SB1070 - Does E-Verify Protect Your Company?
By: Kraig J.
Marton, Esq. and Jerrie Martinez-Palombo,
M.Ed., SPHR
Navigating E-Verify
By now Arizona employers should be familiar with the Legal
Arizona Workers Act (LAWA, also known as the Employer Sanctions
Law), which was enacted January 1, 2008 and requires all
Arizona employers to use E-Verify. Surprisingly, a July
28, 2010 article in the Arizona Republic indicated only one-third
of Arizona employers are registered for E-Verify. Read Republic
Article
There are, however, new developments. First, LAWA was
amended by SB1070 so that you have to not only use E-Verify, but
must also keep records about it. A.R.S. §23-214 now reads: "After
December 31, 2007, every employer, after hiring an employee, shall
verify the employment eligibility of the employee through the
e-verify program and shall keep a record of the
verification."
Second, the Department of Homeland Security, ("DHS"), and the
Social Security Administration, ("SSA") have made changes to
E-Verify requirements, and if you have not used E-Verify recently,
you should study the new requirements. We have reviewed the
E-Verify Users Manual and selected a few key E-Verify requirements
that all Arizona employers should be aware of. We have also
set up helpful links.
Key E-Verify Requirements
- Employers must display Notice of E-Verify Participation in both
English and Spanish. Posters can be found on the E-Verify Website
under Essential Resources.
- E-Verify should be used only
after the applicant has accepted an employment
offer and has completed Form I-9.
- Employers must have employees complete the Form I-9
within three days of hire and identification data entered
into E-Verify must come directly from the employee's completed Form
I-9.
- Employees must provide a social security number on their Form
I-9 if employers use E-Verify.
- When identification such as Permanent Resident Card, Form
I-551, or Form I-755, is provided by employees, photos on the card
must be identical to the photo showing in E-Verify's database.
Do not compare it to the individual, but to the photo in
the database.
- Employers may be requested to send and employee's Form I-9 and
photo identification to E-Verify.
- Once required employee information is entered into the database
E-Verify will supply employers with one of the following
confirmations: Employment Authorized, Tentative Non-confirmation,
or DHS Verification in Process.
- Employment Authorized means that the employee is authorized to
work in the United States.
- A result of Verification in Process means that an
employee's information did not match DHS records and DHS through
E-Verify will provide the employer with an update.
- Tentative Non-Confirmation does not necessarily mean that they
employee is ineligible to work. Employees can either accept the
result or contest it.
- Employees have the option to contest a Tentative
Non-Confirmation, and if they choose to contest, they will receive
an E-Verify generated referral letter to contact SSA or DHS within
8 federal business days.
- Employers cannot take unfavorable action against an
employee while he or she is contesting a Tentative Non-Confirmation
result. This means, employers cannot terminate, suspend or
withhold training. E-Verify will keep employers apprised of an
employee's case status.
- E-Verify will notify employers if an employee fails to contact
DHS or SSA within the allotted 8 days. The employer may then
terminate the individual's employment at that time without legal
consequence.
- If a Tentative Non-Confirmation result is received and the
employee chooses not to contest it, the employer may terminate the
employee without legal consequences.
- Once an employee has been verified, employers need to update
Section 3 of Form-I-9 and keep a copy of the completed
verification.
If you have questions about an E-Verify result or require
further guidance, please feel free to contact one of our employment
attorneys at 602-248-1000.
Helpful Tools
To register for E-Verify visit: www.dhs.gov/e-verify.
It will take at least one hour to complete the registration
and testing process.
To verify your company registration for E-Verify visit:
www.azag.gov/LegalAZWorkersAct/EVerify_All.pdf
To view the E-Verify Employer Users Manual:
www.uscis.gov/files/nativedocuments/E-Verify_Manual.pdf
About the author: Kraig J. Marton is an employment
attorney that heads the employment law department at the Phoenix
law firm of Jaburg Wilk. He assists employers in compliance
with Arizona labor laws.
3200 North Central Avenue
. Phoenix . Arizona