E-Verify: Frequently asked Questions
Q. Can action be taken against employers who continued to lawfully and in good faith hire workers but did not use the E-Verify program after January 1, 2008, when the Arizona Employer-Sanctions law went into effect?
A. Except for government employers, no action can be taken against employers who have not yet signed up with E-Verify itself, but those employers do not have the rebuttable presumption against a violation. In other words, if an employer who did not use the E-Verify program after January 1, 2008, were to be accused of knowingly hiring an illegal worker during that time -- even if that employer took the proper hiring steps in filing a Form I-9 -- the burden of proof that a violation did not occur is on that employer. However, an employer who is signed up with a an E-Verify Employer Agent is not saddled with a burden of proof that it "knowingly" hired an unauthorized worker if that employer's E-Verify Employer Agent cleared the worker with an E-Verify query. Thus, to eliminate vulnerability against frivolous charges, employers should waste no time in signing up with an E-Verify Employer Agent.
Q. Can action be taken against GOVERNMENT employers who do not use the E-Verify program after January 1, 2008, when the Arizona Employer-Sanctions law went into effect?
A. Yes. Government state agencies such as public schools are considered political sub-divisions and are required to sign up for E-Verify. Any citizen may report a government agency that is not using E-Verify even if there is no evidence that the agency has hired any unauthorized workers.
Q. Do employers have to check the work authorization status only of immigrants?
A. No. Employers or their E-Verify Employer Agent must check the authorization status of ALL new workers hired. THERE ARE NO EXEPTIONS.
Q. What is the punishment under Arizona law for being found guilty of "knowingly" hiring an unauthorized worker?
A. For an employer’s first violation of "knowingly" hiring an unauthorized worker, the court is mandated to suspend that employer's business license for ten days and order the termination of the employment of all unauthorized workers and subject the employer to a three-year probationary period. The employer must also file a sworn affidavit with the County Attorney within three business days of the court’s order, attesting to the fact that the employer has terminated the employment of all unauthorized workers and that the employer will not henceforth intentionally or knowingly employ any unauthorized workers. A second offense will result in permanent revocation of the employer's business license.
Q. What is an E-Verify Employer Agent?
A. An E-Verify Employer Agent is someone who is authorized by the DHS (Department of Homeland Security) to be contracted by an employer to do the on-line queries using the federal E-Verify program to determine whether a newly hired worker is authorized to work in the U.S.
Q. Does an E-Verify Employer Agent work for the DHS.
A. No. E-Verify Employer Agents are non-political neutral parties providing a business service for profit -- as such, Employer Agents look after the interests of their clients.
Q. How does someone qualify to be an Employer Agent?
A. All applicants for becoming an E-Verify Employer Agent must be U.S. citizens, must be background checked, must register with the DHS, study a voluminous manual and pass a lengthy on-line "Mastery" test.
Q. If an employer uses a Employer Agent, does that employer also have to register with the DHS?
A. No. Only the Employer Agent must be registered with the DHS. Employers get registered with the DHS through their Employer Agent.
Q. Can't Employers do their own worker verifications using E-Verify?
A. Yes, if they so choose. Most corporations with large numbers of workers with fully staffed Human Resource Departments usually appoint one of their own employees as an E-Verify administrator to manage the program.
Q. What type of Employers need to contract with an E-Verify Employer Agent?
A. Employers who don't have a computer or access to high speed Internet or employers who simply don't want the responsibility and/or fuss with the time consuming task of verifying new hires. Businesses that benefit from outsourcing to an E-Verify Employer Agent are commonly Building Contractors, Restaurants, Motels, Hotels, and other high worker turnover businesses.
Q. Can an employer pre-screen a new hire?
A. No. The employer must fill out a Form I-9 on the worker which includes the hire date, before an Employer agent can check the new worker's work authorization status. However, a job seeker in Arizona and four other states may do a Self Check on their own employment status. However, a job seeker who passes the self check does not not waive the necessity for an employer to still do an E-Verify work authorization check.
Q. When does the Employer Agent have to do an on-line check of the work authorization status of a new hire?
A. It's important to remember that the hire date is the date the worker started to work. It is the same date that the Form I-9 was completed even if the worker has been asked to start the next week. For example, if you as the employer commit to hiring a worker on the 10th of the month (that's the date the Form I-9 is completed), but the worker does not start until the 20th of the month, the hire date is the 10th of the month. In this example, the earliest the employer may initiate a query is the same day after completion of the Form I-9. The latest the employer or the E-Verify Employer agent may do an E-Verify query is three government days after the completion of the I-9.
Q. How long must an employer retain a Form I-9 on a worker?
A. There must be a Form I-9 on file with the employer for any existing worker. When a worker's employment is terminated for any reason, the employer must retain the Form I-9 for that worker either for three (3) years after the date of hire or for one (1) year after employment is terminated, whichever is later.
Q. Wow! That Form I-9 looks complicated. Will filling out the Form I-9 under the new Arizona worker authorization law burden employers with a lot of red tape?
A. The Form I-9 isn't new. Employers have for many years been already burdened with Form I-9. Employers who haven't been retaining Form I-9s, have been in violation of federal law.
Q. May an employer check the work authorization status of existing workers?
A. Yes, but only if the employer is contracted with the federal government. Employers not involved with federal contracts may not initiate an E-Verify work authorization probe of any existing worker even if the worker's immigration status is in question, assuming that the worker was hired in accordance to law and in good faith. However, regardless of whether an employer is signed on to E-Verify, federal law mandates that an employer who discovers that a worker has been working without a Form I-9 on file, must allow that worker another opportunity to present acceptable documentation and complete a Form I-9 -- BUT MAY NOT DO AN E-Verify QUERY ON THAT WORKER. NOTE: Regardless of Arizona's Employer-Sanctions Law, if employers know or should have known that a worker is unauthorized to work in the United States, that employer may be subject to serious penalties by the DHS for "knowingly CONTINUING to employ" an unauthorized worker.
Q. Do employers have to check the work authorization of their independent sub contractors?
A. No -- The Arizona's state law follows the federal E-Verify rules: Only newly hired employees are subject to E-Verification. An employee is anyone on whom you must fill out an I-9. Arizona law does not require employers to verify that an independent sub contractor's workers were hired through the E-Verify program (unless the employer is contracted with the federal government. However, Arizona DOES require independent sub contractors to use E-Verify for their own new hires -- but under Arizona law, employers utilizing independent contractors are not responsible to ascertain that the independent contractor hires their workers through E-Verify. However, the federal government may take action against an employer if that employer knows or should have known that an independent contractor used illegal labor. For added protection, it's advisable for employers to require its independent sub contractors to sign affidavits saying that they use E-Verify for their own employee verification.
Q. Does entering into the E-Verify program make employers vulnerable to warrantless searches?
A. No. But upon request, all Forms I-9 subject to retention requirement must be made available to an authorized official of the DHS, Department of Labor, and/or the Office of Special Council for Unfair Immigration-Related Employment Practices for the Department of Justice -- provided that the employer is given three days' notice prior to a work-site inspection -- regardless of whether or not employers use E-Verify. No subpoena or warrant is required.
Q. What other information will the employer be burdened with?
A. The only information necessary for the Employer Agent to verify a U.S. citizen applicant's work authorization status is fully contained in the Form I-9, a copy of which is faxed or emailed by the employer to the Employer Agent. For non-U.S. citizens, a copy of the work authorization document containing the worker's photo (for example, a green card) must also be provided.
Q. Who must make the comparison of the photo image of the new hire which is downloaded from the DHS, to the photo on the Green Card document or other work authorization document presented by non-citizen worker applicants at the time of the E-Verify query?
A. Employers who administer their own E-Verify program are required to make image comparisons. Employers using Employer Agents must email attach or fax a copy of the applicant's photo (photo which is on green card or other work authorization document) to their Employer Agent for comparison with photo on file with the DHS.
Q. Why should an employer have an Employer Agent create a free account if that employer doesn't anticipate any need to hire anyone for several months to come?
A. Because an employer should be instantly prepared to hire a new worker. It can take up to two government business days for the Employer Agent to receive client approval from the DHS. Any workers hired during the waiting period, would not have been cleared through the E-Verify program.
Q. How fast will the Employer Agent know if the new worker is authorized to work?
A. Within seconds of submitting the Form I-9 information on-line -- provided that the employer is already signed on to the E-Verify program through the Employer Agent.
Q. Can an employer fire a new hire if the Employer Agent informed the employer that the worker was initially flagged as unauthorized?
A. No. The worker must be given an opportunity to contest the discrepancy. But if the worker signs a termination form in which the worker does not contest the discrepancy, then the worker can be terminated. If an employee turns the job offer down on the spot or doesn't show up for work, then the case is resolved by default -- the worker is assumed to have self terminated. The information on all cases (whether the worker is authorized or not) must be resolved. All resolved cases must be filed with the DHS.
Q. Where does the employer get all the forms necessary for the E-Verify program.
A. All forms are provided by the Employer Agent via U.S. Mail, fax or email.
Q. What must the employer do if the Employer Agent finds that a worker who is initially flagged as unauthorized, contests the finding?
A. The Employer Agent must direct the employer in providing the worker with SSA (Social Security Administration) and/or DHS, contact information and allow that worker eight government business days to correct any discrepancies. If a worker cannot prove within the eight government business days that he/she is authorized to work, then the Employer Agent must make a final E-Verify resubmission. If the DHS makes a final Non-Confirmation, then the employer may fire the worker.
Q. Isn't the process for a legitimate worker to clear his/her record when tentatively found non-confirmed very burdensome?
A. While it may be an inconvenience, it is better to correct the record now, than wait until the worker reaches age 65 and finds that he/she hasn't been credited for decades of work.
Q. Once a worker has cleared the E-Verify query, can an employer fire the worker for a valid reason such as being incompetent?
A. Yes. Employers can fire workers for the same valid reasons they have always fired them.
Q. Can an employer be held responsible for hiring an un-authorized worker, if E-Verify indicated that the worker was authorized?
A. No. In fact, the best insurance for an employer to not be accused of hiring an illegal worker, is to use an Employer Agent to run the Form I-9 information supplied by the worker and employer through the E-Verify database. In that way, the employer is completely free of the responsibility of "knowingly" hiring an illegal worker.
Q. if an anonymous caller calls the authorities to report that an employer hired an illegal worker, will the employer be automatically investigated?
A. No. Anyone who accuses an employer of hiring an illegal worker, would have to have knowledge that the employer did not use the E-Verify query to determine the work authorization of a worker and that the employer knowingly hired an unauthorized worker. To prove that an employer violated the Employer Sanctions Law, the County Attorney must produce additional evidence that the employer was actually aware of the worker's true unauthorized status.
Q. Must an employer or Employer Agent report a worker suspected of being an illegal immigrant to the DHS?
A. No. The employer can only fire the worker under the proper procedure as directed by the Employer
Agent, but is not allowed to report the worker to authorities.
Q. Is it true that E-Verify makes an unacceptable amount of mistakes by erroneously flagging legal workers as unauthorized causing them to be fired?
A. No, the percentage of E-Verify errors being excessively high is a myth. And so is the myth that E-Verify doesn't have the capacity to handle the heavy load that would result if many states adopt laws requiring its use. Workers cannot be fired without being given the chance to correct their records. In fact, E-Verify gives legal workers with Social Security errors a chance to fix their records now rather than when they reach the age of 65 and find out they haven't been credited for decades of work. Three more myths.
Q. Can illegal workers fool the system?
A. The only way an illegal immigrant worker has in the past been able to fool E-Verify, was by using a work document such as a green card and a social security card containing information belonging to another legal worker and doctored with a photo of himself. However with the mandatory use of the E-Verify photo tool now in effect, an illegal immigrant worker's document containing someone else's information would be revealed as fraudulent if the photo downloaded from the DHS did not match the photo on the green card.
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