Concerned that E-Verify eventually might become mandatory for all employers, some U.S. employers are weighing the pros and cons of E-Verify to determine whether they should get used to the controversial verification system before federal legislation mandating its use by employers is enacted.

“It seems pretty clear that sooner or later E-Verify probably will become law” and mandatory for employers, not just federal contractors and employers subject to state laws requiring the use of E-Verify, according to David Grunblatt, an attorney with Proskauer Rose in Newark, N.J. On Sept. 21, 2011, the House Judiciary Committee approved legislation to phase out the paper-based Form I-9 and replace it with a modernized E-Verify system.

Some employers are choosing to “get ahead of the game” and use E-Verify voluntarily. Grunblatt said the system has improved. E-Verify “is not the same product that was out there three years ago,” he said.

As more states enact laws requiring the use of E-Verify, some companies are deciding to use E-Verify to show that they are good corporate citizens and to avoid worrying about whether state law requires its use.

For employers that want to start using E-Verify, Grunblatt recommended using it at one location first to get used to it there before expanding its use to other locations.

Pros

There are many advantages to employers using E-Verify, even when not required to by state or federal law, noted Bonnie Gibson, an attorney with Fragomen in Phoenix.

The pros include the way E-Verify:

• Reduces the risk of hiring undocumented workers.
• Provides a legal presumption of authorization and immunity from legal claims for employers that rely on it in good faith.
• Provides credibility in immigration audits and might be a factor in reducing fines for I-9 errors.
• Indicates good corporate citizenship.

Cons

On the flip side, Gibson noted that there remain disadvantages to using E-Verify in that it:

• Adds time and complexity to the I-9 process, increasing HR or outsourced services costs.
• Might increase turnover and recruiting costs because employers must keep employees with tentative nonconfirmations (TNCs) on the payroll during the TNC contest process.
• Can be a contentious subject of collective bargaining.
• Has not solved the identity theft issue.

“Indeed, you could argue that since it puts a premium on real identity information, it has increased the incidence of identity theft,” Gibson asserted. “I would like to see a comparative study of incidence of identity theft between an E-Verify state like Arizona and a more anti-E-Verify state like Illinois or California to test this hypothesis.”

For Hector Chichoni, an attorney with Duane Morris in Miami, the problems with E-Verify outweigh its advantages. “E-Verify remains a problematic and even a controversial program,” he said. “For the most part, federal contractors and subcontractors dislike having to use E-Verify—primarily because using E-Verify imposes real costs and administrative burdens.”

He added that many companies that have volunteered to use E-Verify also do not like it. He noted that “E-Verify technical problems have often caused delays in the hiring of employees because the federal contractor or subcontractor cannot obtain verification in a timely fashion.”

But Mira Mdivani, an attorney with the Mdivani Law Firm in Overland Park, Kan., said “the best solution will be to eliminate I-9s altogether and use E-Verify for all verification required by the Immigration Reform and Control Act.” She said that she does not “hear much grumbling from employers with federal contracts requiring E-Verify.”

Allen Smith, J.D., is SHRM’s manager of workplace law content.