Construction Informer

An Executive Order signed by the U.S. President on June 6 requires anyone doing business with the federal government to use the Internet-based employment eligibility system called E-Verify. Early assessments of this Order suggest this is the first time there are retroactive requirements to confirm the worker status of employees who were on jobs prior to the issue of the Order.

There are a couple of issues pointed out by Littler Mendelson, P.C., a national employment and labor law firm regarding the application of the Order.

• It’s unclear if the Order applies to all contracts currently in existence, or just new ones.
• The Order appears to conflict with current terms of E-Verify that says employers should only use the program for new hires.

The Department of Homeland Security selected E-Verify as its choice for the government to use in verifying its employees’ work eligibility and it says the system has handled four million verification queries and 99.5 percent of the qualified employees were automatically cleared. E-Verify was established through a partnership of the U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration. In its Statement for the Record the USCIS claims more than 66,000 employers currently use the system and that represents 259,000 work sites.

Not everyone sees E-Verify as being accurate or problem-free enough. The Society of Human Resources Management and a Congresswoman from Arizona are just a couple of the doubters as they question the accuracy of E-Verify along with problems business owners have reported. For example, according to this report, 3,000 U.S. citizens who emigrated from other countries have been incorrectly flagged as unauthorized to work in the U.S. The Associated General Contractors of America has questioned whether the recent Presidential Order violates current immigration laws and how it might impede meaningful immigration reform.

I suspect the process of mandating the use of E-Verify will only continue until it finally includes all employers and it would make sense that verification would also be required retroactively – meaning all employees would be re-verified through E-Verify regardless of how long they have been employed. If that is the case then a thorough review of I-9 procedures and making sure required re-verifications are up-to-date might be some good things to do.