E-Verify: Understanding Responsibilities and Rights

E-Verify is a federal program that employers use to verify a new employee’s employment eligibility in the United States. The use of E-Verify has grown exponentially in the last few years and its use only continues to increase. According to the United States Citizenship and Immigration Services, just over 1,000 employers were enrolled in E-Verify in 2001, and by 2015, over 688,000 employers were enrolled.

A contributing factor to this rising number is that many states are enacting comprehensive legislation requiring all employers in that state to enroll in E-Verify and with each passing year similar legislation grows throughout the country. While Michigan has not enacted such sweeping legislation, certain employers are still required to enroll. For example, as of September 2009, federal law requires all federal contractors and subcontractors to use E-Verify, and in 2012, Michigan enacted legislation that mandated the use of E-Verify by contractors and subcontractors of the transportation department for construction, maintenance, and engineering services.

With continued growth and legislation of E-Verify, Michigan employers should be knowledgeable of their responsibilities and obligations. First, employers must not use E-Verify on a discriminatory basis. While E-Verify is commonly associated with an employee’s immigration status, it should not be used as a tool to verify that person’s legality in the U.S., only his or her employment eligibility. Therefore, E-Verify should be used to confirm all new hires’ work eligibility. Second, E-Verify is not to be used as a pre-screening tool. An employee should be verified through E-Verify only after he or she has been hired.

Third, and one of the most difficult areas for employers to navigate, is when the verification of an employee comes back as a “Tentative Nonconfirmation” (TNC). A TNC means that information from an employee’s Form I-9 did not match government databases. Because a TNC does not automatically mean that the employee is ineligible to work or is in the county unlawfully, employers are prohibited by federal law to terminate employment, lower pay, withhold pay, reduce work hours, delay training, or treat that employee any different than any other employee because of the TNC.

The employer should also know and understand the employee’s rights, if a TNC is received. The employee has a right to a hard-copy of the TNC notice and a right to understand what a TNC means. Next, it is the employee who has the option moving forward. The employee may contest the TNC or decide not to challenge it. If the employee chooses not to challenge the TNC, he or she may not be allowed to continue employment. If the employee chooses to contest the TNC, the employer must provide the employee with a referral letter from E-Verify, 8 federal work days to initiate resolution, and allow the employee any necessary time off to obtain a resolution. It is then the employer’s responsibility to check for updates on the E-Verify program regarding an employee’s TNC status.

With steep fees and consequences for businesses who hire employees unauthorized to work in the U.S., immigration reform constantly on the horizon, and increasing state legislation enacted around the country, Michigan employers should have an understanding of the E-Verify program and the accompanying employer responsibilities and rights of their employees.

Sara E. Lowry is an attorney in our Livonia office where she concentrates her practice on municipal law, insurance defense, and law enforcement defense and litigation. She may be reached at (734) 261-2400 or slowry@cmda-law.com.