Why is the E-Verify Program Important for an Employer to Join? Common Questions Answered
Posted Jul 18, 2008

This article was written by the attorneys of the Murthy Law Firm for Murthy's Corporate Bulletin. If you are an employer or HR manager, interested in the services offered by our firm, contact our Corporate Services Manager.
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We at the Murthy Law Firm hosted Ms. Gloria Aiken, U.S. Citizenship & Immigration Services (USCIS) Management & Program Analyst, at our July 2, 2008 teleconference. Discussed were the benefits and operation of the Department of Homeland Security's E-Verify Program. E-Verify was created by Congress in the 1996 Illegal Immigration Reform & Responsibility Act as the Basic Pilot Program. E-Verify currently is operated by the USCIS as a partnership between the Department of Homeland Security (DHS) and the Social Security Administration (SSA). As the USCIS and the DHS try to expand enrollment in the program, the Murthy Law Firm finds that employers have a variety of questions about its operation and benefits. Most of these were addressed during our July teleconference by the Murthy Law Firm and our guest, Ms. Aiken, USCIS Management & Program Analyst.
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Q. Is E-Verify participation by my company mandatory?
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A. Membership in E-Verify is voluntary. There are limited exceptions, though. On June 9, 2008, President Bush issued an Executive Order requiring the enrollment in E-Verify for federal contractors and sub-contractors.
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Q. How does my company register for E-Verify?
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A. There is a registration process that concludes with the signature of a Memorandum of Understanding (MOU), governing the company’s E-Verify participation.
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Q. Can an employer choose to sign up only one of several worksites?
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A. An employer may choose to register one or many worksites. It also can choose to have all the employment verifications submitted at one worksite. However, if the company wants to designate multiple verification submission sites, separate MOUs will have to be signed for each one.
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Q. E-Verify is operated by the USCIS. Does this mean that E-Verify will let an employer know an individual's immigration status?
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A. No. The E-Verify program is designed to tell an employer whether or not an individual is authorized to work.
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Q. Does the company have to fire someone when it gets a tentative non-confirmation (TNC) after submitting a verification request to E-Verify?
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A. The Department of Justice makes clear that an employer should not terminate or take adverse action against an employee when there is a TNC and it is being contested. An employee, therefore, should be told about the TNC right away and be given a referral notice to the DHS or the SSA to challenge this initial finding. The employee has eight federal government workdays from the date of the referral to visit or call the appropriate agency to resolve the discrepancy.
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Q. Must a business participate in E-Verify to hire foreign students after graduation?
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A. Companies are not restricted with regard to who they may hire because of non-participation in E-Verify. The DHS recently adopted a rule making foreign students eligible for an additional seventeen months of permission to work in the United States if the student earned a U.S. degree in the science, technology, engineering, or math (STEM) fields and the employer joins E-Verify. The law currently provides that all students generally are eligible for twelve months of Optional Practical Training (OPT) to work in the U.S. after the degree is earned. At the end of the twelve month period, the student must either leave the U.S., change into another status allowing a longer stay in the U.S., or be eligible for seventeen more months of OPT authorization to work based on the having completed his/her U.S. STEM degree program.
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Q. If a company joins E-Verify do all employees have to be verified through it?
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A. E-Verify is used by participating employers to verify employment authorization of new hires. Its use is not permitted to check the employment eligibility verification of existing employees.
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Q. Are there any drawbacks to joining E-Verify?
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A. It is important that the entire MOU signed by the company is reviewed before signing it to ensure a company's satisfaction with its content. The MOU does give the DHS the right of access to business records to ensure that program requirements are being met.
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We at the Murthy Law Firm closely monitor the developments in program operation and guidance issued by the USCIS and other immigration-related agencies. The DHS continues to enhance its efforts to promote the E-Verify program and encourage greater participation. Whether or not enrollment is right for your business must be examined, taking your specific needs into consideration. The Murthy Law Firm's experienced attorneys are able to provide the knowledge and counsel to help businesses make the right choice.
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