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E-Verify May Be More Trouble Than Ease For Some Employers

23 May

By Allissa Wickham

Law360, New York (May 20, 2016, 5:07 PM ET) — Although E-Verify can be a useful tool for
companies seeking to make sure their employees are authorized to work, attorneys warn that
jumping into the program can lead to staffing shortages, and E-Verify data may increase the
likelihood of an investigation by the U.S. Department of Justice.

The E-Verify online system compares information from employees’ work forms to information from
the Social Security Administration and the U.S. Department of Homeland Security in order to
confirm their eligibility to work, according to U.S. Citizenship and Immigration Services.

E-Verify is currently voluntary for most companies, though it’s mandatory for some employers, like
those with federal contracts. But jumping into the program can have serious staffing consequences
for employers, according to Robert Loughran at Foster LLP. The problems arise when large
employers with hundreds of workers end up applying E-Verify to their entire workforce, and either
workers end up quitting, or they run into hiring trouble.

“In times of low unemployment, they keep on getting tentative nonconfirmations [in E-Verify], and
they can’t get workers,” Loughran explained. “So, they have open positions that they can’t fill.”
The industries most vulnerable to losing workforce members after putting E-Verify in place would
likely be agriculture, construction and hospitality, according to Michael Neifach of Jackson Lewis PC,
who recommended having a recruitment plan ready to go.

“You don’t have to necessarily start using E-Verify across all of your hiring sites,” Neifach said.
“Start it in a rational way … and have a full plan in place for recruiting.”

However, recruitment isn’t the only thing employers should consider when implementing E-Verify,
since data from the program can lead to an investigation from the U.S. Department of Justice’s
Office of Special Counsel for Immigration-Related Unfair Employment Practices, according to

“Recently, we’ve received four OSC investigations in the last six months that were because of EVerify
data,” said Amy Peck of Jackson Lewis. “And the way we know that is the OSC attorneys
say, ‘You have too many List A documents.'”

List A documents, such as a green card or a U.S. passport, are among the documents that
employers can accept from workers to fill out I-9 forms, which are used to confirm an employee’s
identity and work authorization. Employers can’t ask to see a specific document based on
immigration status, and engaging in so-called “document abuse” can lead to sizable settlements
with the DOJ.

However, certain employers may simply be more prone to receive List A documents due to their
location, especially around border areas, according to Peck.

“If you are commuting in from Mexico every day, or once a week, you’re going to be carrying your
green card or a passport,” Peck said, adding that, “if you’re an employer in that region, you are more likely to get List A documents, because those individuals are required to carry them, and
would be more likely to carry them. But the government doesn’t take that into account.”

And while the OSC has been around for decades, attorneys have said the office has been ramping
up its activity in recent years, possibly thanks to an agreement requiring U.S. Citizenship and
Immigration Services to refer discrimination matters to the OSC, along with relevant information
from the E-Verify employment eligibility system.

“The OSC starts an independent investigation, they contact an employer, [and] maybe eventually it
reaches a settlement agreement,” explained John Fay, an immigration attorney and general counsel
at LawLogix. “That settlement agreement is published and many times … it’s stated very clearly
that this action initiated based on a referral from E-Verify.”

And indeed, a USCIS spokesperson confirmed to Law360 that the agency provides E-Verify
information to the OSC regarding claims of discrimination stemming from employers’ use of the
program, and “information regarding the potential misuse, abuse or fraudulent use of E-Verify.”
But crucially, companies still may not understand the full ramifications of the program, according to

“The employers have been giving the data to the government under a ‘free and voluntary’
program, and [not] understanding that you are giving them the keys to the car that will then run
over you, right?” she said.

So in the end, is it worth it for employers to sign up with E-Verify? Attorneys like David M. Serwer
of Baker & McKenzie LLP argue that registering for the program may still be a smart move overall.
“I still believe that registering for E-Verify is a wise move for companies to pursue,” Serwer said.
“I’m aware that it’s a bit of inviting the government into your own house, and letting [them] see
what you have, warts and all. But I still think it’s the best expression that a company can
demonstrate of its good-faith intention to comply with immigration laws.”

Ultimately, if a company has a solid compliance program and adequate resources for E-Verify, then
it’s a “fine program,” Peck said. However, she warned that if a company doesn’t have a “very
airtight compliance program, and adequate HR resources, then it’s not necessarily a good idea.”