Harry Asatrian and Ainsley Harrell on To E-Verify or not to E-Verify

Harry Asatrian and Ainsley Harrell on To E-Verify or not to E-Verify

As federal, state, and local governments push more and more U.S. employers to deny hiring unauthorized workers, the question of whether to use the E-Verify system comes up more often. In this Analysis, Harry Asatrian and Ainsley Harrell, of Strasser Asatrian LLC, go over the pros and cons of E-Verify. They write:
 
A. Certain Employers Required to Enroll:
 
1. Federal Contractors and Subcontractors.
 
On August 25, 2009, the U.S. District Court for the District of Maryland, Southern Division, [in Chamber of Commerce of the United States v. Napolitano, 2009 U.S. Dist. LEXIS 75986 (D. Md. Aug. 25, 2009)] rejected a challenge to the implementation of the Federal Acquisition Regulation ("FAR") provision that makes E-Verify mandatory for federal contractors. As a result, all solicitations and contracts issued after September 8, 2009, must include the clause set forth in FAR 52.222-54. Exempted from this rule are solicitations and contracts where the contract is valued at less than $100,000, where the period of performance is less than 120 days, where the work will be performed entirely outside of the United States, or for commercially available off-the-shelf items. Any subcontracts over $3,000 for services or construction will require the same clause. Federal contractors should note that their compliance with the MOU [Memorandum of Understanding] is a performance requirement under the terms of a contract or subcontract.
 
The required clause first obligates all federal contractors who are not yet enrolled in E-Verify at the time of a contract award to enroll in the program within thirty days. Within ninety days of enrolling, federal contractors must begin to initiate verification of employment of eligibility of all new hires, regardless of whether the employees will be assigned to the federal contract, within three days of each hire. Second, for each employee assigned to a federal contract, a federal contractor must initiate verifications within ninety days of enrolling or thirty days of the employee's assignment to a federal contract, whichever is later.
 
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B. Advantages and Disadvantages of E-Verify.
 
1. Assists Employers in Maintaining a Legal Workforce.
 
A main appeal of E-Verify is that an employer is better able to ensure that its workforce is legal. Employers should note, however, that identity theft remains an issue.
 
2. Raises Rebuttable Presumption That Employer Did Not Knowingly Hire Unauthorized Worker.
 
. . . . [I]t is unlawful for an employer to hire or continue to employ an alien knowing that the employee is not authorized to work in the United States. But an employer who confirms the identity and employment eligibility of an employee in accordance with the terms of E-Verify benefits from a rebuttable presumption that it has not violated INA § 274A(a)(1)(A). Further, no employer participating in E-Verify can be held civilly or criminally liable under any law for actions taken in good-faith reliance on information received through E-Verify.
 
Employers should note, however, that if they continue to employ a worker after receiving an FNC [final nonconfirmation response], they must notify DHS [Department of Homeland Security]; each failure to notify may subject an employer to a civil money penalty. Further, an employer who continues to employ a worker after receiving an FNC also subjects itself to a rebuttable presumption that it has knowingly employed an unauthorized alien in violation of INA § 274A(a)(1)(A).
 
(footnotes omitted)