E-Verify, the Internet-based system used to electronically verify the employment eligibility of newly hired and current employees, is now a mandatory requirement for companies to obtain contracts with the federal government and the State of Missouri. E-Verify is operated by the Department of Homeland Security in partnership with the Social Security Administration.
Any contract for services provided to the State of Missouri comes under the authority of these regulations. However, employers who have contracts only for providing goods or products to the state are not required to file the affidavit.
Employers use E-Verify by entering the Social Security numbers of prospective new hires and current employees. If there is a match, the employee is eligible for work. If not, the employee is advised to contact the Social Security Administration to determine the source of the problem.
Affidavit Required in Missouri
In Missouri, the Attorney General’s Office has imposed a specific requirement for a business entity to provide an affidavit when it submits a bid or response to a request for proposal (RFP) for any contract with the State of Missouri in excess of $5,000. (This also includes a business which receives a state-administered or subsidized tax credit, tax abatement or loan from the state valued at more than $5,000.) The affidavit must contain a statement that your business has enrolled in, and is currently participating in, E-Verify. These new Missouri state regulations also prohibit private and public employers and business entities from employing an unauthorized alien to perform work within Missouri.
Further, the affidavit required of Missouri contractors must include a notarized signature of the registered agent, legal representative of the business entity, or a corporate officer, including, but not limited to, the human resources director of the business entity or their equivalent. You must certify that your business does not knowingly employ any person who is an unauthorized alien in conjunction with the contracted services.
Missouri Time Guidelines
It is important to note specific time guidelines associated with these Missouri regulations. The use of E-Verify is not required for employers who only have pre-January 1, 2009, contracts. And, the electronic verification check is not required on an employee hired before January 1, 2009.
The new regulations also describe the procedure by which any state resident, state official or business can file a complaint with the Missouri Attorney General that an employer has knowingly employed, hired for employment or continued to employ an unauthorized alien to perform work in Missouri. Under these regulations, an employer will be required to provide “identify information” if so requested by the Missouri Attorney General. Under Missouri law, an employer can be subject to suspension of its business license or permits for violating these new rules. And, the state may withhold up to 25% of the total amount due to an employer under a state contract—as a penalty for violations of these immigration regulations.
Federal Challenge to E-Verify
The implementation of the E-Verify system for federal contractors has been controversial.
The United States Chamber of Commerce filed a lawsuit in federal court that attempted to block the mandatory E-Verify rule for federal contractors. In August 2009, the district court ruled in favor of the Department of Homeland Security and thus cleared the way for implementation of federal law requiring certain federal contractors and subcontractors to use E-Verify. The rule will only affect federal contractors who are awarded a new contract after September 8, 2009, that includes the Federal Acquisition Regulation (FAR) E-Verify clause.
As a participant in E-Verify, employers are required to verify all newly hired employees, both U.S. citizens and non-citizens. Employers may not verify selectively, and must verify all new hires while participating in the program. The program may not be used to prescreen applicants for employment, justify going back and checking employees hired before the company signed a Memorandum of Understanding, or re-verify employees who have temporary work authorization.
Illinois Law Ruled Invalid
The State of Illinois also mounted it own challenge to the E-Verify system.
However, on March 11, 2009, a federal district court judge ruled as unconstitutional an Illinois state law that had prohibited the use of E-Verify within the state. The case, entitled The United States of America vs. the State of Illinois, was originally filed on September 24, 2007. Brought by the Justice Department on behalf of the Department of Homeland Security, the civil suit was intended to preempt an Illinois state law that barred businesses from using E-Verify until the system was proven to be faster and more accurate. While the litigation was pending, the State of Illinois said it would not enforce the act.
Because of the decision in this case in March, there are no longer any state law restrictions on Illinois employers voluntarily using the E-Verify system.
E-Verify is free and available for determining employment eligibility of new hires and the validity of their Social Security Numbers. You can register for E-Verify at https://e-verify.uscis.gov/enroll/, which provides instructions for completing the registration process.