E-Verify by State: Is it Voluntary or Mandatory?

E-Verify is a national program administered by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) to verify the eligibility of employees for work. At the national level, E-Verify is mandatory by federal agencies, federal contractors, and vendors. At the state level, the requirement for its use varies across the nation.

Eight states mandate that all businesses verify the workforce eligibility for its hires. Twelve states require that public employees and companies with public contracts verify workers’ eligibility through E-Verify. The remaining states do not impose a requirement to use E-Verify. 

So if, E-Verify is often voluntary, why use it?

E-Verify Supports the Mandatory I-9 Form

First, one must examine the mandatory I-9 Employment Eligibility Form to answer why E-Verify can be a good idea. Once an applicant accepts an offer for work, the new hire completes the first section of the I-9 form no later than the first day of work for pay. Then, the employee then provides the employer acceptable documents and forms such as driver licenses, passports, U.S. military card, or voter registration card. No later than the third business day of work, the employer must fill out the second section of the I-9 form, which attests which presented documents were reviewed and verified for employment authorization.

I-9 is a Process, not a just a Form

It sounds simple, but the I-9 form can deceive Human Resources. It is one of the most often misunderstood government forms for businesses, especially small and medium size businesses without large HR departments backed by in-house counsel. The I-9 form is not a simple linear form to fill out and forget. Instead, it’s a legal process that presents the employer some pitfalls that can result in penalties. For example:

1. Use of the I-9 form as employment pre-screening
2. Missing signatures on forms
3. Failure to examine documents in the worker’s presence
4. Requiring a social security number, unless using E-Verify
5. Incorrectly filling out the form, such as missing a birthdate or address
6. Failure to meet deadlines, such as those mentioned in the previous section
7. Failure to retain I-9s for one year after their termination or three years after their hire date for inspection or audits by Immigration and Customs Enforcement (ICE)

It is worth taking note of the potential pitfalls because audit failures can result in an onerous inspection process, regardless of fines. Contrary to myth, I-9 penalties are not negligible.

Avoid I-9 Pitfalls with E-Verify

To avoid these common pitfalls, the use of E-Verify through an onboarding system such as TimeForge will guide the employer through the I-9 process and help keep the employer in compliance. For example, TimeForge will prompt HR to have the employee fill out the form after the hire date and submit the I-9 prior to any expiration dates. TimeForge will also validate that the form is correctly filled out.

Benefits of E-verify

Regardless of a state’s mandates, E-Verify delivers additional benefits to the employer. First, E-Verify helps employers avoid the costly hiring and training of those who might not be eligible for work. Second, E-Verify, unlike the I-9 form, does require the employee’s Social Security number, which allows the SSA to validate the number early in the new hire’s employment. Why is this important? Because incorrect SSNs submitted with payroll will result in SSN No-Match letters from the SSA. These letters trigger a process that forces the employer to respond to burdensome corrections with the W-2c form and the difficult task of urging the employee to resolve the issue at the local SSA office.

Finally, another benefit is that an employer who uses E-Verify in good faith cannot be held liable for hiring an illegal alien or for discrimination. This is because the system guides the employer to only submit allowed documents and then validates them. Therefore, it is recommended to use E-Verify even if a state does not require it.

E-Verify Requirements by State

Eight states mandate E-Verify for all employers, both public and private. They are:

• Alabama
• Arizona
• Georgia (administered by each municipality)
• Mississippi
• North Carolina (for employers with more than 25 employees)
• South Carolina
• Tennessee (if 50 or more employees working in or out of the state)
• Utah (for employers with more than 25 employees)

In addition, E-Verify is mandatory in these twelve states for public employers and public contractors:

• Colorado
• Florida
• Idaho
• Indiana
• Louisiana (protects employers from liability if they unknowingly hire illegal aliens while participating in E-Verify)
• Minnesota
• Missouri (private employers are encouraged to use the system)
• Nebraska
• Oklahoma 
• Pennsylvania (construction workers)
• Texas
• Virginia

Finally, states with a voluntary requirement to use E-Verify are listed below. The voluntary status does not exempt the employer from following the I-9 process. As mentioned above, despite the voluntary requirement, E-Verify does help compliance with I-9.

• AK
• AR
• CA
• CT
• DE
• HI
• IL
• IA
• KS
• KY
• ME
• MD
• MA (unless state agency)
• MI
• MT
• NV
• NH
• NJ
• NM
• NY
• ND
• OH
• OR
• RI
• SD
• VT
• WA (except for Whatcom County, Pierce County, Lewis County, Clark County, and cities of Lakewood, Kennewick, and Hoquiam)
• WV
• WI
• WY