). Today, the tagline goes something like this: “E-Verify is a voluntary program unless you are a qualifying federal contractor or you have employees in the states of Alabama, Arizona, Georgia, Mississippi, South Carolina, Utah, etc., etc.” And if you’re a public contractor in any given state, the E-Verify maze really gets interesting as there are dozens of city and county requirements which seem to spring up from time to time (unbeknownst to many of the impacted employers). For the past few years, we’ve been describing E-Verify laws as a growing patchwork, but I think it now more properly should be described as a full-blown quilt. By my count (which may change at any minute), we have 9 states which require E-Verify for all or most employers; 8 states which require E-Verify for public employers, contractors, and/or both; and 5 states which require employers to use E-Verify in certain local or municipalities. If you’d like to see an interactive view of all of the E-Verify requirements, please visit the LawLogix E-Verify State Map here. You can also request a free download of our reference chart for offline viewing. New E-Verify State Laws – Effective January 1, 2012 Alabama – the Beason-Hammon Alabama Taxpayer and Citizen Protection Act Alabama’s new immigration law, Act No. 2011-535, is widely considered to be the toughest immigration law in the nation. While some parts of the law have drawn legal challenges, most of the provisions relating directly to employers have survived. Here is what you need to know for E-Verify:
For a complete analysis from guest attorney blogger and I-9 guru, Wendy Madden, see our previous blog post here. Georgia – Illegal Immigration Reform and Enforcement Act of 2011 Georgia’s new immigration law, HB 87, is another broad piece of legislation that provides for state and local enforcement of immigration laws. With regards to E-Verify, HB 87 requires all private employers with ten or more employees to use E-Verify to confirm the employment eligibility of all new hires. As with a few other E-Verify mandates, Georgia’s HB 87 will be implemented in stages depending on the number of full-time employees (generally those who work 35 hours or more per week) within a particular business. Here are the timelines:
In addition, to enforce HB 87, every business will now have to submit an affidavit regarding compliance with E-Verify to its local government before that business can obtain or renew its business license or occupational tax certificate. Louisiana – Act 376 and Act 402 Louisiana passed two E-Verify related bills in 2011 governing both public and private employers. Here are the basics:
South Carolina – Act 69 Act 69 amends the South Carolina Illegal Immigration and Reform Act to require all employers to register and participate in E-Verify. Here are the details:
Tennessee – The Tennessee Lawful Employment Act (H.B.1378) Last but not least, the Tennessee Lawful Employment Act requires all employers in Tennessee to demonstrate that they are hiring and maintaining a legal workforce either by verifying the employment eligibility of newly hired employees through E-Verify or by requesting (and maintaining a copy of) an identity/employment authorization document from all newly hired employees. The provisions will be phased in as follows:
An employer who has been found to have violated the employment verification provisions of the Act will be assessed $500 for the first violation, $1,000 for a second violation and $2,500 for a third or subsequent violation. In addition to these civil penalties, first-time offenders will also be assessed an additional $500 for each employee or non-employee who was not verified through the E-Verify program or for whom an identity / employment authorization document was not requested. For second and third violations, employers will be fined an additional $1,000 or $2,500, respectively, for each employee or non-employee. Managing State-Level E-Verify Requirements To further complicate matters, many of these state laws have been enacted without any accompanying guidance, leaving many questions and legal issues unanswered. In light of these constantly changing and often-complex E-Verify requirements, employers need to make a coordinated effort to successfully manage their I-9 and E-Verify obligations by working closely with experienced immigration counsel to ensure compliance with both state AND federal rules. In addition, employers are well-advised to use an integrated I-9/E-Verify system which can automatically control the submission of I-9s to E-Verify by work location or impose other state-specific rules which may be in effect. As E-Verify continues to evolve and gain even more traction at the state level, employers should make sure to utilize these resources and tools to ease the inevitable E-Verify questions which arise from our growing state quilt.