States Mandate Use of E-Verify

June 22, 2011

E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. Operated by the Social Security Administration and Department of Homeland Security, E-Verify is closely linked to Form I-9 and exists to strengthen the Form I-9 employment eligibility verification process that all employers, by law, must follow.

Though all employers must verify their employees' employment eligibility with Form I 9, participation in E-Verify is usually voluntary.

However, as of May 26, 2011, at least 31 states introduced legislation related to E-Verify. Fifteen states currently require the use of E-Verify for public and/or private employers, twelve through legislation and three through executive orders.

State — Effective Date — Applies to:

Arizona — May 1, 2008 — All employers, public and private

Colorado — Aug. 6, 2008 — State contractors

Florida — Jan. 4, 2011 — State employees, contractors and subcontractors

Georgia — July 1, 2007 (Phased in over time) — State agencies, contractors, and subcontractors

Idaho — Dec. 13, 2006 — State agencies, contractors

Indiana — May 1, 2011 — State agencies, contractors

Minnesota — Jan. 29, 2008 — State agencies, state contracts

Mississippi — July 1, 2008 (Phased in over time) — All employers, public and private

Missouri — Jan. 1, 2009 — Public Employers, contractors and subcontractors

Nebraska — Oct. 1, 2009 — Public employers, public contractors

North Carolina — Jan. 1, 2007 — State agencies

Oklahoma — Feb. 2, 2010 — Public employers, contractors, subcontractors

South Carolina — Jan. 1, 2009 (Phased in over time) — All employers, public and private

Utah — July 1, 2009 -Public employers, contractors, subcontractors

July 1, 2010 — -Employers with more than 15 employees

Virginia — *Dec. 1, 2012 -*State agencies

Mar. 25, 2011 -public contractors and subcontractors w/ more than 50 employees in contracts worth more than $50,000.

Rhode Island did require the use of E-verify through the issuance of an executive order; however, the executive order was rescinded on January 5, 2011.

Tennessee is in the process of requiring the use of E-verify. The Tennessee Lawful Employment Act, HB1378, (signed into law June 7, 2011), requires all employers to 1) request and maintain a copy of one of 11 identification documents or 2) enroll and maintain active participation in the E-Verify program. On or after January 1, 2012, the law would apply to governmental entities and private employers with at least 500 employees. On or after July 1, 2012, the above provisions would apply to private employers with between 200 and 499 employees. On or after January 1, 2013, the above provisions would apply to private employers with between six and 199 employees.

While most states encourage the use of E-verify, Illinois prohibits the state or localities from requiring employers to use an employment eligibility verification system.

There are an estimated 7 million employers in the United States and 60 million new hires per year. According tothe U.S. Citizenship and Immigration Services (USCIS), more than 216,000 employers were registered with the E-verify program as of December 11, 2010. This is a significant increase from the 157,000 employers registered in 2009.

It is our recommendation that employers begin to consider implementing E-verify voluntarily. The current trend in States mandating E-verify use seems to point to additional legislation requiring E-verify use. An advantage of using E-verify is that it helps employers maintain a legal workforce (although identity theft can be an issue). Also, employers participating in E-verify cannot be held civilly or criminally liable for actions taken in good faith reliance on information received through E-verify. Therefore, an employer that confirms the identity and employment eligibility of an employee in accordance with the terms of E-verify will not be held liable if the employee actually lacks work authorization.

If you would like to gain a better understanding of E-verify or have specific questions answered about the verification system, please contact SESCO today at 423-764-4127.