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By the time Congress passed IIRAIRA in 1996, it was clear that the I-9 process was not working to thwart employment of unauthorized alien workers. Authentic-looking fake documents were easy to buy; the nature and number of legacy INS work authorization documents were sufficient to confuse all but the most sophisticated employers about what documents they could accept for how long from whom. In an effort to streamline the I-9 process and improve reliability of the work authorization effort, in IIRAIRA, Congress authorized three pilot programs: a citizenship attestation program, a machine readable document program and a “basic pilot” program based on electronic queries of government data bases. The first two programs have long since expired, but the Basic Pilot has been expanded to include all 50 states and Puerto Rico, and has been extended twice, most recently through March 2009. In August 2007, DHS officially christened the Basic Pilot as “E-Verify.”
There are no E-Verify regulations. Instead, an employer enrolls in E-Verify by agreeing to a Memorandum of Understanding,(MOU) with the Department of Homeland Security, establishing a contractual relationship between the employer and the government. The MOU spells out how the employer is to administer E-Verify. Those particulars are not detailed here. Suffice it to explain that the MOU requires the employer to conduct an E-Verify query for all employees hired at an enrolled hiring site within three days of employment. The query interfaces electronically with the Social Security Administration (SSA) database, and, for foreign nationals or naturalized citizens, with Department of Homeland Security (DHS) data bases as well. If the data match, the system sends an “employment authorized” alert to be maintained with the employee’s I-9. If the data do not match, the system returns a “Tentative Non-Confirmation” notice that signals the start of a process whereby the employer provides appeal rights and a “referral” to the SSA or the DHS to resolve the no match. If the issue is corrected, the system updates the Tentative Non-Confirmation to “employment authorized” and the case is closed. If the matter is not resolved, or the employee fails to contact the appropriate agency within 8 business days of the employer’s notice of the Tentative Non-Confirmation, 
the system returns a “Final Non-Confirmation Notice.” Significantly, especially from the employment law perspective, the MOU requires employers who receive a Final Non-Confirmation Notice either to terminate the employee or notify the government that the employer continues to employ the employee. The MOU imposes a penalty for each instance where the employer continues to employ an employee subject to a Final Non-Confirmation Notice without notifying DHS that it is doing so. The MOU also imposes a rebuttable presumption against the employer in this situation that it knowingly employed an unauthorized alien.
In order to access the government data base, the E-Verify MOU requires employers to obtain their new employees’ social security numbers and a picture identification in connection with completing their I-9. Current I-9 rules, by contrast, make providing a social security number optional and allow employees to present a number of documents that do not include a photograph. In addition, I-9 regulations require employers to accept receipts for replacement identification or work authorization documents. Because the E-Verify obligations are contractual, whereas the I-9 rules are grounded directly in statute and regulations, some would suggest that the I-9 rules should control where there is a discrepancy. Moreover, the argument goes, if an employer goes beyond the I-9 process and asks for the E-Verify-required information, the employer can face an IRCA or employment discrimination charge.
Bonnie Gibson (licensed in California) is a partner in the Phoenix office of Fragomen, Del Rey, Bernsen & Loewy, LLP, one of the largest business immigration legal practice in the world. Bonnie (E-verify Lawyer) specializes in I-9, E-Verify and other immigration worksite compliance, drawing upon her 25 years experience in labor and employment law. She also serves as the E-Verify chair for the American Immigration Lawyers Association Verification Liaison Committee. For more information about E-Verify or I-9 compliance, contact Bonnie Gibson at bgibson (at) fragomen.com.
