With federal efforts to reform immigration at a standstill, many states have pushed forward with new immigration laws that will have far-reaching effects for employers seeking to hire foreign nationals in the U.S. Whether many of these laws will ultimately pass constitutional muster remains to be seen, but employers must comply with the measures while they remain current law. Below is a brief summary of the latest state measures, as well as a primer on the federal government's E-Verify program, which is the subject of much of the new state legislation:
As of January 1, 2008, employers doing business in Arizona must verify the work authorization of all new hires using the federal government's E-Verify system. Arizona House Bill 2779, the Legal Arizona Workers Act, also requires the Arizona attorney general to investigate employers that "intentionally employ an unauthorized alien or knowingly employ an unauthorized alien." Specific penalties are contained within the law for employers who knowingly employ unauthorized workers. For a first violation, employers can have their business license suspended for up to 10 business days, and a second violation can result in the permanent revocation of the business license. Employers in Arizona had filed a motion seeking to enjoin the enforcement of the bill, but a federal district judge denied it. At the motion hearing, Arizona county attorneys stated that enforcement proceedings would begin no earlier than February.
As we have reported previously, on January 1, 2007, a Colorado law took effect that requires additional employment verification for any new employee hired in Colorado. The law does not apply to employees hired prior to that date. Employers are required to maintain hard copies or electronic copies of eligibility documents provided by an employee. Copies of the documents should be retained under the same retention guidelines for the Form I-9 (three years from the date of hire, or one year from the date of termination, whichever is later). Within twenty (20) days after hiring a new employee, Colorado employers must also complete and sign an "affirmation of legal work status." The Colorado Department of Labor and Employment (CDLE) had provided a sample affirmation form on its website (effective August 10, 2016, this is no longer necessary). Under HB 1017, CDLE can conduct random audits of employers in Colorado to obtain documentation that they have complied with both the federal and new state requirements. Any employer, who with "reckless disregard," fails to submit the documentation when requested, or submits false or fraudulent documentation, will be subject to a fine of not more than $5,000 for the first offense and not more than $25,000 for any subsequent offense.
In 2007, Illinois passed the Illinois Right to Privacy in the Workplace Act, which would effectively prohibit employers in the state from enrolling in the federal government's E-Verify program. In an effort to protect its businesses and workers, the Illinois law would prohibit the use of E-Verify until DHS and SSA databases are able to resolve 99 percent of the discrepancy notices they issue within three days. It is currently estimated that DHS and SSA are able to resolve only 92 percent of the discrepancy notices they issue within three days. DHS sued Illinois, asking the court to find the new law illegal. The law was scheduled to take effect on January 1, 2008, but the State of Illinois has agreed not to enforce the law for 60 days while the state legislature considers repealing the E-Verify portion of the bill. DHS has published a notice for Illinois employers about the law and use of the E-Verify system. For the time being, employers can continue to use E-Verify to confirm the work authorization of new employees.
As of January 1, 2008, Tennessee's House Bill No. 729 permits the Tennessee commissioner of labor and workforce development to order the suspension of a business license of any employer found to "knowingly employ, recruit, or refer for a fee for employment, an illegal alien." The license would be suspended until the employer could demonstrate that it no longer employs such workers. A second or subsequent violation within three years leads to a one-year suspension of the business license. The statute does not provide for an appeals process, although the new measure does provide some safe harbors. If the employer has properly followed the federal Form I-9 requirements and the documentation provided by the person is later determined to be false, an employer will not be found to have violated the Tennessee law. Also, employers are protected if they have verified the status of a worker using the E-Verify program. In order for an investigation of an alleged violation to occur, a complaint must be filed and a hearing will be held if it is found that there is substantial evidence to support the complaint.
In addition, states such as Oklahoma and Georgia recently have passed immigration measures that require state agencies and businesses that contract or subcontract with the state to verify the work authorization of all new employees through E-Verify.
The E-Verify Program
What is it? Formerly known as the Basic Pilot Program, E-Verify is an Internet-based program that verifies employment eligibility by cross-checking information with the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases. The system is available in all 50 states and is free to employers.
The program may only be used to verify the employment eligibility of newly hired employees and cannot be used for pre-employment screening of job applicants! This program also may not be used to verify the employment eligibility of current employees.
How do I register? Employers can register at https://www.vis-dhs.com/EmployerRegistration, which includes instructions for completing the registration process.
Under the program, the employer signs a Memorandum of Understanding (MOU) with SSA and DHS that spells out the responsibilities of each party. Employers should read the MOU carefully and understand its terms before registering for E-Verify. For example, employers registering for the program agree to only accept "List B" documents that contain a photograph.
How does the program work? After completing the Form I-9, the employer must log on to a secure DHS website and enter the employee's information and the documents presented. The E-Verify procedures must be initiated within three business days of the date of hire, and only after the Form I-9 has been completed. The information is then transmitted immediately to the SSA. If the Social Security number (SSN) and name match SSA records, the employer receives a message within two to three seconds that the employee is authorized to work and the process is finished.
If the SSN and name match, but the SSA cannot verify that the employee is work-authorized (i.e., the SSN may have been issued "not for employment purposes"), the employer gets a message that DHS is attempting to verify work authorization. DHS responds within 1-3 days, after checking its records by hand. If DHS finds a match, it tells the employer, and the process is finished.
If the procedures do not provide verification of employment eligibility, the inquiry will result in further instructions to the employer. In some cases, the employer will be directed to contact the DHS to follow alternate verification procedures. In other cases, the employer will receive notification of a "tentative nonconfirmation" of employment eligibility. In that case, the employer asks the employee whether he or she wishes to contest the tentative nonconfirmation. If the employee chooses to contest, he or she must contact the SSA or DHS within eight government working days of notification to resolve any discrepancy in SSA or DHS records. The employer should make a second inquiry using the E-Verify procedures within 10 government working days after the date of the referral in order to obtain confirmation, or final non-confirmation.
Tentative nonconfirmation does not mean that a person is not authorized to work, and employers cannot treat it as proof that the individual is not employment-authorized. Employers cannot terminate an employee based upon nonconfirmation, until the individual has had time to follow the procedures for correcting any misinformation. The employee must follow the procedures for contesting the nonconfirmation, if he or she desires to continue the employment.
If the employee does not contest a tentative nonconfirmation or if the tentative nonconfirmation is not successfully contested, it becomes a final nonconfirmation. The employer may not take adverse action against the employee until there is a final nonconfirmation. Once a final nonconfirmation is issued, the employer may terminate the employee without civil or criminal liability. If the employer does not terminate the employee after a final nonconfirmation, the employer must notify the DHS. If the employer fails to do so, it will be subject to a civil penalty of between $500 and $1,000. Keeping a person on payroll who has had a final nonconfirmation creates a rebuttable presumption that the employer is employing an unauthorized individual.
Since each case has its own particular set of facts and circumstances, we strongly recommend that employers seek advice from immigration counsel before terminating any employee.
USCIS has recently released a fact sheet about the E-Verify program. Additional information can be found at www.uscis.gov/e-verify.
We encourage employers to make a careful, reasoned decision about whether to participate in E-Verify in states where participation is voluntary. Employers should carefully consider the ramifications of the Memorandum of Understanding. We continue to monitor the status of employment eligibility verification requirements in all of the states and will update you with the latest developments. In the meantime, please feel free to contact any member of our Immigration Group with any questions you might have regarding the new state requirements, the E-Verify program, or about the I-9 process in general.