Legislation Overview
The federal government first tackled the immigration issue in 1986, with the Immigration Control and Reform Act (IRCA). IRCA made it unlawful for employers to knowingly hire or continue to employ unauthorized workers and required employers to both complete the newly created Form I-9 (employment eligibility form) as well as review identity and work authorization documents presented by the new employee – documents that helped the employer make a “best effort” determination as to whether the new employee was eligible to work in the United States.
In 1992, to assist these employers, the Social Security Administration (SSA) and the Department of Homeland Security (DHS, then known as the Immigration and Naturalization Service), programmed the databases they maintained to allow employer access through a dial-in Telephone Verification System – employers could now verify that new hires have the legal right to work in the United States. An electronic version of this system, the Basic Pilot Program (renamed E-Verify in late 2007), was introduced in 1995 in six states. By 2004, the Program’s scope was nationwide and it was available online, but it had not yet caught on with employers since there was no requirement to use it and those who did sign on found the government website burdensome and hard to navigate.
So, in an effort to promote more employer use of the Basic Pilot Program, the DHS created the Designated Agent program in which private companies could design their own, more user-friendly computer programs that integrated with the SSA and DHS databases. These companies could then market their services to employers nationwide. Kroll’s partner, Form I-9 Compliance, became the first Designated Agent of DHS in 2005.
To further streamline the employment eligibility verification process, new legislation was passed to allow the paper-based Form I-9 to become an electronic document, with electronic signatures allowed under the E-Sign Act and DHS regulations. Likewise, improvements in the SSA and DHS databases continue to be made.
In recent years, the federal government has made various attempts to pass immigration reform legislation, yet none has passed. It is interesting to note that a common denominator among all the failed bills was a mandate that all U.S. employers use E-Verify.
State Law
State legislatures in the United States, grappling with the failure of the federal government to overhaul the immigration laws, considered more than 1,500 immigration measures in 2007, and enacted nearly 250 of them, an unprecedented surge in state-level laws addressing immigration.1 Some of these new state laws mandate the use of E-Verify.
States that have enacted legislation requiring employers to participate in E-Verify include:
- Arizona
- Colorado
- Georgia
- Illinois
- Minnesota
- Mississippi
- Missouri
- North Carolina
- Oklahoma
- Rhode Island
- South Carolina
- Tennessee
- Utah
Risks of Non-Compliance
Employers who do not consistently and accurately perform employment eligibility verification for all new employees may be in violation of IRCA. Noncompliance, whether intentional or caused simply by oversight, has severe legal and financial consequences imposed by the DHS, as well as the potential of a corporate image tarnished by negative publicity.
Following is a partial list of federally mandated fines:
- For employers who fail to properly complete, retain, or make I-9 Forms available for inspection, fines range from $100 to $1,100 per individual I-9.
- For employers who knowingly hire or knowingly continue to employ unauthorized workers, civil penalties range from $250 to $11,000 per violation.
- For employers engaging in a pattern or practice of knowingly hiring or continuing to employ unauthorized workers, criminal penalties can be as much as $3,000 per unauthorized employee and/or six (6) months of imprisonment.
(1) NCSL Reference