E-Verify is an Internet-based employment authorization verification system administered by the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA). After completing the Form I-9 process, employers create an E-Verify case and submit it to E-Verify, which electronically verifies work authorization by checking the information entered against DHS, SSA, and U.S. Department of State records. 
Although many companies have no choice regarding E-Verify participation (e.g., certain federal contractors and employers in certain states), those with the luxury of choice should seriously consider the consequences. Rather than asking “how” to register, companies need to ask whether they “should” register.
More cons than pros?
As of January 2014, over 500,000 employers have enrolled in E-Verify. While that number may seem large, it is only roughly eight percent of our nation’s employers. Although the trend is leaning toward E-Verify participation and comprehensive immigration reform (if passed) will likely require all employers to participate, you should seriously consider the ramifications of participation before jumping on board.
The DHS will provide you with the many pros of E-Verify, but it won’t mention the many cons. While companies should engage experienced immigration counsel to conduct a full analysis―taking into account such things as the size of the company, its industry, its history of violations, and the nature of its workforce―below are some cons that are worth contemplating while you still have a choice:
- All E-Verify participants must enter into a memorandum of understanding (MOU) with the government. The government regularly “updates” the MOU (as it did in January 2014) and imposes the new requirements on employers without notice or without signing a new MOU.
- E-Verify cannot detect identity fraud.
- E-Verify has some accuracy challenges (i.e., a number of false positives).
- Employers increase their exposure to litigation for false negatives.
- Employers expose themselves to increased government scrutiny.
- Employers expressly allow the SSA and DHS to perform periodic audits, including employee interviews.
- The E-Verify Monitoring and Compliance Branch (M&C) regularly monitors employer use, exposing employers to additional liability.
- E-Verify refers cases of suspected misuse, abuse, and/or fraud to other enforcement agencies―e.g., Immigration and Customs Enforcement (ICE) and the U.S. Department of Justice (DOJ). The DOJ’s Office of Special Counsel (OSC) is acting on referrals from E-Verify M&C (see recent DOJ OSC letters of resolution).
- E-Verify provides ICE and the DOJ with information regarding ongoing administrative and criminal investigations as requested by those agencies.
- There are additional expenses and resources for training and entering and monitoring cases.
- There are additional Form I-9 process requirements. (E-Verify participants have separate rules regarding acceptable documents and document copies.)
- E-Verify comes with poster requirements.
- There are additional auditing and compliance requirements.
- Employers experience uncertainty in the hiring process while
- Employers face discrimination issues because of concerns that E-Verify disproportionately affects legal immigrants and foreign-born citizens.
Bottom line
While in some cases the pros will outweigh the cons, it’s important not to dive in without understanding the additional obligations and exposure that come with E-Verify.
Christine D. Mehfoud is an attorney with Spotts Fain in the firm’s Richmond, Virginia. She may be contacted at cmehfoud@spottsfain.com.