What States Require E-Verify Compliance?
E-Verify was established in 1997, along with a pair of other programs, to prevent illegal immigrants and unauthorized workers from attaining employment in the United States. Its impact is still being studied, but in the meantime, it is becoming much more commonplace among employers. During the 2010 fiscal year, U.S. Citizenship and Immigration Services, or USCIS, issued more than 16,000 compliance letters. During the first half of the 2012 fiscal year, 23,000 compliance letters were sent. E-Verify, like I-9 enforcement, is asserting itself as a fixture of the hiring process.
Although E-Verify largely remains a voluntary process that employers use as a supplement to the I-9 form, several states have made it a mandatory part of the process. As with most things legal in the U.S., this is a state-level consideration, with every state government determining what role E-Verify should serve for their state’s businesses. As such, it is essential that all employers check their state laws before hiring anyone, as E-Verify operates on the same tight deadlines that the I-9 process does.
Here are the states that require the use of E-Verify:
- Alabama – Applies to all employers.
- Arizona – Applies to all employers.
- Colorado – Applies to contractors that are awarded a contract from a state agency. The contractor must use E-Verify or Colorado’s own employee verification system.
- Florida – Applies to state contractors and subcontractors.
- Georgia – Applies to any private employer that employs more than 10 people, as well as contractors with state contracts.
- Idaho – Applies to state contractors and subcontractors.
- Indiana – Applies to state and local government contractors, as well as any business that receives a grant in excess of $1,000 from a state agency.
- Louisiana – Applies to private employers that bid on public works projects, as well as subcontractors. Private employers that use E-Verify in this way are not liable for any penalties arising from E-Verify inaccuracies.
- Michigan – Applies to any contractor or subcontractor working with the state department of human services, the transportation department, and any contractor or subcontractor providing construction, maintenance or engineering services. Transportation department contractors and subcontractors are monitored tightly, and are often subjected to state audits to ensure their use of E-Verify.
- Minnesota – Applies to any public contractor or subcontractor awarded a contract in excess of $50,000.
- Mississippi – Applies to all employers.
- Missouri – Applies to any employer awarded a state contract or grant in excess of $5,000, as well as any employer that applies for a loan, tax abatement or tax credit.
- Nebraska – Applies to public contractors and employers that receive tax incentives from the state.
- New Hampshire – New Hampshire does not mandate the system’s use, but utilizing E-Verify will provide an affirmative defense to employers in the event of identity fraud.
- North Carolina – Applies to public contractors and subcontractors. E-Verify usage is also mandatory for any private employer with at least 25 employees.
- Oklahoma – Applies to public contractors and subcontractors, but not in regards to any contracts entered into prior to July 1, 2008.
- Pennsylvania – Applies to public works contractors and subcontractors. Pennsylvania defines public works as any project that is expected to cost the public at least $25,000.
- South Carolina – Applies to all employers.
- Tennessee – Applies to private employers with at least 50 employees. If the employer has between six and 49 employees, they must either use E-Verify or require all new hires to provide particular documentation for the purposes of proving identity and work authorization.
- Texas – Applies to contractors and subcontractors working with the transportation department and railroad commission.
- Utah – Applies to private employers with at least 15 employees and all public works contractors.
- Virginia – Applies to any contractor that maintained an average of 50 employees over the previous 12 months, prior to entering into a contract with a state agency. The contract must be worth at least $50,000 to require E-Verify use.
- West Virginia – Only applies to employers whose employees frequently work on the state capitol’s grounds.
There is only one state (California) that has put up barriers against the use of E-Verify. Specifically, the state has banned municipalities and state agencies from requiring E-Verify use as a condition in a contract, for the purposes of preserving a business license. As California has also pushed back against I-9 audits, this is not a surprise.
Additional E-Verify Notes
The I-9 form and E-Verify are often conflated with each other, but they are wholly separate. Like with the I-9 form, though, an E-Verify case must be opened up no earlier than the employee’s first day of work, and no later than their third day of work. If E-Verify is mandatory, then it should obviously be used with every new hire. However, even if E-Verify use is voluntary, if an employer decides to utilize the system, they must do so for all of their new hires. Failing to do so may expose the employer to accusations of discriminatory treatment, and possible legal action.
E-Verify does not replace the I-9 form, and it can only be run once for a particular employee. Attempting several E-Verify cases for the same employee may result in penalties. And E-Verify is not a background screening process and cannot be used to check an applicant’s identity or social security status. Using E-Verify in this way can carry severe penalties.
Finally, if the E-Verify case returns a Tentative Non-Confirmation, or TNC, the employer cannot use this development as justification for taking action against the employee. A TNC is issued when with the Social Security Administration or Department of Homeland Security cannot immediately verify an employee’s identity. If, however, either agency returns a Final Non-confirmation or the employee fails to respond to the TNC in time, these can be used as justification to take action and terminate the employee without consequence.
E-Verify is considered by some to be the next front against illegal immigration, though it is still being developed. In the meantime, employers must pay close attention to their state’s laws regarding E-Verify, and ensure they are always acting in compliance with them.