Raising Arizona law in Florida? Part II.

• Author: Carson, Giselle
• Position: Labor and Employment Law

This article is the second half of an article dealing with ongoing events in the world of immigration law as it relates to employer responsibility. Part one in last month's issue focused on state initiatives in Arizona and elsewhere and the court decisions relating to them. This part will focus on the E-Verify system, after a short update on a breaking event related to state laws of the kind discussed last month.

Last month, the author discussed the Beason-Hammond Alabama Taxpayer and Citizen Protection Act, (1) one of the toughest state laws in the nation. On September 28, 2011, Judge Sharon Lovelace Blackburn of the Northern District of Alabama, in a 115-page order, upheld most of the sections of the law, including those that allow the "reasonable suspicion" search during traffic stops and require public schools to check the immigration status of incoming students. (2) An appeal to the 11th Circuit Court of Appeals has already been filed.

What is E-Verify?

E-Verify was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (3) as a voluntary program that is growing into a mandatory program. It is Internet-based and administered by the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA) to assist employers in verifying the work authorization of employees. USCIS reports that as of December 2010, more than 238,000 employers have registered to use the program, and 16 million inquiries were run in fiscal year 2010. It is estimated that five percent of newly hired workers are verified using the system. (4)

Is E-Verify Going Away?

USCIS Director Alejandro Mayorkas has said, "[W]e remain committed to continually improving E-Verify and enhancing this tool's effectiveness for both workers and employers.... It is a very promising tool for ensuring a legal workforce in the U.S." Based on his words, the current enforcement trends and program enhancements, an expansion of E-Verify at both federal and state levels is foreseen.

One of the most recent expansions is the launch of the E-Verify RIDE (records and images from Department of Motor Vehicles) program in Mississippi. RIDE allows employers to verify the authenticity of an employee's driver's

license, driver's permit, or state-issued ID card when presented as a Form I-9 identity document. RIDE is expected to improve E-Verify's accuracy rate and reduce false positive confirmations. The use of data from the Department of Motor Vehicles could result in an increased number of nonconfirmations as about 80 percent of employees provide their drivers' licenses to establish their identity. RIDE is expected to extend to all DMVs nationwide.

USCIS and SSA are preparing for a possible mandatory nationwide implementation of E-Verify, and employers should also. In June of this year, House Judiciary Committee Chair Lamar Smith, R-Texas, introduced the Legal Workforce Act (H.R. 2164), a bill that mandated E-Verify use for all new hires by U.S. employers and preempted state E-Verify laws. On September 21, 2011, another version of the act (H.R. 2885) passed the U.S. House of Representatives Judiciary Committee. The act now moves to the full House, where it is believed to have strong support. The act would create a new employment verification system, the Employment Eligibility Verification System (EEVS), mandating compliance within two years and requiring all employers to utilize E-Verify for all new hires, thus, doing away with the paper I-9 system and preempting state and local laws requiring use of E-Verify.

How Does the Matching or Mismatching of Data Work?

After completing the paper I-9, the employer enters the I-9 information in E-Verify, where the data is compared against the DHS and SSA records. If the information matches, the employer receives a confirmation notice: "Employment authorized." If a match is not found, E-Verify will alert the employer through a tentative nonconfirmation (TNC) notice. The employee has the option to contest or not to contest the TNC.

If the employee chooses to contest, the employer initiates a referral in E-Verify and provides the employee with a TNC referral letter with instructions to contact SSA or DHS within eight federal government work days to resolve the case. If the employee chooses not to contest, the employer may terminate the employee and close the case.

While the TNC is being resolved --which could take several months --the employer should...