In 2012, a popular San Antonio-based restaurant chain with locations throughout Texas was forced to temporarily close its doors after a number of employees quit work when they learned the company was undergoing a routine audit of their Form I-9 conducted by U.S. Immigration and Customs Enforcement (ICE). According to the company’s prepared statement: “Several vital employees have chosen not to report to work …. [t]his has affected our ability to provide our expected level of service to guests.”
The Department of Homeland Security’s (DHS) website states that U.S. employers are legally required to complete a Form I-9 to verify the identity and employment eligibility of all new hires. In part one of the Form, the “employee must attest to his or her employment authorization.” The employee is also required to present their employer with “acceptable documents evidencing identity and employment authorization.” The employer is then responsible for examining the documents presented by the employee to “determine whether the document(s) reasonably appear to be genuine and to relate to the employee and record the document information on the Form I-9.”
Many times employers such as the restaurant chain mentioned above, are confronted by the high incidence of fraudulent documents. In those situations, the employer is often not fined for hiring an individual who was not legally authorized to work; however, once the employees learn an audit is underway, they often leave their employment, leaving the company’s business disrupted and shorthanded.
So, what can you, as an employer, do to better protect yourself?
You can voluntarily participate in the E-Verify program. According to the DHS’ website, “E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. E-Verify is fast, free, and easy to use—and it’s the best way employers can ensure a legal workforce.” According to the U.S. Citizenship and Immigration Services website, more than 700,000 employers of varying sizes use E-Verify.
The E-Verify program electronically uses the information from the Form I-9 to verify a newly hired employee’s eligibility. The initial screening is simple and typically initial results will be available within seconds. If a new hire’s information is not able to be verified by the E-verify system, the employee is given a written notice informing them of their tentative non-confirmation. The employee will have eight federal workdays to visit a Social Security Administration (SSA) and/or DHS office to resolve their case. During this time, the employee must be allowed to continue to work and no adverse action can be taken against them. If the employee elects not to contest their case or if the SSA issues a Final Non-Confirmation or the DHS reports that Employment is Unauthorized, then you, the employer, must terminate the employee.
There is a movement to make the E-Verify program mandatory for all employers. In this regard, U.S. Congressman Lamar Smith (R-Texas) of the 21st District of Texas announced on September 8, 2017, that he has introduced the Legal Workforce Act (H.R. 3711) to save jobs for citizens and legal workers by requiring U.S. employers to check the work eligibility of all future hires through the E-Verify system. According to Congressman Smith, the E-Verify program “quickly confirms 99.8% of work-eligible employees and takes less than two minutes to use. Over 740,000 American employers currently use E-Verify …. “
Your company can elect to participate in the E-Verify program individually or you can enroll through an authorized DHS E-Verify Third Party Agent. According to the DHS’ website, an E-Verify Third Party Agent acts as a liaison between E-Verify and participating employers and conducts the verification process for their clients.
SWBC PEO serves as an E-verify Third party Agent for many of our clients that have elected to voluntarily participate in the E-Verify Program. If you'd like us to assist your company in this process, call (877) 704-0454.