E-Verify is the internet based system through which employers can verify the work eligibility of new hires. Upon hiring a new employee, the employer checks the employee’s information against Department of Homeland Security (“DHS”) and Social Security Administration (“SSA”) databases to confirm whether the employee is work authorized.
Employers enrolled in E-Verify are presumed not to have violated the employer sanctions rules in the Immigration and Nationality Act with respect to the hiring of any individual, if they obtain confirmation of each new employee’s identity and employment eligibility in compliance with the terms and conditions of E-Verify. Enrollment in E-Verify requires, among other things, the signing of a Memorandum of Understanding with DHS, subjecting employers to certain responsibilities. It is important that the rights and responsibilities that come with E-Verify are understood in their entirety prior to enrollment.
In a recent decision by the Office of the Chief Administrative Hearings Officer (OCAHO), U.S. v. Golf International, the employer contended that because it enrolled in E-Verify, it was entitled to a presumption that it had not violated the law with respect to omissions, such as the failure to properly complete the Form I-9. OCAHO disagreed, pointing out that the E-Verify Memorandum of Understanding that must be signed by a participating employer provides that “The Employer understands that participation in E-Verify does not exempt the Employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees.” As the employer did not properly complete, retain and make available for inspection certain Forms I-9, it was liable for violations related to such failures.