Alabama Employers Must Comply with E-Verify Rules of Use

By now, all Alabama employers must be enrolled in E-Verify to be compliant with Alabama’s immigration law. Enrollment is just the first step, however. Following E-Verify’s rules of use is a whole new ballgame.

I recently spoke at a legal conference for the Greater Pensacola Society of Human Resource Management regarding immigration worksite enforcement and E-Verify challenges. (I look for any excuse to go to the Gulf Coast.) Through the questions I received at the conference, I learned that many employers (in Alabama and elsewhere) are struggling with following the E-Verify rules.

And there is good reason for their confusion. I have heard other lawyers provide inaccurate information on this subject. For example, another lawyer told a group of employers that employers should E-Verify all existing employees (not just new hires) to make sure the employers’ workforces are authorized. Unless the existing employee is assigned to work on a qualifying federal contract, an employer is prohibited from E-Verifying existing employees.

The Verification Division of USCIS is monitoring E-Verify compliance by performing routine reviews of employers’ accounts. In other words, big brother is watching. Some of the more common rule violations or concerns that have been pointed out to employers via letters include:

•Failing to initiate E-Verify employment eligibility verification within three days of the hire date

•E-Verifying existing employees rather than new hires, unless authorized to do so

•Having an unusual number of Tentative Nonconfirmations (TNCs) that were uncontested by employees, which raises a suspicion of whether the employer is printing out the notices and allowing the employees to contest

•Verifying the same employee multiple times

•Failing to verify any employee for an unusual length of time, which might suggest that the employer is not verifying all new hires

In some of these cases, employers have been requested to contact the Verification Division through E-Verify@dhs.gov within a short time frame after receiving its letter. Misuse or violations of E-Verify rules of use may result in action by USCIS or trigger an audit by ICE.

Procedures for using E-Verify may be found in the E-Verify User Manual for Employers. Additional information may be found here.

If an Alabama Company has no employees should it enroll in E-Verify to be in compliance with Alabama’s Immigration Law?

The answer used to be murky.  However,  HB658 has narrowed the scope of the definition of the term “Business Entity” to include only entities that employ one or more persons.

This is an important change, because under HB56 it was unclear whether a company that had no employees was required to sign up and enroll in E-Verify. When we were studying HB56, Jeff Starling, our L&E Section Chief, said, “It appears that even my hunting ranch must sign up for E-Verify.”  At the time, our conclusion was yes, if you want to comply with HB56 then even if your business entity is a family trust, a hunting ranch, etc., that has no employees, you must enroll in E-Verify.  

This created a big problem for Alabama businesses, because it put us in the crosshairs of the E-Verify requirements. The E-Verify Memorandum of Understanding (“MOU”) speaks in terms of “Employer” not “Business Entity.” Careful reading of the MOU reveals that by enrolling in the program the Employer has to comply with a series of obligations like posting notices, taking tutorials, nor using E-Verify for any other purpose that is not authorized by the MOU.  In order to sign up for E-Verify you must provide information like your Employer Identification Number, number of employees and hiring sites where verification will occur.  All of these compliance requirements for business that did not have employees would have been extremely burdensome for Alabama companies.

Now, with HB658 this issue has been clarified and Jeff’s hunting ranch is no longer required to enroll in E-Verify until that time as he decides to hire one or more employees.

To Comply With Alabama’s Immigration Law, Should I Just Hire Citizens?

Should an employer just hire U.S. citizens to avoid any risk of violating the Alabama Immigration Act, HB 56?  It’s not a trick question.  The clear answer is “No!”

For fear of running afoul of  HB56, and all the penalties contained therein for employing an unauthorized worker, an Alabama employer may conclude it is just best to hire only U.S. citizens, since hiring individuals who are permanent residents or authorized aliens, for example, is too risky.  That conclusion would a mistake.

On one side of the coin, you have the federal and Alabama laws that prohibit the knowingly employment of unauthorized workers.  On the other side of the coin, however, is the  anti-discrimination law enforced by the U.S. Department of Justice, Office of Special Counsel of Immigration-Related Unfair Employment Practices (“OSC”).  An employer must balance on a tightrope between these two compliance issues.

The anti-discrimination law prohibits a policy of hiring U.S. citizens, unless that policy is specifically required by federal law.  (For example, federal law may require that only U.S. citizens may have jobs that involve sensitive government or security information.)

Other types of prohibited discrimination include:

  1. Demanding specific or additional documents from an employee instead of allowing the employee to present any of the documents listed on the acceptable list of documents for I-9 form completion.
  2. Refusing to hire workers who sound or appear foreign.
  3. Demanding that lawful permanent residents present new “green cards” when theirs expire but not demanding U.S. citizens to produce new documents when theirs expire.

And don’t think that employers who violate the anti-discrimination laws are not getting caught and fined.   The OSC has published several cases on its website.

I believe that the OSC has a careful eye on states such as Alabama that have passed their own immigration laws, because it knows that an employer’s initial instinct may be to go beyond the permissible federal boundaries in attempting to comply with state law.