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As of June 23, 2011, all cities, all counties, and private employers with at lest 25 employees in North Carolina are required to use the federal government’s E-Verify program to verify the work authorization of newly hired employees.
Public universities, community colleges and other North Carolina state agencies are already required to use E-Verify. The new statute applies to municipalities, counties and employers that employ 25 or more employees in North Carolina.

Timeline for employers to register and participate in E-Verify:

• October 1, 2011:  municipalities and counties in North Carolina.
• October 1 2012: Employers who employ 500 or more employees in North Carolina.
• January 1, 2013: Employers that employ 100 or more employees in North Carolina
• July 1, 2013: Employers that employ 25 or more employees in North Carolina

Employers with seasonal temporary employees who work fewer than 90 days in a consecutive 12-month period are excepted from compliance, and the law also does not apply to employers that employ fewer than 25 employees in North Carolina.

An employer covered by the Act will be required to enter a new hire’s information reported on the Form I-9, Employment Eligibility Verification, into the E-Verify program to determine the eligibility of that employee to work in the United States. An employer must retain the records of the verification of the employee’s work authorization during the length of that employee’s employment and for one year after the end of the employment period.

Any person who has a good faith belief that an employer is violating the requirement to use E-Verify may file a complaint with the North Carolina Commissioner of Labor. The complaint may be anonymous. The commissioner will investigate valid complaints and may issue subpoenas for employment records from the employer as part of this investigation.

For a first violation of the Act, the North Carolina Commissioner of Labor will order the employer to file a sworn affidavit within three business days after the determination that the employer has violated the Act. The employer must swear in the affidavit that it has consulted with the employee and requested a verification through E-Verify. Failure to timely file this affidavit subjects the employer to a $10,000 civil penalty. A second violation of the Act subjects the employer to an additional $1,000 civil penalty, and a third violation subjects the employer to a $2,000 civil penalty for each required employee verification that the employer failed to make. The Act contains a provision allowing an employer to appeal the commissioner’s determination that the employer has violated the Act.

 For more information about instituting an E-verify program, please call Donna Ray Chmura at 919-706-4200 or dchmura@sandsanderson.com

The new rule is applicable to Federal contractors and subcontractors who are awarded a contract, on or after September 8, 2009, which contains the Federal Acquisition Regulation (FAR) E-verify clause. These employers must enroll and begin using the E-verify program within 30 days of the contract award date.

Although there has been controversy surrounding the E-Verify program, the program is voluntarily used by many employers in an attempt to minimize liability. As of July 2009, USCIS reports that more than 148,000 employers used E-Verify to electronically verify their workers’ employment eligibility.

For more information on the E-Verify program, please contact our offices.

The I-9 system of employment verification, created by the Immigration Reform and Control Act of 1986, is the nation’s sole mandatory employment eligibility verification program. All U.S. employers are responsible for the completion and retention of Form I-9 for each individual hired for employment in the United States, including citizens and non-citizens.

This newest enforcement effort by ICE follows a recent Department of Homeland Security (DHS) announcement that ICE will focus its resources on criminal prosecution of employers who knowingly hire illegal workers and that the agency “will use all available tools, including civil fines and debarment, to penalize and deter illegal employment.”

“Knowingly hiring” can be a tricky legal concept. Employers can also be held liable if they had “constructive knowledge” that a worker wasn’t eligible for employment. Constructive knowledge means that the employer “should have known.” Constructive knowledge has been found where employers did not complete I-9 forms or completed I-9 forms incorrectly.

Many errors on forms result from inadvertent mistakes pertaining to preparation, storage, and retention that can result in civil fines, and even criminal charges. Civil fines for employers can range from $3200 (per violation) for a first offense to $16,000 (per violation) for a third or subsequent offense. All company representatives verifying employment eligibility of employees are potentially liable, both criminally and civilly, for errors in completing I-9 Forms.

So what can U.S. businesses do to mitigate exposure stemming from their I-9 programs? It is imperative, now more than ever, that employers implement I-9 Compliance Plans that include proper training, internal audits, and third-party audits. The voluntary E-Verify program (formerly the Basic Pilot/Employment Eligibility Verification Program), an online system operated jointly by the Department of Homeland Security and the Social Security Administration (SSA), also provides employers with a “safer harbor” within which to operate.

As of September 2008, 31,000 employers have voluntarily enrolled in the program. On June 6, 2008, President Bush issued Executive Order 13465 “Economy and Efficiency in Government Procurement through Compliance with Certain Immigration and Nationality Act Provisions and the Use of an Electronic Employment Eligibility Verification System,” This Executive order provides that “executive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the federal contract.”

The final rule was to be effective as of January 15, 2009. However, as mentioned above, the effective date of the new rule has been delayed several times and will now be effective September 8, 2009.

All employers, whether Federal Contractors or not, may enroll for E-Verify online at www.dhs.gov/E-Verify.

As of April 2009, 117,000 employers have voluntarily enrolled in the program, up from 9,300 in June 2006, according to US Citizenship and Immigration Services (USCIS). Despite its growth in popularity, E-Verify remains controversial. Many Security experts worry that E-Verify provides no greater security, business groups see it as costly, and labor and immigration advocates are concerned about negative effects on legal workers and the industries that employ them.

NEVA was born out of the E-Verify controversy and attempts to address some of E-Verify’s shortcomings. Under NEVA, employers would be able to confirm the work eligibility of U.S. citizens and non-citizens in more specific database-targeted ways. For U.S. citizens, employers would use the Social Security Administration database. For non-citizens, employers would use the U.S. Department of Homeland Security (DHS) database. Another interesting aspect of NEVA would be that employers could choose to utilize a biometrics option during the verification process.

With pressure for Immigration reform from the current administration and the ongoing E-Verify controversy, NEVA (or another new program) could replace E-Verify in the coming years. So, what do you all think? Should E-Verify live on?

Mandatory use of the controversial employment eligibility tool, E-Verify, by Federal contractors and subcontractors has been delayed until May 21, 2009. E-Verify is an internet based system for verifying employment eligibility.

For more information, please see my article and blog post on this issue.

U.S. Citizenship and Immigration Services (USCIS) announced last friday that it has delayed by 60 days, until April 3, 2009, the implementation of an interim final rule entitled “Documents Acceptable for Employment Eligibility Verification.” The new I-9 form, originally scheduled for implementation today, February 2, 2009, should not be used for employment eligibility verification until the final rule is implemented on April 3, 2009 (sans further delays).

For more information please see my previous blog post on this issue.

On June 6, 2008, President Bush issued Executive Order 13465 that required executive departments, agencies and federal contractors and subcontractors to use E-Verify exclusively as of January 15, 2009 to verify whether employees are actually eligible to work in the US. The mandatory use of E-Verify has been challenged in Chamber of Commerce of the United States of America v. Chertoff. The suit alleges mandatory use E-Verify violates the Illegal Immigration Reform and Immigrant Responsibility Act because the legislation authorizing E-Verify makes clear that participation in the system is voluntary.

The effective date of the Executive Order has been delayed from January 15, 2009 to February 20, 2009.