Many employers are considering whether to voluntarily sign up for E-Verify, the government’s electronic database to verify employment authorization and Social Security numbers. Use of E-Verify is voluntary for most employers but not for those residing in states or counties where it is mandatory. It is also mandatory for certain federal contractors, those employers wanting to hire STEM graduates for the longer Optional Practical Training period, and for some employers where E-Verify is mandatory as part of a settlement agreement for sanctions violations. In deciding whether to voluntarily use E-Verify, it is important for employers to read the Memorandum of Understanding that will be agreed to when signing up. Of paramount importance is that using E-Verify does not prohibit ICE from levying fines and other sanctions when employers make intentional or unintentional mistakes with I-9 forms.

Every employer must use form I-9 to document the work authorization status of new hires since November 1986, including US citizen hires. E-verify is a supplementary tool used to verify the information provided on the Form I-9. The I-9 form has a section for the employee to complete when presenting the allowable documents to show work authorization. And, the form has a section for the employer to complete to verify it has seen the original work authorization documents. Once the form is completed by the employer and employee, only then does the employer log onto E-Verify.

In a recent administrative fine case, United States v. Golf International dba Desert Canyon Golf, 10 OCAHO no. 1214 (March 26, 2014), ICE charged the employer with multiple I-9 violations. Golf International, however, claimed that its participation in E-Verify entitled it to a presumption that it had not violated the law. However, the Administrative Law Judge held that:

“…the E-Verify program provides no such blanket protection. An employer’s first responsibility in that program is, in fact, to properly complete an I-9 form for each new employee. As ICE points out, the E-Verify Memorandum of Understanding that must be signed by a participating employer provides that ‘The Employer understands that participation in E-Verify does not exempt the Employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees.'”

Ultimately, the Administrative Law Judge found Golf International liable for 125 counts of failure to properly complete I-9 forms, and four counts for failing to complete I-9 forms at all, all of which were deemed to be substantive violations rather than technical violations. Good faith is only a defense for technical violations. (See ICE’s website for a Fact Sheet on technical or procedural v. substantive violations and potential penalties.)