Description: Law Firm Indianapolis - Ice Miller LLP

E-Verify: Is Your Company Required to Enroll?

With recent immigration developments on both the federal and state levels, employers should be aware of their continuing and evolving obligations. One particular area is E-Verify, a free, Internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration. Recent legislation has greatly expanded the types of employers now required to enroll in E-Verify, and there is potential for an even greater expansion. Below is a list of the reasons a company must enroll in E-Verify, reasons a company may want to enroll, even if it is not required to do so, and the general obligations for employers who enroll.

Your Company Must Enroll in E-Verify If . . .

1.      You entered into or modified a federal contract valued at $100,000 or more after September 8, 2009 and that contract has a performance period of 120 days or longer. (Contract for commercially-off-the-shelf (COTS) items items available commercially in substantial quantities in the same form or federal contracts where all work is to be performed outside of the U.S. are exempt.)

2.      You entered into or modified a subcontract to provide services or construction valued at $3,000 or more to a federal contractor after September 8, 2009 and the subcontract is necessary for the completion of a federal contract.

3.      You are an Indiana state agency or political subdivision and are hiring employees after June 30, 2011. (This includes not only traditional state agencies, such as, executive agencies, towns and counties, but also public universities and colleges.)

4.      You enter into a contract with an Indiana state agency or political subdivisions after June 30, 2011, or are a subcontractor providing services under such contracts.

5.      You are seeking a grant of more than $1,000 from the state of Indiana or a political subdivision after June 30, 2011.

6.      You do business in or enter into a contract in or with another state whose laws require that you enroll in E-Verify. (The states on this list continue to increase and the specific requirements vary greatly. The current list includes: Arizona, Mississippi, Colorado, Georgia, Missouri, Oklahoma, Nebraska, North Carolina, Rhode Island, Utah, Idaho, and Minnesota.) For information on E-Verify at the state level, please visit USCIS.

Your Company May Want to Voluntarily Enroll in E-Verify If . . .

1.      You are concerned about the accuracy of wage and tax reporting. E-Verify may help reduce the number of identity mismatches.

2.      You are concerned about Immigration and Customs Enforcement (ICE) audits or investigations. Enrollment in E-Verify may prove advantageous during such an audit or investigation.

3.      You hire a number of foreign nationals directly out of college or graduate school. Employers enrolled in E-Verify may be able to secure an additional 17 months of employment permission for foreign national graduates in science, technology, engineering or mathematics programs.

4.      You are concerned about hiring and training someone only to find out later that he or she is not authorized to work. E-Verify may help an employer by identifying early on whether an individual is unauthorized to work.

5.      You are an Indiana employer concerned about tax exemptions. Taxpayers (including individuals and corporations) are required to add back into gross income any trade or business deductions taken on their federal tax return for wages, reimbursements or other payments for services related to their employment of a person not authorized to work. In addition, taxpayers may not include any amount withheld from an unauthorized worker for services provided as an employee in calculating the Indiana Economic Development for a Growing Economy (EDGE) Tax Credit. However, if the business participates in E-Verify, the business is exempt from both.

6.      You are an Indiana employer concerned about unemployment insurance benefits. The Department of Workforce Development (DWD) may file civil actions for reimbursements for amounts paid as unemployment insurance benefits for unauthorized employees. DWD is prohibited from seeking reimbursement if the employer used E-Verify or if the undocumented worker was employed before July 1, 2011.

Your Obligations When You Enroll In E-Verify...

         If you are a Federal Contractor or Subcontractor you must verify the employment eligibility of ALL new hires AND must also verify the employment eligibility of ALL current employees hired after November 6, 1986, that are assigned to the federal contract or verify all employees in your workforce that were hired after November 6, 1986.

         If you are required to enroll in E-Verify pursuant to state law or choose to voluntarily enroll, you must verify the employment eligibility of all NEW employees only. You are prohibited from verifying the employment eligibility of your existing workforce under the state or voluntary enrollment provisions.

For additional information regarding E-Verify at the federal level, E-Verify at the state level, and I-9 Compliance and Social Security Mismatch Notices, please view our previous articles.

Please contact Lindsay Ramsey at lindsay.ramsey@icemiller.com or (317) 236-2301, Tami Earnhart at tami.earnhart@icemiller.com or (317) 236-2235, or Jenifer Brown at jenifer.brown@icemiller.com or (317) 236-2242 with any questions regarding E-Verify or other immigration-related matters.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.


June 22, 2011